Amicus Curiae Brief — CVS Pharmacy, Inc., et al., Petitioners v. John Doe, One, et al.

No. 20-1374

In The

Supreme Court of the United States

___________

CVS PHARMACY, I NC.; CAREMARK, L.L.C.;

CAREMARK CALIFORNIA SPECIALTY

PHARMACY, L.L.C.,

v.

Petitioners,

JOHN DOE, ONE; JOHN DOE, TWO; JOHN DOE, THREE;

JOHN DOE, FOUR; JOHN DOE, FIVE; ON BEHALF OF

THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

___________

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of

Appeals for the Ninth Circuit

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AND INDEPENDENT WOMEN’S LAW CENTER AS

AMICI CURIAE SUPPORTING PETITIONERS

___________

JENNIFER C. BRACERAS

INDEPENDENT WOMEN’S

LAW CENTER

4 Weems Lane #312

Winchester, VA 22601

(202) 429-9574

jennifer.braceras@iwf.org

April 30, 2021

JOHN M. MASSLON II

Counsel of Record

CORY L. ANDREWS

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org

QUESTION PRESENTED

Whether Section 504 of the Rehabilitation Act,

and by extension the ACA, provides a disparateimpact cause of action for plaintiffs alleging disability

discrimination.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................... i

TABLE OF AUTHORITIES ................................... v

INTRODUCTION AND INTERESTS OF

AMICI CURIAE ...................................................... 1

STATEMENT .......................................................... 3

I.

STATUTORY BACKGROUND.................................. 3

II. FACTS AND PROCEDURAL HISTORY .................... 4

SUMMARY OF ARGUMENT................................. 5

ARGUMENT ........................................................... 6

I.

REVIEW IS NEEDED TO CLARIFY THAT

SECTION 504 DOES NOT PERMIT DISPARATEIMPACT CLAIMS .................................................. 7

A. Section 504’s Plain Language

Resolves The Issue ................................. 7

B. Comparison With Similar Statutes

Supports This Interpretation ................ 9

C. Courts Should Not Imply New

Causes Of Action .................................. 11

iv

TABLE OF CONTENTS

(continued)

Page

II. ALLOWING A DISPARATE-IMPACT CAUSE OF

ACTION UNDER SECTION 504 WOULD BE

COSTLY ............................................................. 14

CONCLUSION ...................................................... 21

v

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Choate,

469 U.S. 287 (1985) ..........................................7, 13

Alexander v. Sandoval,

532 U.S. 275 (2001) ......................................2, 9, 11

Bd. of Governors of Fed. Rsrv.

Sys. v. Dimension Fin. Corp.,

474 U.S. 361 (1986) ..............................................12

Cmty. Television of S. Cal. v. Gottfried,

459 U.S. 498 (1983) ................................................9

CSX Transp., Inc. v. McBride,

564 U.S. 685 (2011) ................................................7

Doe v. BlueCross BlueShield

of Tenn., Inc.,

926 F.3d 235 (6th Cir. 2019)............................7, 13

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018)..........................................13

Gooden v. Batz,

No. 18-cv-302, 2020 WL 6146395

(S.D. Ohio Oct. 20, 2020) .......................................3

Griggs v. Duke Power Co.,

401 U.S. 424 (1971) ........................................10, 11

Hernandez v. Mesa,

140 S. Ct. 735 (2020)......................................12, 13

Husted v. A. Philip Randolph Inst.,

138 S. Ct. 1833 (2018)............................................8

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Marbury v. Madison,

5 U.S. 137 (1803)..................................................13

McPherson v. Michigan High

Sch. Athletic Ass’n, Inc.,

119 F.3d 453 (6th Cir. 1997)................................18

Murphy v. Nat’l Collegiate

Athletic Ass’n,

138 S. Ct. 1461 (2018)..........................................12

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018)..............................................8

Beverly R. on behalf of E.R. v. Mt.

