Sheely v. MRI Radiology Network, P.A.

ANDERSON, Before MARCUS and COX, Circuit Judges.

MARCUS, Judge: Circuit At today issue plaintiffs whether the injunctive claims for and declaratory relief under Title III of the Americans with Dis- abilities Act of §§ U.S.C. 12181- 12189, and Section 504 of the Rehabilita- tion Act of 29 U.S.C. became moot after the defendant voluntarily misconduct, alleged ceased the and wheth- er non-economic compensatory damages are available under the Rehabilitation Act. review, After thorough we conclude that plaintiffs the claims are not moot because heavy defendant has not met its bur- den of showing under controlling law that “absolutely it is allegedly clear that wrongful reasonably behavior could not be Earth, expected to recur.” Friends (TOC), Inc., Inc. v. Laidlaw Envtl. Servs. 167, 189, (2000) (internal L.Ed.2d 610 quotation omitted). marks We also hold that non- economic are indeed un- available der the Act. Accordingly, Rehabilitation we pro- reverse and remand for further ceedings consistent opinion. with this Fi- nally, affirm we the district court’s deter- mination that the plaintiff failed to state a Act, claim under the Florida Rights Civil Fla. seq. Stat. 760.01 et Dietz, Matthew W. Law Office of Mat- I. Background Dietz, Miami, FL, thew Sheely. facts, The essential which cull we from Rafkin, Cassel, Andrew David Broad & summary judgment record and take Beach, FL, West Palm Defendant-Ap- light plaintiff, most favorable to the see pellee. Corp., Allison v. McGhan Med. 184 F.3d Sklar, Maggie Paul, Weiss, Rifkind, Cir.1999), these; E. un- Garrison, LLP, noted, Washington, Wharton & they undisputed. less otherwise remotely the other Sheely (“Sheely”) has the examination from Annette Plaintiff adjoining in the room. glass side of the since is aided legally blind been eighty-pound use of Labrador by the called, he asked Sheely’s When son June guide dog. On retriever According accompany his mother to him. minor son one accompanied her Sheely Amiel, testimony of Lana deposition imaging facilities owned diagnostic of five Manage- Front MRN’s Director of Office MRI Ra- operated by the defendant (“Amiel”), parents ment who wished to do (“MRN”), Network, where diology P.A. mi- so were their permitted accompany to receive appointment had an her son beyond waiting nor the main room children (an “MRI”). imaging magnetic resonance “holding to the area” the end of in, son re- Sheely her When checked Nevertheless, hallway. Sheely when stood (“Anderson”), Felicia Anderson ceptionist, son, receptionist, accompany her Sheely’s dog was a whether service asked Anderson,2 her that have to told she would was, Sheely that he replied animal.1 room, waiting remain in the main since at that time. nothing more was said Shee- were not policy was MRN’s animals ly waiting her son in the main waited permitted beyond point. Shee- When appointment. room for his ly dog permitted asked if her would be beyond waiting if the main room she were Beyond waiting room a hall- main patient, dog Anderson said way, “holding at the which is end of permitted beyond would still area” or four chairs and a table with three room, waiting Sheely main and that would magazines patients it where wait only brought be treated if she someone in for their actual again once to be called dog else to that area. watch holding area con- examination. The also why place Sheely dog When asked her service patients tains lockers where certain beyond belongings, including any permitted metal items like was not the main wait- watches, room, ing gave to jewelry prior entering or the Anderson various reasons. said, hallway Sheely, four to According MRI suite. Off of this lie Anderson “suites,” among things, policy examination MRI existed rooms—two other the room, x-ray safety, for the for dog’s Sheely’s one and one ultrasound room. own com- fort, typical MRI is divided into two that it reflected concern that suite the by harm glass. dog’s might rooms Metal-sensitive MRI the metal in the harness in the the equipment patient equipment. According the located MRI to room, incident,3 performs police one the technician filed the report following while According regulations day, Sheely implementing complaint to 3.The with next filed a incident, of Title III of Americans with police Disabilities alleging about the Act, "[sjervice any guide dog, animal means MRN was in violation of Florida Statute signal dog, individually or other animal 413.08(3), provides § which indi- "[a]n perform trained to do or for the work tasks disability right vidual a with has the disability, of an with a benefit individual in- accompanied a service in all areas animal to, guiding cluding, but not limited individu- public public of a or accommodation that the vision, impaired alerting with als individuals normally permitted occupy.” customers are sounds, impaired hearing with to intruders or Although police report concludes that work, protection providing or minimal rescue "there did seem to be violation of technical wheelchair, fetching pulling dropped Statute,” report indicates that Florida also items.” C.F.R. 36.104. police pursue charges declined to with Attorney’s Florida State Office. longer apparently 2. Anderson is no with MRN deposition. and could not be located similarly Anderson told investigating