Cummings v. Premier Rehab Keller, P.L.L.C. is a very important case for employment and benefits practitioners. The Court, divided 6-3 along conservative/liberal lines, has held that emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act. In fact, the case affects potential results under four statutes that Congress has enacted pursuant to its Spending Clause authority that prohibit recipients of federal funds from discriminating with respect to matters including race, color, national origin, sex, disability, or age. See Civil Rights Act of 1964, Title VI, 42 U. S. C. §2000d; Education Amendments Act of 1972, Title IX, 20 U. S. C. §1681; Rehabilitation Act of 1973, §504, 29 U. S. C. §794; Patient Protection and Affordable Care Act (ACA), §1557, 42 U. S. C. §18116. The Court previously held that victims of intentional violations of these statutes may bring private lawsuits seeking to recover, among other things, compensatory damages. Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 76 (1992). Today, the Court holds that the damages available under these statutes cannot include compensation for emotional suffering.
Besides the length of the opinions on both sides, analyzing what might at a casual look appear to be a relatively simple question, what is fascinating is how the majority, led by the Chief Justice, and the minority, led by Justice Breyer (who yesterday heard his last oral argument before retiring at the end of the Term), proceeded from the same starting point, identically asking: “[W]ould a prospective funding recipient, at the time it engaged in the process of deciding whether to accept federal dollars, have been aware that it would face such liability?” And then, both sides proceeded with the same analytical method, following precedents requiring the question to be answered by analogy to the law of contracts. The reason why this analogy is drawn is that Spending Clause “statutes operate”: by “conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds.” Gebser v. Lago Vista Independent School Dist., 524 U. S. 274, 286. Because Spending Clause legislation operates based on consent, the “legitimacy of Congress’ power” to enact such laws rests not on its sovereign authority, but on “whether the [recipient] voluntarily and knowingly accepts the terms of th[at] ‘contract.’ Barnes v. Gorman, 536 U. S. 181, 186, quoting Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17.
However, having agreed fully on the ground rules, and applying similar methods of historical and textual analysis, the two wings of the Court (the larger conservative wing prevailing) reach opposite conclusions. I would argue that the Chief Justice’s view is more mainstream, hewing to what, to me, has been the governing rule that tort damages are generally not available in contracts cases. Thus, it was somewhat gratifying that the majority opinion cites the work of my own contracts professor, Walter H.E. “Doc” Jaeger, along with a more recent text, stating that “[i]t is hornbook law that ‘emotional distress is generally not compensable in contract, D. Laycock & R. Hasen, Modern American Remedies 216 (5th ed. 2019), just as punitive damages . . . are generally not available for breach of contract, Barnes, 536 U. S., at 187. See 11 W. Jaeger, Williston on Contracts §1341, p. 214 (3d ed. 1968).’” Interestingly, Justice Breyer, writing for the dissenters, argues that there are exceptions to that rule and would apply them here. In a separate concurrence, Justice Kavanaugh suggests that, perhaps, this duel should be settled by the adoption of a different mode of analysis devolving from congressional power, but that is unlikely.
Unfortunately, especially for transportation law litigators and train buffs everywhere, the Supreme Court has failed to provide a nationally definitive answer to the question of whether a train that makes a temporary stop in a railyard as part of its unitary journey in interstate commerce is “in use” and therefore subject to the Locomotive Inspection Act? Bradley LeDure sued the Union Pacific Railroad Company for negligence under the Locomotive Inspection Act and the Federal Employers’ Liability Act, arguing that Union Pacific failed to maintain a walkway on which he slipped and fell free of hazards. The district court dismissed LeDure’s claims, finding the locomotive was not “in use” and therefore not subject to the Locomotive Inspection Act, and LeDure’s injuries were not reasonably foreseeable because they resulted from a small “slick spot” unknown to Union Pacific. The Seventh Circuit affirmed. Because Justice Barrett took no part in the consideration or decision of the case of LeDure v. Union Pacific Railroad Company, the Supreme Court was evenly divided and, hence, the judgment of CA7 against Mr. LeDure is affirmed. This is not a decision of wide applicability or effect, but it is informative of the reason why the Court was intended to have an odd number of Justices.