In Cummings v. Premier Rehab Keller the U.S. Supreme Court held 6-3 that emotional distress damages aren’t available if funding recipients violate four federal statutes adopted using Congress’s Spending Clause authority. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing for this result.  

The relevant statutes include Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act, the Section 1557 of the Affordable Care Act, and Title IX of the Education Amendments Act of 1972. Depending upon the statute, they prohibit funding recipients from discriminating on the basis of race, color, national origin, sex, disability, or age.

Jane Cummings is deaf and legally blind. She sought physical therapy from Premier Rehab Keller and requested it provide an American Sign Language interpreter at her appointments. Premier Rehab Keller declined to do so. She sued claiming disability discrimination in violation of the Rehabilitation Act and the Affordable Care Act. Among other remedies she sought emotional distress damages.  

None of the four statutes relevant to this case expressly provides victims of discrimination a private right of action to sue the funding recipient for money damage so they don’t list available damages. In Cannon v. University of Chicago (1979) the Supreme Court found an implied right of action in Title VI and Title IX, which the Supreme Court later concluded Congress ratified. The Rehabilitation Act and the Affordable Care Act expressly incorporate the rights and remedies available under Title VI.

In an opinion written by Chief Justice Roberts, emotional distress damages aren’t available under these statutes because a funding recipient wouldn’t have had clear notice it might face such liability.

According to the Chief Justice, the Supreme Court has applied a “contract-law analogy in cases defining the scope of conduct for which funding recipients may be held liable for money damages” in Spending Clause cases. Spending Clause legislation operates based on consent: “in return for federal funds, the [recipients] agree to comply with federally imposed conditions.” A particular remedy is available in a private Spending Clause action “only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.”

In Barnes v. Gorman (2002) the Supreme Court held that punitive damages are unavailable in private actions brought under the statutes at issue in this case because such damages aren’t “usual” contract remedies. Similarly, according to the Court, it is “hornbook law that ‘emotional distress is generally not compensable in contract.’”

Cummings argued that “several contract treatises put forth the special rule that ‘recovery for emotional disturbance’ is allowed in a particular circumstance: where ‘the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.’”

The SLLC amicus brief encouraged the Court to not get distracted by exceptions to the general rule that emotional distress damages aren’t available under contract law. The majority agreed stating: “It is one thing to say that funding recipients will know the basic, general rules. It is quite another to assume that they will know the contours of every contract doctrine, no matter how idiosyncratic or exceptional.”

 Richard A. Simpson and Elizabeth E. Fisher of Wiley Rein and F. Andrew Hessick of UNC School of Law wrote the SLLC amicus brief which the following organizations joined:  National Conference of State Legislatures, National Association of Counties, National League of Cities, U.S. Conference of Mayors, International Municipal Lawyers Association, and National Public Labor Employer Labor Relations Association.

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