author:
Justice Marshall
      Justice O’Connor, Justice Scalia,

text:
    THOMPSON v. THOMPSON, aka CLAY
    No. 86-964.
    Argued October 6, 1987
    Decided January 12, 1988

      Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, and Stevens, JJ., joined, and in all but the first full paragraph of Part II of which O’Connor, J., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, post, p. 188. Scalia, J., filed an opinion concurring in the judgment, post, p. 188.

      Ronald W. Weiss argued the cause and filed a brief for petitioner.

      Kenneth Rigby argued the cause and filed briefs for respondent.

      Briefs of amici curiae urging reversal were filed for Sacramento County et al. by L. B. Elam, Steven M. Basha, Mark A. Wasser, Ann M. Haralambie, and DeWitt W. Clinton; and for the Women’s Legal Defense Fund et al. by Edward R. Leahy and Steven A. Fennell.

   Justice Marshall

delivered the opinion of the Court.

We granted certiorari in this case to determine whether the Parental Kidnaping Prevention Act of 1980, 28 U. S. C. § 1738A, furnishes an implied cause of action in federal court to determine which of two conflicting state custody decisions is valid.

I

The Parental Kidnaping Prevention Act (PKPA or Act) imposes a duty on the States to enforce a child custody determination entered by a court of a sister State if the determination is consistent with the provisions of the Act. In order for a state court’s custody decree to be consistent with the provisions of the Act, the State must have jurisdiction under its own local law and one of five conditions set out in § 1738A(c)(2) must be met. Briefly put, these conditions authorize the state court to enter a custody decree if the child’s home is or recently has been in the State, if the child has no home State and it would be in the child’s best interest for the State to assume jurisdiction, or if the child is present in the State and has been abandoned or abused. Once a State exercises jurisdiction consistently with the provisions of the Act, no other State may exercise concurrent jurisdiction over the custody dispute, § 1738A(g), even if it would have been empowered to take jurisdiction in the first instance, and all States must accord full faith and credit to the first State’s ensuing custody decree.

As the legislative scheme suggests, and as Congress explicitly specified, one of the chief purposes of the PKPA is to “avoid jurisdictional competition and conflict between State courts.” Pub. L. 96-611, 94 Stat. 3569, § 7(c)(5), note following 28 U. S. C. § 1738A. This case arises out of a jurisdictional stalemate that came to pass notwithstanding the strictures of the Act. In July 1978, respondent Susan Clay (then Susan Thompson) filed a petition in Los Angeles Superior Court asking the court to dissolve her marriage to petitioner David Thompson and seeking custody of the couple’s infant son, Matthew. The court initially awarded the parents joint custody of Matthew, but that arrangement became infeasible when respondent decided to move from California to Louisiana to take a job. The court then entered an order providing that respondent would have sole custody of Matthew once she left for Louisiana. This state of affairs was to remain in effect until the court investigator submitted a report on custody, after which the court intended to make a more studied custody determination. See App. 6.

Respondent and Matthew moved to Louisiana in December 1980. Three months later, respondent filed a petition in Louisiana state court for enforcement of the California custody decree, judgment of custody, and modification of petitioner’s visitation privileges. By order dated April 7, 1981, the Louisiana court granted the petition and awarded sole custody of Matthew to respondent. Two months later, however, the California court, having received and reviewed its investigator’s report, entered an order awarding sole custody of Matthew to petitioner. Thus arose the current impasse.

In August 1983, petitioner brought this action in the District Court for the Central District of California. Petitioner requested an order declaring the Louisiana decree invalid and the California decree valid, and enjoining the enforcement of the Louisiana decree. Petitioner did not attempt to enforce the California decree in a Louisiana state court before he filed suit in federal court. The District Court granted respondent’s motion to dismiss the complaint for lack of subject-matter and personal jurisdiction. Civ. Action No. 88-5221 (Apr. 10, 1984). The Court of Appeals for the Ninth Circuit affirmed. Although it disagreed with the District Court’s jurisdictional analyses, the Court of Appeals affirmed the dismissal of the complaint on the ground that petitioner had failed to state a claim upon which relief could be granted. 798 F. 2d 1547 (1986). Canvassing the background, language, and legislative history of the PKPA, the Court of Appeals held that the Act does not ere-ate a private right of action in federal court to determine the validity of two conflicting custody decrees. Id., at 1552-1559. We granted certiorari, 479 U. S. 1063 (1987), and we now affirm.

II

In determining whether to infer a private cause of action from a federal statute, our focal point is Congress’ intent in enacting the statute. As guides to discerning that intent, we have relied on the four factors set out in Cort v. Ash, 422 U. S. 66, 78 (1975), along with other tools of statutory construction. See Daily Income Fund, Inc. v. Fox, 464 U. S. 523, 535-536 (1984); California v. Sierra Club, 451 U. S. 287, 293 (1981); Touche Ross & Co. v. Redington, 442 U. S. 560, 575-576 (1979). Our focus on congressional intent does not mean that we require evidence that Members of Congress, in enacting the statute, actually had in mind the creation of a private cause of action. The implied cause of action doctrine would be a virtual dead letter were it limited to correcting drafting errors when Congress simply forgot to codify its evident intention to provide a cause of action. Rather, as an implied cause of action doctrine suggests, “the legislative history of a statute that does not expressly create or deny a private remedy will typically be equally silent or ambiguous on the question.” Cannon v. University of Chicago, 441 U. S. 677, 694 (1979). We therefore have recognized that Congress’ “intent may appear implicitly in the language or structure of the statute, or in the circumstances of its enactment.” Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 18 (1979). The intent of Congress remains the ultimate issue, however, and “unless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.” Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 94 (1981). In this case, the essential predicate for implication of a private remedy plainly does not exist. None of the factors that have guided our inquiry in this difficult area points in favor of inferring a private cause of action. Indeed, the context, language, and legislative history of the PKPA all point sharply away from the remedy petitioner urges us to infer.

We examine initially the context of the PKPA with an eye toward determining Congress’ perception of the law that it was shaping or reshaping. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 378 (1982); Cort v. Ash, supra, at 69. At the time Congress passed the PKPA, custody orders held a peculiar status under the full faith and credit doctrine, which requires each State to give effect to the judicial proceedings of other States, see U. S. Const., Art. IV, § 1; 28 U. S. C. § 1738. The anomaly traces to the fact that custody orders characteristically are subject to modification as required by the best interests of the child. As a consequence, some courts doubted whether custody orders were sufficiently “final” to trigger full faith and credit requirements, see, e. g., Hooks v. Hooks, 771 F. 2d 935, 948 (CA6 1985); McDougald v. Jenson, 596 F. Supp. 680, 684-685 (ND Fla. 1984), aff’d, 786 F. 2d 1465 (CA11), cert. denied, 479 U. S. 860 (1986), and this Court had declined expressly to settle the question. See Ford v. Ford, 371 U. S. 187, 192 (1962). Even if custody orders were subject to full faith and credit requirements, the Full Faith and Credit Clause obliges States only to accord the same force to judgments as would be accorded by the courts of the State in which the judgment was entered. Because courts entering custody orders generally retain the power to modify them, courts in other States were no less entitled to change the terms of custody according to their own views of the child’s best interest. See New York ex rel. Halvey v. Halvey, 330 U. S. 610, 614-615 (1947). For these reasons, a parent who lost a custody battle in one State had an incentive to kidnap the child and move to another State to relitigate the issue. This circumstance contributed to widespread jurisdictional deadlocks like this one, and more importantly, to a national epidemic of parental kidnaping. At the time the PKPA was enacted, sponsors of the Act estimated that between 25,000 and 100,000 children were kidnaped by parents who had been unable to obtain custody in a legal forum. See Parental Kidnaping Prevention Act of 1979: Joint Hearing on S. 105 before the Subcommittee on Criminal Justice of the Judiciary Committee and the Subcommittee on Child and Human Development of the Committee on Labor and Human Resources, 96th Cong., 2d Sess., 10 (1980) (hereinafter PKPA Joint Hearing) (statement of Sen. Malcolm Wallop).

