Reply Brief — Jane Cummings, Petitioner v. Premier Rehab Keller, P.L.L.C.

No. 20-219

IN THE

JANE CUMMINGS,

Petitioner,

v.

PREMIER REHAB KELLER, P.L.L.C.,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

REPLY BRIEF FOR PETITIONER

Edward C. DuMont

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

Andrew Rozynski

Counsel of Record

David John Hommel

EISENBERG & BAUM, LLP

24 Union Square East,

Penthouse

New York, NY 10003

(212) 353-8700

arozynski@eandblaw.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

REPLY BRIEF FOR PETITIONER ............................1

I.

Emotional-distress damages are a

presumptively appropriate remedy for

discrimination .......................................................2

II. Contract law confirms the propriety of

emotional-distress damages here .........................5

A. Traditional contract principles put

funding recipients on notice that

intentional discrimination may lead to

emotional-distress damages............................5

B. Respondent’s attempts to muddy the

governing contract principles fail ...................7

III. Emotional-distress awards under the Title VI

family of statutes are consistently modest

and cabined by procedural safeguards ...............14

IV. Emotional-distress damages are frequently

necessary to provide full redress for

discrimination .....................................................18

CONCLUSION ...........................................................20

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Aaron v. Ward,

121 N.Y.S. 673 (App. Div. 1910), aff’d, 96

N.E. 736 (N.Y. 1911) ........................................ 9, 12

Alexander v. Sandoval,

532 U.S. 275 (2001)................................................ 3

Allen v. Jones,

163 Cal. Rptr. 445 (Cal. Ct. App. 1980) .............. 13

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015)................................................ 7

B&B Hardware, Inc. v. Hargis Indus.,

575 U.S. 138 (2015)................................................ 8

Barnes v. Gorman,

536 U.S. 181 (2002)...................................... passim

Bell v. Hood,

327 U.S. 678 (1946)............................................ 2, 3

Blunt v. Little,

3 F. Cas. 760 (C.C.D. Mass. 1822)....................... 17

Bogle v. McClure,

332 F.3d 1347 (11th Cir. 2003)............................ 15

Brown v. Bd. of Educ.,

347 U.S. 483 (1954)................................................ 9

Brown v. Matthews Mortuary, Inc.,

801 P.2d 37 (Idaho 1990) ..................................... 11

Burns v. Nielsen,

506 F. Supp. 3d 448 (W.D. Tex. 2020)................. 17

Cannon v. Univ. of Chi.,

441 U.S. 677 (1979).............................................. 18

iii

Chamberlain v. Chandler,

5 F. Cas. 413 (C.C.D. Mass. 1823)................. 12, 13

Chi., R.I. & P. Ry. Co. v. Allison,

178 S.W. 401 (Ark. 1915) ..................................... 12

CITGO Asphalt Ref. Co. v. Frescati Shipping Co.,

140 S. Ct. 1081 (2020)............................................ 7

Consol. Rail Corp. v. Gottshall,

512 U.S. 532 (1994).............................................. 19

Cooper Indus. v. Leatherman Tool Grp., Inc.,

532 U.S. 424 (2001)................................................ 4

Fink v. City of New York,

129 F. Supp. 2d 511 (E.D.N.Y. 2001) .................. 17

Fischer v. United Parcel Serv., Inc.,

390 Fed. Appx. 465 (6th Cir. 2010) ..................... 15

Franklin v. Gwinnett Cnty. Pub. Schs.,

503 U.S. 60 (1992)................................ 1, 2, 3, 4, 14

Hancock v. Northcutt,

808 P.2d 251 (Alaska 1991) ................................. 11

Lamm v. Shingleton,

55 S.E.2d 810 (N.C. 1949) ................................... 11

Madison v. Cinema I,

454 N.Y.S.2d 226 (N.Y. Civ. Ct. 1982) .................. 9

McGinniss v. Mo. Pac. Ry. Co.,

21 Mo. App. 399 (Mo. Ct. App. 1886) .............. 6, 12

McLaughlin v. Richland Shoe Co.,

486 U.S. 128 (1988).............................................. 14

Mo., Kan. & Tex. Ry. Co. v. Ball,

61 S.W. 327 (Tex. App. 1901) .............................. 12

Monroe v. Pape,

365 U.S. 167 (1961).............................................. 20

iv

Montanile v. Bd. of Trs. of Nat’l Elevator

Indus. Health Benefit Plan,

577 U.S. 136 (2016)............................................. 7-8

Odom v. E. Ave. Corp.,

34 N.Y.S.2d 312 (N.Y. Sup. Ct. 1942) ................... 9

Passantino v. Johnson & Johnson Consumer

Prods., Inc.,

212 F.3d 493 (9th Cir. 2000)................................ 15

Plessy v. Ferguson,

163 U.S. 537 (1896)................................................ 9

Powers v. Ohio,

499 U.S. 400 (1991)................................................ 6

Price v. City of Charlotte,

93 F.3d 1241 (4th Cir. 1996)................................ 17

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984)............................................. 5-6

