Madeline Pinto, Associate Member, University of Cincinnati Law Review
I. Introduction
The Rehabilitation Act[1] (“the R.A.” or “the Act”) provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by the reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.”[2] The Rehabilitation Act falls within the category of “Spending Clause legislation” because the Act “invokes Congress’s power under the Spending Clause to place conditions on the grant of federal funds.”[3] Courts have often likened Spending Clause legislation to a contract because “in return for federal funds, the States agree to comply with federally imposed conditions.”[4] Therefore, “the legitimacy” of Spending Clause legislation “rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’”[5]
There is a split between the Fifth and Eleventh Circuits as to whether emotional distress damages are an available remedy under the Rehabilitation Act.[6] The Fifth Circuit holds that emotional distress damages are not an available remedy under the Rehabilitation Act because this type of damages is not traditionally available for a breach of contract action.[7] The Eleventh Circuit takes the contrary position; emotional distress damages are an available remedy under the Rehabilitation Act because emotional distress is a foreseeable consequence of discrimination.[8] The Supreme Court’s decisions in Bell v. Hood and Barnes v. Gorman provide a framework for determining which remedies are available under the Rehabilitation Act. The Fifth Circuit employed this framework and correctly held that emotional distress damages are not an available remedy under the Rehabilitation Act.
II. Background
A. The Supreme Court’s Interpretation of Available Remedies in Bell and Barnes.
In Bell v. Hood,[9] the Supreme Court determined that federal courts have jurisdiction over a case where the plaintiffs alleged a violation of their Fourth and Fifth Amendment rights, even though there was no established cause of action.[10] The Court held that federal courts enjoy jurisdiction because the question of whether plaintiffs can recover money damages for a violation of their constitutional rights is a weighty question of law that warrants the exercise of federal jurisdiction.[11] In reaching this conclusion, the Court reasoned 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.”[12]
In Barnes v. Gorman[13], the Supreme Court determined that punitive damages are not an available remedy under the Rehabilitation Act.[14] The plaintiff, Gorman, was a paraplegic who used a wheelchair and lacked control over his bladder functions, “forcing him to wear a catheter attached to a urine bag around his waist.”[15] Gorman was arrested for trespass and sustained serious medical complications as a result of the arresting officers’ conduct.[16] During the arrest, the police refused to allow Gorman to empty his urine bag.[17] Additionally, the van used to transport Gorman to the police station was not outfitted for his wheelchair so the arresting officers removed Gorman from his wheelchair and strapped him into the van seat.[18] As a result, Gorman fell to the floor, rupturing his urine bag and sustaining injuries to his back and shoulder.[19] Gorman sued the police, alleging violations of the Rehabilitation Act.[20] The Court relied on its prior reasoning in Pennhurst that Congress’ authority to pass Spending Clause legislation, such as the Rehabilitation Act, hinges on “whether the [recipient] voluntarily and knowingly accepts the terms of the ‘contract.’”[21] The Court concluded that a remedy is available under Spending Clause legislation “only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.”[22] The Court specified that a funding recipient is on notice of: (1) remedies that are expressly included in the statute; and (2) remedies “traditionally available in suits for breach of contract.”[23] Applying this test, the Court held that punitive damages were not an available remedy under the Rehabilitation Act because punitive damages are not traditionally available in suits for breach of contract.[24] However, the Court cautioned that its decision does not stand for the proposition that “suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise.”[25]
The Court reconciled its holding with the presumption established in Bell v. Hood.[26] The Court reasoned that the wrong committed by a funding recipient who violates Spending Clause legislation is “the failure to provide what the contractual obligation requires.”[27] The Court concluded that this wrong is “made good” when the funding recipient compensates the plaintiff for any harm caused by its failure to comply with its contractual obligations.[28] Thus, the Court held that punitive damages are “not embraced within the rule described in Bell” because they are not compensatory in nature.[29]
