Chief Justice Roberts, Justice Breyer Disagree on Damages in Warring Views of Treatises
There were Farnsworth and Williston on contracts, McCormick and Sutherland on damages–treatises every law student is bound to encounter at some point. And although Chief Justice John Roberts Jr. and Justice Stephen Breyer agreed on how to analyze whether emotional distress damages are available under two major federal laws, they disagreed on the answer those treatises give.
Roberts’ view prevailed Thursday in the court’s 6-3 ruling rejecting emotional distress damages under the Rehabilitation Act and the Affordable Care Act in Cummings v. Premier Rehab Keller. Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, wrote the dissenting opinion, including a special nod to the justice for whom he clerked in 1964: Arthur Goldberg.
The Cummings case arose when Premier Rehab Keller refused to provide an American Sign Language interpreter to Jane Cummings, who is deaf and legally blind and who sought physical therapy sessions. Cummings sued, alleging disability discrimination in violation of the Rehabilitation Act of 1973 and the Affordable Care Act.
In deciding whether emotional distress damages were available under the two anti-discrimination laws, Roberts said the court asks whether a prospective recipient of federal funds would have been aware that it would face that type of liability. To answer that question, he explained, the court draws an analogy to contract law.
Walking through the various treatises on contracts and damages as well as prior court decisions, Roberts wrote, “In the end, it is apparent that the closest our legal system comes to a universal rule—or even a widely followed one—regarding the availability of emotional distress damages in contract actions is” that they are for highly unusual contracts outside the core of contract law.
“There is thus no basis in contract law to maintain that emotional distress damages are ‘traditionally available in suits for breach of contract,’ and correspondingly no ground, under our cases, to conclude that federal funding recipients have ‘clear notice,’ that they would face such a remedy in private actions brought to enforce the statutes at issue.”
But Breyer countered that damages for emotional suffering have been available as remedies for breach of contract where the breach was likely to cause that type of suffering. He reached his conclusion with a walk through the same treatises and cases Roberts used.
“Contract law treatises make clear that expected losses from the breach of a contract entered for nonpecuniary purposes might reasonably include nonpecuniary harms,” Breyer wrote. He gave as examples contracts for marriage, contracts by common carriers, innkeepers or places of public resort or entertainment, handling of a body, and delivery of sensitive messages.
“In these cases, emotional distress damages are compensatory because they ‘make good the wrong done,’” he added.
Breach of a promise not to discriminate falls into that category, Breyer concluded. Quoting his former boss, Goldberg, he wrote that antidiscrimination laws seek “the vindication of human dignity and not mere economics.”
Breyer wrote, “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. Nor do I believe they would be unaware that, were an analogous contractual breach at issue, they could be held legally liable for causing suffering of that kind.”
Cummings’ counsel in the high court was Andrew Rozynski, partner at New York’s Eisenberg & Baum. Assistant U.S. Solicitor General Colleen Sinzdak argued in support of Cummings. Premier Rehab was represented by Kannon Shanmugam, partner at Paul, Weiss, Rifkind, Wharton & Garrison.
The National Federation of Independent Businesses, which filed an amicus brief supporting Premier Rehab, praised the ruling. “Had the court agreed with the petitioner’s theory, small businesses throughout the country would have faced liability for emotional distress without knowing these damages would be available, causing them great concern,” Karen Harned, executive director of the organization’s small business legal center, said.
But Smita Ghosh of the Constitutional Accountability Center, which filed an amicus brief on behalf of law professors supporting Cummings, said, “Today’s decision is the latest in a long line of Roberts court rulings that gut remedies for violations of federal civil rights laws and make it harder to hold corporations and other actors accountable. As Justice Breyer noted in dissent, emotional distress is often the only form of injury suffered by victims of discrimination. The court’s decision leaves those victims with no remedy at all.”