A number of States joined in an effort to avoid these jurisdictional conflicts by adopting the Uniform Child Custody Jurisdiction Act (UCCJA), 9 U. L. A. §§ 1-28 (1979). The UCCJA prescribed uniform standards for deciding which State could make a custody determination and obligated enacting States to enforce the determination made by the State with proper jurisdiction. The project foundered, however, because a number of States refused to enact the UCCJA while others enacted it with modifications. In the absence of uniform national standards for allocating and enforcing custody determinations, noncustodial parents still had reason to snatch their children and petition the courts of any of a number of haven States for sole custody.

The context of the PKPA therefore suggests that the principal problem Congress was seeking to remedy was the inapplicability of full faith and credit requirements to custody determinations. Statements made when the Act was introduced in Congress forcefully confirm that suggestion. The sponsors and supporters of the Act continually indicated that the purpose of the PKPA was to provide for nationwide enforcement of custody orders made in accordance with the terms of the UCCJA. As Acting Deputy Attorney General Michel testified:

“[CJurrent law in many States encourages a parent who does not have custody to snatch the child from the parent who does and take the child to another State to relitigate the custody issue in a new forum. This kind of ‘forum shopping’ is possible because child custody orders are subject to modification to conform with changes in circumstances. Consequently, a court deciding a custody case is not, as a Federal constitutional requirement of the full faith and credit clause, bound by a decree by a court of another State even where the action involves the same parties.
“In essence [the PKPA] would impose on States a Federal duty, under enumerated standards derived from the UCCJA, to give full faith and credit to the custody decrees of other States. Such legislation would, in effect, amount to Federal adoption of key provisions of the UCCJA for all States and would eliminate the incentive for one parent to remove a minor child to another jurisdiction.” PKPA Joint Hearing 48.

The significance of Congress’ full faith and credit approach to the problem of child snatching is that the Full Faith and Credit Clause, in either its constitutional or statutory incarnations, does not give rise to an implied federal cause of action. Minnesota v. Northern Securities Co., 194 U. S. 48, 72 (1904); see 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3563, p. 50 (1984). Rather, the Clause “only prescribes a rule by which courts, Federal and state, are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a State other than that in which the court is sitting.” Northern Securities, supra, at 72. Because Congress’ chief aim in enacting the PKPA was to extend the requirements of the Full Faith and Credit Clause to custody determinations, the Act is most naturally construed to furnish a rule of decision for courts to use in adjudicating custody disputes and not to create an entirely new cause of action. It thus is not compatible with the purpose and context of the legislative scheme to infer a private cause of action. See Cort v. Ash, 422 U. S., at 78.

The language and placement of the statute reinforce this conclusion. The PKPA, 28 U. S. C. § 1738A, is an addendum to the full faith and credit statute, 28 U. S. C. § 1738. This fact alone is strong proof that the Act is intended to have the same operative effect as the full faith and credit statute. Similarly instructive is the heading to the PKPA: “Full faith and credit given to child custody determinations.” As for the language of the Act, it is addressed entirely to States and state courts. Unlike statutes that explicitly confer a right on a specified class of persons, the PKPA is a mandate directed to state courts to respect the custody decrees of sister States. See Cannon v. University of Chicago, 441 U. S., at 690, n. 13; Cort v. Ash, supra, at 81-82. We agree with the Court of Appeals that “[i]t seems highly unlikely Congress would follow the pattern of the Full Faith and Credit Clause and section 1738 by structuring section 1738A as a command to state courts to give full faith and credit to the child custody decrees of other states, and yet, without comment, depart from the enforcement practice followed under the Clause and section 1738.” 798 F. 2d, at 1556.

Finally, the legislative history of the PKPA provides unusually clear indication that Congress did not intend the federal courts to play the enforcement role that petitioner urges. Two passages are particularly revealing. The first of these is a colloquy between Congressmen Conyers and Fish. Congressman Fish had been the sponsor of a competing legislative proposal — ultimately rejected by Congress — that would have extended the district courts’ diversity jurisdiction to encompass actions for enforcement of state custody orders. In the following exchange, Congressman Conyers questioned Congressman Fish about the differences between his proposal and “the Bennett proposal,” which was a precursor to the PKPA.

“Mr. Conyers: Could I just interject, the difference between the Bennett proposal and yours: You would have, enforcing the full faith and credit provision, the parties removed to a Federal court. Under the Bennett provision, his bill would impose the full faith and credit enforcement on the State court.
“It seems to me that that is a very important difference. The Federal jurisdiction, could it not, Mr. Fish, result in the Federal court litigating between two State court decrees; whereas, in an alternate method previously suggested, we would be imposing the responsibility of the enforcement upon the State court, and thereby reducing, it seems to me, the amount of litigation.
“Do you see any possible merit in leaving the enforcement at the State level, rather than introducing the Federal judiciary?
“Mr. Fish: Well, I really think that it is easier on the parent that has custody of the child to go to the nearest Federal district court....
“Mr. Conyers: Of course you know that the Federal courts have no experience in these kinds of matters, and they would be moving into this other area. I am just thinking of the fact that they have [many areas of federal concern and] on the average of a 21-month docket, you would now be imposing custody matters which it seems might be handled in the courts that normally handle that. . . Parental Kidnaping: Hearing on H. R. 1290 before the Subcommittee on Crime of the House Committee on the Judiciary, 96th Cong., 2d Sess., 14 (1980).

This exchange suggests that Congress considered and rejected an approach to the problem that would have resulted in a “Federal court litigating between two State court decrees.” Ibid.

The second noteworthy entry in the legislative history is a letter from then Assistant Attorney General Patricia Wald to the Chairman of the House Judiciary Committee, which was referred to extensively during the debate on the PKPA. The letter outlined a variety of solutions to the child-snatching problem. It specifically compared proposals that would “grant jurisdiction to the federal courts to enforce state custody decrees” with an approach, such as was proposed in the PKPA, that would “impose on states a federal duty, under enumerated standards derived generally from the UCCJA, to give full faith and credit to the custody decrees of other states.” Addendum to Joint Hearing 103. The letter endorsed the full faith and credit approach that eventually was codified in the PKPA. More importantly, it “strongly oppose[d]. . . the creation of a federal forum for resolving custody disputes.” Id., at 108. Like Congressman Conyers, the Justice Department reasoned that federal enforcement of state custody decrees would increase the workload of the federal courts and entangle the federal judiciary in domestic relations disputes with which they have little experience and which traditionally have been the province of the States. That the views of the Justice Department and Congressman Conyers prevailed, and that Congress explicitly opted for a full faith and credit approach over reliance on enforcement by the federal courts, provide strong evidence against inferring a federal cause of action. Cf. Cort v. Ash, 422 U. S., at 82 (congressional determination not to create a private cause of action is dispositive).

Petitioner discounts these portions of the legislative history. He argues that the cause of action that he asks us to infer arises only in cases of an actual conflict between two state custody decrees, and thus is substantially narrower than the cause of action proposed by Congressman Fish and rejected by Congress. The Fish bill would have extended federal diversity jurisdiction to permit federal courts to enforce custody orders in the first instance, before a second State had created a conflict by refusing to do so. This cause of action admittedly is farther reaching than that which we reject today. But the considerations that prompted Congress to reject the Fish bill also militate against the more circumscribed role for the federal courts that petitioner proposes. See Rogers v. Platt, 259 U. S. App. D. C. 154, 164, 814 F. 2d 683, 693 (1987). Instructing the federal courts to play Solomon where two state courts have issued conflicting custody orders would entangle them in traditional state-law questions that they have little expertise to resolve. This is a cost that Congress made clear it did not want the PKPA to carry.

