Courthouse Steps: Cummings v. Premier Rehab Keller

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On April 28, 2022, The U.S. Supreme Court decided Cummings v. Premier Rehab Keller.  The case involved the availability of emotional damages for discrimination on the basis of disability and, more generally, the scope of recoverable damages for private actions under Spending Clause statutes.  After the respondent, Premier Rehab, declined to provide a sign language interpreter at Jane Cummings’ physical therapy sessions, Cummings sued the provider in federal court.  Cummings claimed disability discrimination in violation of the Rehabilitation Act of 1973 and the Affordable Care Act.  A trial court found that the only injuries allegedly caused by Premier were emotional in nature and dismissed the complaint, ruling that emotional damages are not recoverable under either statute.  The Fifth Circuit affirmed.

In a 6-3 decision, the Court held that emotional damages are not recoverable in a private action under either the Rehabilitation Act of 1973 or the Affordable Care Act.  The majority opinion was penned by Chief Justice Roberts.  Justice Breyer wrote a dissenting opinion, joined by Justices Kagan and Sotomayor.

Please join our legal expert to discuss the case, the legal issues involved, and the implications for disabilities law going forward.  

Featuring:

Curt Levey, President, Committee for Justice

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Ryan Lacey:  Hello and welcome to The Federalist Society's virtual event. This afternoon, May 25, 2022, we discuss Courthouse Steps Cummings v. Premier Rehab Keller. My name's Ryan Lacey, and I'm an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of our expert on today's call.

 

      Today we are fortunate to have an expert in Curt Levey, whom I will introduce very briefly. Curt Levey is the President of the Committee for Justice. After graduating Harvard Law School with honors and clerking for the U.S. Court of Appeals for the Sixth Circuit, Mr. Levey served as director of legal and public affairs at the Center for Individual Rights, CIR. After CIR, Mr. Levey headed the Title IX Policy Group at U.S. Department of Education. Before attending law school, Mr. Levey earned an MS and BA in Computer Science from Brown University and worked in the field of artificial intelligence. He invented a new type of technology for which he wrote a successful patent application.

 

      After our speaker gives their remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can towards the end of today's program.

 

      With that, thank you for being with us today. Curt, the floor is yours.

 

Curt Levey:  Thank you, Ryan. Cummings is a case that was decided a few weeks ago by the Supreme Court. It involved the availability of emotional damages for discrimination on the basis of disability. And more generally, it implicates the scope of recoverable damages for private actions under Spending Clause statutes.

 

      Let me start with some background. The petitioner, Jane Cummings, was deaf and legally blind. And the respondent, Premier Rehabilitation, declined her request for a sign language interpreter at her physical therapy sessions. She sued in federal court claiming disability discrimination in violation of the Rehabilitation Act of 1973 and the Affordable Care Act. Premier was covered by the relevant provisions because they are a recipient of federal funds, namely Medicare and Medicaid. And both laws prohibit recipients of federal funds from discriminating based on disability, much like Title VI does for racial discrimination.

 

      Both of those statutes have implied rights of action, under which remedies are judge created. Now Cummings ultimately just went to another provider. So the only alleged injuries were emotional in nature, and the trial court concluded that emotional damages are not recoverable under either statute. So the trial court dismissed the complaint, and the Fifth Circuit affirmed. The Supreme Court granted cert and split 6-3 along usual ideological lines. And lest you think this is a rather dry or even boring legal issue, let me read you the view of an ACLU attorney on the left commenting on the decision.

 

      She says, "Undergirding the Court's decision-making here is a desire to ensure that marginalized people never profit too much from their suffering. A frequent concern of the conservative majority is the notion that common folk who seek to vindicate their rights are abusing the legal system, trying to get one over in pursuit of a fortuitous windfall. To these j justices, people who experience discrimination are not victims who deserve protection; they are greedy vultures whose hunger must be contained." And that's from Yvette Borja.

 

      And on the right, Sarah Parshall Parry, a conservative attorney who I'm sure some in the audience are familiar with, says, "The attachment of liability for strictly dignitary injuries . . . could let loose a torrent of frivolous claims for alleged violations of federal anti-discrimination law, likely extending beyond disability law." For example, "There is no shortage of precedent on the pretextual use of anti-discrimination laws by plaintiffs claiming to have suffered emotional distress at the hands of business owners who hold traditional-but-unfashionable religious beliefs."

 

      So that's what's at stake, and that's why amicus briefs in support of Cummings were filed by the ACLU, the NAACP Legal Defense and Education Fund, a variety of disability rights organizations, the Biden Justice Department. And then on the other side were briefs from the U.S. Chamber of Commerce, the National Federation of Independent Businesses, 10 red states headed by Texas, Washington Legal Foundation, a public interest litigation group. Maybe a bit more surprising on that side were groups like the National League of Cities and the U.S. Conference of Mayors. But they are recipients of federal funds, and thus, could be effected negatively by this decision.

