United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 13, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-30356
Summary Calendar
MARGARET A. ACARA,
Plaintiff - Appellant,
v.
BRADLEY C. BANKS, M.D.,
Defendant - Appellee.
--------------------
Appeals from the United States District Court
for the Eastern District of Louisiana
--------------------
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:
Appellant Margaret Acara (“Acara”) filed suit against
Appellee Dr. Bradley Banks (“Dr. Banks”) in Louisiana district
court for disclosing her medical information during a deposition
without her consent. Acara’s complaint claimed subject matter
jurisdiction based entirely upon an alleged violation of the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”),
Pub. L. No. 104-191, 110 Stat. 1936 (1996)(codified primarily in
Titles 18, 26 and 42 of the United States Code). Acara later
sought leave to amend her complaint to change her residency from
Louisiana to New York in order to establish diversity jurisdiction.
The district court held that HIPAA does not give rise to a private
cause of action, and therefore no subject matter jurisdiction
existed. In addition, the district court denied Acara’s motion to
amend her complaint to allege diversity jurisdiction after a
magistrate judge determined Acara to be a resident of Louisiana.
Therefore, the district court granted Dr. Bank’s motion to dismiss
pursuant to Rule 12(b)(1), or alternatively Rule 12(b)(6). This
timely appeal followed. For the reasons stated below, we affirm.
1. Private Right of Action Under HIPAA.
Whether or not HIPAA provides for a private cause of action is
a question of statutory interpretation subject to de novo review.
In re ADM/Growmark River Sys., Inc., 234 F.3d 881, 886 (5th Cir.
2000). HIPAA generally provides for confidentiality of medical
records. 42 U.S.C. §§ 1320d-1 to d-7. Private rights of action to
enforce federal law must be created by Congress. Alexander v.
Sandoval, 532 U.S. 275, 286 (2001). HIPAA has no express provision
creating a private cause of action, and therefore we must determine
if such is implied within the statute. Banks v. Dallas Hous.
Auth., 271 F.3d 605, 608 (5th Cir. 2001). “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.” Id.1 In addition, the plaintiff has the
1
In Cort v. Ash, 422 U.S. 66 (1975), the Supreme Court laid
out a four factor analysis to determine when a federal statute
gives rise to an implied private right of action. These factors
include: (1) whether the plaintiff is one of a class for whose
special benefit the statue was enacted; (2) whether there is an
indication of legislative intent to create or deny such a remedy;
(3) whether such a remedy would be consistent with the underlying
legislative purpose; and (4) whether the cause of action is one
traditionally relegated to state law so that it would be
2
relatively heavy burden to show Congress intended private
enforcement, and must overcome the presumption that Congress did
not intend to create a private cause of action. Casas v. Am.
Airlines, Inc., 304 F.3d 517, 521-22 (5th Cir. 2002).
HIPAA does not contain any express language conferring privacy
rights upon a specific class of individuals. Instead, it focuses
on regulating persons that have access to individually identifiable
medical information and who conduct certain electronic health care
transactions. 42 U.S.C. § 1320d-1. HIPAA provides both civil and
criminal penalties for improper disclosures of medical information.
42 U.S.C. §§ 1320d-5, d-6. However, HIPAA limits enforcement of
the statute to the Secretary of Health and Human Services. Id.
Because HIPAA specifically delegates enforcement, there is a strong
indication that Congress intended to preclude private enforcement.
Alexander, 532 U.S. at 286-87 (“The express provision of one method
of enforcing [a statute] suggests Congress intended to preclude
others.”).
While no other circuit court has specifically addressed this
issue, we are not alone in our conclusion that Congress did not
inappropriate to infer a cause of action based solely on federal
law. Id. at 78. See also Till v. Unifirst Fed. Sav. & Loan
Ass’n, 653 F.2d 152, 157 (5th Cir. 1981).
Particular emphasis has been placed on the second factor and
without evidence of congressional intent, a private cause of
action cannot be found. Alexander, 532 U.S. at 286. See also
Casas v. Am. Airlines, Inc., 304 F.3d 517, 522 (5th 2002) (“The
touchstone of the Cort analysis is its second factor:
Congressional intent.”); Till, 653 F.2d at 157 (“In interpreting
federal statutes, Cort and its progeny all focus upon the
‘ultimate issue’ of whether it was Congress’ intent to create a
private remedy.”).
3
intend for private enforcement of HIPAA. Every district court that
has considered this issue is in agreement that the statute does not
support a private right of action. See, e.g., Agee v. United
States, 72 Fed. Cl. 284 (2006); Walker v. Gerald, No. 05-6649, 2006
WL 1997635 (E.D. La. June 27, 2006); Poli v. Mountain Valleys
Health Ctrs., Inc., No. 2:05-2015-GEB-KJM, 2006 WL 83378 (E.D. Cal.
Jan. 11, 2006); Cassidy v. Nicolo, No. 03-CV-6603-CJS, 2005 WL
3334523 (W.D.N.Y. Dec. 7, 2005); Johnson v. Quander, 370 F. Supp.
2d 79 (D.D.C. 2005); Univ. of Colo. Hosp. Auth., 340 F. Supp. 2d
1142 (D. Colo. 2004); O’Donnell v. Blue Cross Blue Shield of Wyo.,
173 F. Supp. 2d 1176 (D. Wyo. 2001); Means v. Ind. Life & Accident
Ins. Co., 963 F. Supp. 1131 (M.D. Ala. 1997); Wright v. Combined
Ins. Co. of Am., 959 F. Supp. 356 (N.D. Miss. 1997).
Furthermore, Acara provides no authority to support her
assertion that a private right of action exists under HIPAA, and
her policy arguments are unpersuasive. We hold there is no private
cause of action under HIPAA and therefore no federal subject matter
jurisdiction over Acara’s asserted claims.
2. Diversity Jurisdiction.
In this action Acara sought leave to amend her original
complaint to change her residency from Louisiana to New York and
thus alternatively plead diversity to satisfy subject matter
jurisdiction. The question of whether or not Acara’s residency had
changed from Louisiana to New York was referred to a magistrate
judge who later determined that Acara was a resident of Louisiana.
As long as the district court applies the correct standard of
4
law, findings as to the state residency of the parties will be
upheld unless clearly erroneous. Coury v. Prot, 85 F.3d 244, 249
(5th Cir. 1996). We find no evidence that either the magistrate
judge or district judge clearly erred in the determination that
Acara remained a Louisiana resident. Therefore, since both the
plaintiff and the defendant are residents of Louisiana, there is no
diversity and this court lacks subject matter jurisdiction. The
district court’s judgment dismissing the complaint is AFFIRMED.
Acara is free to pursue any remaining state law claims in state
court.
AFFIRMED.
5