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Petition undercuts new precedent against emotional distress damages

Provisions added to the Rehabilitation Act in 2009 went unnoticed by all parties in a suit for emotional distress damages.

WASHINGTON (CN) — The Supreme Court ruled in April that a deaf woman could not receive emotional distress damages from her disability discrimination suit because the statutes at issue were silent on the matter. She petitioned the court again, however, after finding evidence to the contrary. 

“The opinion says it was premised on the fact that the statute is completely silent as to remedies,” said Andrew Rozynski, an attorney with Eisenberg & Baum representing Jane Cummings. “That is verifiably inaccurate by just looking at the statute.” 

Cummings — who is legally blind as well as deaf since birth — asked a physical-therapy center to offer accommodations for her so she could receive care for her chronic back pain. Cummings was referred to Premier Rehab by two doctors, but at both of her appointments was denied an American Sign Language interpreter. Premier said she would have to rely on lip-reading or writing notes to use their services. 

Claiming that Premier’s refusal to offer accommodations caused “humiliation, frustration, and emotional distress,” Cummings sued for damages. In addition to alleging violations of the Rehabilitation Act — which prohibits discrimination on the basis of disability in programs conducted by federal agencies, she sought relief under the Affordable Care Act, former President Barack Obama's signature health care reform law.

Premier prevailed, and the Fifth Circuit affirmed, finding that emotional distress damages were unrecoverable. The Supreme Court also ruled in favor of the physical therapy center in April. 

Split 6–3 along ideological lines, the majority found the statutes silent on the possibility of emotional distress suits. 

“Because the statutes at issue are silent as to available remedies, it is not obvious how to decide whether funding recipients would have had the requisite ‘clear notice regarding the liability at issue in this case,’” Chief Justice John Roberts wrote for the court. 

Because the majority thought the statutes were silent on the issue, it instead looked to contract analogies set out in Spending Clause cases such as Barnes v. Gorman

“Under Barnes, we therefore cannot treat federal funding recipients as having consented to be subject to damages for emotional distress,” Roberts wrote. “It follows that such damages are not recoverable under the Spending Clause statutes we consider here.” 

However, Barnes — which was decided in 2002 —  could not take into account certain enforcement provisions adopted by the Rehabilitation Act because that language was not added until 2009. 

The 2009 statute appears to turn the entire opinion on its head. 

“The whole reason they went through their whole analysis of the opinion is on the premise that the statute is silent to remedies,” Rozynski said. “So basically, we take away that premise, the whole decision just completely falls on itself.” 

Both parties, the solicitor general, and the justices in the majority and dissent all rely on the statute’s language before 2009, but the language added that year explicitly permits damages for “emotional pain” and “mental anguish.” 

“As a result, neither the Court, the concurrence, nor the dissent considered the fact that the Rehabilitation Act is not silent as to remedies because it incorporates those under section 1981a,” Rozynski wrote in the new petition before the court. 

The justices' ruling has sweeping implications for suits across the country. 

“The ruling basically states that for all the major civil rights statutes for race, gender discrimination, and disability discrimination emotional distress damages are categorically unavailable,” Rozynski said. “So it has huge sweeping implications across the country, and that's why it was such a huge case.” 

The dissent — written by Justice Stephen Breyer — warns that the majority's ruling would leave victims without any solutions because harm from discrimination is rarely economic. 

“It is difficult to square the Court’s holding with the basic purposes that antidiscrimination laws seek to serve,” Breyer wrote. “One such purpose, as I have said, is to vindicate ‘human dignity and not mere economics.’”

With the petition for rehearing before them, the justices have the option to vacate the opinion and send it back down to the lower courts or vacate the opinion and put it back on their calendar. They could also deny the petition altogether and leave the opinion as is. If they choose to leave the opinion as is, it would force lower courts to choose between following the statute as written or following the court’s ruling. 

“The Court’s April 28 decision would, moreover, be inherently flawed from the start and create mischief in the lower courts as judges attempt to reconcile the conflicting commands of Congress — through its duly enacted statutory text — and this Court,” Rozynski wrote. 

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