In sum, the context, language, and history of the PKPA together make out a conclusive case against inferring a cause of action in federal court to determine which of two conflicting state custody decrees is valid. Against this impressive evidence, petitioner relies primarily on the argument that failure to infer a cause of action would render the PKPA nugatory. We note, as a preliminary response, that ultimate review remains available in this Court for truly intractable jurisdictional deadlocks. In addition, the unspoken presumption in petitioner’s argument is that the States are either unable or unwilling to enforce the provisions of the Act. This is a presumption we are not prepared, and more importantly, Congress was not prepared, to indulge. State courts faithfully administer the Full Faith and Credit Clause every day; now that Congress has extended full faith and credit requirements to child custody orders, we can think of no reason why the courts’ administration of federal law in custody disputes will be any less vigilant. Should state courts prove as obstinate as petitioner predicts, Congress may choose to revisit the issue. But any more radical approach to the problem will have to await further legislative action; we “will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide.” California v. Sierra Club, 451 U. S. 287, 297 (1981). The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice O’Connor,

concurring in part and concurring in the judgment.

For the reasons expressed by Justice Scalia in Part I of his opinion in this case, I join all but the first full paragraph of Part II of the Court’s opinion and judgment.

Justice Scalia,

concurring in the judgment.

I write separately because in my view the Court is not being faithful to current doctrine in its dicta denying the necessity of an actual congressional intent to create a private right of action, and in referring to Cort v. Ash, 422 U. S. 66 (1975), as though its analysis had not been effectively overruled by our later opinions. I take the opportunity to suggest, at the same time, why in my view the law revision that the Court’s dicta would undertake moves in precisely the wrong direction.

I

I agree that the Parental Kidnaping Prevention Act, 28 U. S. C. § 1738A, does not create a private right of action in federal court to determine which of two conflicting child custody decrees is valid. I disagree, however, with the portion of the Court’s analysis that flows from the following statement:

“Our focus on congressional intent does not mean that we require evidence that Members of Congress, in enacting the statute, actually had in mind the creation of a private cause of action.” Ante, at 179.

I am at a loss to imagine what congressional intent to create a private right of action might mean, if it does not mean that Congress had in mind the creation of a private right of action. Our precedents, moreover, give no indication of a secret meaning, but to the contrary seem to use “intent” to mean “intent.” For example:

“[T]he focus of the inquiry is on whether Congress intended to create a remedy. Universities Research Assn., Inc. v. Coutu, 450 U. S., at 771-772; Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. at 23-24; Touche Ross & Co. v. Redington, [442 U. S.], at 575-576. The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide.” California v. Sierra Club, 451 U. S. 287, 297 (1981) (White, J.).

We have said, to be sure, that the existence of intent may be inferred from various indicia; but that is worlds apart from today’s Delphic pronouncement that intent is required but need not really exist.

I also find misleading the Court’s statement that, in determining the existence of a private right of action, “we have relied on the four factors set out in Cort v. Ash, . . . along with other tools of statutory construction.” Ante, at 179. That is not an accurate description of what we have done. It could not be plainer that we effectively overruled the Cort v. Ash analysis in Touche Ross & Co. v. Redington, 442 U. S. 560, 575-576 (1979), and Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 18 (1979), converting one of its four factors (congressional intent) into the determinative factor, with the other three merely indicative of its presence or absence. Compare Cort v. Ash, supra, at 78, with Transamerica, supra, at 23-24.

Finally, the Court’s opinion conveys a misleading impression of current law when it proceeds to examine the “context” of the legislation for indication of intent to create a private right of action, after having found no such indication in either text or legislative history. In my view that examination is entirely superfluous, since context alone cannot suffice. We have held context to be relevant to our determination in only two cases — both of which involved statutory language that, in the judicial interpretation of related legislation prior to the subject statute’s enactment, or of the same legislation prior to its reenactment, had been held to create private rights of action. See Cannon v. University of Chicago, 441 U. S. 677 (1979); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353 (1982). Since this is not a case where such textual support exists, or even where there is any support in legislative history, the “context” of the enactment is immaterial.

Contrary to what the language of today’s opinion suggests, this Court has long since abandoned its hospitable attitude towards implied rights of action. In the 23 years since Justice Clark’s opinion for the court in J. I. Case Co. v. Borak, 377 U. S. 426 (1964), we have twice narrowed the test for implying a private right, first in Cort v. Ash, supra, itself, and then again in Touche Ross & Co. v. Redington, supra, and Transamerica Mortgage Advisers, Inc. v. Lewis, supra. See also Cannon v. University of Chicago, supra, at 730 (Powell, J., dissenting), and California v. Sierra Club, supra, at 301 (Rehnquist, J., joined by Burger, C. J., and Stewart and Powell, JJ., concurring). The recent history of our holdings is one of repeated rejection of claims of an implied right. This has been true in 9 of 11 recent private right of action cases heard by this Court, including the instant case. See Touche Ross, supra; Transamerica, supra; Universities Research Assn., Inc. v. Coutu, 450 U. S. 754 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 91-94 (1981); California v. Sierra Club, supra; Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 639-640 (1981); Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 13-18 (1981); Daily Income Fund, Inc. v. Fox, 464 U. S. 523, 535-536 (1984); and Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 145-148 (1985). But see Merrill Lynch, supra, and Cannon, supra. The Court’s opinion exaggerates the difficulty of establishing an implied right when it surmises that “[t]he implied cause of action doctrine would be a virtual dead letter were it limited to correcting drafting errors when Congress simply forgot to codify its evident intention to provide a cause of action.” Ante, at 179. That statement rests upon the erroneous premise that one never implies anything except when he forgets to say it expressly. It is true, however, that the congressional intent test for implying private rights of action as it has evolved since the repudiation of Cort v. Ash is much more stringent than the Court’s dicta in the present case suggest.

II

I have found the Court’s dicta in the present case particularly provocative of response because it is my view that, if the current state of the law were to be changed, it should be moved in precisely the opposite direction — away from our current congressional intent test to the categorical position that federal private rights of action will not be implied.

As Justice Powell observed in his dissent in Cannon, supra, at 730-731:

“Under Art. Ill, Congress alone has the responsibility for determining the jurisdiction of the lower federal courts. As the Legislative Branch, Congress also should determine when private parties are to be given causes of action under legislation it adopts. As countless statutes demonstrate, including Titles of the Civil Rights Act of 1964, Congress recognizes that the creation of private actions is a legislative function and frequently exercises it. When Congress chooses not to provide a private civil remedy, federal courts should not assume the legislative role of creating such a remedy and thereby enlarge their jurisdiction.” (Footnote omitted.)

It is, to be sure, not beyond imagination that in a particular case Congress may intend to create a private right of action, but chooses to do so by implication. One must wonder, however, whether the good produced by a judicial rule that accommodates this remote possibility is outweighed by its adverse effects. An enactment by implication cannot realistically be regarded as the product of the difficult lawmaking process our Constitution has prescribed. Committee reports, floor speeches, and even colloquies between Congressmen, ante, at 184-185, are frail substitutes for bicameral vote upon the text of a law and its presentment to the President. See generally INS v. Chadha, 462 U. S. 919 (1983). It is at best dangerous to assume that all the necessary participants in the law-enactment process are acting upon the same unexpressed assumptions. And likewise dangerous to assume that, even with the utmost self-discipline, judges can prevent the implications they see from mirroring the policies they favor.

I suppose all this could be said, to a greater or lesser degree, of all implications that courts derive from statutory language, which are assuredly numerous as the stars. But as the likelihood that Congress would leave the matter to implication decreases, so does the justification for bearing the risk of distorting the constitutional process. A legislative act so significant, and so separable from the remainder of the statute, as the creation of a private right of action seems to me so implausibly left to implication that the risk should not be endured.

If we were to announce a flat rule that private rights of action will not be implied in statutes hereafter enacted, the risk that that course would occasionally frustrate genuine legislative intent would decrease from its current level of minimal to virtually zero. It would then be true that the opportunity for frustration of intent “would be a virtual dead letter[,]. . . limited to . .. drafting errors when Congress simply forgot to codify its . . . intention to provide a cause of action.” Ante, at 179. I believe, moreover, that Congress would welcome the certainty that such a rule would produce. Surely conscientious legislators cannot relish the current situation, in which the existence or nonexistence of a private right of action depends upon which of the opposing legislative forces may have guessed right as to the implications the statute will be found to contain.