Carmel Acad. of New Orleans, Inc.,

No. 20-cv-2924, 2021 WL 1109494

(E.D. La. Mar. 23, 2021) ......................................19

Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979) ................................................8

Prestol Espinal v. Att’y Gen.

of the United States,

653 F.3d 213 (3d Cir. 2011) ...................................9

Ricci v. DeStefano,

557 U.S. 557 (2009) ................................................7

S. Camden Citizens in Action v.

N.J. Dep’t of Envtl. Prot.,

274 F.3d 771 (3d Cir. 2001) ...................................2

Smith v. City of Jackson,

544 U.S. 228 (2005)..............................................10

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Tex. Dep’t of Hous. & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc.,

576 U.S. 519 (2015)..............................................10

United States v. Culbert,

435 U.S. 371 (1978) ................................................9

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017)....................................11, 12

Constitutional Provisions

U.S. Const. art. I, § 1.................................................12

U.S. Const. art. III, § 1 ..............................................12

Statutes

20 U.S.C. § 6301 ........................................................17

29 U.S.C. § 623(a)(2) .................................................11

29 U.S.C. § 794(a)..............................................3, 8, 10

29 U.S.C. § 794(b)(2)(A) ............................................16

29 U.S.C. § 794(b)(2)(B) ............................................17

42 U.S.C. § 2000d ..................................................9, 10

42 U.S.C. § 2000e-2(1) ...............................................10

42 U.S.C. § 3604(a)....................................................10

42 U.S.C. § 12111(5)(A) .............................................20

42 U.S.C. § 18116(a)................................................3, 6

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

CNN, Biden visits DC hardware store to

highlight Paycheck Protection

Program (Mar. 9, 2021) .......................................19

Ctrs. for Medicare & Medicaid Servs.,

National Health Expenditures

2019 Highlights ...................................................16

Dean Clancy, A List of Colleges That

Don’t Take Federal Money

(Aug. 10, 2020) .....................................................16

Josh Moody, A Guide to the Changing

Number of U.S. Universities,

U.S. News & World Report

(Feb. 15, 2019)......................................................16

Kaiser Family Found., An Overview of

the Medicare Part D Prescription

Drug Benefit (Oct. 14, 2020) ................................15

KDKA, Pittsburgh Penguins Received

$4.8M PPP Loan To Pay

Rent (Jan. 5, 2021) ...............................................19

Nancy Ochieng et al., How Many

Physicians Have Opted-Out of the

Medicare Program? (Oct. 22, 2020) .....................14

Natl. Cen. For Educ. Statistics,

Postsecondary Institution Expenses

(May 2020) ...........................................................17

Natl. Cen. For Educ. Statistics, Public

School Expenditures (Apr. 2020) .........................19

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Sarah Albertson, The Achievement

Gap and Disparate Impact

Discrimination in

Washington Schools,

36 SEATTLE U. L. REV. 1919 (2013) ...............17, 18

Thomas Wade, Tracker: Paycheck

Protection Program Loans

(Apr. 7, 2021)........................................................19

Webster’s Ninth New Collegiate

Dictionary (1986) ...............................................6, 8

1

INTRODUCTION AND

INTERESTS OF AMICI CURIAE*

Parties have spilled much ink in this Court on

whether the Patient Protection and Affordable Care

Act’s (ACA’s) individual mandate is constitutional.

But why did Congress include the individual mandate

in the ACA? Another ACA provision forbids denying

medical coverage because of a pre-existing condition.

So Congress recognized that, without the individual

mandate, insurers would go broke insuring only highrisk individuals.

High-risk individuals account for most of an

insurer’s costs. For prescription-drug plans, high-risk

individuals use specialty drugs that can cost

hundreds of thousands of dollars per year. These

drugs treat conditions from asthma to AIDS.

Prescription benefits managers have successfully

reduced costs by negotiating lower prices for specialty

drugs from some pharmacies. These deals help keep

insurance prices low for all Americans.

But this efficiency angers the plaintiffs’ bar.

After several years of scouring the ACA, creative

attorneys sued CVS for allegedly discriminating on

the basis of disability by requiring patients who

receive specialty drugs to pay more when filling

prescriptions with other pharmacies. The plaintiffs’

attorneys argue that the ACA—by incorporating

Section 504 of the Rehabilitation Act of 1973’s

* No party’s counsel authored any part of this brief. No

person or entity, other than amici and their counsel, paid for the

brief’s preparation or submission. After timely notice, all parties

consented to amici’s filing this brief.

2

remedies provision—permits such disparate-impact

claims.

Independent Women’s Law Center is a project

of Independent Women’s Forum, a nonprofit, nonpartisan 501(c)(3) organization founded by women to

foster education and debate about legal, social, and

economic issues. IWF promotes policies that advance

women’s

interests

by

expanding

freedom,

encouraging personal responsibility, and limiting the

reach of government. IWLC supports this mission by

advocating—in the courts, before administrative

agencies, in Congress, and in the media—for

individual liberty, equal opportunity, and respect for

the American constitutional order.