B. The Eleventh Circuit’s Interpretation of Available Remedies Under the Rehabilitation Act in Sheely.
In Sheely v. MRI Radiology Network, P.A.,[30] the Eleventh Circuit determined that emotional distress damages are an available remedy under the Rehabilitation Act.[31] The plaintiff, Sheely, was blind and used a guide dog.[32] Sheely was prohibited from accompanying her minor son to his appointment at a radiology facility owned and operated by MRI Radiology Network, P.A. (“MRN”) because of MRN’s policy that service animals are not permitted beyond the facility’s waiting room.[33] Sheely sued MRN for a violation of the Rehabilitation Act, seeking, among other relief, non-economic compensatory damages.[34] The Eleventh Circuit recognized that the Court analogizes Spending Clause legislation to a contract and applied the test set forth in Barnes.[35] The Eleventh Circuit concluded that federal funding recipients are on notice that, by accepting federal funds, they are exposing themselves to liability for emotional distress damages.[36] The Eleventh Circuit reasoned that emotional distress “is a foreseeable consequence of funding recipients’ ‘breach’ of their ‘contract’ with the federal government not to discriminate against third parties because discrimination frequently causes emotional distress. [37]
The Eleventh Circuit further concluded that emotional damages are an available remedy under the Rehabilitation Act even if the test set forth in Barnes requires a direct application of contract law.[38] Specifically, the Eleventh Circuit reasoned that, although emotional damages are not typically available for breach of contract, courts have frequently found that a plaintiff may recover emotional damages for “breach of ‘personal’ contracts.”[39] Additionally, the Eleventh Circuit highlighted the Restatement’s exception to the general rule that emotional damages are not available for breach of contract where “‘the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.’” [40] The Eleventh Circuit reasoned that this exception applies to suits for violations of the Rehabilitation Act because emotional distress is a foreseeable consequence of discrimination.[41]
Next, the Eleventh Circuit considered the effect of the Bell v. Hood presumption on the scope of the remedies available under the Rehabilitation Act.[42] The Eleventh Circuit acknowledged that the Bell v. Hood presumption changes when it is applied to Spending Clause legislation because a remedy is only available under Spending Clause legislation if funding recipients are on notice that they may be subject to liability for those remedies.[43] However, the Eleventh Circuit concluded that the court must abide by the Bell v. Hood presumption because emotional distress damages satisfy the test set forth in Barnes and fall within the category of compensatory damages embraced by the presumption.[44]
C. The Fifth Circuit’s Interpretation of Available Remedies Under the Rehabilitation Act in Cummings.
In contrast, the Fifth Circuit held, in Cummings v. Premier Rehab Keller, P.L.L.C., that emotional distress damages are not an available remedy under the Rehabilitation Act.[45] The plaintiff, Cummings, was deaf and blind and communicated in American Sign Language.[46] Cummings sought to receive physical therapy services at Premier Rehab Keller, P.L.L.C. (“Premier”).[47] Cummings requested that Premier provide an ASL interpreter but Premier refused.[48] Cummings sued Premier for violations of the Rehabilitation Act, seeking, among other remedies, damages for emotional distress.[49] Applying the Barnes test, the Fifth Circuit reasoned that federal funding recipients are not on notice that they could be subject to emotional distress damages under the Rehabilitation Act because “emotional damages, like punitive damages, are traditionally unavailable in breach-of-contract actions.”[50]
The Fifth Circuit also declined to apply the Restatement’s exception to the general rule that emotional distress damages are not available in breach of contract actions.[51] The Fifth Circuit reasoned that the Restatement’s exception fails to put funding recipients on notice that they may be liable for emotional distress damages as required by the Barnes test.[52] Specifically, the Fifth Circuit concluded that “funding recipients are unlikely to be aware that this exception exists” because there is a “general prohibition against emotional distress damages in contract law.”[53] Additionally, the Fifth Circuit noted that, although the Restatement provides an exception for punitive damages where “the conduct constituting the breach is also a tort for which punitive damages are recoverable,” the Court in Barnes held that punitive damages were not available under the Rehabilitation Act because “funding recipients were not ‘on notice’ that they might be liable for punitive damages.”[54]
The Fifth Circuit concluded that the Bell v. Hood presumption does not mandate a finding that emotional distress damages are an available remedy under the Rehabilitation Act.[55] The Fifth Circuit reasoned that the limitation the Court has placed on the Bell v. Hood presumption in the context of Spending Clause legislation applies in this case because “federal funding recipients are not ‘on notice’ that their ‘contractual obligation’ can expose them to liability for emotional distress damages.”[56]