If a change is to be made, we should get out of the business of implied private rights of action altogether.

       Section 1738A reads in relevant part:
      “(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.
      “(c) A child custody determination made by a court of a State is consistent with the of this section only if—
      “(1) such court has jurisdiction under the law of such state; and
      “(2) one of the following conditions is met:
      “(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
      “(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
      “(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
      “(D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
      “(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
      “(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
      “(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
      “(1) it has jurisdiction to make such a child custody determination; and
      “(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
      “(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.”

       The sole exception to this constraint occurs where the first State either has lost jurisdiction or has declined to exercise continuing jurisdiction. See § 1738A(f).

       Mr. Michel’s remarks are echoed in numerous other portions of the legislative history. See, e. g., PKPA Joint Hearing 40-41 (statement of Sen. Durenberger); id., at 12 (statement of Sen. Wallop); PKPA: Addendum to Joint Hearing on S. 105 before the Subcommittee on Criminal Justice of the Committee on the Judiciary and the Subcommittee on Child and Human Development of the Committee on Labor and Human Resources, 96th Cong., 2d Sess., 104-105 (1980) (hereinafter Addendum to Joint Hearing) (letter from Assistant Attorney General Patricia Wald to Rep. Peter Rodino).

       Petitioner argues that determining which of two conflicting custody decrees should be given effect under the PKPA would not require the federal courts to resolve the merits of custody disputes and thus would not offend the longstanding tradition of reserving domestic relations matters to the States. Petitioner contends that the cause of action he champions would require federal courts only to analyze which of two States is given exclusive jurisdiction under a federal statute, a task for which the federal courts are well qualified. We cannot agree with petitioner that making a jurisdictional determination under the PKPA would not involve the federal courts in substantive domestic relations determinations. Under the Act, jurisdiction can turn on the child’s “best interest” or on proof that the child has been abandoned or abused. See §§ 1738A (c)(2)(B), (C), and (D). In fact, it would seem that the jurisdictional disputes that are sufficiently complicated as to have provoked conflicting state-court holdings are the most likely to require resolution of these traditional domestic relations inquiries. See Rogers v. Platt, 259 U. S. App. D. C. 154, 162, 814 F. 2d 683, 691 (1987). Cf. Cort v. Ash, 422 U. S. 66, 84 (1975) (possibility that implied federal cause of action may in certain instances turn on state-law issues counsels against inferring such an action.)

       Moreover, petitioner’s argument serves to underscore the extraordinary nature of the cause of action he urges us to infer. Petitioner essentially asks that federal district courts exercise appellate review of state-court judgments. This is an unusual cause of action for Congress to grant, either expressly or by implication. Petitioner’s proposal is all the more remarkable in the present case, in which he seeks to have a Federal District Court in California enjoin enforcement of a Louisiana state-court judgment before the intermediate and highest appellate courts of Louisiana even have had an opportunity to review that judgment.


source: Caselaw Access Project

author: Justice Blackmun Justice White,

license: Public Domain

text:
    DEAKINS et al. v. MONAGHAN et al.
    No. 86-890.
    Argued October 14, 1987
    Decided January 12, 1988

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Stevens, and Scalia, JJ., joined. White, J., filed a concurring opinion, in which O’Connor, J., joined, post, p. 205.

      Larry R. Etzweiler, Deputy Attorney General of New Jersey, argued the cause for petitioners. With him on the briefs were W. Cary Edwards, Attorney General, and Allan J. Nodes and Steven Pasternak, Deputy Attorneys General.

      Edward N. Fitzpatrick argued the cause for respondents. With him on the brief were Patrick T. McGahn, Jr., Robert J. Fettweis, and Kathy M. Hooke

        Frank Askin, Eric Neisser, and John A. Powell filed a brief for the American Civil Liberties Union Foundation et al. as amici curiae urging affirmance.

   Justice Blackmun

delivered the opinion of the Court.

This case presents questions concerning a federal court’s obligation to abstain from the adjudication of federal claims arising out of an ongoing state grand jury investigation. We granted certiorari, 479 U. S. 1063 (1987), to consider whether the District Court, under Younger v. Harris, 401 U. S. 37 (1971), was required to abstain from adjudicating respondents’ claims for injunctive relief, and, if so, whether the court had the discretion to dismiss, rather than to stay, respondents’ additional claims for damages and attorney’s fees. Because we have concluded that the first issue is now moot, we vacate that portion of the Court of Appeals’ judgment and remand with directions to dismiss all claims for equitable relief. We affirm, however, the remaining portion of the Court of Appeals’ judgment reversing the District Court’s dismissal of respondents’ claims for monetary relief.

Respondents William Monaghan, Theodore DeSantis, and John James are in the construction business together. They jointly own respondents Foundations & Structures, Inc. (F & S), and MJD Construction Company, Inc., New Jersey corporations, and William E. Monaghan Associates, a New Jersey general partnership. On October 4, 1984, petitioner Albert G. Palentchar, a criminal investigator for the State of New Jersey, applied to the Honorable Samuel T. Lenox, Jr., the “assignment judge” of the Superior Court for Mercer County with supervisory authority over the state grand jury, for a warrant to search the Tuckahoe, N. J., premises of F & S for evidence of theft, bribery, records tampering, and other criminal activities that were the subject of an ongoing state grand jury investigation. Judge Lenox found probable cause and issued a warrant authorizing the seizure of documents, including contracts, minutes, site logs, invoices, correspondence, memoranda, deeds, canceled checks, and bank statements. The validity of this warrant has not been contested.

The following morning, Palentchar and eight other New Jersey law enforcement officers, all petitioners here, executed the warrant. The search lasted approximately eight hours. In their federal complaint, respondents allege that, in addition to seizing hundreds of documents, petitioners barricaded the sole exit from the premises, searched all departing vehicles, recorded the serial numbers on F & S machinery, detained in one room all persons on the premises at the time of the search until they produced identification, threatened to tear apart respondents’ homes if the documents were not discovered, and engaged in a number of other unlawful activities. See Complaint in No. 84-5369 (D NJ), pp. 7-9, 10. The execution of the warrant gave rise to the federal litigation now before us.

Respondents’ attorneys arrived while the search was in progress and challenged the adequacy under New Jersey law of the inventory procedure. To resolve the dispute, respondents’ counsel and petitioner Deakins telephoned Judge Lenox, who ordered all seized materials sealed pending his assessment of the procedure. Ten days later, on October 15, 1984, New Jersey’s Deputy Attorney General Julian Wilsey invited respondents’ counsel to examine the documents under seal and to copy whatever documents respondents needed in order to continue the conduct of their business. General Wilsey also informed respondents’ counsel that the State was prepared to return any documents discovered that exceeded the scope of the warrant. In the course of this examination, counsel identified numerous documents that they contended were either outside the scope of the warrant or protected by the attorney-client or attorney-work-product privilege. The State disagreed, and the disputed documents were resealed under the authority of Judge Lenox’s original sealing order.

On December 27, while the documents were still under seal, respondents instituted this civil rights action under 42 U. S. C. § 1983 in the United States District Court for the District of New Jersey. Respondents sought equitable relief, including the return of all documents seized, and, as well, compensatory and punitive damages for the alleged violations of their rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments, and attorney’s fees. Respondents also asserted certain pendent state claims for trespass, conversion, unlawful confinement, and the intentional or reckless infliction of emotional distress. Prior to filing an answer, petitioners moved to dismiss the complaint, arguing that the existence of an ongoing state grand jury investigation required the federal court to abstain from adjudicating disputes arising out of that investigation. Respondents countered with a motion for a preliminary injunction directing the return of the documents.

While all this was taking place in federal court, Judge Lenox, at the State’s behest, entered an ex parte order directing respondents to show cause why he should not lift the seal and make the documents available to the state officials conducting the grand jury investigation. Three days before the scheduled hearing on that order to show cause, the District Court issued a temporary restraining order staying discovery in the federal action and directing the State not to lift the seal before the District Court disposed of the motions pending before it. Several months later, on August 6, 1985, the District Court granted petitioners’ motion to dismiss on abstention grounds and denied respondents’ motion for a preliminary injunction. App. to Pet. for Cert. 5a.