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. WLF promotes free

enterprise, individual rights, limited government,

and the rule of law. It often appears as amicus in

cases raising disparate-impact issues under federal

law. See, e.g., Alexander v. Sandoval, 532 U.S. 275

(2001); S. Camden Citizens in Action v. N.J. Dep’t of

Envtl. Prot., 274 F.3d 771 (3d Cir. 2001).

The Ninth Circuit’s decision ignores Section

504’s plain language, which does not recognize

disparate-impact claims. Like other statutes whose

remedy provisions the ACA incorporates, Section 504

does not allow these claims. Recognizing disparateimpact claims amounts to judicial policymaking.

Unaccountable federal judges should not decide these

important issues. Rather, the politically accountable

branches should make these decisions.

3

Left to stand, the decision below will lead to

increased costs for almost every American business

that offers prescription-drug coverage for its

employees. This will force companies to either cut

their employees’ pay or drop prescription-drug

coverage. The Ninth Circuit, however, ignored these

real-world impacts of its decision. This Court should

intervene and answer the question it has deferred;

plaintiffs cannot bring disparate-impact claims under

Section 504.

STATEMENT

I.

STATUTORY BACKGROUND

The ACA provides that federally financed

health programs may not discriminate against a

participant “on the ground prohibited under” Section

504 and other nondiscrimination statutes. 42 U.S.C.

§ 18116(a). Private parties may sue to enforce this

right. Id. Section 504 bars federal-funds recipients

from discriminating “solely by reason of [a person’s]

disability.” 29 U.S.C. § 794(a). Rather than provide

new enforcement tools, the ACA incorporates

enforcement

regimes

from

nondiscrimination

statues—including Section 504. 42 U.S.C. § 18116(a).

This case shows the vast breadth of potential

defendants under this provision. Pharmacy benefits

managers, pharmacies, and employers who provide

retirees prescription-drug benefits subsidized by the

federal government are all fair game. Cf. Gooden v.

Batz, No. 18-cv-302, 2020 WL 6146395, *9 (S.D. Ohio

Oct. 20, 2020) (Section 18116(a) uses “extremely

broad language”).

4

II.

FACTS AND PROCEDURAL HISTORY

CVS has a long list of specialty medicines.

These drugs treat many conditions from psoriasis to

AIDS. Plan participants prescribed specialty drugs

have three options. First, they can receive the drugs

by mail. Second, they can pick up the medicine at a

local CVS. Finally, they can use another pharmacy

and pay more.

Respondents took aim at the specialty-drug

program,

claiming

that

the

specialty-drug

requirements disparately impact AIDS patients. They

filed a putative class action in the Northern District

of California. Besides damages, Respondents sought

an injunction barring CVS from requiring them to

follow the specialty-drug program’s terms. They did

not argue that CVS discriminated against them

because of their disability. Rather, Respondents

argued that the program disproportionately affects

those with AIDS.

This was part of a shotgun approach by

Respondents’ counsel. Perhaps realizing that Section

504 likely does not allow disparate-impact claims,

they sued in courts across the country. The plan was

simple. Find out which circuits would allow the suits

and then file the remaining claims in those circuits

hoping to extort settlements from less-capitalized

defendants. The plan worked.

The District Court held that disparate-impact

claims are allowed under the ACA and Section 504

but nonetheless dismissed Respondents’ complaint

because it failed to state a disparate-impact claim.

Pet. App. 35a-40a, 43a-44a. The Ninth Circuit agreed

5

that Respondents could bring disparate-impact

claims. Id. 15a. Yet it held that Respondents’

allegations stated a claim and therefore remanded for

further proceedings. See id. 23a. CVS filed this

petition after the Ninth Circuit denied rehearing en

banc. See id. 81a-82a.

SUMMARY OF ARGUMENT

I.A. Section 504’s plain language bars

disparate-impact claims. It requires a discriminatory

intent to exclude solely because of a person’s

disability. If no discriminatory intent exists, a Section

504 claim fails. The statute’s lack of an express

disavowal of disparate-impact claims does not alter

this interpretation.

B. Other nondiscrimination statutes support

this plain-language reading. Plaintiffs cannot bring

disparate-impact claims under the nondiscrimination

statute with the closest—but still broader—remedy

provision. The three statutes that allow disparateimpact claims differ substantially from Section 504.

