Petition for Rehearing — 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

PETITION FOR REHEARING

Andrew Rozynski

Counsel of Record

EISENBERG & BAUM, LLP

24 Union Square East,

Penthouse

New York, NY 10003

(212) 353-8700

arozynski@eandblaw.com

i

TABLE OF CONTENTS

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

PETITION FOR REHEARING ................................... 1

GROUNDS FOR REHEARING .................................. 1

I.

The statutes at issue are not silent on the

availability of damages for emotional

distress .............................................................. 3

II. The Court’s ruling, as written, applies to

employment claims under the Rehabilitation

Act, which expressly permit damages for

emotional pain and mental anguish................. 5

III. The parties’ collective failure to identify the

critical provisions previously is no bar to

reconsideration .................................................. 7

CONCLUSION .......................................................... 10

RULE 44.1 CERTIFICATE OF COUNSEL.............. 11

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ambler v. Whipple, 90 U.S. 278 (1875) ....................... 8

Barnes v. Gorman, 536 U.S. 181 (2002) ...................... 4

Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) ...... 5, 9

Brown v. Mathias Aspden’s Adm’rs, 55 U.S. 25

(1852) ........................................................................ 8

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ........ 5

Graver Tank & Mfg. Co. v. Linde Air Products

Co., 336 U.S. 271 (1949), reh’g granted, 337

U.S. 910 (1949), aff’d on reh’g, 339 U.S. 605

(1950) ........................................................................ 8

Henslee v. Union Planters Nat. Bank & Tr. Co.,

335 U.S. 595 (1949) .................................................. 3

Hernández v. Mesa, 140 S. Ct. 735 (2020) .................. 9

Ohio v. Robinette, 519 U.S. 33 (1996) ......................... 9

Reid v. Covert, 351 U.S. 487 (1956), reh’g

granted, 352 U.S. 901 (1956), aff’d on reh’g,

354 U.S. 1 (1957) ...................................................... 8

Smith v. Berryhill, 139 S. Ct. 1765 (2019) .................. 4

Vance v. Terrazas, 444 U.S. 252 (1980) ...................... 9

Statutes

29 U.S.C. § 791(f) ......................................................... 2

29 U.S.C. § 794a(a)(1) .......................................... 2, 6, 7

29 U.S.C. § 794a(a)(2) .............................. 1, 2, 3, 4, 6, 7

42 U.S.C. § 1981a(a)(1). ........................................... 2, 7

42 U.S.C. § 1981a(b)(3). ............................... 1, 2, 3, 4, 7

42 U.S.C. § 2000e-5(e)(3) ..................................... 1, 3, 4

iii

Rules

Sup. Ct. R. 14.1(a) ........................................................ 9

Sup. Ct. R. 44.1 ........................................................ 7, 8

Sup. Ct. R. 44.2 ............................................................ 8

Legislative Material

111 P.L. 2, 123 Stat. 5 (Jan. 29, 2009) ........................ 4

1

PETITION FOR REHEARING

Jane Cummings respectfully petitions for

rehearing of the Court’s April 28, 2022, decision.

Specifically, she asks for an order (1) granting

rehearing, (2) vacating the judgment, and (3) restoring

the case to the calendar for reargument.

GROUNDS FOR REHEARING

Although this Court rarely grants petitions for

rehearing, this case warrants such extraordinary

relief because a fundamental premise of the Court’s

decision is in conflict with a provision of the statutory

text that the Court and the parties have thus far

overlooked. The issue in this case was whether

discrimination plaintiffs like Petitioner are entitled to

emotional distress damages under the Rehabilitation

Act and the Affordable Care Act. The Court ultimately

held that “emotional distress damages are not

recoverable” based on its view that “the statutes at

issue are silent as to available remedies.” Slip op. 5,

16.

Yet this premise is incorrect, as the Rehabilitation

Act is not silent on remedies; it explicitly authorizes

the remedies available under 42 U.S.C. § 1981a.

Neither the parties nor the Solicitor General

addressed this set of statutory cross-references in

their briefing or at argument. Specifically, 29 U.S.C. §

794a(a)(2) provides that anyone bringing claims of

discrimination against a recipient of federal funding

may avail themselves of the remedies in 42 U.S.C.

§ 2000e-5(e)(3), which in turn states: “In addition to

any relief authorized by section 1981a of this title . . .

an aggrieved person may obtain relief as provided in

subsection (g)(1) . . . .” 42 U.S.C. § 2000e-5(e)(3)(B)

(emphasis added). And 42 U.S.C. § 1981a(b)(3)

expressly permits compensatory damages for

2

“emotional pain” and “mental anguish.” As a result,

neither the Court, the concurrence, nor the dissent

considered the fact that the Rehabilitation Act is not

silent as to remedies because it incorporates those

under section 1981a.