III. Discussion
A. The Fifth Circuit Correctly Employed the Available Remedies Inquiry Set Forth in Barnes.
In applying the Barnes available remedies inquiry, the Fifth Circuit in Cummings correctly asked whether emotional distress damages are traditionally available in breach of contract actions. The Supreme Court in Barnes chose to focus its available remedies inquiry on which damages are traditionally available in breach of contract actions because Spending Clause legislation is analogous to a contract. As such, the Court held that recipients of federal funds are only on notice of remedies that are traditionally available for breach of contract actions. Therefore, the Court held that punitive damages are not available under the Rehabilitation Act. In reaching this conclusion, the Court did not consider whether punitive damages are a foreseeable consequence of violations of the Rehabilitation Act or other anti-discrimination statutes. This indicates that an evaluation of the foreseeable consequences of discrimination is not part of the available remedies inquiry.
The Fifth Circuit rightly abided by the Court’s available remedies inquiry and correctly held that emotional distress damages are not an available remedy under the Rehabilitation Act. Consistent with the Court’s reasoning in Barnes, the Fifth Circuit determined that emotional distress damages are an available remedy under the Rehabilitation Act by focusing on whether emotional distress damages are traditionally available in breach of contract actions. Applying this test, the Fifth Circuit held that federal funding recipients should not be considered on notice that they could be liable for emotional distress damages under the Rehabilitation Act. Like the Court in Barnes, the Fifth Circuit declined to consider whether emotional distress is a foreseeable consequence of violations of the Rehabilitation Act or other anti-discrimination actions.
In contrast, the Eleventh Circuit misapplied the available remedies inquiry outlined in Barnes. The Eleventh Circuit recognized that the Court applies a contract metaphor to Spending Clause legislation. However, rather than focusing on whether emotional distress damages are traditionally available for breach of contract actions, the Eleventh Circuit focused its inquiry on whether emotional distress damages are a foreseeable result of violations of the Rehabilitation Act. Specifically, the Eleventh Circuit reasoned that federal funding recipients are on notice that they can be subject to emotional distress damages because emotional distress is a frequent, and thus foreseeable, consequence of a breach of an anti-discrimination statute, such as the Rehabilitation Act. In this way, the Eleventh Circuit fundamentally altered the Barnes available remedies inquiry and, as a result, erroneously held that a plaintiff may recover emotional distress damages under the Rehabilitation Act.
B. The Fifth Circuit Correctly Concluded that the Restatement’s Exception does not put Funding Recipients on Notice.
The Fifth Circuit’s conclusion that the Restatement’s exception fails to put federal funding recipients on notice that they are subject to emotional distress damages is consistent with the Supreme Court’s reasoning in Barnes. The Court in Barnes implicitly concluded that the existence of a Restatement exception to the general rule that punitive damages are not available in breach of contract actions is not sufficient to put federal funding recipients on notice. The Restatement exception for punitive damages most likely applied in Barnes because the police officers’ treatment of Barnes likely constituted an actionable tort. However, as noted by the Fifth Circuit, the Court held that federal funding recipients were not on notice that they could be subject to punitive damages. Moreover, the Court’s decision to forgo any discussion of the punitive damages exception suggests that the existence of an exception does not affect whether federal funding recipients are on notice. Therefore, consistent with the Court’s reasoning in Barnes, the Fifth Circuit correctly concluded that the existence of a Restatement exception for emotional distress damages does not put federal funding recipients on notice.
In contrast, the Eleventh Circuit in Sheely erroneously relied on the Restatement’s exception to conclude that emotional distress damages are recoverable under the Rehabilitation Act. Moreover, the Eleventh Circuit erred in treating suits brought under the Rehabilitation Act as suits in contract to which all contract-law principles apply. Despite the Court’s caveat in Barnes that actions brought under Spending Clause legislation should not be treated as contract actions, the Eleventh Circuit concluded that an exception for emotional damages in contract law automatically applies to violations of the Rehabilitation Act. Further, rather than considering how courts have applied the Restatement’s exception to Spending Clause legislation, the Eleventh Circuit relied on the reasoning provided in ordinary—not to mention non-binding— breach of contract cases. Most notably, the Eleventh Circuit failed to consider the import of the Court’s decision not to discuss nor apply the Restatement’s exception for punitive damages in Barnes.