Sheely’s eventually son proceeded alone beyond dog waiting officer that the was the main permitted not room for ap- his pointment. Meanwhile, Sheely the MRI called exam room because of the metal MRN Director of Scheduling Jim Stannard dog’s harness and for the dog’s own (“Stannard”), with whom she had prior had safety, and that although Sheely would contact concerning MRN’s accommodation have been permitted in the hallway waiting of her disability, about the situation.5 Ac- area, dog permitted there cording to Sheely, Stannard told her that a because, words, in the officer’s “having the parent was entitled accompany her mi- animal this area could have been a beyond nor child the main waiting room, problem due it being a traveled hall- and that she was entitled to do same way.” Anderson also told the officer that with her dog, like parent.6 other she believed that MRN was a private facil- Sheely says that Stannard then called ity, a public subject accommodation to Anderson, and that when hung Anderson Act, the Americans with Disabilities and up said, with “Well, she Stannard we have that Sheely’s son was competent did to let her back.” not need a parent accompany him. However, when she was still not admit- an email sent to Amiel morning on the ted, Sheely again called Sheely Stannard. June Anderson added that “[t]his was a says that Stannard explained that he was very big and there dog would not be room currently phone Amiel, on the who him to even lie on the floor the back had explained that she was denying Shee- hall area waiting patients.” for MRI ly’s dog access based on MRN owner Fred MRN admitted its answer that it told Steinberg’s policy that animals are not Sheely dog her was not allowed past the permitted beyond room, waiting with- waiting reasons, “for room several includ- exception out for service animals. Accord- to, but not limited space, issue of ing to Amiel’s testimony, at the time of the safety, compliance with the applicable pro- incident, MRN did not poli- written for entry cedures into the room and MRI cy covering patients either how with dis- preclusion objects metal in mag- abilities would be accommodated generally, netic area.”4 or how MRN approach would service ani- 4. Amiel later testified that deposition animals tire not testimony, 6.In his Stannard did area, holding allowed in part, "because provide not a phone full account of his con- patients there are having back there that are Sheely any versation with or of other relevant types certain open studies that have could conversations he have had with MRN IVs and pathogens there could be airborne employees day. simply that He testified that compromise that could safety pa- Sheely he had told that many there be could said, however, tients.” She this was why reasons being she was not allowed to knowledge” "common personal and her own accompany dog, her son with her and that belief, and that she had discussed not since he was remote he would to make have particular anyone concern with else at MRN. employees some calls to the MRN on location who were get with the involved situation and Sheely When had called MRN to make the Although back apparently to her. he did (a not appointment for days her son few before itself), share Sheely this information with appointment at the the MRN staff mem- time, requested ber who testified Sheely Stannard that he had in answered mind reasons, sighted person a including "hygiene” call and several appoint- make the and the instead, Sheely's ment prescrip- so that danger son’s dog’s metal in the harness to tion could read to the MRN staff over the equipment. the MRI Stannard, phone. Sheely complained to who permitted prescription her to fax the to MRN. ADA, policy violated Instead, that MRN’s had an MRN particular. inmals leave, eventually and ánimals her that service MRN asked “policy” unwritten waiting the main Mullanes only in to have the es- permitted police called the were spoken to area, she had and that told room Anderson premises. off the corted years” over the times Steinberg “several Amiel that both investigating officer end, Sheely In the policy. regarding of the inci- Steinberg were notified dog beyond her permitted take was responded and had as it unfolded dent waiting room. main long so as her was that Mullane welcome officer con- building. The left the Sheely apparently dog was incident with The disput- had had occurred patient time that that no violation be- the first a cluded policy. business, animal unwritten service not a private MRN’s ed cause MRN was the incident days of incident, one or two Within Amiel “public” place. After Amiel Anderson emailed involving Sheely, file Mullane’s indi- a note Mrs. placed develop a “written that MRN requesting per Dr. was told cating “[a]s that she facility,” our com- ‘pets’ in policy regarding facility,” within the Steinberg no animals Sheely with was that the incident plaining denied,” and future “[s]ervice year’s time that within a third time “the were not to be scheduled appointments (em- again.” once this issue has surfaced for her.7 likewise testi- original). Amiel phasis 27, 2005, a month and July about On brought into had been that animals fied incident, Sheely sued MRN half after the times,” though she “several facilities MRN District Court for in the United States inci- some of these