Exploring Patterns Homework 1 Answer Key ~UPD~
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of action. The well-pleaded complaint may reveal that recovery is not possible under a certain set of facts and the claim may not be legally cognizable under that cast of facts.' Bivens, 403 U. S. at 387. In such a situation, the plaintiff is not without a remedy. If the cause of action does not arise under the Constitution, the court must disregard any attempt to frame a federal question. If the plaintiff can prove no set of facts in support of his claim that would entitle him to relief, then the only function remaining to the court is that of announcing the fact and dismissing the case. On the other hand, if the court does find a federal question, it has the power to deal with the case as it arises. There is no doctrinal obstacle to fashioning a remedy to make the plaintiff whole."
Some of our cases have suggested that the question whether a particular right or remedy should be afforded under federal law should be determined by reference to Congressional intentions, but they have not made clear whether there is a general intention to create a federal remedy and, if so, what that remedy should be. We never have held, however, that the absence of explicit statutory language is dispositive in the face of clearly expressed legislative intent to create a private remedy. Thus, as courts do not lightly infer that Congress intended to deprive a class of citizens of any substantive constitutional rights, it is incumbent on those who seek to abolish a basic facet of the constitutional scheme to provide a convincing reason for their action." I asked how a federal remedy could be fashioned where a tribe had not ever applied a substantive rule. The answer, as expressed by Justice Rehnquist, is that a federal remedy can be provided if the Tribe has failed to observe its own regulations.
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