Supreme Court Considers Emotional Distress Damages Under Title VI and Related Statutes in Cummings v. Premier Rehab

December 1, 2021
On November 30, 2021, the Supreme Court heard oral arguments in Cummings v. Premier Rehab Keller, P.L.L.C., U.S., No. 20-219, which raises the question of whether emotional distress damages are available under Title VI and federal statutes incorporating its remedies including the Rehabilitation Act and the Affordable Care Act (“ACA”). The Justice Department filed a brief as amicus curiae in support of Petitioner, and Assistant to the Solicitor General Colleen Sinzdak participated in the oral argument. A summary of the parties’ arguments and possible implications follows.
  • Petitioner Jane Cummings, who is deaf and legally blind, sought physical therapy services from Respondent Premier Rehab Keller, P.L.L.C. (“Premier”) in 2016 and 2017. After Premier refused to provide Cummings with an ASL interpreter, she went to an alternate provider to receive care. Cummings filed suit against Premier and sought, among other remedies, emotional distress damages. The district court dismissed Cummings’ case, and the Fifth Circuit affirmed.
  • Title VI does not include an express private right of action, but the Supreme Court has interpreted Title VI to contain an implied right of action for private plaintiffs to enforce its provisions. Section 504 of the Rehabilitation Act, which prohibits federal fund recipients from discriminating based on disability, incorporates the “remedies, procedures, and rights” of Title VI. Section 1557 of the ACA bars federally funded health care programs from discriminating on the basis of grounds prohibited in Title VI and other statutes, including the Rehabilitation Act. The ACA also provides that Title VI enforcement mechanisms apply to Section 1557 violations. Thus, Cummings has an implied right action under Title VI and these statutes.
  • The types of remedies Cummings may seek under the Rehabilitation Act and the ACA, however, may be limited by the Court’s case law interpreting the Spending Clause in Article I of the Constitution. In Barnes v. Gorman, 536 U.S. 181 (2002), the Court analogized Spending Clause legislation to contracts, and indicated that remedies for violations of such statutes are limited to those for which the funding recipient has notice (i.e., remedies traditionally available in breach of contract suits).
Petitioner’s Arguments. Cummings put forth several arguments in support of her position that she is entitled to emotional distress damages. First, Cummings argued that recipients of federal funding such as Premier are on notice that emotional distress damages may be awarded, citing to Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), in which the Court held that compensatory damages were available for private suits under Title IX and related statutes, including Title VI. Cummings posited that, because emotional distress damages are a standard form of compensation under anti-discrimination statutes, recipients of federal funding are on notice that they may be obligated to compensate for non-pecuniary harms. Second, citing the Restatement (Second) of Contracts, Cummings argued that emotional distress damages are a traditional form of remedy under contract law where emotional distress is a foreseeable result, and that emotional distress is foreseeable where, as here, there has been an intentional breach of a commitment to refrain from discrimination. Finally, Cummings cited to Bell v. Hood, 327 U.S. 678 (1946), where the Court created a presumption that, “where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.” She argued that, because nothing in the Rehabilitation Act or ACA indicates that emotional distress damages would be inappropriate, this presumption should apply in full force.
Respondent’s Arguments. Premier advanced two main arguments in favor of its position that emotional distress damages are unavailable for claims arising under Title VI and other statutes incorporating its remedies. First, Premier argued that emotional distress damages are typically unavailable in actions for breach of contract and therefore recipients of federal funding lack notice regarding the availability of that remedy. Premier posited that the “personal contract” exception relied upon by Cummings has been applied only in a narrow set of cases (for example, for innkeepers and common carriers), and that those cases rely on tort principles irrelevant to Spending Clause legislation. Second, Premier contended that the Bell v. Hood presumption to authorize a broad array of remedies should not apply where a plaintiff is relying on an implied right of action, as authorizing whatever compensatory remedies a plaintiff may request could lead to more expansive remedies than those available under statutes that explicitly address rights of action and remedies.
Highlights from Oral Arguments. The Justices focused on three main issues during oral arguments. First, Chief Justice Roberts and Justice Barrett expressed skepticism at the Restatement’s broad construal of the availability of emotional distress damages for breach of contract, pointing to other treatises that identify discrete and narrow categories where such damages are available. Colloquy by Justices Breyer, Sotomayor, Kagan and Barrett, however, each made comments that seemed to suggest that the narrow line of cases supporting emotional distress damages against common carriers and innkeepers could be sufficiently analogous to the present case to find in favor of Cummings. Second, Chief Justice Roberts, Justice Thomas, Justice Kagan and Justice Breyer asked several questions relating to how widespread or clear a particular rule must be to constitute sufficient notice for Spending Clause purposes. Challenging Premier’s assertion that the case law demonstrates a lack of uniformity in approaches to remedies, Justices Sotomayor and Barrett noted that state and federal courts have been awarding emotional distress damages in cases involving discrimination for decades. Finally, Justices Kavanaugh and Sotomayor expressed hesitancy to permit uncapped damages for emotional distress under a statute that does not have an express right of action. The Justices pointed to Title VII, which contains an express cause of action and establishes caps for discrimination damages, and indicated that allowing uncapped emotional distress damages here would lead to a disparity between discrimination under Title VII and the statutes at issue.
*          *          *
We are continuing to monitor the case and will provide an update when the Court issues a decision.

U.S. Department of Justice/DOJ