United States Court of Appeals,

                                        Eleventh Circuit.

                                          No. 97-9153.

                              Vimal JAIRATH, Plaintiff-Appellant,

                                                v.

                       Wallace K. DYER, Dr., M.D., Defendant-Appellee.

                                         Sept. 16, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 96-cv-1987-
JEC), Julie E. Carnes, Judge.

Before ANDERSON and BIRCH, Circuit Judges, and PAINE*, Senior District Judge.

       ANDERSON, Circuit Judge:

        This appeal requires this court to determine whether the district court has subject-matter

jurisdiction over a discrimination claim brought by a person who was denied medical assistance.

Vimal Jairath ("Jairath") brought suit pursuant to O.C.G.A. § 51-1-6, for damages based upon a

breach of a duty created under the Americans with Disabilities Act ("ADA"), pursuant to 42 U.S.C.

§ 12182(a). The defendant, Dr. Wallace K. Dyer, asserting that the case involved a substantial

question of federal law, filed a notice of removal in federal court. Following the district court's

denial of Jairath's motion for remand, defendant moved for summary judgment which the district

court granted. Jairath appeals both the district court's denial of his motion for remand and the

granting of defendant's motion for summary judgment. We determine that, in light of the Supreme

Court's decision in Merrell Dow Pharmaceuticals Inc. v. Thompson, 

, 

,




   *
     Honorable James C. Paine, Senior U.S. District Judge for the Southern District of Florida,
sitting by designation.


(1986), the district court lacked subject-matter jurisdiction over this case because

Jairath's claims do not "arise under" federal law. See 28 U.S.C. § 1331.

I. BACKGROUND AND COURSE OF PROCEEDINGS

       In March 1996, Jairath went to defendant's office to have a Gore-Tex implant procedure

performed on his face. Jairath, who is HIV positive, wanted the implants because the effects of his

HIV status had made his face appear "thin and gaunt." Fearing that his appearance created a "badge"

of the HIV virus, he sought the procedure to return his face to a more normal, healthy state.

       After learning that Jairath was HIV positive, defendant refused to perform the implant

procedure. Defendant stated in his deposition that his decision not to consult with Jairath concerning

the procedure was premised on the fact that Jairath was HIV positive, which, according to defendant,

increased the risk of infection and made the procedure inadvisable in light of its cosmetic purpose.

       Jairath filed a complaint in the Superior Court of Fulton County, Georgia on July 3, 1996.

Jairath filed a suit for damages pursuant to O.C.G.A. § 51-1-6. Section 51-1-6 states:

       When the law requires a person to perform an act for the benefit of another or to refrain from
       doing an act which may injure another, although no cause of action is given in express terms,
       the injured party may recover for the breach of such legal duty if he suffers damage thereby.

The ADA created the duty which served as the basis for Jairath's state law claim.1 Defendant

removed the action, 28 U.S.C. § 1441(a), from the Superior Court of Fulton County, Georgia to the


   1
    The ADA prohibits discrimination against persons with a disability in the receipt of services
in places of public accommodation. The ADA states:

               No individual shall be discriminated against on the basis of disability in the full
               and equal enjoyment of the goods, services, facilities, privileges, advantages, or
               accommodations of any place of public accommodation by any person who owns,
               leases (or leases to), or operates a place of public accommodation.

       42 U.S.C. § 12182(a).

                                                  2
United States District Court for the Northern District of Georgia.2 Plaintiff then filed a motion for

remand pursuant to 28 U.S.C. § 1447(c). Determining that the federal interest inherent in Jairath's

state law claim was substantial, the district court denied Jairath's motion for remand on December

16, 1996. The district court determined that its decision was not undercut by the Supreme Court's

holding in Merrell Dow Pharmaceuticals Inc. v. Thompson, 

, 

, 

(1986).

       Following discovery, defendant moved for summary judgment presenting several grounds

which, defendant argued, entitled him to judgment on the merits. Accepting defendant's position

on each alternative ground, the district court granted summary judgment on the merits for defendant.