Additionally, the Court’s ruling appears to be

categorical, holding—without any exception—that

“emotional distress damages are not recoverable.” Slip

op. 16. But the Rehabilitation Act offers two sets of

remedies: one for discrimination by federal-funding

recipients (under 29 U.S.C. §794a(a)(2), as noted

above) and one for employment discrimination (under

29 U.S.C. §794a(a)(1)). Section 794a(a)(1) adopts the

“remedies, procedures, and rights set forth in section

717 of the Civil Rights Act of 1964,” and when a

complaining party cannot recover under 29 U.S.C.

§ 1981, “the complaining party may recover

compensatory and punitive damages as allowed in

subsection (b)” in “an action brought . . . under section

. . . 717.” 42 U.S.C. § 1981a(a)(1); see also 29 U.S.C. §

791(f) (discussing the standards used in determining

violations, which include violations of the

Rehabilitation Act). As noted, 42 U.S.C. § 1981a(b)(3)

expressly permits compensatory damages for

“emotional pain” and “mental anguish.”

Thus, in plain English, those remedies are

available to certain plaintiffs under the Rehabilitation

Act. But the Court’s decision does not mention 29 U.

S. C. § 794a(a)(1) and therefore conveys the

impression—flatly in conflict with the statutory text—

that emotional distress damages are unavailable for §

794a(a)(1).

In light of the extraordinary oversight that has

occurred, the parties’ collective failure to identify the

critical statutory text is no bar to rehearing. This

3

Court’s rules, historical practice, and duty to serve as

a faithful interpreter of federal statutes all prioritize

reading the statute correctly and completely over the

application of waiver principles. As Justice

Frankfurter put it, “[w]isdom too often never comes,

and so one ought not to reject it merely because it

comes late.” Henslee v. Union Planters Nat. Bank &

Tr. Co., 335 U.S. 595, 600 (1949) (Frankfurter, J.,

dissenting).

The Court should grant this petition for rehearing

for both of the reasons below.

I.

The statutes at issue are not silent on the

availability of damages for emotional

distress

This Court premised its decision on its

understanding that “the statutes at issue are silent as

to available remedies.” Slip op. 5. That understanding

is incorrect. The Court correctly observed that “the

Rehabilitation Act and the Affordable Care Act—the

two statutes directly at issue in this litigation—each

expressly incorporate the rights and remedies

provided under Title VI.” Slip op. 7 (citing 29 U.S.C.

§794a(a)(2)). At the same time, however, section

794a(a)(2) imports remedies from 42 U.S.C. § 2000e5(e)(3), which incorporates “emotional pain” and

“mental anguish” damages from 42 U.S.C.

§ 1981a(b)(3).

Beginning, as the Court did, with the text, section

794a(a)(2) provides:

The remedies, procedures, and rights set

forth in title VI of the Civil Rights Act of

1964 (42 U.S.C. 2000d et seq.) (and in

subsection (e)(3) of section 706 of such

Act (42 U.S.C. 2000e–5), applied to

4

claims

of

discrimination

in

compensation) shall be available to any

person aggrieved by any act or failure to

act by any recipient of Federal assistance

or Federal provider of such assistance

under section 794 of this title.

Accordingly, it is clear that “any person aggrieved by

any act or failure to act by any recipient of Federal

Assistance . . . under section 794” is entitled to the

“remedies, procedures, and rights” not only in “title VI

of the Civil Rights Act of 1964,” as discussed by the

Court, but also in “subsection (e)(3) of section 706 of

such Act (42 U.S.C. 2000e–5).” 29 U.S.C. § 794a(a)(2)

(emphasis added). That is true whether the section

794 claims are for discrimination in compensation or

not. See Smith v. Berryhill, 139 S. Ct. 1765, 1774

(2019) (“Congress’ use of the word ‘any’ suggests an

intent to use [the accompanying] term expansive[ly].”)

(second alteration in original). 42 U.S.C. § 2000e5(e)(3), in turn, authorizes certain relief “[i]n addition

to any relief authorized by section 1981a,” and 42

U.S.C. § 1981a(b)(3) expressly permits compensatory

damages for “emotional pain” and “mental anguish.”

Based on its view that the statutes were silent as

to available remedies, the Court relied on a “contract

analogy set out in [prior] Spending Clause cases,”

including Barnes v. Gorman, 536 U. S. 181, 186 (2002).

