On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit

No. 20–219. Argued November 30, 2021—Decided April 28, 2022

Jane Cummings, who is deaf and legally blind, sought physical therapy services from Premier Rehab Keller and asked Premier Rehab to provide an American Sign Language interpreter at her sessions. Premier Rehab declined to do so, telling Cummings that the therapist could communicate with her through other means. Cummings later filed a lawsuit seeking damages and other relief against Premier Rehab, alleging that its failure to provide an ASL interpreter constituted discrimination on the basis of disability in violation of the Rehabilitation Act of 1973 and the Affordable Care Act. Premier Rehab is subject to these statutes, which apply to entities that receive federal financial assistance, because it receives reimbursement through Medicare and Medicaid for the provision of some of its services. The District Court determined that the only compensable injuries allegedly caused by Premier Rehab were emotional in nature. It held that damages for emotional harm are not recoverable in private actions brought to enforce either statute. The District Court thus dismissed the complaint, and the Fifth Circuit affirmed.

Held: Emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act. Pp. 3–15.

  (a) Congress has broad power under the Spending Clause of the Constitution to “fix the terms on which it shall disburse federal money.” Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. Pursuant to that authority, Congress has enacted statutes prohibiting recipients of federal financial assistance from discriminating on the basis of certain protected characteristics. This Court has held that such statutes may be enforced through implied rights of action. Barnes v. Gorman, 536 U. S. 181, 185. Although it is “beyond dispute that private individuals may sue” to enforce the antidiscrimination statutes at issue here, “it is less clear what remedies are available in such a suit.” Ibid.

  The Court’s cases have clarified that whether a particular remedy is recoverable must be informed by the way Spending Clause “statutes operate”: by “conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds.” Gebser v. Lago Vista Independent School Dist., 524 U. S. 274, 286. Because Spending Clause legislation operates based on consent, the “legitimacy of Congress’ power” to enact such laws rests not on its sovereign authority, but on “whether the [recipient] voluntarily and knowingly accepts the terms of th[at] ‘contract.’ ” Barnes, 536 U. S., at 186 (quoting Pennhurst, 451 U. S., at 17). The Court has regularly applied this contract-law analogy to define the scope of conduct for which funding recipients may be held liable, with an eye toward ensuring that recipients had notice of their obligations. “The same analogy,” Barnes, 536 U. S., at 187, similarly limits “the scope of available remedies.” Gebser, 524 U. S., at 287. Thus, a particular remedy is available in a private Spending Clause action “only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.” Barnes, 536 U. S., at 187. Pp. 3–5.

  (b) To decide whether emotional distress damages are available under the Spending Clause statutes in this case, the Court therefore asks whether a prospective funding recipient deciding whether to accept federal funds would have had “clear notice” regarding that liability. Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 296. Because the statutes at issue are silent as to available remedies, it is not obvious how to decide that question. Confronted with the same dynamic in Barnes, which involved the question whether punitive damages are available under the same statutes, the Court followed the contract analogy and concluded that a federal funding recipient may be considered “on notice that it is subject . . . to those remedies traditionally available in suits for breach of contract.” 536 U. S., at 187. Given that punitive damages “are generally not available for breach of contract,” the Court concluded that funding recipients “have not, merely by accepting funds, implicitly consented to liability for punitive damages.” Id., at 187–188.

  Crucial here, the Court in Barnes considered punitive damages generally unavailable for breach of contract despite the fact that such damages are hardly unheard of in contract cases: Treatises cited in Barnes described punitive damages as recoverable in contract where “the conduct constituting the breach is also a tort for which punitive damages are recoverable.” Restatement (Second) of Contracts §355, p. 154. That recognized exception to the general rule, however, was not enough to give funding recipients the requisite notice that they could face such damages. Under Barnes, the Court thus presumes that recipients are aware that they may face the usual contract remedies in private suits brought to enforce their Spending Clause “contract” with the Federal Government. Pp. 5–7.

  (c) The above framework produces a straightforward analysis in this case. Hornbook law states that emotional distress is generally not compensable in contract. Under Barnes, the Court cannot treat federal funding recipients as having consented to be subject to damages for emotional distress, and such damages are accordingly not recoverable.

  Cummings argues for a different result, maintaining that traditional contract remedies here do include damages for emotional distress, because there is an exception—put forth in some contract treatises—under which such damages may be awarded where a contractual breach is particularly likely to result in emotional disturbance. See, e.g., Restatement (Second) of Contracts §353. That special rule is met here, Cummings contends, because discrimination is very likely to engender mental anguish. This approach would treat funding recipients as on notice that they will face not only the general rules, but also “more fine-grained,” exceptional rules that “govern[ ] in the specific context” at hand. Brief for Petitioner 33–35. That is inconsistent with both Barnes and the Court’s larger Spending Clause jurisprudence. Barnes necessarily concluded that the existence of an on-point exception to the general rule against punitive damages was insufficient to put funding recipients on notice of their exposure to that particular remedy. No adequate explanation has been offered for why the Court—bound by Barnes—should reach a different result here. The approach offered by Cummings pushes the notion of offer and acceptance, central to the Court’s Spending Clause cases, past its breaking point. It is one thing to say that funding recipients will know the basic, general rules. It is quite another to assume that they will know the contours of every contract doctrine, no matter how idiosyncratic or exceptional. Cummings would essentially incorporate the law of contract remedies wholesale, but Barnes constrains courts to imply only those remedies “that [are] normally available for contract actions.” Id., at 188. In urging the Court to disregard that restriction, Cummings would have the Court treat statutory silence as a license to freely supply remedies the Court cannot be sure Congress would have chosen. Such an approach “risks arrogating legislative power,” Hernández v. Mesa, 589 U. S. ___, ___, and is particularly untenable in a context requiring “clear notice regarding the liability at issue,” Arlington, 548 U. S., at 296.

  Even if it were appropriate to treat funding recipients as aware that they may be subject to “rare” contract-law rules that are “satisfied only in particular settings,” Brief for Petitioner 34, funding recipients would still lack the requisite notice that emotional distress damages are available under the statutes at issue. That is because the Restatement’s formulation—that such damages are available where “the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result,” §353—does not reflect the consensus rule among American jurisdictions. There is in fact no majority rule on what circumstances, if any, may trigger the exceptional allowance of such damages. For instance, many states reject the broad and generally phrased Restatement exception because they award emotional distress damages only in a narrow and idiosyncratic group of cases in which the breaching conduct would also have been a tort. These cases unsurprisingly mix contract, quasi-contract, and tort principles together, suggesting that they do not establish or evince a rule of contract law.

  Emotional distress damages are not “traditionally available in suits for breach of contract.” Barnes, 536 U. S., at 187. There is correspondingly no ground, under the Court’s cases, to conclude that federal funding recipients have “clear notice,” Arlington, 548 U. S., at 296, that they would face such a remedy in private actions brought to enforce the statutes here. Pp. 7–15.

948 F. 3d 673, affirmed.

 Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Kavanaugh, J., filed a concurring opinion, in which Gorsuch, J., joined. Breyer, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined.


On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit

[April 28, 2022]

Per Curiam.

 The judgment is affirmed by an equally divided Court.

 Justice Barrett took no part in the consideration or decision of this case.