Sexton v. St. Clair Fed. Sav. Bank,

653 So. 2d 959 (Ala. 1995) .................................. 6-7

Sheely v. MRI Radiology Network, P.A.,

505 F.3d 1173 (11th Cir. 2007)............................ 14

Sossamon v. Texas,

563 U.S. 277 (2011)........................................ 15, 16

Southern Express Co. v. Byers,

240 U.S. 612 (1916).............................................. 10

St. Louis-S.F. Ry. Co. v. Talley,

34 S.W.2d 463 (Ark. 1931)................................... 12

Stewart v. Rudner,

84 N.W.2d 816 (Mich. 1957) .......................... 11, 13

Taylor v. United States,

495 U.S. 575 (1990).............................................. 11

v

Tex. & P. Ry. Co. v. Hartnett,

34 S.W. 1057 (Tex. App. 1896) ............................ 12

Thomas v. Tex. Dep’t of Crim. Justice,

297 F.3d 361 (5th Cir. 2002)................................ 17

Tomkins v. Eckerd,

2012 WL 1110069 (D.S.C. Apr. 3, 2012) ............. 11

Tuli v. Brigham & Women’s Hosp.,

656 F.3d 33 (1st Cir. 2011) .................................. 15

Univ. of So. Miss. v. Williams,

891 So.2d 160 (Miss. 2004) .................................. 13

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021)............................................ 19

Vance v. Ball State Univ.,

570 U.S. 421 (2013)................................................ 8

Vega v. Chi. Park Dist.,

954 F.3d 996 (7th Cir. 2020)................................ 17

Zinermon v. Burch,

494 U.S. 113 (1990).............................................. 20

Constitutional Provisions

U.S. Const., amend. XI................................................. 3

U.S. Const., art. I, cl. 8, § 1, Spending

Clause........................................................... passim

Statutes

Civil Rights Act of 1964 (Title VI), 42 U.S.C.

§ 2000d et seq............................................... passim

42 U.S.C. § 2000d-7(a)(1)....................................... 3

42 U.S.C. § 2000d-7(a)(2)....................................... 3

Civil Rights Act of 1964 (Title VII), 42 U.S.C.

§ 2000e et seq. ................................................ 15, 16

vi

Education Amendments Act of 1972 (Title IX),

20 U.S.C. § 1681 et seq. ......................................... 3

Patient Protection and Affordable Care Act of

2010, Pub. L. No. 111-148, 124 Stat. 119,

42 U.S.C. § 18116 et seq. ....................................... 3

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

Rehabilitation Act of 1973, Pub. L. No. 93-112,

87 Stat. 355, 29 U.S.C. § 701 et seq. ..................... 3

42 U.S.C. § 1981a(b)(3) .............................................. 16

42 U.S.C. § 1983 ......................................................... 15

Other Authorities

Bagenstos, Samuel R., This Is What

Democracy Looks Like: Title IX and the

Legitimacy of the Administrative State,

118 Mich. L. Rev. 1053 (2020) ............................. 18

Cooley, Thomas, A Treatise on the Law of

Torts: Or the Wrongs Which Arise

Independent of Contract (3d ed. 1906) ............... 10

Lord, Richard A., Williston on Contracts (4th

ed. 2013) ................................................................. 7

McCormick, Charles T., Handbook on the Law

of Damages (1935) ........................................... 9, 13

Murray, Jr., John E. & Timothy Murray,

Corbin on Contracts (rev. ed. 2007) ...................... 7

Restatement (Second) of Agency (1958) ...................... 8

Restatement of Contracts (1932) ............................... 13

Restatement (Second) of Contracts

(1981)............................................................ passim

Restatement (Second) of Judgments (1982)................ 8

vii

Wright, Charles Alan & Arthur R. Miller,

Federal Practice and Procedure (3d ed.

2021) ..................................................................... 17

REPLY BRIEF FOR PETITIONER

A straightforward application of Franklin v.

Gwinnett County Public Schools, 503 U.S. 60 (1992),

and Barnes v. Gorman, 536 U.S. 181 (2002),

demonstrates that emotional-distress damages are

available here. Franklin holds that victims of

intentional discrimination may recover compensatory

damages under Spending Clause statutes prohibiting

such discrimination, and respondent does not dispute

that emotional-distress damages are compensatory.

Barnes confirms that federal funding recipients are

on notice of remedies traditionally available in

analogous breach-of-contract cases. And the

Restatement and leading treatises recognize that

emotional-distress damages are available for breach

of contract when such distress is a “particularly likely

result” of the breach. Restatement (Second) of

Contracts § 353 (1981); Petr. Br. 31 (treatises).

Intentional discrimination plainly meets this test.

That leaves respondent urging this Court to

disregard the Restatement’s and the treatises’

summaries of contract law. But this argument rests

on a selective and misleading portrait of common-law

precedent, framing it as allowing emotional-distress

damages only for breaches of what respondent calls

“personal contracts” or when tort principles are also

implicated. In fact, emotional-distress damages are

traditionally available on pure contract grounds in a

variety of settings. Most pertinent here, courts have

long agreed that such damages are recoverable in

cases involving discrimination and other improper

exclusions from public accommodations.