This different language, which is absent here, lends

itself to disparate-impact claims.

C. The Court has recently shunned recognizing

implied causes of actions. This reluctance is grounded

in important separation-of-powers principles. When a

court creates a cause of action, it exercises

legislative—rather than judicial—power. The Court

should not shrink from its fidelity to the distinction

between legislative and executive power.

6

II. The breadth of potential disparate-impact

claims under Section 504 is stunning. Almost every

medical provider, college, and university could face

such claims. So too could most K-12 schools and the

millions of companies that received federal assistance

during the COVID-19 pandemic.

Most of the American economy could face

disparate-impact claims if the Ninth Circuit’s

decision stands. If Congress had desired that, it would

have enacted such a law. But it chose instead to limit

Section 504’s remedies provision The Court should

resolve the circuit split now to prevent an avalanche

of Section 504 claims that go far beyond what

Congress intended.

ARGUMENT

The ACA provides a cause of action for

discrimination “on the ground prohibited under”

several nondiscrimination statutes. 42 U.S.C.

§ 18116(a). This language shows that the ACA does

not create a new cause of action. As used in the ACA,

“ground” means “a basis for * * * argument.” Webster’s

Ninth New Collegiate Dictionary 538 (1986). This

means that the ACA incorporated the discrimination

bars in those individual statutes. See Pet. App. 9a11a. It did not combine the various nondiscrimination

statutes. Nor did it bar a different type of

discrimination.

So although Respondents sued under the ACA,

the first question presented centers on how to

interpret Section 504. If Section 504 allows disparateimpact claims, then plaintiffs can assert those claims

in an ACA suit alleging disability discrimination. But

7

if disparate-impact claims are barred under Section

504, they are also barred under the ACA.

The Petition details the 4-1 circuit split the

Court can resolve by granting the first question

presented. Pet. 16-21. But this Court does not use a

“show of hands” when deciding cases. CSX Transp.,

Inc. v. McBride, 564 U.S. 685, 715 (2011) (Roberts,

C.J., dissenting) (citations omitted). Here, the Sixth

Circuit’s minority view is correct; Section 504 does not

provide for disparate-impact claims. See Doe v.

BlueCross BlueShield of Tenn., Inc., 926 F.3d 235,

241-43 (6th Cir. 2019).

I.

REVIEW IS NEEDED TO CLARIFY THAT

SECTION 504 DOES NOT PERMIT DISPARATEIMPACT CLAIMS.

A disparate-impact claim argues that

“practices that are not intended to discriminate” still

had a “disproportionately adverse effect on” a

protected group. Ricci v. DeStefano, 557 U.S. 557, 577

(2009). The group that Section 504 protects is the

disabled. The Court has not determined whether

Section 504 allows disparate-impact claims.

Alexander v. Choate, 469 U.S. 287, 299 (1985). Now

that the courts of appeals have split on the question,

this Court should decide the issue.

A.

Section 504’s Plain

Resolves The Issue.

Language

Section 504 provides that “[n]o otherwise

qualified individual with a disability * * * shall, solely

by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be

8

subjected to discrimination under any program or

activity receiving Federal financial assistance.” 29

U.S.C. § 794(a) (emphasis added). Does this statutory

provision allow for a disparate-impact claim? The text

provides an unambiguous answer—no. The analysis

should begin and end there. See Nat’l Ass’n of Mfrs. v.

Dep’t of Def., 138 S. Ct. 617, 631 (2018) (citation

omitted).

The phrase “solely by reason of her or his

disability” shows that a plaintiff must prove that her

disability was the only reason for the exclusion. See

Webster’s Ninth New Collegiate Dictionary 1122

(1986) (defining “sole” as “belonging exclusively or

otherwise limited to [usually] specified individual,

unit, or group”). If there is any other purpose behind

exclusion, a plaintiff cannot prevail on a Section 504

claim.

The Court has interpreted other statutes in

this way. For example, in Husted v. A. Philip

Randolph Inst., it held that “solely by reason of”

means “for no reason other than.” 138 S. Ct. 1833,

1842 (2018). The Ninth Circuit did not explain why

the same language in Section 504 demands a different

interpretation.

In other words, to state a claim under Section

504, plaintiffs must allege a discriminatory purpose.

