Cummings v. Premier Rehab Keller, P. L. L.C.

• Decision Date: 24 January 2020
• Docket Number: No. 19-10169,19-10169
• Citation: 948 F.3d 673
• Parties: Jane CUMMINGS, Plaintiff - Appellant v. PREMIER REHAB KELLER, P.L.L.C., doing business as Premier Rehab, P.L.L.C., Defendant - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

948 F.3d 673

Jane CUMMINGS, Plaintiff - Appellant

v.PREMIER REHAB KELLER, P.L.L.C., doing business as Premier Rehab, P.L.L.C., Defendant - Appellee

No. 19-10169

United States Court of Appeals, Fifth Circuit.

FILED January 24, 2020

Andrew Rozynski, David John Hommel, Jr., Eisenberg & Baum, L.L.P., New York, NY, for Plaintiff-Appellant.

Brian Scott Bradley, Watson, Caraway, Midkiff & Luningham, L.L.P., Fort Worth, TX, for Defendant-Appellee.

Before STEWART, CLEMENT, and HO, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Jane Cummings sued federal funding recipient Premier Rehab Keller, P.L.L.C. ("Premier") for disability discrimination. Cummings sought equitable relief and damages under the Americans with Disabilities Act, the Rehabilitation Act, the Patient Protection and Affordable Care Act, and the Texas Human Resources Code. Premier filed a motion to dismiss Cummings’s claims for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The district court granted Premier’s motion, reasoning that, though Cummings had standing to sue, she failed to state a plausible claim for damages under any of the cited statutes, and that she failed to allege facts supporting her standing to seek equitable relief. Cummings appealed. We AFFIRM the district court’s judgment.

I.

Cummings has been deaf since birth and is legally blind. She has difficulty speaking, reading, and writing in English; she primarily communicates in American Sign Language ("ASL"). In October 2016, she contacted Premier, which offers physical therapy services, to treat her chronic back pain. She requested that Premier provide an ASL interpreter. Premier refused, but told her that she could communicate with the therapist using written notes, lipreading, and gesturing, or bring her own ASL interpreter. Cummings told Premier she couldn’t communicate using those methods, and as a result, she went to another physical therapy provider. She alleged that the other provider’s care was "unsatisfactory." Cummings contacted Premier twice more to request an interpreter, for a total of three requests between 2016 and 2017. Cummings also alleged Premier "told her to look for a different physical therapy center that provided interpreters." Although she received treatment at the other facility, Cummings says she was "forced to live with ongoing back pain as a result of her inability to receive quality therapy services," and still wishes to receive treatment from Premier.

Cummings sued Premier for disability discrimination, seeking injunctive relief and damages. She alleged that Premier violated the Americans with Disabilities Act ("ADA") of 1990 § 302, 42 U.S.C. § 12182 ; the Rehabilitation Act ("RA") of 1973 § 504, 29 U.S.C. § 794 ; the Patient Protection and Affordable Care Act ("ACA") of 2010 § 1557, 42 U.S.C. § 18116 ; and the Texas Human Resources Code § 121.003, TEX. HUM. RES. CODE § 121.003.

Premier moved to dismiss these claims, contending that Cummings lacked standing to sue and failed to state a claim upon which relief could be granted.¹ The district court granted Premier’s motion. In dismissing her claim for equitable relief for lack of subject matter jurisdiction, the court first observed that "Cummings did not allege standing to seek equitable relief ... [though] she did allege standing to seek damages." The court then dismissed her damages claims. It first noted that damages are not recoverable under Title III of the ADA.² The court then held that emotional distress damages are unavailable under § 504 of the RA and § 1557 of the ACA. Finally, though the court could not definitively conclude that Cummings sought to amend her complaint, it denied her request to amend for failing to comply with the local rules and procedures, and because she had a fair opportunity to plead her best case. Cummings now seeks review of the district court’s judgment that damages for emotional distress are unrecoverable under the RA and the ACA.³

II.