Respondent also portrays emotional-distress

awards as potentially large and unpredictable. But

2

the reality—established by more than three decades

of accepted practice prior to the Fifth Circuit’s

decision here—is that such awards are consistently

modest, predictable, and cabined by procedural

safeguards. Respondent accordingly offers no good

reason to eliminate this entire category of

compensatory damages, which provides the only

meaningful relief available to many victims of

discrimination.

I.

Emotional-distress

damages

are

presumptively

appropriate

remedy

discrimination.

a

for

In Franklin v. Gwinnett County Public Schools,

503 U.S. 60 (1992), the Court held that compensatory

damages are available for intentional discrimination.

The Court grounded this holding in the

“longstanding” presumption—articulated in Bell v.

Hood, 327 U.S. 678, 684 (1946)—that “[w]here 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.” Franklin, 503 U.S. at 66

(emphasis added) (citation omitted); see also Amicus

Br. of Law Profs. 5-16. Respondent does not dispute

that emotional-distress damages are compensatory

and therefore fall squarely within this holding.

Indeed, such damages are a standard compensatory

remedy under other federal and state statutes that

forbid discrimination. See Petr. Br. 22-25; Resp. Br.

29.

Respondent nonetheless argues, for two reasons,

that the presumption of effective relief has “little

force” here. Resp. Br. 30. Neither argument is

availing.

3

1. Respondent first suggests that the Court

should not put “undue weight” on the Bell

presumption because of the “implied nature of the

right of action at issue here.” Resp. Br. 31. But the

origin of Title VI’s private right of action does not

limit the force of the presumption of effective relief.

Franklin deemed the presumption fully applicable to

Title VI’s “implied right of action,” Franklin, 503 U.S.

at 65-66, and Barnes v. Gorman, 536 U.S. 181 (2002),

confirmed that “this presumption applies,” id. at 185.

As the Court has explained, “the question of what

remedies are available under a statute that provides

a private right of action is ‘analytically distinct’ from

the issue of whether such a right exists in the first

place.” Franklin, 503 U.S. at 65-66 (citation omitted).

Once such a right of action has been recognized, “the

prevailing traditional rule” regarding remedies

governs. Id. at 73.

At any rate, Congress has repeatedly ratified the

rights of action here. In 1986, Congress abrogated

states’ Eleventh Amendment immunity under the

Rehabilitation Act (as well as Title VI and Title IX).

See 42 U.S.C. § 2000d-7(a)(1)-(2). The Eleventh

Amendment protects states against damages

liability, so this abrogation “must be read . . . as an

implicit acknowledgment that damages are

available.” Franklin, 503 U.S. at 78 (Scalia, J.,

concurring in the judgment). Indeed, this abrogation

“leav[es] it ‘beyond dispute that private individuals

may sue to enforce’ Title VI.” Barnes, 536 U.S. at 185

(quoting Alexander v. Sandoval, 532 U.S. 275, 280

(2001)). Moreover, Congress expressly incorporated

the remedies available under Title VI into the

Affordable Care Act. 42 U.S.C. § 18116(a). Against

the backdrop of this Court’s decisions in Franklin and

4

Barnes, that enactment can be understood only as

providing a private right of action for compensatory

damages. See Petr. Br. 6-7.

2. Respondent also contends that the reasoning

in Barnes sidelines the presumption of effective relief

here. Resp. Br. 30-31. But, as just noted, Barnes

readily accepted the “well settled” presumption that

federal courts may award any damages necessary to

“make good the wrong done”—that is, to compensate

plaintiffs “for the loss caused” by discrimination.

Barnes, 536 U.S. at 189 (citation omitted). The Court

simply held that punitive damages fall outside of that

ambit because they “are not compensatory.” Id. at

189; see also Cooper Indus. v. Leatherman Tool Grp.,

Inc., 532 U.S. 424, 432 (2001). Emotional-distress

damages, by contrast, unquestionably compensate

plaintiffs for the wrong done.

To be sure, Barnes “qualifies” how the

presumption of effective relief applies to the statutes

here. Resp. Br. 30. Because Spending Clause

legislation is “in the nature of a contract,” Barnes

holds that remedies are not “appropriate” unless they

are “traditionally available in suits for breach of

contract.” Barnes, 536 U.S. at 187. Respondent

assumes this “contract-law analogy,” id., requires

individualized

assessments—beyond

Franklin’s

“compensatory

damages”

holding

and

its

reaffirmance in Barnes—of whether particular

categories of compensatory relief are recoverable.

Resp. Br. 30. Even if it does, the Barnes qualification

poses no problem here: As explained in the next Part,

damages specifically for emotional distress are

among the forms of compensatory relief traditionally

available for breaching a promise not to discriminate.

5

II. Contract law confirms the propriety

emotional-distress damages here.

of

A. Traditional contract principles put funding

recipients on notice that intentional

discrimination may lead to emotionaldistress damages.

Barnes v. Gorman, 536 U.S. 181 (2002),

“provide[s] the governing rule,” Resp. Br. 30, for

determining whether a form of relief is “traditionally

available in suits for breach of contract,” 536 U.S. at

187. There, the Court looked to the Restatement

(Second) of Contracts and leading treatises to

ascertain such traditional principles. Id. at 187-88.