that at least suggested Florida. Count one District of Southern rather than service pets involved dents declaratory and in- complaint sought her animals. relief, junctive as costs attor- well information record also contains Ameri- fees, III of the ney’s under Title 19, 2004, incident May regarding Act, 42 with Disabilities U.S.C. cans Mary Rose Mullane patient, which (“ADA”). §§ Count two 12181-12189 (“Mullane”), appoint- her appeared for relief, plus non-economic sought the same poodle, her husband and her ment under damages, Section compensatory animal. was her service alleged she whom Act, § 794 29 U.S.C. of the Rehabilitation Amiel told Mullane Anderson (“RA”). sought Finally, count three anywhere in the dog her was not allowed relief, plus punitive same would have facility, and that her husband interest, Rights Florida Civil Mul- dog When to wait with the outside. (“FCRA”), Act, seq. et refused, Fla. Stat. 760.01 stating that she believed lane or animal is a service animal not. whether an apparently to allow Mullane's 7. MRN refused is, According police report, Anderson to the told facility even in dog at all—that into the Sheely to did not ask the officer that she waiting it did not believe area —because entirely dog premises her from the dog a service remove claim that was Mullane’s recognized dog a she service deposition testimony in this because In her animal. case, placed Sheely’s in animal. In the note she she contacted explained Amiel that file, incident, that noted Shee- son’s medical Anderson Steinberg during the Mullane dog papers attached to his side "ap- ly’s "had dog did not told him that the she when animal, said, appeared to be accurate.” collar he pear her] to be” service [to following words, Amiel the inci- general Anderson's email house- to her "common in however, requested Sheely, facility dent pets are not allowed in hold however, regarding policy develop a "written testimony, MRN Amiel was In her all.” facility.” determining 'pets' in our provide any for basis unable statute, animal and Florida’s service Fla. ee exists, determines that either threat then the Stat. 413.08. service animal will be denied ac- cess to the facility and will temporarily be 20, 2006, April On almost nine months secured elsewhere. If neither threat eight into the lawsuit and after months of exist, determined to then the animal is discovery nearly five months media- permitted go “where its user is going stalemate, tion that ended in MRN moved facility,” including areas, “all waiting summary judgment, that, announcing restrooms, hallways, changing areas and days earlier, implemented two it had ultra sound rooms.”8 new, written Policy Service Animal Rick Steinberg, MRN’s Vice President Sheely’s rendered all of claims moot. Ac- Administration, Finance and Business cording policy, to the new it is MRN’s policy emailed the employees, who were policy to all applicable follow laws with required to print sign a form indicat- respect allowing access to “service ing that they had received the policy and animals” accompanying persons with understood that “very contains impor- disabilities- requires The law tant information.” In an affidavit accom- all service animals that are trained to panying MRN’s motion for summary judg- assist their owner who has a disability ment, Steinberg explained that permitted access to areas where the purpose [t]he policy the written was user is normally go allowed to unless its employees to inform of [MRN’s] commit- (1) can be shown either [sic] that a ser- ment to follow the law with respect to presence vice animal’s will result access, service animal help employees fundamental alteration of goods, ser- animals, identify service to inform em- vices, facilities, privileges, advantages, ployees of [MRN’s] rules related to ser- (2) offered, or accommodations or vice animal go access and to above and facility’s operations safe jeop- would be beyond the requirements of the ADA ardized. and Florida law so as to avoid future policy employees instructs to first de- disputes such as the one at [in issue termine whether an animal brought into instant case]. facility ais service animal or a pet, and affidavit, According to the policy after the latter, if the not to allow the animal access implemented April on a patient Next, facility. to the if the animal is de- animal with a service entered MRN’s Boca animal, termined to be a service the em- facility Raton April permit- 19 and was ployee must determine whether the service ted access accordance policy. with the (a) present animal “will either a direct (b) safety, threat to health signifi- However, or MRN also moved for sum- disruption cant threat of mary to the services judgment on several alternative provided by Company.” If an employ- grounds, including that MRN was never permitted x-ray 8. Service animals are to the MRI.” If the service animal does not CAT scan rooms once the user has been in- accompany its user into an examination dangers formed of the to the animal of radia- room, prefers MRN arrange that the user exposure, long tion and so as the animal does family a friend or member to ani- watch the significantly disrupt the services. Service areas; waiting mal of MRN's if no permitted animals are also in MRI “cham- available, family such friend or member is ber” rooms once it is