Cenzon-Decarlo v. Mount Sinai Hospital, No. 10-556 (2d Cir. 2010)

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10-556-cv Cenzon-Decarlo v. Mount Sinai Hospital 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT August Term, 2010 (Argued: November 10, 2010 Decided: November 23, 2010) Docket No. 10-0556-cv C ATHERINE L ORENA C ENZON-D EC ARLO, Plaintiff-Appellant, v. M OUNT S INAI H OSPITAL, A N EW Y ORK N OT- FOR-P ROFIT C ORPORATION, Defendant-Appellee. * Before: P ARKER and W ESLEY, Circuit Judges, and J ONES, ** District Judge. Appeal from an order of the United States District Court for the Eastern District of New York, entered on January 15, 2010, granting Defendant s Motion to Dismiss. A FFIRMED. M ATTHEW S. B OWMAN, (Steven H. Aden, on the brief), Alliance Defense Fund, Washington, D.C., for Plaintiff-Appellant. * The Clerk of the Court is directed to amend the official caption in accordance with this Opinion. ** The Honorable Barbara S. Jones, of the United States District Court for the Southern District of New York, sitting by designation. Page 1 of 10 1 2 3 4 5 6 7 8 9 10 B ETTINA B. P LEVAN, (Harris M. Mufson, on the brief), Proskauer Rose LLP, New York, N.Y., for Defendant-Appellee. P ER C URIAM: This case calls on us to determine whether 42 U.S.C. § 300a-7(c) implies a private right of action. As set forth below, we hold that it does not. 11 Background 12 Plaintiff-Appellant Catherina Lorena Cenzon-DeCarlo 13 ( Cenzon-DeCarlo ) is an operating room nurse who was hired 14 by Mount Sinai Hospital in 2004. 15 of the hiring process, she signed a form given to her by 16 Mount Sinai on which she indicated her unwillingness to 17 participate in abortions, pursuant to a written policy 18 allowing employees to register conscientious objections to 19 that and other procedures. 20 2009 she was compelled by her supervisors to participate in 21 a late-term abortion, suffering serious emotional harm as a 22 result. 23 alleges that her supervisors attempted to coerce her into 24 signing a form indicating future willingness to assist in 25 emergency abortions, despite the absence of such an She asserts that as part She also claims that on May 24, When she filed a grievance over this incident, she Page 2 of 10 1 2 exception from the hospital s objection policy. In July 2009, Cenzon-DeCarlo filed suit against Mount 3 Sinai in the Eastern District of New York, alleging that 4 Mount Sinai had violated her rights under 42 U.S.C. § 300a- 5 7(c) ( Section 300"), sometimes referred to as the Church 6 Amendment. 7 Roe v. Wade, 410 U.S. 113 (1973), the statute provides that 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 [n]o entity which receives a grant, contract, loan or loan guarantee under [certain statutory schemes governing federal health funding] . . . may discriminate in the employment, promotion, or termination of employment of any physician or other health care personnel . . . because he performed or assisted in the performance of a lawful sterilization procedure or abortion, because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions. 25 The district court granted summary judgment to Mount Passed as part of Pub. L. 93-948 in the wake of 26 Sinai on the ground that Section 300 does not provide a 27 private right of action. 28 this Court. Cenzon-DeCarlo timely appealed to 29 Discussion 30 Section 300 does not explicitly say Appellant has a Page 3 of 10 1 right to sue. Federal courts have inferred private rights 2 of action, but only when there is explicit evidence of 3 Congressional intent: 4 5 6 7 8 9 10 11 12 13 14 15 16 Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (Scalia, 17 J.) (internal citations omitted). 18 quick to point out that the Supreme Court noted over thirty 19 years ago that it has never refused to imply a cause of 20 action where the language of the statute explicitly 21 conferred a right directly on a class of persons that 22 included the plaintiff in the case. 23 Chi., 441 U.S. 677, 690 n.13 (Stevens, J.) (1979). 24 [P]rivate rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. However, Appellant is Cannon v. Univ. of Cenzon-DeCarlo contends that Section 300 explicitly 25 confers an individual right upon her because Section 214(A) 26 of Pub. L. 93-348, which was codified as the portion of 27 Section 300 in dispute here, bears the heading Individual 28 Rights. Alternatively, Cenzon-DeCarlo contends that this Page 4 of 10 1 subject heading is evidence of Congress s intent to create 2 individual rights. 3 The text of Section 300 as printed in the United States 4 Code does not contain the label individual rights at the 5 passage in question. 6 Law, rather than that of the Code, is evidence of laws 7 unless Congress has expressly enacted [the Code title] as 8 positive law. 9 111, 121 n.7 (2d Cir. 2007) (internal quotation marks and It is true that the text of the Public Cohen v. JP Morgan Chase & Co., 498 F.3d 10 citation omitted). 11 best only evidence of an intent to confer individual rights, 12 not an explicit conferral. 13 title of a statute is limited to shed[ding] light on some 14 ambiguous word or phrase in the statute itself. 15 Amer. Trucking Ass ns, 531 U.S. 457, 483 (2001) (citations 16 omitted); see also United States v. Cullen, 499 F.3d 157, 17 163 (2d Cir. 2007); U.S. ex rel. Thistlethwaite v. Dowty 18 Woodville Polymer, Ltd., 110 F.3d 861, 866 (2d Cir. 1997). 