Because those sources indicated that punitive

damages are “not available for breach of contract,”

the Court held that they are not an appropriate

remedy under the Title VI family of statutes. Id. at

187.

The same sources upon which the Barnes Court

relied establish that federal funding recipients are on

notice of potential liability for emotional-distress

damages. By accepting federal funds, a recipient

“agree[s] not to engage in discrimination on certain

grounds.” Resp. Br. 2. The Restatement instructs

that if a contract’s “breach is of such a kind that

serious emotional disturbance was a particularly

likely result,” then “recovery for emotional

disturbance” is allowed. Restatement (Second) of

Contracts § 353 (1981); see also Petr. Br. 31

(canvassing other authorities cited in Barnes). And

respondent does not dispute that emotional distress

is a “particularly likely result” of invidious

discrimination. As this Court has consistently

recognized, discrimination “deprives persons of their

individual dignity,” Roberts v. U.S. Jaycees, 468 U.S.

6

609, 625 (1984), and can inflict “profound personal

humiliation,” Powers v. Ohio, 499 U.S. 400, 413-14

(1991). See also Amicus Br. of Civil Rights Orgs. 6-7,

16-17.1

Respondent protests that a promise not to

discriminate is “only a small part of any ‘contract’ for

federal funding,” not the “predominant purpose” of

such a contract. Resp. Br. 28. But even if true, this

makes no difference. Neither the Restatement nor

the treatises cited in Barnes contain any

“predominant purpose” requirement. To the contrary,

courts across the centuries have awarded emotionaldistress damages for breaches of provisions

protecting interests in mental solicitude, even when

those interests were hardly the parties’ “predominant

purpose” in contracting. See, e.g., McGinniss v. Mo.

Pac. Ry. Co., 21 Mo. App. 399, 407 (Mo. Ct. App.

1886) (allowing emotional-distress damages on the

basis of a “contract evidenced by the [railroad]

ticket,” the predominant purpose of which was surely

transit from point A to point B); Sexton v. St. Clair

Fed. Sav. Bank, 653 So. 2d 959, 962 (Ala. 1995)

1

Respondent’s amici characterize this case as involving “a

failure to accommodate” a person with a disability, and question

whether such a claim can rise to “the sort of intentional

discriminatory conduct that will support an award of monetary

damages.” Amicus Br. of Chamber of Commerce 13. Respondent,

however, does not challenge petitioner’s contention that refusing

to provide an ASL interpreter can constitute intentional

discrimination, and neither of the lower courts has addressed

that issue. The district court and Fifth Circuit held instead that

the statutes here categorically foreclose any recovery of

emotional-distress damages, no matter how obviously

intentional the discrimination. The only question before this

Court is whether that holding is correct.

7

(breach of “contract to lend money,” the primary

purpose of which was to fund the construction of a

residence). In other words, only the provision that is

breached need protect a nonpecuniary or dignitary

interest. A provision forbidding discrimination

protects such an interest.

B. Respondent’s attempts to muddy

governing contract principles fail.

the

Respondent does not dispute that the

Restatement’s “particularly likely result” rule is

satisfied here. Instead, respondent asks this Court to

disregard the rule. According to respondent, the legal

rule recounted in the Restatement and leading

treatises lacks sufficient grounding in actual case law

to provide notice under Barnes’s contract-law

analogy. Resp. Br. 20-29. This argument is

unpersuasive.

1. When this Court has previously inquired into

traditional common-law principles, it has consistently

relied—as it did in Barnes—on restatements and

leading treatises. Recent examples include another

case applying the “contract-law analogy” to Spending

Clause statutes, as well as a variety of other cases.

See Armstrong v. Exceptional Child Ctr., Inc., 575

U.S. 320, 332 (2015) (referencing Richard A. Lord,

Williston on Contracts (4th ed. 2013), and John E.

Murray, Jr. & Timothy Murray, Corbin on Contracts

(rev. ed. 2007)); see also, e.g., CITGO Asphalt Ref. Co.

v. Frescati Shipping Co., 140 S. Ct. 1081, 1089 (2020)

(consulting the Restatement (Second) of Contracts

and Williston on Contracts for guidance on the rules

of strict liability in contract law); Montanile v. Bd. of

Trs. of Nat’l Elevator Indus. Health Benefit Plan, 577

U.S. 136, 142 (2016) (“[W]e turn to standard treatises

on equity, which establish the ‘basic contours’ of what

8

equitable relief was typically available in premerger

equity courts.”); B&B Hardware, Inc. v. Hargis

Indus., 575 U.S. 138, 148 (2015) (“The Court,

therefore, regularly turns to the Restatement

(Second) of Judgments for a statement of the

ordinary elements of issue preclusion.”); Vance v. Ball

State Univ., 570 U.S. 421, 428 (2013) (“[I]n

identifying the situations in which such vicarious

liability is appropriate, we looked to the Restatement

of Agency for guidance.”).

This practice makes good sense. Selective

citations in briefs to outlier common-law cases can

make settled principles appear contested or even

inchoate. Meanwhile, the very purpose of

restatements and treatises is to undertake the work

of objectively and comprehensively reporting the law.