Because we conclude that the district court lacked subject matter jurisdiction over this case, we

address only that issue. We vacate the judgment of the district court, and remand with instructions

to grant Jairath's motion to remand to state court.3

II. DISCUSSION

        We review de novo the district court's denial of the plaintiff's motion to remand, as it

involves a question of subject-matter jurisdiction. Pacheco de Perez v. AT&T Co., 

,

1373 (11th Cir.1998). Federal courts have original jurisdiction of all civil actions that arise under



   2
    28 U.S.C. § 1441(a) states:

               Except as otherwise provided by Act of Congress, any civil action brought in a
               State court of which the district courts of the United States have original
               jurisdiction, may be removed by the defendant or the defendants, to the district
               court of the United States for the district and division embracing the place where
               such action is pending. For purposes of removal under this chapter, the
               citizenship of defendants sued under fictitious names shall be disregarded.
   3
    Because the district court lacked jurisdiction, we also vacate its judgment on the merits.

                                                  3
the Constitution or laws of the United States. 28 U.S.C. § 1331. Such federal-question jurisdiction

may be based on a civil action alleging a violation of the Constitution, or asserting a federal cause

of action established by a congressionally created expressed or implied private remedy for violations

of a federal statute. City of Huntsville v. City of Madison, 

, 171-72 (11th Cir.1994).

Although the vast majority of cases that fall within such federal-question jurisdiction are cases that

arise under federal law that creates a cause of action, in limited circumstances, federal-question

jurisdiction may also be available if a substantial, disputed question of federal law is a necessary

element of a state cause of action. 

(analyzing the relevant Supreme Court cases,

including Merrell Dow Pharmaceuticals Inc. v. Thompson, 

, 

, 

(1986)). The same analysis of the federal-question jurisdiction issue is relevant in the

removal context of the instant case. Merrell 

, 106 S.Ct. at 3232.4

       In the instant case, Jairath does not assert a cause of action created by federal law. Rather,

he asserts a state law cause of action for damages pursuant to O.C.G.A. § 51-1-6. Defendant asserts

that a substantial federal question exists because federal law, namely, the ADA, creates the duty

which Jairath claims has been violated.5 Thus, the instant case does not fall within the vast majority

of federal question cases involving the assertion of a federally created cause of action. Rather, we

must determine whether the instant case fits within that more limited category of cases where




   4
    Federal-question jurisdiction is determined by reference to the "well-pleaded complaint"
rule. Merrell 

, 106 S.Ct. at 3232. However, the parties in this case raise no
issue requiring discussion of the "well-pleaded complaint" rule.
   5
    Jairath asserts that state law, O.C.G.A. § 51-1-6, creates a cause of action for damages for
breach of the federally created duty not to discriminate on account of a disability.

                                                  4
federal-question jurisdiction may also be available if a substantial question of federal law is a

necessary element of a state law cause of action.

       The Supreme Court has most recently addressed this issue in Merrell Dow. There, the

plaintiffs alleged, inter alia, that the defendant drug company was negligent, and that its violation

of the federal Food, Drug and Cosmetic Act ("FDCA") constituted a rebuttable presumption of

negligence. The violation alleged by plaintiff was that the drug company had misbranded its

product, and provided inadequate warning that its use was potentially dangerous. Thus, violation

of the federal law was an element of the state law claim.

       The Court acknowledged its prior statement in Franchise Tax Board6—"that a case may arise

under federal law "where the vindication of a right under state law necessarily turned on some

construction of federal law.' " Merrell 

-09, 106 S.Ct. at 3232 (quoting

Franchise Tax Board v. Construction Laborers Vacation Trust, 

, 9, 

, 2846,

(1983)). However, the Court said that that statement must be "read with caution,"

Merrell 

, 106 S.Ct. at 3232; that "determinations about federal jurisdiction

require sensitive judgments about congressional intent, judicial power, and the federal system," 

106 S.Ct. at 3233; that there was a "need for prudence and restraint in the jurisdictional

inquiry," id.; that the fact that a federal issue was an element of a state law claim did not

"automatically confer federal-question jurisdiction," 

106 S.Ct. at 3234, but rather, that

the analysis must entail "careful judgments about the exercise of federal judicial power." 