C. The Fifth Circuit Correctly Concluded that the Bell v. Hood Presumption Does Not Render Emotional Distress Damages an Available Remedy Under the Rehabilitation Act.
Although the Fifth and Eleventh Circuits recognized that the notice requirement of the Court’s available remedies inquiry acts as a constraint on the Bell v. Hood presumption, only the Fifth Circuit recognized that this constraint applies to the availability of emotional distress damages under the Rehabilitation Act. As explained above, federal funding recipients are not on notice that they are subject to liability for emotional distress damages as required by the Court’s available remedies inquiry because emotional distress damages are not traditionally available for breach of contract actions. Due to this lack of notice, the Fifth Circuit correctly concluded that the constraint the Court placed on the Bell v. Hood presumption in the context of Spending Clause legislation applies in this instance. As such, the Bell v. Hood presumption does not require courts to award emotional distress damages under the Rehabilitation Act.
V. Conclusion
The Fifth Circuit correctly held that emotional distress damages are not an available remedy under the Rehabilitation Act. The Fifth Circuit applied the Supreme Court’s available remedies inquiry to the Rehabilitation Act by focusing on whether emotional distress damages are traditionally available for breach of contract actions. Further, consistent with the Court’s reasoning in Barnes, the Fifth Circuit concluded that the Restatement’s exception does not put federal funding recipients on notice (as required by the available remedies inquiry). Lastly, the Fifth Circuit concluded that the Bell v. Hood presumption does not require courts to award emotional damages under the Rehabilitation Act because federal funding recipients are not on notice that they are subject to emotional distress damages. Therefore, the Fifth Circuit correctly held that plaintiffs may not recover emotional distress damages for violations of the Rehabilitation Act.
[1] 29 U.S.C. § 794.
[2] Id.
[3] Barnes v. Gorman, 536 U.S. 181, 185-86 (2002).
[4] Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
[5] Id.
[6] Cummings v. Premier Rehab Keller, P.L.L.C., 2020 U.S. App. LEXIS 2250 (5th Cir. Jan. 24, 2020); Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007).
[7] Cummings, 2020 U.S. App. LEXIS 2250, at *12.
[8] Sheely, 505 F.3d at 12199-200.
[9] Bell v. Hood, 327 U.S. 678, 684 (1946).
[10] Id. at 681.
[11] Id. at 683-84.
[12] Id. at 684.
[13] Barnes v. Gorman, 536 U.S. 181 (2002).
[14] Id. at 183.
[15] Id.
[16] Id. at 184.
[17] Id. at 183.
[18] Id. at 183-84.
[19] Id.
[20] Id. at 184.
[21] Id. at 187.
[22] Id. (emphasis in original).
[23] Id.
[24] Id.
[25] See id. at 189 n.2.
[26] Id. at 189.
[27] Id.
[28] Id.
[29] Id.
[30] Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007).
[31] Id. at 1177.
[32] Id. at 1192.
[33] Id. at 1178.
[34] Id. at 1180.
[35] Id. at 1198.
[36] Id.
[37] Id.
[38] Id. at 1200.
[39] Id. at 1201 (citing Sullivan v. O’Connor, 296 N.E.2d 183 (Mass. 1973); Stewart v. Rudner, 84 N.W.2d 816 (Mich. 1957); Lamm v. Shingleton, 55 S.E.2d 810 (N.C. 1949)).
[40] Id. at 1200 (citing Restatement Second of Contracts §353).
[41] Id.
[42] Id. at 1203.
[43] Id. at 1191.
[44] Id. at 1203.
[45] Cummings v. Premier Rehab Keller, P.L.L.C., 2020 U.S. App. LEXIS 2250 at *12 (5th Cir. Jan. 24, 2020).
[46] Id. at *2.
[47] Id.
[48] Id.
[49] Id. at *4.
[50] Id. at *9.
[51] Id. at *10-12.
[52] Id.
[53] Id.
[54] Id. at *11.
[55] Id. at *15-16.
[56] Id.