determined that the provide then MRN temporary will “a suitable any animal does not have metal on or inside safely location where the user can secure body, provided its signifi- there is “no risk of service animal.” disruption cant caused the service animal the basis opinion that the district or RA. court’s of the ADA violation any for liable subject mat lack of ruling was the for its under both argued that MRN Specifically, of mootness. We jurisdiction because RA, no ter it was under ADA and that a district said when Sheely repeatedly until she obligation to accommodate justiciability on of a case disposes of court the accommodation explicitly requested (mootness) treat the dis grounds as we will accompany her son being permitted rul as if it was room. More- court’s determination the MRI trict far as door of hable dismiss for lack it was not a motion to over, claimed that MRN deny under Fed. subject jurisdiction it did because matter under RA 12(b)(1), bene- court if the district patient, was not the even Sheely, who R.Civ.P. Sheely of argued ruling grant its Finally, mistakenly MRN has labeled fit. law. Thus, example, under Florida a claim for summary judgment. failed to state a district we held that recently Troiano summary judg- for Sheely cross-moved mootness, although em of finding court’s court, The district on all counts. ment summary granting order bodied together, grant- considering motions both 56, must be treated judgment under Rule of MRN on summary judgment favor ed 12(b)(1) ruling on a Rule if it were a “as Sheely’s The court held all counts. 2. And 382 F.3d 1278 n. motion.” injunctive relief declaratory and for claims Blue Shield v. Blue Cross & United States moot, were and the RA under the ADA (11th Ala., Inc., n. F.3d 1101 7 voluntary of cessation given MRN’s Cir.1998), this likewise panel Court As for the wrongful conduct. allegedly granting court’s ruled that a district order un- Sheely requested only remaining relief for lack of federal summary judgment RA, determined the district court der the must subject jurisdiction matter not available emotional Rule a dismissal under be treated “as district Finally, under that statute. 12(b)(1).” v. See also Madison United Sheely failed to state court concluded (11th Cir.1985) States, 607, 609 752 F.2d Act. Rights Florida Civil a claim under the curiam) (examining a dismissal (per appeal This followed. 12(b)(6) though even of Rule the standards ruling its as denominated the district court II. Mootness summary judgment); Parker v. grant ques is is a a case moot Whether (5th McKeithen, F.2d Cir. Troi we review novo. tion of law that de 1974) (same); F.2d Tuley Heyd, v. in Palm Elections Supervisor ano v. Cir.1973) (“It (5th a familiar 593-94 1276, 1282 County, 382 F.3d Beach puts court label a district principle Cir.2004). binding of a case disposition on its Accordingly, we appeals.”).9 on a court of Although the district court char of final sum grant court’s Sheely’s claims treat the district rejection of acterized its for lack mary judgment here as dismissal injunctive relief as a declaratory and for jurisdiction under Rule subject pur matter summary judgment MRN grant 12(b)(1).10 clear from it is suant to Fed.R.Civ.P. Prichard, court We doubt that the district City F.2d have no

9. In Bonner 10. declaratory banc), (11th Cir.1981) (en disposed Sheely’s claims grounds moot- injunctive relief on the binding all deci- adopted precedent Court with, sum- begin MRN moved for down ness. To Fifth handed sions of the Circuit former on, mary judgment court before the district prior to October

H83 The district court deprive found Shee ability court of the give ly’s injunctive declaratory plaintiff relief, claims ... meaningful then relief ADA the case is under the and the RA moot moot and must be dismissed. voluntarily because MRN ceased the be Troiano, (citation 382 F.3d at 1281-82 Sheely havior challenges. We have ex omitted). However, doctrine “[t]he of vol- plained the relationship between mootness untary provides cessation an important ex- subject and the court’s jurisdiction matter ception general to the rule that a case is way: this mooted offending end behav- ior,” added): III of Article the Constitution id. at 1282 (emphasis limits the jurisdiction of the federal courts to the It is well settled that a defendant’s vol- consideration of “Cases” and “Contro- untary cessation of a challenged practice versies.” is moot [A] case when it does not deprive a federal court of its longer presents no a controversy live power to determine the legality of the with respect to which the court can give did, practice. If it the courts would be meaningful relief. If events that occur compelled to leave the defendant free to subsequent to the filing of lawsuit ... ways. return to his old In accordance others, among justiciability grounds claiming voluntary doctrine cessation bears the ex- standing both a lack of and mootness. More tremely heavy showing burden of that it is court, significantly, although the district char- absolutely clear that he will not revert to his acterizing ruling being grant its as of sum- ways. permanent old But injunc- whether a mary judgment, judgment entered that on appropriate tion is that we do not —a declaratory injunctive relief claims be- upon express opin- address and which we no cause it concluded that the claims were moot. plaintiff ion—turns on whether the can estab- portion The relevant of the district court’s by preponderance lish of the evidence that opinion “Standing/Mootness.” is entitled equitable form necessary. this relief is See (R.l-47 5.) Moreover, at the district court Co., United States v. W.T. Grant 345 U.S. prefaced paragraph dealing its final (1953). 