On appeal, the Court of Appeals for the Third Circuit affirmed the District Court’s denial of the preliminary injunction but reversed the judgment dismissing the complaint. 798 F. 2d 632 (1986). A divided panel ruled that the abstention doctrine pronounced in Younger v. Harris, 401 U. S. 37 (1971), and its progeny did not require the District Court to abstain from adjudicating respondents’ claims for injunctive relief arising out of the ongoing state grand jury investigation. The panel was unanimous, however, in reversing the District Court’s dismissal of respondents’ claims for money damages and attorney’s fees. Relying on Circuit precedent, the Court of Appeals held that, even when abstaining entirely from the adjudication of equitable claims, a district court was required to stay rather than to dismiss federal claims that were not cognizable in the state forum in which the companion equitable claims were being adjudicated. 798 F. 2d, at 635-636, citing Crane v. Fauver, 762 F. 2d 325, 328-329 (CA3 1985); Williams v. Red Bank Bd. of Ed., 662 F. 2d 1008, 1022-1024 (CA3 1981). The Court of Appeals noted that the availability of a separate state forum in which the monetary claims could be brought did nothing to lessen the District Court’s obligation to retain jurisdiction over the claims properly before it. 798 F. 2d, at 635-636. The court remanded the case for further proceedings.

After the Court of Appeals rendered its judgment, the state grand jury returned an indictment against three of the respondents — Monaghan, DeSantis, and F & S — and against others not parties to the present federal action. None of the seized documents had ever been submitted to the indicting grand jury, and the contested documents were still under seal at the time the indictment was returned. The Superior Court of New Jersey, Law Division, Cumberland County, to which the indictment was assigned for trial, took jurisdiction over respondents’ equitable claims for the return of the seized documents. See Memorandum for Respondents Suggesting that Cause is Moot 3. The Superior Court has since held that certain documents were seized in violation of the attorney-client privilege and has ordered their return. See Tr. of Oral Arg. 22-23. Still pending before that court are motions seeking the return of other documents seized. See id., at 23. In light of these developments, all six respondents represent, through common counsel, that they do not wish to pursue their claims for equitable relief in federal court. Id., at 22-25. They wish to withdraw these claims from their federal complaint and seek injunctive relief exclusively in the state proceedings initiated by the indictment. Respondents also represent that, if the complaint were remanded to the District Court, they would seek a stay of all federal proceedings on the damages claims pending resolution of the state proceedings. Id., at 22, 25; Memorandum for Respondents Suggesting that Cause is Moot 4.

I-H ( — I

Article III of the Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants. Preiser v. Newkirk, 422 U. S. 395, 401 (1975); SEC v. Medical Committee for Human Rights, 404 U. S. 403, 407 (1972). It is not enough that a controversy existed at the time the complaint was filed, and continued to exist when review was obtained in the Court of Appeals. Sosna v. Iowa, 419 U. S. 393, 402 (1975); Steffel v. Thompson, 415 U. S. 452, 459, n. 10 (1974). In the case now before us, respondents state that they no longer seek any equitable relief in federal court. Because there no longer is a live controversy between the parties over whether a federal court can hear respondents’ equitable claims, the first question on which certiorari was granted is moot.

Petitioners, however, object that respondents’ promise to amend their complaint is an empty one, because nothing will prevent respondents, particularly those not indicted, from nullifying that amendment by further amendment or from filing a new complaint if they are dissatisfied with the relief obtained in the state criminal proceeding. Petitioners also express concern that respondents will raise only some of their equitable claims in the state proceeding, thus preserving the option of pursuing the remaining claims in federal court. If respondents return to federal court while the grand jury investigation is still in progress, petitioners argue, the District Court would be bound by the decision of the Court of Appeals in this case and would refuse to abstain. To prevail on the abstention question, petitioners would then have to appeal to the very court that already had decided the question against them and ultimately petition successfully again for certiorari. Even then, petitioners suggest, respondents could use the same ploy once more to deprive this Court of jurisdiction. According to petitioners, this potential for manipulation renders the case “capable of repetition, yet evading review,” and should therefore shield it from a conclusion of mootness. See Murphy v. Hunt, 455 U. S. 478, 482 (1982).

Petitioners misconceive the effect respondents’ representations and our reliance thereon will have on the shape of the federal litigation. When a claim is rendered moot while awaiting review by this Court, the judgment below should be vacated with directions to the District Court to dismiss the relevant portion of the complaint. See United States v. Munsingwear, Inc., 340 U. S. 36, 39-40 (1950). This disposition strips the decision below of its binding effect. And respondents can be prevented from reviving their claims by the order of dismissal. Because this case was rendered moot in part by respondents’ willingness permanently to withdraw their equitable claims from their federal action, a dismissal with prejudice is indicated. This will prevent the regeneration of the controversy by a reassertion of a right to litigate the equitable claims in federal court. Relying upon the representations of respondents’ counsel at oral argument that all six respondents have no continuing interest in the federal adjudication of their claims for equitable relief, the equitable claims of all respondents should be dismissed with prejudice. Respondents therefore will be barred from reviving in federal court their equitable claims against petitioners arising out of the events surrounding the execution of the search warrant.

Ill

Our conclusion that the issue concerning respondents’ equitable claims is now moot does not prevent our consideration of the propriety of the District Court’s dismissal of respondents’ claims for monetary relief. See University of Texas v. Camenisch, 451 U. S. 390, 393 (1981); Powell v. McCormack, 395 U. S. 486, 495-500 (1969). Respondents continue to press their claims for damages and attorney’s fees. They state, however, that they will seek a stay of federal proceedings on these claims pending resolution of the state proceeding. Tr. of Oral Arg. 25; Memorandum for Respondents Suggesting that Cause is Moot 4.

Petitioners argue that the Younger doctrine — which requires a federal court to abstain where a plaintiff's federal claims could be adjudicated in a pending state judicial proceeding — applies to complaints seeking only monetary relief. Petitioners further argue that it is within the District Court’s discretion to dismiss rather than stay a federal complaint for damages and fees where abstention is required. We need not decide the extent to which the Younger doctrine applies to a federal action seeking only monetary relief, however, because even if the Younger doctrine requires abstention here, the District Court has no discretion to dismiss rather than to stay claims for monetary relief that cannot be redressed in the state proceeding.

In reversing the District Court’s dismissal of the claims for damages and attorney’s fees, the Court of Appeals applied the Third Circuit rule that requires a District Court to stay rather than dismiss claims that are not cognizable in the parallel state proceeding. 798 F. 2d, at 635, citing Crane v. Fauver, 762 F. 2d 325 (1985), and Williams v. Red Bank Bd. of Ed., 662 F. 2d 1008 (1981). The Third Circuit rule is sound. It allows a parallel state proceeding to go forward without interference from its federal sibling, while enforcing the duty of federal courts “to assume jurisdiction where jurisdiction properly exists.” Id., at 1024. This Court repeatedly has stated that the federal courts have a “virtually unflagging obligation” to exercise their jurisdiction except in those extraordinary circumstances “ ‘where the order to the parties to repair to the State court would clearly serve an important countervailing interest.’” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 813, 817 (1976), quoting County of Allegheny v. Frank Mashuda Co., 360 U. S. 185, 188-189 (1959); see also Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 14-15 (1983).

We are unpersuaded by petitioners’ suggestion that this case presents such extraordinary circumstances. First, petitioners’ speculation that the District Court, if allowed to retain jurisdiction, would “hover” about the state proceeding, ready to lift the stay whenever it concluded that things were proceeding unsatisfactorily, is groundless. Petitioners seem to assume that the District Court would not hold up its end of the comity bargain — an assumption as inappropriate as the converse assumption that the States cannot be trusted to enforce federal rights with adequate diligence. See Stone v. Powell, 428 U. S. 465, 493-494, n. 35 (1976).