We review the district court’s grant of a motion to dismiss de novo, "accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff." Hines v. Alldredge , 783 F.3d 197, 200–01 (5th Cir. 2015) (quoting True v. Robles , 571 F.3d 412, 417 (5th Cir. 2009) ); see FED. R. CIV. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Further, "[t]he plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of "entitlement to relief." ’ " Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ) (citations omitted).

III.

The issue before us today is whether emotional distress damages are available under the RA and the ACA. There is no controlling Fifth Circuit or Supreme Court precedent on this issue. The district court held that emotional distress damages are "like punitive damages," in that damages for emotional distress (i) "do not compensate plaintiffs for their pecuniary losses, but instead punish defendants for the outrageousness of their conduct," and (ii) "are also unforeseeable at the time recipients accept federal funds and expose them to ‘unlimited liability.’ " Cummings v. Premier Rehab, P.L.L.C. , No. 4:18-CV-649-A, 2019 WL 227411, at *4 (N.D. Tex. January 16, 2019) (citations omitted). Cummings argues that this is incorrect.

Section 504 of the RA states 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 subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Federal-funding recipients such as Premier "must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs." 45 C.F.R. § 84.4(b)(2). To state a § 504 claim, "the plaintiff must establish that disability discrimination was the sole reason for the exclusion or denial of benefits." Wilson v. City of Southlake , 936 F.3d 326, 330 (5th Cir. 2019). Further, pursuant to § 1557 of the ACA, "an individual shall not, on the ground prohibited under ... [§ 504 of the RA], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance." 42 U.S.C. § 18116(a).

Section 504 of the RA and § 1557 of the ACA are Spending Clause legislation. See Miller v. Tex. Tech Univ. Health Scis. Ctr. , 421 F.3d 342, 348 (5th Cir. 2005) (§ 504 of the RA); see also Nat’l Fed’n of Indep. Bus. v. Sebelius , 567 U.S. 519, 575-77, 588, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (plurality opinion) (§ 1557 of the ACA). The Court has "repeatedly" likened Spending Clause legislation to contract law—"in return for federal funds, the [recipients] agree to comply with federally imposed conditions." Barnes v. Gorman , 536 U.S. 181, 186, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) (alteration in original) (quoting Pennhurst State Sch. & Hosp. v. Halderman , 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) ); see, e.g., Pennhurst , 451 U.S. at 17, 101 S.Ct. 1531 (holding that Spending Clause legislation is like a "contract," in that "[t]he legitimacy of Congress’ power to legislate under the spending power ... rests on whether the [federal-funding recipient] voluntarily and knowingly accepts [the contract’s] terms"). And in cases in "which funding recipients may be held liable for money damages," the Court has "regularly applied the contract-law analogy," including, like here, in "private suits under Spending Clause legislation." Barnes, 536 U.S. at 186-87, 122 S.Ct. 2097 ; see also Franklin v. Gwinnett Cty. Pub. Sch. , 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (holding that in addition to injunctive relief, monetary damages can be available as a remedy in private suits under Spending Clause legislation). But the Court has also made clear that not "all contract-law rules apply to Spending Clause legislation." Barnes, 536 U.S. at 186-87, 122 S.Ct. 2097.

In Barnes v. Gorman , the Court explained that compensatory damages are available under Spending Clause legislation because federal-funding recipients are "on notice" that accepting such funds exposes them to liability for monetary damages under general contract law:

[A] remedy is "appropriate relief," only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature. A funding recipient is generally on notice that it is subject not only to those remedies explicitly provided in the relevant legislation, but also to those remedies traditionally available in suits for breach of contract. Thus we have held that under [a Spending Clause statute], which contains no express remedies, a recipient of federal funds is nevertheless subject to suit for compensatory damages.

Id. at 187, 122 S.Ct. 2097 (citation omitted) (second emphasis added). The Court then addressed whether punitive damages are available under Spending Clause legislation. It held that, because "punitive damages, unlike compensatory damages and injunction, are generally not available for breach of contract," id. at 187, 122 S.Ct. 2097, federal funding recipients are not "on notice" that they could be liable for such damages. See id. at 188, 122 S.Ct. 2097 ("Not only is it doubtful that funding...