Absent good reason to think such sources misstate

generally accepted principles, they should be

presumed to be reliable.

2. Case law undergirding the Restatement and

contract-law treatises confirms the availability of

emotional-distress damages for breaches of promises

not to discriminate. Respondent tries in three ways to

depict this case law as “murky.” Resp. Br. 21. But

each of these arguments conflicts with the

overwhelming sweep of the law.

a. “Personal contracts.” Respondent maintains

that cases allowing emotional-distress damages are

largely limited to breaches of contracts relating to

“interests of personality and family relationships,”

such as marriages and funerals. Resp. Br. 22 (citation

omitted). But state courts have widely adopted the

“particularly likely result” rule. See U.S. Br. 17

(citing cases). And cases allowing for emotionaldistress damages extend beyond the narrow

9

categories that respondent characterizes as “personal

contracts,” Resp. Br. 20.

Most relevant here, courts have long allowed

plaintiffs to recover emotional-distress damages in

“actions for breach of contract for expulsion of guests

from hotels, or passengers from trains, or expulsion

or refusal of admission to ticket holders in places of

public resort or entertainment.” Charles T.

McCormick, Handbook on the Law of Damages § 145,

at 593 (1935). Indeed, “practically all courts” in cases

involving such improper exclusions “will give

damages for mental distress and humiliation.” Id.

(emphasis added); see also id. at 592 (stating this

rule); Petr. Br. 31 (other sources). And cases

involving breaches of promises not to discriminate

fall within this rule. See Aaron v. Ward, 121 N.Y.S.

673, 673-74 (App. Div. 1910) (bathhouse refused

entry to Jewish ticketholder), aff’d, 96 N.E. 736 (N.Y.

1911); Odom v. E. Ave. Corp., 34 N.Y.S.2d 312, 316

(N.Y. Sup. Ct. 1942) (hotel restaurant refused to

serve Black guests of the hotel).2

2

Cases arising specifically from discriminatory conduct are

limited in number. But respondent cites no case holding that

emotional-distress damages are unavailable for breach of a

pledge not to discriminate. And historical context explains the

relative rarity of cases involving such claims. Under the shadow

of Plessy v. Ferguson, 163 U.S. 537 (1896), and the menace of

Jim Crow, individuals were unlikely to seek monetary redress

for discrimination. When society began to recognize the true

harms of discrimination, see, e.g., Brown v. Bd. of Educ., 347

U.S. 483 (1954), state and federal statutes like those at issue

here obviated any need to bring breach-of-contract lawsuits to

obtain remedies for such mistreatment. See, e.g., Madison v.

Cinema I, 454 N.Y.S.2d 226, 228 (N.Y. Civ. Ct. 1982) (noting

10

Instead of engaging with the topic of

discrimination,

respondent

references

various

decisions involving late telegrams and other

disparate fact patterns. Resp. Br. 18-20. Most

notably, respondent cites Southern Express Co. v.

Byers, 240 U.S. 612 (1916), in which this Court—

applying (now-defunct) federal common law—held

that plaintiffs could not recover damages “for mental

suffering only” for the late delivery of shipments.

Resp. Br. 19. But a delayed delivery is a far cry from

intentional discrimination. Moreover, the Court in

Southern Express did not even render its decision

based on contract law. Instead, the Court cited a

treatise on torts for the principle that damages for

emotional distress may not be recovered “where no

injury is done to person, property, health, or

reputation.” Southern Express, 240 U.S. at 615

(quoting Thomas Cooley, A Treatise on the Law of

Torts: Or the Wrongs Which Arise Independent of

Contract 94 (3d ed. 1906)).

In any event, the contract-law analogy here

turns on assessing the state of the law when Title VI

was enacted in 1964 (or, later, when the statutes here

were enacted), not a half-century earlier when

Southern Express was decided. By 1964, the

availability of emotional-distress damages under the

test reflected in Section 353 of the Restatement had

become broadly accepted. See U.S. Br. 17. There may

have been some “fluidity” and continuing

“development” around the edges of the rule—it is,

after all, a common-law doctrine. Resp. Br. 26

“parallel and overlapping remedies” available in this situation)

(citation omitted).

11

omitted); see also, e.g., Hancock v.

Northcutt, 808 P.2d 251, 258-59 (Alaska 1991)

(citations

(noting ongoing disagreement over whether “breach

of a house construction contract” falls within the

rule). But as the very sources respondent cites

demonstrate, the “particularly likely result” concept

itself has long been a “definite” fixture of the law.

Lamm v. Shingleton, 55 S.E.2d 810, 813 (N.C. 1949);

see also Stewart v. Rudner, 84 N.W.2d 816, 823

(Mich. 1957) (“[O]bjections to recovery for mental

disturbance . . . have been so thoroughly demolished

in recent years that we will not take the time for

review.”). And no court has expressed hesitancy over

its application to contexts like discrimination.

It is true, as respondent notes, that a few states

even today continue to hold that emotional-distress

damages are “never available in contract.” Resp. Br.