106 S.Ct. at 3235.



   6
   Franchise Tax Board v. Construction Laborers Vacation Trust, 

, 

,

(1983).

                                                  5
       In Merrell Dow, the Court focused on the fact that Congress had not created a private remedy

for violation of the federal duty with respect to misbranding. The Court placed great significance

on the congressional intention not to provide a private federal remedy. The Court stated:

       [I]t would flout congressional intent to provide a private federal remedy for the violation of
       the federal statute. We think it would similarly flout, or at least undermine, congressional
       intent to conclude that the federal courts might nevertheless exercise federal-question
       jurisdiction and provide remedies for violations of that federal statute solely because the
       violation of the federal statute is said to be a "rebuttable presumption" or a "proximate
       cause" under state law, rather than a federal action under federal law.

106 S.Ct. at 3234 (footnotes omitted). The Court continued:

       Given the significance of the assumed congressional determination to preclude federal
       private remedies, the presence of the federal issue as an element of the state tort is not the
       kind of adjudication for which jurisdiction would serve congressional purposes and the
       federal system.... We simply conclude that the congressional determination that there should
       be no federal remedy for the violation of this federal statute is tantamount to a congressional
       conclusion that the presence of a claimed violation of the statute as an element of a state
       cause of action is insufficiently "substantial" to confer federal-question jurisdiction.

106 S.Ct. at 3235.

       We believe that Merrell Dow supports the conclusion in this case that the district court did

not have subject matter jurisdiction over Jairath's cause of action seeking damages under state law.

In the instant case, as in Merrell Dow, Congress chose not to provide the damages remedy which

Jairath seeks. Although a private right of action for injunctive relief does exist under the ADA, it




                                                 6
is uncontested that there is no private right of action for damages.7 However, Jairath could not

pursue injunctive relief under the ADA because he does not have standing to pursue such an action.8

       The instant case is closely analogous to Merrell Dow. There, the Supreme Court found no

federal-question jurisdiction where a state law cause of action incorporated as an element proof of

the violation of a federal duty (i.e., not to misbrand), but where there was no private cause of action

with respect to the federal duty. The instant case is like Merrell Dow in that the instant state law

cause of action incorporates as an element proof of a violation of a federal duty (i.e., the duty not




   7
    All parties in this case agree that, had Jairath brought a claim under Title III of the ADA, he
could only have pursued a claim for injunctive relief, because monetary damages are only
available if the civil action is initiated by the Attorney General. See 42 U.S.C. §§ 12188(a)(2) &
12188(b)(2)(B).
   8
    The test for standing requires that: (1) there is an injury in fact, (2) the injury was caused by
the defendant's conduct, and (3) the injury is capable of being redressed by a favorable ruling.
Lujan v. Defenders of Wildlife, 

, 560, 

, 2136, 

(1992).

               After defendant refused to treat Jairath, Jairath sought and received the implant
       procedure from another doctor. It is undisputed that Jairath has no intention of seeking
       further medical advice or treatment from defendant; and therefore, there is no likelihood
       that defendant in the future will refuse to treat Jairath. Under such circumstances, an
       injunction against defendant will not lie. See Hoepfl v. Barlow, 

, 320-21
       (E.D.Va.1995) (holding that a woman who sought injunctive relief against a physician
       under § 12101 of the ADA could not show a substantial likelihood that she would suffer
       an injury again in the future, because she lived in a different state and no real possibility
       existed that she would come in contact with the defendant again in the future). The only
       remedy available under the ADA, an injunction, is not available to Jairath. There is no
       remedy under the ADA for defendant's past act of refusing treatment. Thus, Jairath's
       injury is not capable of being redressed by any remedy available to Jairath under the
       ADA; and accordingly, he has no standing to pursue a cause of action created by the
       ADA. Incidentally, the question of whether the plaintiff has standing under O.C.G.A. §
       51-1-6 to pursue a claim for damages is an entirely different issue from the question of
       whether Jairath has standing to pursue a claim for an injunction under the federal statute.
       We do not reach the issue of whether Jairath has standing to pursue his cause of action
       under the state statute.