Second, petitioners’ contention that Pennhurst State School and Hospital v. Halderman, 465 U. S. 89 (1984), prevents the District Court from adjudicating respondents’ claims under state law does not argue for the dismissal of all of respondents’ damages claims, state and federal. Petitioners seem to suggest that the state-law claims predominate in the complaint, and the federal claims are minimal additions not substantial enough to require the District Court to exercise its jurisdiction. Saying nothing about the applicability of Penn hurst to the particular state-law claims alleged in respondents’ complaint, we note that a sizable portion of the relief sought in the federal complaint is intended to compensate respondents for injuries allegedly sustained in violation of federal constitutional rights. There can be no question that respondents have alleged injuries under federal law sufficient to justify the District Court’s retention of jurisdiction. When the federal proceeding recommences in the District Court, petitioners will be free to argue that the state claims should be dismissed under Pennhurst.

Finally, petitioners argue that allowing the District Court to dismiss the complaint will prevent the piecemeal litigation of the dispute between the parties. But the involvement of the federal courts cannot be blamed for the fragmentary nature of the proceedings in this litigation. Because the state criminal proceeding can provide only equitable relief, any action for damages would necessarily be separate. Indeed, the state forum in which petitioners invite respondents to pursue their claims for monetary relief clearly would require the initiation of a separate action. See Brief for Petitioners 32. Piecemeal litigation of the issues involved in this case is thus inevitable.

In sum, none of the circumstances cited by petitioners to justify the District Court’s dismissal of respondents’ claims for damages and attorney’s fees constitutes the kind of extraordinary circumstance that we have held may justify abdication of the “virtually unflagging obligation ... to exercise the jurisdiction given” the federal courts. Colorado River Water Conservation Dist. v. United States, 424 U. S., at 817.

>

Because respondents’ claims for equitable relief are moot, we vacate the portion of the Court of Appeals’ judgment addressing those claims and remand with instructions to dismiss the claims for equitable relief with prejudice. We affirm the portion of the Court of Appeals’ judgment reversing the District Court’s dismissal of respondents’ claims for monetary relief and attorney’s fees.

It is so ordered.

Justice White,

with whom Justice O’Connor joins, concurring.

Respondents, targets of a state grand jury investigation, filed this § 1983 suit, alleging, inter alia, that petitioners had violated their federal constitutional rights in the execution of a search warrant and three grand jury subpoenas. The federal action sought damages as well as an order for the return of the seized property. Relying on Younger v. Harris, 401 U. S. 37 (1971), the District Court dismissed both the equitable and the damages claims. The Court of Appeals reversed. It held, first, that even if there was a need for abstention on respondents’ claims for equitable relief, the District Court erred in dismissing the damages phase of the case, at least when that remedy may not be had in pending state proceedings. 798 F. 2d 632, 635 (CA3 1986). Second, the Court of Appeals held that a state grand jury investigation is not the kind of proceeding that calls for abstention under Younger. 798 F. 2d, at 636-638. We granted certiorari on both questions. 479 U. S. 1063 (1987).

I agree with the Court that the issue of Younger1 s applicability to state grand jury proceedings is moot, and that the judgments of the Court of Appeals and the District Court must be vacated insofar as they dealt with that question. I concur in the Court’s judgment that, because respondents are no longer seeking equitable relief in this action, the grand jury question is no longer properly before us. Ante, at 200-201. It is worth noting, however, that the reason respondents give for withdrawing their injunctive claim is that the return of an indictment against three of them has now created a state criminal proceeding in which their federal constitutional claims may be adjudicated. It is thus not surprising that respondents no longer seek a federal court injunction: had they not withdrawn their request or conceded that the indictments mooted their injunctive claim, it is likely that we would have vacated the Court of Appeals’ judgment and remanded in light of the intervening indictments.

The mooting of the claim for injunctive relief leaves the question whether the Court of Appeals was correct in reversing the District Court’s dismissal of the damages claim. I agree with the Court that it was. To permit dismissal of a claim for damages when such relief may not be obtained in any pending state proceeding is surely not required by any notions of comity. Moreover, dismissal might foreclose, on statute of limitations grounds, the subsequent pursuit of a damages action in federal court in the event that the state court holds that a violation of constitutional rights took place. No doubt this is why Courts of Appeals which have applied Younger to damages actions have ordered stays, and not dismissals, of damages claims to which Younger applies.

My difficulty with the Court’s opinion is that, while approving the Court of Appeals’ decision to stay and not dismiss the damages claim, it does not adequately explain why the federal courts must or may stay, rather than proceed to adjudicate, the federal constitutional claims for damages. After all, the Court’s opinion cites the “virtually unflagging obligation” of the federal courts to adjudicate claims within their jurisdiction absent extraordinary circumstances, as we recognized in Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 (1976). Why, then, stay the § 1988 damages claim asserting a violation of federal constitutional rights? Why does not the District Court’s “unflagging obligation” require it to proceed on that claim?

In sanctioning this decision to stay, the Court recites the rule of the Third Circuit that when there is abstention on an equitable claim because of a pending state proceeding, the damages claim should be stayed and not dismissed. Ante, at 202-203, citing Crane v. Fauver, 762 F. 2d 325 (CA3 1985), and Williams v. Red Bank Bd. of Ed., 662 F. 2d 1008 (CA3 1981). The Third Circuit rule, which the Court endorses, appears to rest on “prudential considerations” and not on the view that Younger requires that a damages action be stayed when there is a parallel state criminal (or “quasi-criminal”) proceeding underway. See, e. g., Crane v. Fauver, supra, at 329. But we have never held that in all cases where there are parallel state and federal proceedings involving a federal constitutional issue, the federal court should hold its hand and allow the state court to proceed first.

To affirm the Court of Appeals’ judgment ordering a stay requires a more substantial basis than “prudential consideration,” and that basis is not difficult to find: it is that Younger requires, not only dismissal of the equitable claim in this case, but also that the damages action not go forward. Several times before this Court has declined to state that Younger applies to damages actions. E. g., Tower v. Glover, 467 U. S. 914, 923 (1984); Juidice v. Vail, 430 U. S. 327, 339, n. 16 (1977). In the absence of direction from this Court, it now appears that a plurality of the Circuits apply the Younger doctrine — in some fashion — to damages claims like respondents’.

The reasons for such an approach are obvious. As the Younger decision itself recognized, it has long been the rule that the federal courts should not interfere with or pre-empt the progress of state criminal proceedings. Younger v. Harris, 401 U. S., at 43-44, 53-54. A judgment in the federal damages action may decide several questions at issue in the state criminal proceeding. It may determine, for example, that certain evidence was seized contrary to the Fourth Amendment, or that an interrogation was conducted in violation of the Sixth Amendment, or that Fifth Amendment rights were somehow violated. In fact, in this case, such claims — and many more — are all being pressed by respondents in their § 1983 damages action. If the claims the Court remands today were disposed of on the merits by the District Court, this decision would presumably be owed res judicata effect in the forthcoming state criminal trial of respondents. “[T]he potential for federal-state friction is obvious.” Guerro v. Mulhearn, 498 F. 2d 1249, 1253 (CA1 1974).

It was for these same reasons that we held that a federal court should not entertain a declaratory judgment action aimed at adjudicating a federal issue involved in a state criminal proceeding. See Samuels v. Mackell, 401 U. S. 66, 72-73 (1971). As was true in Samuels, here, “the practical effect of the two forms of relief [here, damages and injunctions] will be virtually identical, and the basic policy against federal interference with pending state criminal prosecutions will be frustrated as much by a declaratory judgment [or, I believe, a damages award] as it would be by an injunction.” See id., at 73. Under Samuels, for example, if a state criminal prosecution is ongoing, a federal court cannot adjudicate a plaintiff’s request for a declaration that evidence being used in that prosecution was seized contrary to the Fourth Amendment. Yet if Younger does not apply to damages claims, that same court in the same circumstances could rule the search unconstitutional as long as the federal plaintiff was seeking damages in addition to a determination of the unconstitutionality of the seizure — a prerequisite of any damages award. Why the latter action should be considered less problematic for purposes of comity or “Our Federalism” escapes me. If anything, I would have thought just the opposite would be true.