26-27. But the question here is whether the remedy is

“generally” or “traditionally” available in suits for

breach of contract. Barnes, 536 U.S. at 187. Under

this test, it does not matter whether a few states take

an aberrant approach. Cf. Taylor v. United States,

495 U.S. 575, 598 (1990) (state-law concepts that

illuminate meaning of federal sentencing statutes

depend on the law of “most States”). Anyhow, even

these aberrant jurisdictions sometimes allow

plaintiffs bringing breach-of-contract claims to

recover non-pecuniary damages. Unlike most states,

Idaho and South Carolina allow plaintiffs bringing

such claims to recover punitive damages in cases

involving egregious conduct. See Brown v. Matthews

Mortuary, Inc., 801 P.2d 37, 46 (Idaho 1990); see also

Tomkins v. Eckerd, 2012 WL 1110069, at *4 (D.S.C.

Apr. 3, 2012).

12

b. Relevance of tort law. Respondent is wrong

(Br. 22) that the availability of emotional-distress

damages for breach of contract in publicaccommodations-related settings depends on tort law.

Common carrier grievances that generated early

emotional-distress awards often sounded in contract.

Most involved seat assignments or failures to stop

trains at requested stations—contractual terms of

railroad tickets. Although many of these cases

reinforced rather than redressed segregation, courts

held that “it was proper to consider any humiliation

suffered in measuring the damages” for a “breach of

the contract of carriage.” Chi., R.I. & P. Ry. Co. v.

Allison, 178 S.W. 401, 403 (Ark. 1915) (seat

assignment); see also St. Louis-S.F. Ry. Co. v. Talley,

34 S.W.2d 463, 463-64 (Ark. 1931) (missed stop); Mo.,

Kan. & Tex. Ry. Co. v. Ball, 61 S.W. 327, 329 (Tex.

App. 1901) (seat assignment); Tex. & P. Ry. Co. v.

Hartnett, 34 S.W. 1057, 1059 (Tex. App. 1896)

(missed stop). Even where “boisterous and insulting”

treatment gave rise to the action, courts were clear

that the plaintiffs’ claims turned entirely upon the

“contract evidenced by the ticket.” McGinniss, 21 Mo.

App. at 401, 407; see also Aaron, 121 N.Y.S. at 674

(complaint was “not based upon a tort, but state[d]

fully a cause of action for a breach of contract”).

Respondent notes that in Chamberlain v.

Chandler, 5 F. Cas. 413 (C.C.D. Mass. 1823), Justice

Story implied a breach of contract in a tort suit to

permit recovery for emotional distress. Resp. Br. 24.

But this does not undermine the point that courts

could award emotional-distress damages in pure

contract cases. To the contrary, Justice Story’s

invocation of contract principles to justify an

emotional-distress award in a tort case confirms that

13

such damages were appropriate in contractual

contexts. See Amicus Br. of Am. Ass’n of Justice 2226. If recovery for emotional distress were disallowed

in contract cases, then likening the wrong in

Chamberlain to a breach of contract would have

undercut, not supported, the holding in that case.

Nor was the permissibility of recovering

emotional-distress damages in contract cases limited

to the “nineteenth and early twentieth centuries,”

before the emergence of the tort of intentional

infliction of emotional distress. Resp. Br. 21. Courts

have continued after the emergence of that tort to

allow such damages based purely on contract law.

See, e.g., Univ. of So. Miss. v. Williams, 891 So.2d

160, 172 (Miss. 2004) (“It is now undisputed that

under Mississippi law a plaintiff can assert a claim

for mental anguish and emotional distress in a

breach of contract action.”); Allen v. Jones, 163 Cal.

Rptr. 445, 448 (Cal. Ct. App. 1980) (“[O]ur courts

have recognized that damages for mental distress

may be recovered for breach of a contract.”); Stewart,

84 N.W.2d at 823 (“award of damages for mental

distress and suffering is a commonplace” remedy in

contract cases). Indeed, the Restatement and modern

treatises themselves recognize the persistence of the

rule. See supra at 5.

c. “Willful and malicious.” Respondent finally

suggests that emotional-distress damages in contract

cases might sometimes be limited to instances of

“willful and malicious” conduct. Resp. Br. 23. This too

misses the mark. Respondent cites the first

Restatement of Contracts, published in 1932, for this

proposition. Id. But another treatise published at the

same time clarified that this element was not

“essential.” McCormick, § 145, at 594. In any event,

14

this Court follows the later-published Second

Restatement when applying the contract-law analogy

to the statutes at issue here. See Barnes, 536 U.S. at

187-88. Any willfulness requirement dropped out of

the law between the first and Second Restatements.

Even if there were a continuing “willful and

malicious” requirement, that would not change

things. Discrimination must be intentional—rather

than inadvertent—to give rise to compensatory

damages. See Franklin, 501 U.S. at 74-75.

Intentional conduct is akin to willful conduct. See,

e.g., McLaughlin v. Richland Shoe Co., 486 U.S. 128,

133 (1988). And intentional discrimination on the

basis of race, sex, or disability is—by its very

nature—malicious.

III. Emotional-distress awards under the Title VI

family of statutes are consistently modest and

cabined by procedural safeguards.