And as this Court recognized in Pers. Adm’r of Mass.

v. Feeney, a “discriminatory purpose” does not include

mere disparate impact. 442 U.S. 256, 279 (1979).

Section 504’s plain language therefore forecloses

disparate-impact claims.

9

The lack of an affirmative bar on disparateimpact claims changes nothing. Congress need not

anticipate—by disavowing—every conceivable extrastatutory claim the plaintiffs’ bar concocts. See United

States v. Culbert, 435 U.S. 371, 379 (1978) (the Court

does not “manufacture ambiguity” in statutes “where

none exists”); see also Prestol Espinal v. Att’y Gen. of

the United States, 653 F.3d 213, 220 (3d Cir. 2011)

(parties cannot “manufacture[ ] an ambiguity from

Congress’[s] failure to specifically foreclose each

exception that could possibly be conjured or

imagined”).

Section 504’s language is clear and

unambiguous. Congress did not authorize disparateimpact claims. Because the ACA does not

independently provide for disparate-impact claims,

the Ninth Circuit should have ended its analysis

there. But looking beyond Section 504’s language

leads to the same outcome. In fact, it bolsters this

reading.

B.

Comparison With Similar Statutes

Supports This Interpretation.

Viewing Section 504 in the broader context of

nondiscrimination statutes shows why the Ninth

Circuit’s analysis makes no sense. Section 504, “was

patterned after Title VI,” Cmty. Television of S. Cal.

v. Gottfried, 459 U.S. 498, 509 (1983), which prohibits

a person’s “be[ing] excluded from participation in,

be[ing] denied the benefits of, or be[ing] subjected to

discrimination” because of membership in a protected

class. 42 U.S.C. § 2000d. And this Court has held that

disparate-impact claims are barred under Title VI.

Alexander, 532 U.S. at 280-81.

10

Section 504’s language is even clearer than

Title VI’s language in limiting available claims. Title

VI omits the word “solely,” 42 U.S.C. § 2000d, while

Section 504 uses the word “solely.” 29 U.S.C. § 794(a).

This shows that Congress wanted to provide fewer

causes of action under Section 504 than under Title

VI. It makes no sense to recognize disparate-impact

claims under the narrower statute when the broader

statute bars such claims.

True, the Court has recognized that some other

nondiscrimination statutes permit disparate-impact

claims. Plaintiffs can bring disparate-impact claims

under the Fair Housing Act, Tex. Dep’t of Hous. &

Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576

U.S. 519, 533-39 (2015), Title VII, Griggs v. Duke

Power Co., 401 U.S. 424, 429-31 (1971), and the Age

Discrimination in Employment Act. Smith v. City of

Jackson, 544 U.S. 228, 235-36 (2005). But those three

statutes use different language that lends itself to

disparate-impact claims.

The FHA makes it illegal “[t]o refuse to sell or

rent after the making of a bona fide offer, or to refuse

to negotiate for the sale or rental of, or otherwise make

unavailable or deny, a dwelling to any person” for

certain reasons. 42 U.S.C. § 3604(a) (emphasis

added). The Court held that “the phrase ‘otherwise

make unavailable’” manifests Congress’s desire to

recognize disparate-impact liability under the FHA.

Tex. Dep’t of Hous., 576 U.S. at 534.

Title VII similarly makes it illegal “to fail or

refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual” for

specific reasons. 42 U.S.C. § 2000e-2(1) (emphasis

11

added). The Court has held that the “otherwise

discriminate” language naturally includes disparateimpact claims. See Griggs, 401 U.S. at 429-31.

The ADEA bars “limit[ing], segregat[ing], or

classify[ing] * * * employees in any way which would

deprive or tend to deprive any individual of

employment opportunities or otherwise adversely

affect his status as an employee, because of such

individual’s age.” 29 U.S.C. § 623(a)(2) (emphasis

added). Again, Congress employed the “otherwise

adversely affect” language to signal that plaintiffs

may bring disparate-impact claims under the ADEA.

But Section 504 lacks any similar language

supporting

disparate-impact

claims.

Rather,

Congress chose to use language more restrictive than

Title VI—which bars disparate-impact claims. Thus,

other nondiscrimination statutes—both those

recognizing disparate-impact claims and those that

do not—show that the Ninth Circuit misconstrued

Section 504.

C.

Courts Should Not

Causes Of Action.

Imply

New

“In the mid-20th century, the Court” thought it

was “a proper judicial function to” recognize claims

“necessary to make effective a statute’s purpose.”

Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (cleaned

up). During this time the Court recognized many

implied causes of action.

But the Court has since abandoned that

“ancien regime.” Alexander, 532 U.S. at 287. Now the

Court charts a “far more cautious course before

12

finding implied causes of action.” Ziglar, 137 S. Ct. at

1855.

This change is grounded in the Constitution.

“When a party seeks to assert an implied cause of

action * * * under a federal statute, separation-ofpowers principles” must “be central to the analysis.”

Ziglar, 137 S. Ct. at 1857. The Court’s old practice of

recognizing implied causes of action created “tension”

with “the Constitution’s separation of legislative and

judicial power.” Hernandez v. Mesa, 140 S. Ct. 735,

741 (2020).

The Constitution vests “All legislative Powers”

with Congress. U.S. Const. art. I, § 1; see Murphy v.

Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 147576 (2018). The Judiciary, on the other hand, exercises

judicial power. U.S. Const. art. III, § 1. The distinction

between the legislative power and the judicial power

disappears when courts imply causes of action that

Congress did not create.

Congress chose not to recognize disparateimpact claims under Section 504. As described above,

Congress decided to model Section 504 after Title VI

rather than Title VII, the ADEA, or the FHA. It

therefore made a policy decision to bar disparateimpact claims.

This policy choice arose from the complex

legislative process. Congress sought to “stamp out”

disability discrimination. See Bd. of Governors of Fed.

Rsrv. Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374

(1986). But “because” some congressmen likely

“differ[ed] sharply on the means for effectuating that

intent, the final language of” Section 504 “reflect[s]

hard-fought compromises.” See id. Thus Congress

13

“enact[ed] a provision that * * * prohibits specified

conduct” but did “not wish to pursue the provision’s

purpose” by permitting disparate-impact claims. See

Hernandez, 140 S. Ct. at 742.

Yet the Ninth Circuit disapproved of that

policy decision and tried to “fix” Section 504, reading

into it a disparate-impact cause of action that

Congress rejected. If the Ninth Circuit was trying to

“exercise[] a degree of lawmaking authority” as a

common-law court, that attempt fails because there is

no federal common law. Hernandez, 140 S. Ct. at 742

(citations omitted).

As an Article III court, members of the Ninth

Circuit panel could not morph “into policymakers

choosing what the law should be.” Epic Sys. Corp. v.

Lewis, 138 S. Ct. 1612, 1624 (2018). Rather, they were

constrained “to say what the law is.” Marbury v.

Madison, 5 U.S. 137, 177 (1803). This Court should

grant review to remind the Ninth Circuit, again, that

it cannot legislate from the bench.

But Congress’s policy decision also stands up to

scrutiny. “[M]any neutral (and well-intentioned)

policies disparately affect the disabled—the point of

such laws most often is to ease the burden of having

a disability.” Doe, 926 F.3d at 242. Allowing

disparate-impact claims would “lead to a wholly

unwieldy administrative and adjudicative burden.”

Id. (quoting Choate, 469 U.S. at 298). This was a

rational policy decision that courts may not secondguess.

*

*

*

Section 504’s language is simple. It provides a

straightforward claim for those subject to

14

discrimination solely because of a disability. But it

does not create a cause of action to challenge

nondiscriminatory policies the burdens of which may

fall more heavily on the disabled. The Court’s

interpretation of other nondiscrimination statutes

and its recent trend away from implied causes of

action bolster this interpretation. The Ninth Circuit’s

contrary holding is wrong and deserves this Court’s

review.

II.

ALLOWING A DISPARATE-IMPACT CAUSE OF

ACTION UNDER SECTION 504 WOULD BE

COSTLY.

It is hard to overstate the disastrous and costly

effects of recognizing disparate-impact claims under

Section 504. The statute covers any entity that

receives federal financial assistance. This Court

should not permit the lower federal courts to impose

such high costs without Congress’s express

authorization.

A. Respondents claim that CVS must comply

with Section 504 because it receives Medicare

reimbursements even though those reimbursements

are not at issue. See Am. Compl. ¶ 143, Doe v. CVS

Pharm., Inc., 348 F. Supp. 3d 967 (N.D. Cal. 2018)

(No. 18-cv-1031). Under this theory, which the Ninth

Circuit refused to rebuke, plaintiffs can sue almost

any medical provider under Section 504. See Nancy

Ochieng et al., How Many Physicians Have Opted-Out

of the Medicare Program? (Oct. 22, 2020),

https://tinyurl.com/nb9sufc4 (over 99% of doctors are

Medicare participants).