                                                  7
to discriminate because of a disability). It is like Merrell Dow in that Jairath seeks a private

damages remedy which is not available under the federal statute. This case is different from Merrell

Dow in that a private cause of action under the ADA is available as an abstract matter.9 However,

this particular plaintiff, Jairath, has no standing to pursue the only federal private cause of action

available under the ADA (i.e., for injunctive relief); and thus, Jairath's position is very similar to

that of the plaintiff in Merrell Dow.

        As indicated in Merrell Dow, we approach the instant issue of federal-question jurisdiction

as one requiring "sensitive judgments about congressional intent, judicial power, and the federal

question." Merrell Dow, 478 U.S. at 

. We conclude that the congressional

intent not to provide a private damages remedy for this kind of ADA violation is, in the instant case,

just as it was in Merrell Dow, "tantamount to a congressional conclusion that the presence of a

claimed violation of the statute as an element of a state cause of action is insufficiently "substantial'

to confer federal-question jurisdiction." 

106 S.Ct. at 3235.10


   9
    However, this difference between the two cases is undermined to some extent by the fact that
there was a cause of action for violation of the federal duty at issue in Merrell Dow. The
government could enforce the duty not to misbrand. See 21 U.S.C. § 337. Thus, this case is like
Merrell Dow in that in both cases the particular plaintiff has no federal cause of action to enforce
the federal duty, but some other plaintiff may have.
   10
     In this circuit, the absence of a private cause of action does not per se dictate that there is no
federal-question jurisdiction when a federal duty is incorporated as an element of a state cause of
action. City of 

. See also Ormet Corp. v. Ohio Power Co., 

(4th Cir.1996) (finding federal-question jurisdiction, primarily on the basis of the need for
uniformity, where a state law cause of action incorporated as an element the violation of a
federal statute relating to the proper apportionment and ownership of emission allowances under
the Clean Water Act). However, we held in the City of Huntsville that "it will be only the
exceptional federal statute that does not provide for a private remedy but still raises a federal
question substantial enough to confer federal question jurisdiction when it is an element of a
state cause of action." 

Defendant has pointed to nothing to indicate that the instant
case should rise to that exceptional level. We find no such exceptional status. For example, we

                                                   8
        For the foregoing reasons,11 we conclude that the district court erred in denying Jairath's

motion to remand this case to state court. Therefore, we vacate the judgment of the district court

and remand with instructions to grant Jairath's motion to remand to state court.

        VACATED AND REMANDED.




see no greater need for uniformity in this case than that rejected by the Supreme Court in Merrell

, 106 S.Ct. at 3236.
   11
     Defendant Dyer also argues that the instant case is distinguishable from Merrell Dow
because there the plaintiff alleged several state law causes of action which could yield the relief
sought, only one of which was a federally-related count. In this case, defendant argues, there is
only the single, federally-related count. A similar argument was expressly rejected by the Court
in Merrell Dow. See 

n. 

n. 15. Defendant also argues that the
instant case is different because the violation of the federal statute is a necessary element of the
state cause. This argument was implicitly rejected in Merrell Dow. 

106 S.Ct. at
3234-35 (rejecting the argument that a question of federal law as a necessary element of a state
law cause of action automatically conferred federal-question jurisdiction). Accord City of

(finding no federal-question jurisdiction notwithstanding that
"[i]nterpretation of § 13 of the TVA [was] necessary to settle the state contract claim.").

                                                 9