Acara v. Banks

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