 

      The decision, again, flows from the fact that both statutes were enacted under the Spending Clause. And under Supreme Court precedent, mainly Pennhurst 40 years ago, legislation under the Spending Clause is thought of as a contract. In return for federal funds, the recipients agree to comply with federally imposed conditions. And precedent says that remedies of particular types are available only if funding recipients are on notice that taking federal funds expose them to liability of that type. And again, all we have to go with is precedent since this is an implied right of action.

 

      And recipients are assumed on notice regarding damages that are traditionally available in breach of contract suits. So that's certainly -- everyone agrees that includes compensatory damages and injunctions. So pretty much all I've said up to this point, the majority and dissent agree.

 

      Where they differ is -- well, let me start with the majority opinion by Chief Justice Roberts. He says that there is no notice because traditional breach of contract damages don't include emotional injuries. Cummings, of course, disagreed, pointing out that emotional damages are available for breach under certain conditions. But the majority responds by pointing to the traditionally available, generally available language that we see in precedent. Also, they point to the restatement of contracts which says, "Recovery for emotional disturbances will be excluded unless the breach is of such a kind that serious emotional disturbance was a particularly likely result." But even that exception is hardly a clear majority rule, Roberts points out.

 

      And, you know, sort of the last point Roberts makes is, look, this is an implied right of action. It's made up. Don't push it. That's obviously my wording. So anyway, accordingly emotional damages are not available under either statute, the ACA or the Rehabilitation Act. And that follows the logic of a case about 20 years ago, Barnes v. Gorman, which reached the same conclusion for punitive damages under disabilities statutes, even though punitive damages were available under some special circumstances. But they're not generally available for breach of contract.

 

      And that pretty much summarizes the majority opinion. There was a brief concurrence by Kavanaugh that was joined by Gorsuch, in which they say that the contract law analogy is really an imperfect way to determine remedies for an implied cause of action. They would look to larger contexts, I guess you would say. And they note that under the separation of powers, it's Congress, not the courts, that should create causes of action, extend implied causes of action, and expand available remedies. And clearly Congress did not do that here.

 

      And then the dissent was by Justice Breyer, joined by Kagan and Sotomayor. And Breyer argues for a finer grained approach. I mean, he again cites that restatement that I read that admits that there are exceptions, and says these statutes prohibit invidious discrimination, which is particularly likely to cause serious emotional distress; and thus, the recipient in on notice and emotional damages should be available. And more generally, he argues that remedies for breach of contract are intended to make the plaintiff whole. You know, that's why we don’t include punitive damages because those go beyond making the plaintiff whole. And that's why we don’t have emotional damages for breach that mostly involves pecuniary harm.

 

      But Breyer says under the exception, there are emotional damages for non-pecuniary harm, such as some forms of discrimination. He cites cases involving contracts for marriage, handling of a dead body, delivery of sensitive telegram messages. But to me, that drives home the point that those are pretty narrow exceptions, and emotional damages are not generally available.

 

      Breyer says, "It is difficult to believe that prospective funding recipients would be unaware that intentional discrimination based on race, sex, age, or disability is particularly likely to cause emotional suffering." So again, he's arguing as a practical matter that they are on notice. He also says, again, look since we're making this up, sensible remedial schemes should be the goal. And he points out that this is not sensible because non-Spending Clause statutes do permit emotional damages. So Breyer says the Court's decision allows "victims of discrimination to recover damages only if they can prove that they have suffered economic harm, even though the primary harm inflicted by discrimination is rarely economic." I don't know if I would agree that it's rarely economic, but fair enough. It's not always economic.

 

      Breyer also worries that the Court has -- because the Court has treated other Spending Clause statutes, Title VI and Title IX, as co-extensive, regarding remedies at least, that this decision will have a bad impact on remedies for race, sex, age discrimination. And I guess in one way or another, if you think about the comments that people on both sides made after the decision, there is general agreement that it will spill over.

 

      That was a short opinion so I think about summaries it.

 

Ryan Lacey:  Well, thank you so much, Curt. And I would like to point our audience to at the bottom of the screen, there is a Q&A section. You are more than welcome to put any questions you might have for Curt in there. I'll start one out, taking moderator's privilege and start with a question. What effect do you think this will have going forward on disabilities law? More generally, what effect will this case have, and will it be looked back in future disabilities cases that make it to the Supreme Court? What effect do you think it'll have?