In light of the developments in this case and our decisions in Younger and Samuels, it is clear that the District Court should not dismiss the damages claims, yet must not proceed to judgment on them either. Consequently, I would couple our remand of this case with a holding that, pursuant to Younger, the lower courts may not adjudicate respondents’ damages claims until the conclusion of the pending state criminal proceedings.

       This fact is not reflected in the record but the parties have informed the Court in their briefs, in their memoranda as to mootness, and at oral argument, that the indictment had been returned. See Brief for Petitioners 18; Brief for Respondents 17; Memorandum for Respondents Suggesting that Cause is Moot 3; Memorandum for Petitioners in Opposition to Suggestion 2; Tr. of Oral Arg. 6-7 and 22.

       See Memorandum for Respondents Suggesting that Cause is Moot 3; Brief for Respondents 18; Tr. of Oral Arg. 22, 24-25.

       This Court rejected respondents’ suggestion of mootness filed before argument. 482 U. S. 912 (1987). Representations of counsel in response to inquiries at oral argument now have persuaded us that the suggestion is sound as to the first question presented.

       The Court’s ability to prevent respondents from renewing their claims after they are dismissed as moot distinguishes this case from one in which a defendant attempts to avoid appellate review by voluntarily ceasing the challenged conduct without losing the ability to reinitiate the conduct once the mooted case is dismissed. In the latter circumstance this Court has ruled that “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘[t]he defendant . . . free to return to his old ways.’” United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968), quoting United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953). In this case, the “conduct” that petitioners fear will be resumed is the pursuit of the federal litigation for equitable relief. Once that litigation is dismissed with prejudice, it cannot be resumed in this or any subsequent action. To reinitiate the abstention dispute between these parties, respondents would have to allege new equitable claims, presumably arising out of other events. The threat to petitioners, based on the mere “speculative eontingenc[y],” Hall v. Beals, 396 U. S. 45, 49 (1969), that respondents will assert new federal claims for equitable relief against the same New Jersey law enforcement agents cannot be said to be “sufficiently real and immediate to show an existing controversy.” O’Shea v. Littleton, 414 U. S. 488, 496 (1974).

       This, of course, is not to say that respondents would be prevented from asserting a right to present claims against these petitioners for equitable relief in federal court should the disputed conduct be repeated. The Court recognized in United States v. Munsingwear, Inc., 340 U. S. 36, 40 (1950), that the vacation and dismissal of the complaint that has become moot “clears the path for future relitigation of the issues between the parties,” should subsequent events rekindle their controversy.

       In his concurring opinion in this case, Justice White urges that we reach the question — not considered at any stage below, and not the subject of our grant of certiorari — whether the Younger doctrine applies to cases in which only money damages are sought in the federal forum. Apparently, Justice White also finds it appropriate to conclude that Younger requires abstention in this particular case, although he does not analyze this question separately. Because all respondents have represented that they will seek a stay of their damages claims on remand, we see no reason to reach issues so awkwardly presented for review.

       In both Crane v. Fauver, 762 F. 2d, at 329, and Williams v. Red Bank Bd. of Ed., 662 F. 2d, at 1024, n. 16, the Court of Appeals recognized that unless it retained jurisdiction during the pendency of the state proceeding, a plaintiff could be barred permanently from asserting his claims in the federal forum by the running of the applicable statute of limitations.

       See, e. g., McCurry v. Allen, 606 F. 2d 795, 799 (CA8 1979), rev’d on other grounds, 449 U. S. 90 (1980); Doby v. Strength, 758 F. 2d 1405, 1406 (CA11 1985).

       The Court also appears to rest its decision upon respondents’ assurance that they will seek a stay of their federal damages action on remand, holding their claims in abeyance until the conclusion of the state criminal proceedings. Ante, at 201-202. There is a distinct difference, however, between the weight the Court should give this assurance, and the weight the Court properly accords to the representations which respondents made concerning the mootness of their equitable-relief claims.
      With respect to the latter, the Court’s reliance on respondents’ disclaimer of any interest in equitable relief has resulted in a dismissal of these claims as moot. This dismissal, with prejudice, effectively prevents a reversal of position on the part of respondents. However, there is nothing in the Court’s decision today that bars respondents from changing their views on seeking a stay of their damages claim. Such an altered litigation posture may come out of a good- or bad-faith change of heart, and may lead respondents to request an immediate adjudication of their damages claims. Unfortunately, for the reasons discussed above, the Court’s opinion does not adequately address why the District Court must not accommodate such a renewed request.

       See Landrigan v. Warwick, 628 F. 2d 736, 743 (CA1 1980); McCurry v. Allen, supra, at 799; Mann v. Jett, 781 F. 2d 1448, 1449 (CA9 1986); Parkhurst v. State, 641 F. 2d 775, 777 (CA10 1981); Doby v. Strength, supra, at 1406.
      Some courts have taken a more ambiguous position, akin to the Third Circuit cases discussed supra. See, e. g., Suggs v. Brannon, 804 F. 2d 274, 279 (CA4 1986); Giulini v. Blessing, 654 F. 2d 189, 193 (CA2 1981); Singleton v. New York City, 632 F. 2d 185, 190 (CA2 1980).
      By contrast, the Fifth and Sixth Circuits both hold that Younger has no applicability to a claim for damages, see Thomas v. Texas State Bd. of Medical Examiners, 807 F. 2d 453, 457 (CA5 1987); Carras v. Williams, 807 F. 2d 1286, 1291-1292 (CA6 1986), although the Sixth Circuit’s rule on this point appears to be “flexible,” see id., at 1292.

       It is not surprising that several Courts of Appeals, in considering whether or not Younger applies to claims for damages, have found that many of the same considerations which suggest that a federal plaintiff should not be able to enjoin ongoing state criminal proceedings also militate against a damages award to a similarly situated federal plaintiff. See, e. g., Mann v. Jett, supra, at 1449; Parkhurst v. State, supra, at 777; Guerro v. Mulhearn, 498 F. 2d, at 1251-1252.

       While three of the respondents have been indicted, three others have not. See ante, at 198, and n. 1. Even if Younger does not apply to their claims for damages, the District Court would be prudent, under Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 (1976), to stay the adjudication of these claims — virtually indistinguishable from the substance of the ongoing state criminal proceedings involving the other respondents — as well.


author: Justice Stevens

text:
    YATES v. AIKEN, WARDEN, et al.
    No. 86-6060.
    Argued December 2, 1987
    Decided January 12, 1988

      Stevens, J., delivered the opinion for a unanimous Court.

      David I. Brack argued the cause and filed briefs for petitioner.

      Donald J. Zelenka, Chief Deputy Attorney General of South Carolina, argued the cause for respondents. With him on the brief was T. Travis Medlock, Attorney General.
   Justice Stevens

delivered the opinion of the Court.

Petitioner and an accomplice robbed a country store in South Carolina in 1981. After petitioner left the store, a fight occurred in which the accomplice and the storekeeper’s mother were both killed. Petitioner was convicted of murder and armed robbery and sentenced to death. His conviction and sentence were affirmed by the South Carolina Supreme Court in 1982. State v. Yates, 280 S. C. 29, 310 S. E. 2d 805, cert. denied, 462 U. S. 1124 (1983).

At his trial, petitioner testified that the victim had not even entered the store before he left and that he had not intended to kill or to harm anyone. The jury, however, was instructed “that malice is implied or presumed from the use of a deadly weapon.” A few months after petitioner’s conviction was affirmed, the South Carolina Supreme Court held that it was error to give such an instruction. See State v. Elmore, 279 S. C. 417, 308 S. E. 2d 781 (1983). Thereafter, petitioner sought a writ of habeas corpus from the South Carolina Supreme Court, arguing that the burden-shifting instruction given at his trial was unconstitutional under the state court’s reasoning in Elmore and under our decision in Sandstrom v. Montana, 442 U. S. 510 (1979). While the application for habeas corpus was pending, we decided another case involving a burden-shifting instruction, Francis v. Franklin, 471 U. S. 307 (1985), and petitioner promptly called that decision to the attention of the State Supreme Court. The court denied the writ without opinion.

