     10-556-cv
     Cenzon-Decarlo v. Mount Sinai Hospital



 1                      UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3
 4
 5
 6                               August Term, 2010
 7
 8   (Argued: November 10, 2010                  Decided: November 23, 2010)
 9
10                             Docket No. 10-0556-cv
11
12
13                         CATHERINE LORENA CENZON-DECARLO,
14
15                                                         Plaintiff-Appellant,
16
17                                        –v.–
18
19         MOUNT SINAI HOSPITAL, A NEW YORK NOT-FOR-PROFIT CORPORATION,
20
21                                                         Defendant-Appellee. *
22
23
24
25   Before:
26   PARKER and WESLEY, Circuit Judges, and JONES, ** District Judge.
27
28        Appeal from an order of the United States District
29   Court for the Eastern District of New York, entered on
30   January 15, 2010, granting Defendant’s Motion to Dismiss.
31
32         AFFIRMED.
33
34
35
36               MATTHEW S. BOWMAN, (Steven H. Aden, on the brief),
37                      Alliance Defense Fund, Washington, D.C., for
38                      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.

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1                BETTINA B. PLEVAN, (Harris M. Mufson, on the brief),
2                       Proskauer Rose LLP, New York, N.Y., for
3                       Defendant-Appellee.
4
5
6
7    PER CURIAM:

8          This case calls on us to determine whether 42 U.S.C. §

9    300a-7(c) implies a private right of action.        As set forth

10   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.        She asserts that as part

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.      She also claims that on May 24,

20   2009 she was compelled by her supervisors to participate in

21   a late-term abortion, suffering serious emotional harm as a

22   result.     When she filed a grievance over this incident, she

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


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1    exception from the hospital’s objection policy.

2        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.”   Passed as part of Pub. L. 93-948 in the wake of

7    Roe v. Wade, 410 U.S. 113 (1973), the statute provides that

 8       [n]o entity which receives a grant, contract, loan
 9       or loan guarantee under [certain statutory schemes
10       governing federal health funding] . . . may
11       discriminate in the employment, promotion, or
12       termination of employment of any physician or
13       other health care personnel . . . because he
14       performed or assisted in the performance of a
15       lawful sterilization procedure or abortion,
16       because he refused to perform or assist in the
17       performance of such a procedure or abortion on the
18       grounds that his performance or assistance in the
19       performance of the procedure or abortion would be
20       contrary to his religious beliefs or moral
21       convictions, or because of his religious beliefs
22       or moral convictions respecting sterilization
23       procedures or abortions.
24

25       The district court granted summary judgment to Mount

26   Sinai on the ground that Section 300 does not provide a

27   private right of action.     Cenzon-DeCarlo timely appealed to

28   this Court.

29                               Discussion

30       Section 300 does not explicitly say Appellant has a


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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       [P]rivate rights of action to enforce federal law
 6       must be created by Congress. The judicial task is
 7       to interpret the statute Congress has passed to
 8       determine whether it displays an intent to create
 9       not just a private right but also a private
10       remedy. Statutory intent on this latter point is
11       determinative. Without it, a cause of action does
12       not exist and courts may not create one, no matter
13       how desirable that might be as a policy matter, or
14       how compatible with the statute.
15
16   Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (Scalia,

17   J.) (internal citations omitted).    However, Appellant is

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.”      Cannon v. Univ. of

23   Chi., 441 U.S. 677, 690 n.13 (Stevens, J.) (1979).

24       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


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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.     It is true that the text of the Public

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.”   Cohen v. JP Morgan Chase & Co., 498 F.3d

9    111, 121 n.7 (2d Cir. 2007) (internal quotation marks and

10   citation omitted).     However, this “evidence of law[]” is at

11   best only evidence of an intent to confer individual rights,

12   not an explicit conferral.     The interpretive role of the

13   title of a statute is limited to “shed[ding] light on some

14   ambiguous word or phrase in the statute itself.”     Whitman v.

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       Cenzon-DeCarlo finds further evidence of Congressional


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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.     While Heinz’s

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        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.     While her observation is

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.   We are mindful of a more recent instruction from the

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.”     Sandoval, 531

19   U.S. at 286 (emphases added).     See also Torraco v. Port

20   Auth. of New York and New Jersey, 615 F.3d 129, 141 (2d Cir.

21   2010) (Wesley, J., concurring).

22       While there may be some colorable evidence of intent to


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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.”   532 U.S. at 286-87.

7        In Cannon, the Supreme Court determined Title IX

8    created an implied right of action but cautioned

 9       [t]here would be far less reason to infer a
10       private remedy in favor of individual persons if
11       Congress, instead of drafting Title IX with an
12       unmistakable focus on the benefited class, had
13       written it simply as a ban on discriminatory
14       conduct by recipients of federal funds or as a
15       prohibition against the disbursement of public
16       funds to educational institutions engaged in
17       discriminatory practices.
18
19   Cannon, 441 U.S. at 690-93 (emphasis added).

20       The Court later looked to this passage in Gonzaga Univ.

21   v. Doe, 536 U.S. 273, 287 (2002) (Rehnquist, C.J.).    In that

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).     That

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


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1    records [to unauthorized entities].”      See Gonzaga, 536 U.S.

2    at 279.

3        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.      She argues

7    Cannon’s cautionary note does not apply to the statutory

8    language before us.

9        This cannot be correct.    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.”      FERPA in Gonzaga

13   presented a prohibition; Section 300 in the case before us

14   presents a ban on conduct.    If the “simply as a ban” phrase

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.

19       Cannon explicitly warns that language like that of

20   Section 300 does not signal Congressional intent to create a

21   private remedy.   We cannot infer from the text before us an

22   implied private right of action.     Section 300 may be a


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1    statute in which Congress conferred an individual right

2    without an accompanying right of action.     We are not

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.     What we do hold today is that Section 300

6    does not confer upon Cenzon-DeCarlo a private right of

7    action to enforce its terms.

8        Cenzon-DeCarlo is also not entitled to injunctive

9    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).     Where we find that a statute confers a

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)).     Because we find no indication of

19   Congressional intent to confer a private right of action,

20   injunctive relief would not be an appropriate remedy here.

21       Appellant has preserved state discrimination claims,

22   which were dismissed without prejudice by the district


                                Page 9 of   10
1   court.       While making no statement on the possible merits of

2   such claims, we observe that these and other avenues to

3   potential relief remain open to her.

4                                 Conclusion

5         The district court’s order of January 15, 2010 granting

6   summary judgment in favor of Defendant-Appellee is hereby

7   AFFIRMED.




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