Yet Barnes could not consider the Rehabilitation Act’s

adoption of 42 U.S.C. § 2000e-5(e)(3)—and thus the

implications of 42 U.S.C. § 1981a(b)(3)—because the

language of (e)(3) was not added until 2009 with the

Lilly Ledbetter Fair Pay Act. 111 P.L. 2, 123 Stat. 5

(Jan. 29, 2009).

There is no need to turn to contract analogies

when the statutory text is unambiguous, nor would

5

the Court need to undergo additional analysis of

legislative history. Bostock v. Clayton Cty., 140 S. Ct.

1731, 1750 (2020) (“[L]egislative history can never

defeat unambiguous statutory text.”). Indeed, the

Court “would reorient the inquiry to focus on a

background interpretive principle rooted in the

Constitution’s separation of powers.” Slip op. 1

(Kavanaugh, J., concurring); see also Epic Sys. Corp.

v. Lewis, 138 S. Ct. 1612, 1631 (2018) (“It is the

business of Congress to sum up its own debates in its

legislation, and once it enacts a statute we do not

inquire what the legislature meant; we ask only what

the statute means.”) (cleaned up). Nor should “the

limits of the drafters’ imagination supply [any] reason

to ignore the law’s demands.” Bostock, 140 S. Ct. at

1737.

To be sure, Congress may use statutory language

that goes further than it intended, but “[w]hen the

express terms of a statute give us one answer and

extratextual considerations suggest another, it’s no

contest.” Id.; see also id. at 1749 (“[T]he fact that a

statute has been applied in situations not expressly

anticipated by Congress does not demonstrate

ambiguity; instead, it simply demonstrates the

breadth of a legislative command.”) (cleaned up).

Given the plain text, rehearing is warranted because

of these substantial grounds not previously presented,

briefed, or considered by the Court.

II.

The Court’s ruling, as written, applies to

employment

claims

under

the

Rehabilitation Act, which expressly

permit damages for emotional pain and

mental anguish

Even if the Court opts not to reconsider its

conclusion that the statutes are “silent” as to

6

remedies, rehearing would still be warranted to clarify

that the Court’s holding is limited to 29 U.S.C.

§ 794a(a)(2) and does not apply to employment

discrimination claims under § 794a(a)(1). When the

Court stated that “the statutes at issue are silent as to

available remedies,” the Court referred solely to Title

VI through 29 U.S.C. § 794a(a)(2). Slip op. 3 (“As to the

Rehabilitation Act and the Affordable Care Act—the

two statutes directly at issue in this litigation—each

expressly incorporates the rights and remedies

provided under Title VI.”). There was no discussion of

29 U.S.C. § 794a(a)(1), which provides for remedies for

claims of employment discrimination, and yet the

Court’s holding applied to the entire reach of the

Rehabilitation Act. Slip op. 16 (“[W]e hold that

emotional distress damages are not recoverable under

the Spending Clause antidiscrimination statutes we

consider here.”).

Pertinently, section 794a(a)(1) adopts the

“remedies, procedures, and rights set forth in

section 717 of the Civil Rights Act of 1964.” The

remedies available to a complaining party under

section 717 of the Civil Rights Act of 1964 are as

follows:

In an action brought by a complaining

party under section 706 or 717 of the

Civil Rights Act of 1964 (42 U.S.C. 2000e5 [or 2000e-16]) against a respondent

who engaged in unlawful intentional

discrimination (not an employment

practice that is unlawful because of its

disparate impact) prohibited under

section 703, 704, or 717 of the Act (42

U.S.C. 2000e-2 or 2000e-3 [or 2000e-16]),

and provided that the complaining party

7

cannot recover under section 1977 of the

Revised Statutes (42 U.S.C. 1981), the

complaining

party

may

recover

compensatory and punitive damages as

allowed in subsection (b), in addition to

any relief authorized by section 706(g) of

the Civil Rights Act of 1964 [42 USCS §

2000e-5(g)], from the respondent.

42 U.S.C. § 1981a(a)(1). As relevant here, “the

complaining party may recover compensatory and

punitive damages as allowed in subsection (b),” and at

the risk of repetition, section 1981a(b)(3) expressly

permits compensatory damages for “emotional pain”

and “mental anguish.” Thus, in plain English, those

remedies are available to certain plaintiffs under the

Rehabilitation Act—at a minimum, those bringing

claims of employment discrimination—yet the Court

never discussed 29 U.S.C. § 794a(a)(1), which does not

invoke the Spending Clause consideration of 29 U.S.C.