Petitioner then sought a writ of certiorari in this Court. We summarily vacated the judgment of the South Carolina Supreme Court and remanded the case “for further consideration in light of Francis v. Franklin.” Yates v. Aiken, 474 U. S. 896 (1985). On remand, the state court determined that the jury instruction at petitioner’s trial “suffered from the same infirmities present in Elmore and addressed in Francis v. Franklin.” 290 S. C. 231, 233, 349 S. E. 2d 84, 85 (1986). Nevertheless, the court held that petitioner was not entitled to relief. As an explanation for its holding, the court stated that its decision in Elmore should not be applied retroactively to invalidate a conviction that was final when Elmore was decided. The opinion did not consider whether the decision in Francis v. Franklin might apply retroactively and also did not discuss our decision in Sandstrom v. Montana, on which petitioner had relied.

In dissent, Justice Finney reasoned that Elmore and Francis v. Franklin should be applied retroactively because an instruction that shifts the burden of proof on an element of the offense — particularly in a capital case — substantially impairs the truth-finding function of the jury. Moreover, he reasoned, given our decision in Sandstrom v. Montana in 1979, the case did not represent a significant change in the law.

We granted certiorari because we were concerned that the South Carolina Supreme Court had not fully complied with our mandate. 480 U. S. 945 (1987). We now reverse.

I

Our order remanding the case for further consideration in the light of Francis v. Franklin was predicated entirely on the fact that petitioner’s challenge to the jury instruction asserted a substantial federal question. Our opinion in Francis explained why a challenge of this kind is supported by the Federal Constitution:

“The Due Process Clause of the Fourteenth Amendment ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ In re Winship, [397 U. S. 358, 364 (1970)]. This ‘bedrock, “axiomatic and elementary” [constitutional] principle,’ id., at 363, prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, supra, at 520-524; Patterson v. New York, 432 U. S. 197, 210, 215 (1977); Mullaney v. Wilbur, 421 U. S. 684, 698-701 (1975); see also Morissette v. United States, 342 U. S. 246, 274-275 (1952). The prohibition protects the ‘fundamental value determination of our society,’ given voice in Justice Harlan’s concurrence in Winship, that ‘it is far worse to convict an innocent man than to let a guilty man go free.’ 397 U. S., at 372. See Speiser v. Randall, 357 U. S. 513, 525-526 (1958).” 471 U. S., at 313.

The portion of the state court’s opinion concluding that the instruction in petitioner’s case was infirm for the reasons “addressed in Francis” was responsive to our mandate, but the discussion of the question whether the decision in Elmore should be applied retroactively was not. Our mandate contemplated that the state court would consider whether, as a matter of federal law, petitioner’s conviction could stand in the light of Francis. Since the state court did not decide that question, we shall do so.

II

The South Carolina Attorney General submits that we should adopt Justice Harlan’s theory that a newly announced constitutional rule should not be applied retroactively to cases pending on collateral review unless the rule places “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” Mackey v. United States, 401 U. S. 667, 692 (1971) (Harlan, J., concurring in part and dissenting in part), or enunciates a procedural rule that is “implicit in the concept of ordered liberty,” id., at 693. Under this theory, the Attorney General argues, petitioner would not be entitled to the benefit of our ruling in Franklin.

We have already endorsed Justice Harlan’s retroactivity analysis for cases pending on direct appeal, see Griffith v. Kentucky, 479 U. S. 314, 322 (1987); United States v. Johnson, 457 U. S. 537 (1982), and we have noted, as Justice Harlan did, Mackey, supra, at 682-687; Desist v. United States, 394 U. S. 244, 260 (1969) (Harlan, J., dissenting), the important distinction between direct review and collateral review. Compare Allen v. Hardy, 478 U. S. 255 (1986) (holding that Batson v. Kentucky, 476 U. S. 79 (1986) does not apply retroactively to cases on collateral review), with Griffith, supra, at 322-323 (holding that Batson does apply retroactively to cases pending on direct review); see, e. g., Pennsylvania v. Finley, 481 U. S. 551 (1987) (right to appointed counsel on direct appeal not applicable in collateral proceedings). To decide this case, however, it is not necessary to determine whether we should go further and adopt Justice Harlan’s reasoning as to the retroactivity of cases announcing new constitutional rules to cases pending on collateral review.

Although Justice Harlan believed that most collateral attacks on final judgments should be resolved by reference to the state of the law at the time of the petitioner’s conviction, he emphasized the proposition that many “new” holdings are merely applications of principles that were well settled at the time of conviction. As he explained in Desist:

“The theory that the habeas petitioner is entitled to the law prevailing at the time of his conviction is, however, one which is more complex than the Court has seemingly recognized. First, it is necessary to determine whether a particular decision has really announced a ‘new’ rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law. . . . One need not be a rigid partisan of Blackstone to recognize that many, though not all, of this Court’s constitutional decisions are grounded upon fundamental principles whose content does not change dramatically from year to year, but whose meanings are altered slowly and subtly as generation succeeds generation. In such a context it appears very difficult to argue against the application of the ‘new’ rule in all habeas cases since one could never say with any assurance that this Court would have ruled differently at the time the petitioner’s conviction became final.” 394 U. S., at 263-264.

This reasoning, which we previously have endorsed, is controlling in this case because our decision in Francis was merely an application of the principle that governed our decision in Sandstrom v. Montana, which had been decided before petitioner’s trial took place. We explicitly so held in Francis itself:

“The question before the Court in this case is almost identical to that before the Court in Sandstrom: whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of . . . state of mind,’ 442 U. S., at 521, by creating a mandatory presumption of intent upon proof by the State of other elements of the offense.” 471 U. S., at 313.
“Sandstrom v. Montana made clear that the Due Process Clause of the Fourteenth Amendment prohibits the State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of intent in a criminal prosecution. 442 U. S., at 521. Today we reaffirm the rule of Sandstrom and the wellspring due process principle from which it was drawn. The Court of Appeals faithfully and correctly applied this rule, and the court’s judgment is therefore affirmed.” Id., at 326-327.

Ill

Respondents also argue that South Carolina has the authority to establish the scope of its own habeas corpus proceedings and to refuse to apply a new rule of federal constitutional law retroactively in such a proceeding. We reject this argument for two reasons. First, as we have just explained, Francis did not announce a new rule. Second, we do not read the South Carolina Supreme Court’s opinion as having placed any limit on the issues that it will entertain in collateral proceedings. Since it has considered the merits of the federal claim, it has a duty to grant the relief that federal law requires.

The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       See App. 7; Tr. 1208.

       “The doctrine against burden shifting presumptions set out in Francis v. Franklin, [471 U. S. 307 (1985)], is not a clear break with prior law. The United States Supreme Court in Sandstrom v. Montana, 442 U. S. 510 . . . (1979), decided prior to Yates, held that conclusive presumptions or instructions which shift the burden of persuasion violate the Fourteenth Amendment’s requirement that in every criminal trial, the state is required to prove each element of the criminal offense beyond a reasonable doubt. The Court went on to hold, concerning Elmore-type errors, that conclusive presumptions conflict with the presumption of innocence with which the law endows the accused. These presumptions, likewise, extend to every element of the crime and invade the truth-finding function which, in a criminal case, the law assigns solely to the jury.” 290 S. C., at 239, 349 S. E. 2d, at 88-89.

       We stated in United States v. Johnson, 457 U. S. 537, 549 (1982):
      “[ WJhen a decision of this Court merely has applied settled precedents to new and different factual situations, no real question has arisen as to whether the later decision should apply retrospectively. In such cases, it has been a foregone conclusion that the rule of the later ease applies in earlier eases, because the later decision has not in fact altered that rule in any material way.”
      See also Truesdale v. Aiken, 480 U. S. 527 (1987) (per curiam); Dunaway v. New York, 442 U. S. 200 (1979); Lee v. Missouri, 439 U. S. 461, 462 (1979) (per curiam).