19 Consequently, the title alone cannot confer individual 20 rights; the most it could do is provide evidence of 21 Congressional intent to confer them. 22 However, this evidence of law[] is at The interpretive role of the Whitman v. Cenzon-DeCarlo finds further evidence of Congressional Page 5 of 10 1 intent in statements by Representative John Heinz 2 introducing the language which would become the pertinent 3 portions of Section 300 on the House floor. 4 floor speech does contain some talk of rights, it is 5 entirely devoid of any reference to private causes of action 6 to enforce those rights. 7 While Heinz s Appellant s focus on Congressional intent certainly 8 not explicit here to confer an individual right upon a 9 class that includes her reflects her strong belief that a 10 remedy must follow a right. 11 correct that the Supreme Court did once observe thirty years 12 ago that, at that time, the Court had consistently implied a 13 remedy where a right is found, the Supreme Court s 14 jurisprudence in this area has evolved considerably since 15 then. 16 High Court that [t]he judicial task is to . . . determine 17 whether [a statute] displays an intent to create not just a 18 private right but also a private remedy. 19 U.S. at 286 (emphases added). 20 Auth. of New York and New Jersey, 615 F.3d 129, 141 (2d Cir. 21 2010) (Wesley, J., concurring). 22 While her observation is We are mindful of a more recent instruction from the Sandoval, 531 See also Torraco v. Port While there may be some colorable evidence of intent to Page 6 of 10 1 confer or recognize an individual right, there is no 2 evidence that Congress intended to create a right of action. 3 In the absence of such evidence, we must be mindful of 4 Sandoval s command that courts may not create [a cause of 5 action], no matter how desirable that might be as a policy 6 matter. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 532 U.S. at 286-87. In Cannon, the Supreme Court determined Title IX created an implied right of action but cautioned [t]here would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices. Cannon, 441 U.S. at 690-93 (emphasis added). The Court later looked to this passage in Gonzaga Univ. 21 v. Doe, 536 U.S. 273, 287 (2002) (Rehnquist, C.J.). 22 case, the Court refused to find an implied private right of 23 action under the Family Educational Rights and Privacy Act 24 of 1974 ( FERPA ), codified at 20 U.S.C. § 1232g(b). 25 statute provides that [n]o funds shall be made available . 26 . . to any educational agency or institution which has a 27 policy or practice of permitting the release of education Page 7 of 10 In that That 1 records [to unauthorized entities]. 2 at 279. 3 See Gonzaga, 536 U.S. Cenzon-DeCarlo contends that, while FERPA is simply a 4 ban on discriminatory conduct by recipients of federal 5 funds, Section 300 is more than that; it is rights-oriented, 6 similar to Title IX as interpreted by Cannon. 7 Cannon s cautionary note does not apply to the statutory 8 language before us. 9 This cannot be correct. She argues The passage from Cannon quoted 10 above expresses reluctance to infer a private remedy from 11 either a ban on discriminatory conduct or a prohibition 12 against the disbursement of public funds. 13 presented a prohibition; Section 300 in the case before us 14 presents a ban on conduct. 15 were, as Cenzon-DeCarlo contends, speaking only of statutes 16 which address federal administrators and direct them to 17 withhold or recover funds, the or as a prohibition 18 language would be superfluous. FERPA in Gonzaga If the simply as a ban phrase 19 Cannon explicitly warns that language like that of 20 Section 300 does not signal Congressional intent to create a 21 private remedy. 22 implied private right of action. We cannot infer from the text before us an Page 8 of Section 300 may be a 10 1 statute in which Congress conferred an individual right 2 without an accompanying right of action. 3 prepared to say that this is the case, and under Sandoval we 4 need not do so to affirm the district court s grant of 5 summary judgment. 6 does not confer upon Cenzon-DeCarlo a private right of 7 action to enforce its terms. 8 9 We are not What we do hold today is that Section 300 Cenzon-DeCarlo is also not entitled to injunctive relief. When determining whether a statute confers a 10 private right of action, the same analysis applies 11 independently of the remedy sought by the plaintiff. 12 Health Care Plan, Inc. v. Aetna Life Ins. Co., 966 F.2d 738, 13 742 (2d Cir. 1992). 14 private right of action, we presume absent clear 15 congressional direction to the contrary that the federal 16 courts have the power to award any appropriate relief. 17 Id. at 743 (quoting Franklin v. Gwinnett Cnty. Pub. Schs., 18 503 U.S. 60, 71 (1992)). 19 Congressional intent to confer a private right of action, 20 injunctive relief would not be an appropriate remedy here. 21 22 Where we find that a statute confers a Because we find no indication of Appellant has preserved state discrimination claims, which were dismissed without prejudice by the district Page 9 of 10 1 court. 2 such claims, we observe that these and other avenues to 3 potential relief remain open to her. Conclusion 4 5 While making no statement on the possible merits of The district court s order of January 15, 2010 granting 6 summary judgment in favor of Defendant-Appellee is hereby 7 A FFIRMED. Page 10 of 10

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