15

Again, Respondents’ theory is that it would be

irrelevant whether a patient personally paid for

services received. So long as Medicare paid the doctor

to see one patient, she must comply with Section 504

for all of her patients. This theory expands the statute

far beyond what its text can bear.

So permitting disparate-impact claims under

Section 504 would cause great upheaval in the

medical field. Doctors, hospitals, and others might

refuse to accept Medicare or Medicaid to limit their

liability. Today, our medical professionals are spread

thin because of the COVID-19 pandemic. Increased

strain on the industry could cause it to crack in

already struggling rural areas.

But even with a narrower interpretation of the

federal-financial-assistance requirement, plaintiffs

can sue under many prescription-drug plans. Over

seven million Americans participate in federally

subsidized employer-sponsored plans. See Kaiser

Family Found., An Overview of the Medicare Part D

Prescription Drug Benefit (Oct. 14, 2020),

https://tinyurl.com/n3tpj5wc. These plan participants

can sue their employers under the ACA.

Allowing disparate-impact claims would

change the calculus for companies deciding whether

to offer such plans. The increased risk of suits for

unintentional conduct will lead to fewer companies

offering prescription-drug plans. This benefits no one.

The effect on our economy would be profound.

Recently, America’s healthcare spending has

skyrocketed. In 2019, U.S. healthcare spending

exceeded $3.8 trillion—17% of gross domestic

16

product. See Ctrs. for Medicare & Medicaid Servs.,

National Health Expenditures 2019 Highlights,

https://tinyurl.com/46pxehn5. With the COVID-19

pandemic, that number was higher last year.

Although this case applies Section 504 in the

medical context, other sectors will face large costs if

plaintiffs can bring disparate-impact claims under

Section 504.

B. Colleges and universities that receive

federal assistance must comply with Section 504. See

29 U.S.C. § 794(b)(2)(A). There are almost four

thousand American colleges and universities. Josh

Moody, A Guide to the Changing Number of U.S.

Universities, U.S. News & World Report (Feb. 15,

2019), https://tinyurl.com/49y9waz4. Yet fewer than

two dozen do not accept federal funds. See Dean

Clancy, A List of Colleges That Don’t Take Federal

Money (Aug. 10, 2020), https://tinyurl.com/2272duz2.

If the Ninth Circuit’s decision stands, almost all

colleges and universities could be sued under a

disparate-impact theory.

Allowing disparate-impact claims against

colleges and universities will lead to fewer

opportunities for all students, including those with a

disability. Two examples prove the point. Assume

three identical dorms on campus. The dorms are old,

so the college makes the centrally located dorm

accessible to those in wheelchairs. But most of the

chemistry labs are near one of the other dorms.

Under

Respondents’

theory,

chemistry

students in wheelchairs could sue the college alleging

that the college’s policy has a disproportionate

17

negative effect on students who use wheelchairs. The

Sixth Circuit’s correct construction of Section 504

bars those disparate-impact claims.

Or assume a French-culture course has wine

tastings every class. Students could sue and argue

that this practice has a disparate impact on students

who suffer from alcoholism. Given the pressure to

drink, the students do not take the course. Under the

Ninth Circuit’s interpretation of Section 504, there is

no limit to the possible suits against colleges and

universities.

This too affects a large chunk of the economy.

In the 2017-18 school year, colleges and universities

spent $604 billion—or about 3% of GDP. See Natl.

Cen. For Educ. Statistics, Postsecondary Institution

Expenses (May 2020), https://tinyurl.com/b2ymzt7u.

Either spending will have to increase or educational

opportunities will suffer if the Ninth Circuit’s decision

stands.

C. Most K-12 schools also must comply with

Section 504. See 29 U.S.C. § 794(b)(2)(B). And this is

where a lot of Section 504 litigation occurs. This

achieves laudable goals like ensuring children receive

a free and appropriate education. But allowing

disparate-impact claims will impose increased costs

on struggling schools.

Unfortunately, educational achievement gaps,

including gaps between those with learning

disabilities and those without them, are real. See 20

U.S.C. § 6301 (subchapter meant to “close educational

achievement gaps”). Some commentators have

theorized that this shows discrimination. See Sarah

18

Albertson, The Achievement Gap and Disparate

Impact Discrimination in Washington Schools, 36

SEATTLE U. L. REV. 1919, 1925 (2013).