Respondent acknowledges that, “for over thirty

years,” courts across the country have allowed

awards for emotional distress under the Title VI

family of statutes. Resp. Br. 35 (quoting U.S. Br. 20);

see also U.S. Br. 22-23 (longstanding federal

guidance to same effect). No real problems have

emerged; indeed, defendants generally have not even

objected to the availability of such damages. Nor is

petitioner aware of any entity that has ever declined

federal funding upon learning that such awards are

available in its jurisdiction—say, after the Eleventh

Circuit’s decision fourteen years ago in Sheely v. MRI

Radiology Network, P.A., 505 F.3d 1173 (11th Cir.

2007). Respondent nevertheless attempts to justify

the Fifth Circuit’s categorical bar on emotionaldistress damages by provoking concerns about this

form of relief. These provocations fall flat.

15

1. Respondent does not claim that any award

under the statutes here has been too high or

otherwise arbitrary. Instead, respondent cites a

handful of cases under Title VII and 42 U.S.C.

§ 1983, contending that awards for emotional distress

in general can be “significant.” Resp. Br. 39. But even

these cases fail to provide any reason for concern.

The few Title VII and Section 1983 awards that

respondent cites involved circumstances unlikely to

arise in the legal context here. For example, two of

respondent’s cases involved particularly long-running

conduct. See Tuli v. Brigham & Women’s Hosp., 656

F.3d 33, 39-40 (1st Cir. 2011) (six years of demeaning

and discriminatory practices); Passantino v. Johnson

& Johnson Consumer Prods., Inc., 212 F.3d 493, 499503 (9th Cir. 2000) (four years of sex discrimination

and retaliation). Other cases involved wrongful

conduct following “decades” of personal investment in

employment relationships. Bogle v. McClure, 332

F.3d 1347, 1354 (11th Cir. 2003); see also Fischer v.

United Parcel Serv., Inc., 390 Fed. Appx. 465, 472

(6th Cir. 2010) (eighteen years of service). In the

context of the Title VI family of statutes, cases

typically involve one-off incidents or other limited

timeframes, as when respondent refused to provide

Ms. Cummings an ASL interpreter.

Respondent also notes that Title VII imposes a

$300,000 cap on emotional-distress damages. Quoting

Sossamon v. Texas, 563 U.S. 277, 290 (2011),

respondent then asserts that because Title VI

contains no such cap, allowing individuals under the

statutes here to seek such damages would improperly

“expand liability beyond what would exist under

nonspending statutes.” Resp. Br. 29. However,

respondent misreads Sossamon. The Court in that

16

case noted merely that Spending Clause statutes

should not be construed to allow categories of

remedies not allowed under nonspending statutes.

The Court was not commenting on the amount

recoverable for a specific category of damages. See

Sossamon, 563 U.S. at 289-90.

At any rate, respondent has not pointed to a

single case under the family of statutes here in which

an emotional-distress award exceeded Title VII’s cap.

Indeed, such awards tend to be far smaller. See

Amicus Br. of Disability Orgs. 16-22. If such awards

ever became inflated, Congress could step in and

implement caps. But the theoretical possibility of

emotional-distress damages exceeding those allowed

under Title VII provides no reason to foreclose the

entire category of relief.3

2. Respondent also suggests that insufficient

procedural protections exist to regularize emotionaldistress awards. Resp. Br. 40. Once again,

respondent is unable to marshal any meaningful

evidence to support its suggestions.

As the Government notes (Br. 26-27), remittitur

is one safeguard that courts employ to cabin recovery

to a level supported by the evidence. Respondent

3

Respondent’s contention that emotional-distress damages

are unavailable here because Title VII caps such damages would

also foreclose recovery of some forms of pecuniary damages, as

well as monetary relief for pain and suffering. Title VII also

caps those other types of damages. See 42 U.S.C. § 1981a(b)(3).

Yet respondent offers no indication that it believes those types

of damages are unavailable here. To the contrary, it appears to

agree that plaintiffs may obtain redress at least for pain and

suffering. Resp. Br. 36-37.

17

derides this procedure. Resp. Br. 40. But the concept

has deep roots in the law of remedies. See, e.g., 11

Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2815 (3d ed. 2021); Blunt v.

Little, 3 F. Cas. 760 (C.C.D. Mass. 1822) (Story, J.).

And courts have shown themselves willing and able

to remit emotional-distress awards in cases arising

under Title VI and related statutes—sometimes in

rather fine-grained assessments of the harm suffered.

See, e.g., Thomas v. Tex. Dep’t of Crim. Justice, 297

F.3d 361, 367 (5th Cir. 2002) (directing district court

to remit emotional-distress damages from $100,000

to $75,000); Burns v. Nielsen, 506 F. Supp. 3d 448,

487-88 (W.D. Tex. 2020) (remitting noneconomic

damages including emotional distress from $125,000

to $90,000); Fink v. City of New York, 129 F. Supp.

2d 511, 538 (E.D.N.Y. 2001) (remitting emotionaldistress damages from $300,000 to $175,000). If

remittiturs under the statutes here are relatively

rare, it is simply because large awards are unusual.

See Amicus Br. of Disability Orgs. 18-19.

