Advisory to the Pro Se Litigant #15:Just Because It is Unlawful Doesn't Mean You Can Sue

Common sense dictates that if a person or organization violates federal law, and knowingly and intentionally harms someone in doing so, he, she or it should be liable for the harm caused. However, the law would not say so. Instead, under federal law, if the statute does not explicitly give the victim the right to sue, a court may find that the victim has no right to pursue a suit under federal law. This idea is affirmed in Decarlo v. Mount Sinai, which the US Court of Appeals for the Second Circuit decided on November 23, 2010. In Decarlo, the plaintiff, an operating room nurse, pursuant to the Defendant's own policy, indicated her unwillingness to participate in abortions. However, instead, on the job, she was told that she wold be required to participate in abortions. According to the second circuit decision, when she complained internally, she allegedly underwent retaliatory harassment and thus filed suit, seeking a remedy. Decarlo filed suit under 42 U.S.C. § 300a-7(c). That statute prohibits (among some other things) discrimination in employment because he or she refused to perform or assist in the performance of an abortion on the grounds of religious belief or moral convictions. However, the statute does not explicitly give a victim a private right of action, namely a right to go to court and seek a remedy by a judge or jury. Common sense dictates that since the statute prohibits discrimination in employment because he or she refused to perform or assist in the performance of an abortion on the grounds of religious belief or moral convictions, one substantially harmed through discrimination (because he or she refused to perform or assist in the performance of an abortion on the grounds of religious belief or moral convictions), should be permitted to sue and obtain damages for harm incurred. That logic aside, according to the Second circuit, one can only bring a federal lawsuit when there is a federal statute that specifically gives an individual a right to file a lawsuit for the alleged wrong. In this case, the plaintiff sought to convince the Court that a right of action was inferred by the title of the statute and that Congress had the intent to create a right to action. This analysis was rejected--because the title and Congressional floor speech are not parts of the statute. The plaintiff also sought to convince the court that the congressional intent was made clear by what was said on the floor of the House of Representatives. This is an important lesson to all potential litigants: before considering filing suit, consider whether the law provides a remedy for the wrong you allege.