§ 794a(a)(2). Slip op. 3. Relatedly, the Court’s entire

analysis—whether a federal-funding recipient has

clear notice—has no application in the employment

realm. Slip op. 5 (“Because the statutes at issue are

silent as to available remedies, it is not obvious how to

decide whether funding recipients would have had the

requisite clear notice regarding the liability at issue in

this case.”) (cleaned up). Accordingly, the Court should

grant rehearing to clarify this aspect of its broad

categorical holding.

III.

The parties’ collective failure to identify

the critical provisions previously is no

bar to reconsideration

The Court’s Rule 44.1, governing rehearing of

decisions on the merits, does not provide a clear

standard for when such a petition should be granted.

8

However, as the Court announced in Brown v. Mathias

Aspden’s Adm’rs, 55 U.S. 25, 26–27 (1852), rehearing

will not be granted unless a Justice who concurred in

the judgment of the Court “doubts the correctness of

his opinion.” Here, without full consideration of the

statutory text, there should be plenty of doubt as to the

correctness of the opinion.

Although this Court almost never grants petitions

for rehearing, this case meets the rare exception

contemplated by Supreme Court Rule 44.1 and

articulated in Ambler v. Whipple, 90 U.S. 278, 282

(1875), that if “the omissions in the transcript on

which the case was heard are material to the decision

of the case, it presents a strong appeal for

reargument[.]”1

In the neighboring Rule 44.2, governing rehearing

of orders denying certiorari or extraordinary writs, the

Rule authorizes rehearing where there are

“intervening circumstances of a substantial or

controlling effect” or “other substantial grounds not

previously presented.” The latter criterion applies

here, and reveals that waiver is not an appropriate

ground for denying reconsideration, because the

circumstance where waiver would ordinarily apply—

where the basis is a ground “not previously

presented”—is precisely the circumstance in which the

Rule authorizes rehearing. Nor has this Court ever

1 See, e.g., Reid v. Covert, 351 U.S. 487 (1956), reh’g granted,

352 U.S. 901 (1956), aff’d on reh’g, 354 U.S. 1 (1957); Graver

Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271

(1949), reh’g granted, 337 U.S. 910 (1949), aff’d on reh’g,

339 U.S. 605 (1950).

9

denied an otherwise meritorious petition for rehearing

on the grounds of waiver.

The Court’s prioritization of correctness over

technicalities is also embodied in its interpretation of

the rules governing waiver at the certiorari stage,

which do not obstruct the merits consideration of an

issue not properly raised where that issue “is a

‘predicate to an intelligent resolution’ of the question

presented, and therefore ‘fairly included therein.’”

Ohio v. Robinette, 519 U.S. 33, 38 (1996) (quoting,

respectively, Vance v. Terrazas, 444 U.S. 252, 258–59

n.5 (1980) and Rule 14.1(a)).

Perhaps most fundamentally, this Court’s role

requires it to be faithful to the text of congressional

statutes. To deny rehearing based on a failure to

consider the actual text of the Rehabilitation Act as

amended “risks arrogating legislative power.”

Hernández v. Mesa, 140 S. Ct. 735, 741 (2020).

Ignoring important text that Congress enacted

into law just because the parties missed it would

betray the Court’s obligation in this regard. Now that

the relevant textual provisions and cross-references

have been brought to light, it is clear that letting the

Court’s April 28 decision stand would amount to

“amending statutes outside the legislative process

reserved for the people’s representatives” and

“denying the people the right to continue relying on

the original meaning of the law they have counted on

to settle their rights and obligations.” Bostock, 140 S.

Ct. at 1738. The Court’s April 28 decision would,

moreover, be inherently flawed from the start and

create mischief in the lower courts as judges attempt

to reconcile the conflicting commands of Congress—

through its duly enacted statutory text—and this

Court.

10

CONCLUSION

These complex issues should be given a full airing

through briefing and re-argument. The Court’s

current opinion as it stands does not address the clear

statutory language in section 794a(a); this is a glaring

omission, and the Court should grant rehearing to

address it. Alternatively, the Court may wish to first

seek the views of the Solicitor General of the United

States, which had filed an amicus brief, but did not

address the issues raised in this petition.

Respectfully submitted,

Andrew Rozynski

Counsel of Record

EISENBERG & BAUM, LLP

24 Union Square East,

Penthouse

New York, NY 10003

(212) 353-8700

arozynski@eandblaw.com

May 23, 2022

11

RULE 44.1 CERTIFICATE OF COUNSEL

I certify that this petition is presented in good

faith and not for delay.

Respectfully submitted,

Andrew Rozynski

Counsel of Record

EISENBERG & BAUM, LLP

24 Union Square East,

Penthouse

New York, NY 10003

(212) 353-8700

arozynski@eandblaw.com

May 23, 2022