The evidentiary standards for proving emotional

distress also cabin awards for emotional-distress

damages. Although respondent suggests these

standards may be too permissive, Resp. Br. 40, it

ignores that a plaintiff’s testimony alone is unlikely

to support a substantial recovery, Petr. Br. 22 n.4.

Indeed, courts “scrupulously analyze an award of

compensatory damages for a claim of emotional

distress predicated exclusively on the plaintiff’s

testimony,” Price v. City of Charlotte, 93 F.3d 1241,

1251 (4th Cir. 1996), and require such awards to be

“sufficiently comparable to those made in similar

cases,” Vega v. Chi. Park Dist., 954 F.3d 996, 1008

(7th Cir. 2020) (Barrett, J.).

18

Even if these safeguards were sometimes

unevenly applied, the “better course” (Resp. Br. 40)

would be to address those safeguards. Any marginal

shortcomings of that nature would not justify

abolishing the entire category of emotional-distress

damages under the statutes here—no matter how

outrageous the defendant’s conduct, severe the

mental

harm,

or

definitive

the

evidence

demonstrating that injury.

IV. Emotional-distress damages are frequently

necessary to provide full redress for

discrimination.

Respondent points to a variety of potential

remedies for violations of the statutes here. Resp. Br.

41-45. But none of these remedies obviates the

necessity, in a substantial class of cases, of awarding

emotional-distress damages “to make good the wrong

done.” Barnes v. Gorman, 536 U.S. 181, 189 (2002)

(citation omitted).

1. Respondent first notes that the government

may “terminate the recipient’s funding” in response

to discrimination. Resp. Br. 41-42. Yet such action is

not just “relatively rare,” id. at 42; federal agencies

“virtually never” terminate funds in response to

violations of anti-discrimination conditions. Samuel

R. Bagenstos, This Is What Democracy Looks Like:

Title IX and the Legitimacy of the Administrative

State, 118 Mich. L. Rev. 1053, 1061 (2020); see also

Cannon v. Univ. of Chi., 441 U.S. 677, 705 n.38

(1979) (termination of funding is a “last resort”).

More fundamentally, the private cause of action here

is designed to compensate the individual victim of

discrimination “for the loss caused.” Barnes, 536 U.S.

at 189. Cutting off a recipient’s funding does nothing

to carry out that objective.

19

2. Contrary to respondent’s other suggestions,

private relief besides emotional-distress damages is

often incapable of making plaintiffs whole.

Respondent says that plaintiffs can sometimes

obtain injunctions under the statutes here. Resp. Br.

42. Yet respondent does not dispute that such

equitable relief is unavailable when—as is often the

case—“the plaintiff is unlikely to interact with the

defendant again.” Petr. Br. 41 n.8. Indeed, injunctive

relief is all the less likely to be available in the most

severe cases of discrimination, where the victim

would be especially motivated to avoid any further

contact with the bad actor. Finally, even when an

injunction is available, it cannot compensate an

individual for past harm she has suffered.

Nor do nominal damages compensate victims of

discrimination “for the loss caused,” Barnes, 536 U.S.

at 189. Nominal damages can confer “important

social benefits.” Resp. Br. 42 (citation omitted). But

they are not designed to make plaintiffs whole for

their actual harm. See Uzuegbunam v. Preczewski,

141 S. Ct. 792, 800 (2021) (distinguishing nominal

from compensatory damages).

Respondent additionally intimates that victims

of discrimination might “potential[ly]” be able to

recover “pain and suffering” damages. Resp. Br. 3637. But such damages are generally allowed only

when they “stem[] directly from a physical injury or

condition.” Consol. Rail Corp. v. Gottshall, 512 U.S.

532, 544 (1994) (citation omitted). Many cases

involving intentional discrimination—even those

with outrageous facts—will not satisfy that physical

injury test. Imagine, for example, if a medical clinic

had a sign proclaiming, “Deaf people are not welcome

here,” and its manager mocked someone like Ms.

20

Cummings, in front of a room full of patients, for

nevertheless requesting treatment. Under the Fifth

Circuit’s categorical bar, that individual could not

seek any compensation for her resulting mental

anguish and humiliation. Nor could any individual

who suffered similar treatment (or even worse) on

account of race or sex. That cannot be right.

3. Lastly, respondent observes that individuals

like Ms. Cummings can sometimes sue under state

law. Resp. Br. 43-44. Federal protections against

discrimination, however, do not fall away simply

because the discriminatory acts are also “forbidden

by [a] State’s statutes or Constitution or are torts

under the State’s common law.” Zinermon v. Burch,

494 U.S. 113, 124 (1990). Where a federal right

exists, “[i]t is no answer that the State has a law

which if enforced would give relief.” Id. (quoting

Monroe v. Pape, 365 U.S. 167, 183 (1961)). Ms.

Cummings is entitled to appropriate relief under the

federal statutes Congress enacted to protect her

against discriminatory treatment.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

21

Respectfully submitted,

Edward C. DuMont

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

November 2, 2021

Andrew Rozynski

Counsel of Record

David John Hommel

EISENBERG & BAUM, LLP

24 Union Square East,

Penthouse

New York, NY 10003

(212) 353-8700

arozynski@eandblaw.com