 

Curt Levey:  Well, I mean, this case looked back 20 years to the case involving punitive damages, so I suspect that this case will be cited for other types of special damages under disability law. And I think it will have repercussions outside of disability law. I don't know for a fact but my impressions is that most of the lawsuits under disability discrimination come under the parts of the ADA that are more like Title VII, that are not Spending Clause provisions. And those do have damages, emotional damages, and those will continue to be available. So I would guess that for the average disability plaintiff this probably won't have an impact. But in areas like Title IX where there's a lot of -- there's not that much litigation under Title VI. But Title IX, there's a lot of litigation, both private causes of action and also investigations by the Office of Civil Rights. And for those private causes of action, this may ultimately lead to a ruling that emotional damages are not available. I mean, I guess at the end of the day, it depends what the configuration of the Court is when the issue comes before it.

 

Ryan Lacey:  Certainly very interesting. A question you may or may not know the answer to: at the state level, is it common that states will allow plaintiffs to claim emotional damages in cases like this on the basis of disability?

 

Curt Levey:  You know, I don't know the answer to that. The majority opinion makes it quite clear that when we're talking about damages for breach of contract, certainly the majority, if not universal rule, is that emotional damages are not generally available. And then again, there's a debate about whether the exception where one could've assumed emotional damages is a majority rule or just a spotty rule, let's say. But I don't know the answer as to what state statutes disability discrimination allow.

 

Ryan Lacey:  Do you foresee that in that -- oh, I'm sorry. You're about to say something else.

 

Curt Levey:  Yeah, I was just going to say, again, remember that this is -- I know certainly in some states, I don't have statistics, but in some states there's not an implied cause of action. There's an explicit cause of action for recipients of state funds, so we don't even really get into this problem about courts largely inventing what the remedies should be.

 

Ryan Lacey:  Do you foresee that some of these states, particularly blue states since this broke down along the ideological lines, pursing legislation now that this case has come out to allow people to pursue remedies on the basis of discrimination?

 

Curt Levey:  Yeah, I mean, I do think that there will be pressure. The first thing that comes to mind is we're waiting for a decision in Dobbs, but I think everyone agrees that if it comes out the way Alito's draft opinion came out, that blue states will be jumping all over each other to make abortion more available and funded. You know, you're not going to see as emoptional reaction here, but I do think that you're going to see activists turn to the state level because, again, a reasonable number of these disability cases, there is no pecuniary harm. It really is all about dignitary harm. I didn't get into it but Breyer just goes into the fact that that's one of the major purposes of civil rights law is dignitary harm.

 

      But yes, given that as a practical matter that that's often the only damages available, I do think you'll see activism on the state level.

 

Ryan Lacey:  Yeah. We do have a question from an attendee. They ask, "Why should contract law be the appropriate analogy when, for example, under sexual assault cases under Title IX, the hypothetical contract is a contract to prevent deliberate indifference towards sexual assault, which is not an enforceable contract in real life and involves obvious emotional harm.

 

Curt Levey:  Fair enough. Again, as I said several times, this is all made up, and I never really found the Pennhurst reasoning and the contract analogy to be very persuasive, to be honest with you. And, you know, if you look to, for example, one of the reasons that punitive damages were ruled not to be available -- and I'm losing my train of thought here -- was that those really go to tort when we see punitive damages in contract disputes is because there really was some kind of tort.

 

      So to say that this is all about contract, again, I really do think it's a fiction. Do I really think that when they accept federal funds they give a lot of thought to, "Well, if it's going to include emotional damages, then we're just not going to take that Medicare or Medicaid funding," no I don't really believe that.

 

Ryan Lacey:  Well, unless anyone else has a question, I'll give them about a minute or so and ask them to put more questions in the Q&A section. But, Curt, do you have any final thoughts on the case while we're waiting for somebody to potentially ask one?

 

Curt Levey:  Yeah, if you look past the hyperbole in the statements I read from an attorney on the left and an attorney on the right, I think there's some truth to that, that conservatives on the Court don't want to see the constant expansions of causes of action and remedies, especially when they're completely judge created. And I guess if you're a civil rights attorney who thinks every person who claims discrimination should be richly rewarded, this is a setback. And again, for conservatives, I mean, there is a concern that civil rights laws are sometimes used, let's say in an aggressive way. Maybe not as aggressively as they're used in the gay rights/religious liberty context that the commenter was focusing on, but used in a sort of punitive and aggressive way. I think it's fair to say that conservatives are happy to see that reined in.

 

Ryan Lacey:  Well, thank you so very much for your time and expertise today. We'd like to thank our audience for attending and giving that question as well. We welcome all listener feedback by email at [email protected] And as always, keep an eye on our website and your emails about upcoming webinars. Thank you all for joining us today. We are adjourned.