If permitted to stand, the Ninth Circuit’s

decision would allow disparate-impact claims against

schools because of existing educational gaps. To avoid

this liability, schools might be forced to eliminate

nondiscriminatory practices such as tests and letter

grades. They would have to spend exorbitant amounts

of money to try to close the gap. This would mean

fewer opportunities for all students. And even if the

educational gap were to close, the absolute value of

education likely would drop for disabled students.

This would be a big cost to allowing disparate-impact

claims against schools.

Schools’ athletic programs must also comply

with Section 504. See, e.g., McPherson v. Michigan

High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 460, 463

(6th Cir. 1997) (en banc). In McPherson, a plaintiff

who suffered from ADHD challenged a rule that

barred students from participating in sports for more

than eight semesters. The Sixth Circuit held that the

rule did not violate Section 504. Id. at 463. But, under

the Ninth Circuit’s rule, the Sixth Circuit may have

reached a different outcome had the plaintiff brought

a disparate-impact claim; the rule arguably had a

disparate impact on students with ADHD because

they must repeat grades more often. So schools would

bear substantial costs by creating and implementing

procedures to create exceptions to rules for students

Section 504 protects.

America spends more on K-12 public education

than it spends on post-secondary education. In the

19

2017 school year, schools spent $739 billion—over 3%

of GDP. See Natl. Cen. For Educ. Statistics, Public

School Expenditures (Apr. 2020), https://tinyurl.com/

23wsmyrb. During these trying times, schools are

fighting to balance their budgets. A decision making

them vulnerable to disparate-impact claims under

Section 504 is the last thing they need.

D. Section 504’s scope is probably at its apex

today. Over the past 14 months, the Small Business

Administration has distributed over $746 billion in

Paycheck Protection Program funds. Thomas Wade,

Tracker: Paycheck Protection Program Loans (Apr. 7,

2021), https://tinyurl.com/2z224cc7. One court has

held that PPP recipients must comply with Section

504. See Beverly R. on behalf of E.R. v. Mt. Carmel

Acad. of New Orleans, Inc., No. 20-cv-2924, 2021 WL

1109494, *7 (E.D. La. Mar. 23, 2021).

The SBA has given over five million PPP loans.

Wade, supra. Under the Ninth Circuit’s rule,

companies from professional sports teams to local

hardware stores face potential disparate-impact

liability. See KDKA, Pittsburgh Penguins Received

$4.8M PPP Loan To Pay Rent (Jan. 5, 2021),

https://tinyurl.com/4ynn7e8v; CNN, Biden visits DC

hardware store to highlight Paycheck Protection

Program (Mar. 9, 2021), https://tinyurl.com/

3kbuyn9e.

The Pittsburgh Penguins, for example, might

have to offer sign language interpreters on the

jumbotron at all home hockey games. Doing otherwise

would have a disparate impact on deaf fans. And mom

and pop stores with fewer than 15 employees—who

are exempt from the Americans with Disabilities Act,

20

42 U.S.C. § 12111(5)(A)—might have to comply with

similar requirements under Section 504.

It is impossible to know exactly how many

companies otherwise not covered by Section 504 must

now comply with it because they accepted PPP loans.

But it is reasonable to assume that many of the over

five million PPP loans went to business that

otherwise do not receive federal assistance. Although

these

companies

agreed

to

comply

with

nondiscrimination laws, they did not foresee having

to dodge disparate-impact claims drummed up by the

plaintiffs’ bar. Yet that is what will happen if the

Ninth Circuit’s decision stands.

*

*

*

This case therefore has ramifications far

beyond the ACA. Because the ACA incorporates

Section 504, recognizing claims like Respondents’ will

open the courts to a flood of Section 504 suits against

other entities; plaintiffs will flock to the circuits that

recognize disparate-impact claims to file these suits.

This Court should grant certiorari to prevent these

suits Congress did not authorize.

21

CONCLUSION

This Court should grant the petition.

Respectfully submitted,

JENNIFER C. BRACERAS

INDEPENDENT WOMEN’S

LAW CENTER

4 Weems Lane #312

Winchester, VA 22601

(202) 429-9574

jennifer.braceras@iwf.org

April 30, 2021

JOHN M. MASSLON II

Counsel of Record

CORY L. ANDREWS

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org