73 S.Ct. 97 L.Ed. 1303 We precisely way mootness ano, and cited to Troi- however, that, emphasize, like the district a mootness case. And if doubt re- court, we only have decided the mootness decision, mained about the basis for its question; opinion we offer no on the merits of absolutely district court made clear in its dis- Sheely’s declaratory injunctive claims for liability cussion of under the ADA that moot, though relief. Even a case is not that Sheely’s declaratory viewed claims for injunctive does not mean that relief follows injunctive being relief explain- moot. After automatically; undoubtedly, injunctive relief ing parties disagreed had about requires “something pos- more than the mere required whether plain- Title III of the ADA sibility keep which serves to the case alive.” request tiff to make an affirmative for a rea- Grant, W.T. 73 S.Ct. 894. accommodation, sonable and whether it was Therefore, nothing opinion in this should be receptionist relevant that MRN’s assumed remand, preclude read to the district court on Sheely wanted access to the MRI scan review, appropriate deciding and after itself, from room expressly district court said equitable relief is not warranted. See that it need not address these merits issues Phosphate United States v. Concentrated Ex- previously "[s]ince the Court has ruled that the ” Ass’n, 199, 203-04, port claim under the ADAin Count I is .... moot (R.l-47 (1968) 10) added). (emphasis (concluding 21 L.Ed.2d 344 noting the case was not sure, moot but that the analysis To be of whether a case is obligated grant equi- court district was not overlaps analysis moot with the of whether a table relief on remand: “Of course it is still permanent injunction appropriate on the show, remand, open appellees merits because both are concerned with the the likelihood of further likelihood of future violations is suffi- unlawful conduct. But ciently inquiries strikingly injunctive remote to two make relief un- different. As below, length necessary. we discuss at a defendant seek- This is a matter for the trial (citation omitted)). grounds judge.” dismissal on mootness under the 1184 behavior offending presumption standard we principle, this recur, not enti citizens are private not a will determining whether

announced for See Troi legal presumption. tled to this by the defendant’s mooted has been case (courts are “more ano, at 382 F.3d A stringent: case voluntary conduct private than public officials apt to trust events subsequent ifmoot might become future viola from to desist defendants alleg- that the absolutely clear made it tions”). could rea- not edly wrongful behavior recur. expected to

sonably be recit the district court While Earth, v. Laidlaw level, Inc. legal the relevant ed, Friends at the broadest (TOC), Inc., 528 U.S. in a volun determining Envtl. Servs. mootness test (2000) case, L.Ed.2d 610 it ac although 120 S.Ct. and tary cessation marks, citations, (internal likely to quotation “courts more knowledged that added); omitted; see emphasis voluntary ces alterations on a public trust defendants Co., defendants,” it v. W.T. Grant private also United States than sation issue 629, 632, 97 L.Ed. S.Ct. on the “undis U.S. concluded that nevertheless (“[T]o (1953) has become say that the case record,” case was moot. the instant puted is entitled the defendant not moot means that court did concluding, the district so right. The as a matter rec apply to a dismissal much less to this acknowledge, defen- grant refused rightly ord, courts have factors that both the any of the basic against pub- weapon a powerful dants such have found and this Court Supreme Court enforcement.”). determining lic law where mootness important voluntarily has ceased private defendant “formidable,” “heavy bur The we have Specifically, at issue. conduct chal the court persuading den of following three at least found relevant reasonably be ex cannot lenged conduct (1) challenged con factors: whether party up again lies with the pected to start unintentional, op as was isolated or duct Laidlaw, atU.S. asserting mootness.” prac continuing deliberate posed to (alteration, 190, 189, internal 120 S.Ct. 693 (2) tice; cessation whether the defendant’s marks, omitted); and citation see quotation motivated offending conduct was King Corp., Burger Sec’y also Labor or timed genuine change of heart Cir.1992) (11th (describ- 955 F.2d (3) whether, in suit; ceasing anticipate “heavy”). A ing the defendant’s burden conduct, has acknowl the defendant inten- that it has no defendant’s assertion of these liability. application edged reinstating challenged practice tion of yields the undisputed factors record to make a case “does not suffice moot” “absolutely not clear conclusion “one of the factors be considered is but could allegedly wrongful behavior appropriateness determining recur,” reasonably expected injunction against the now- granting an Laidlaw, 189, 120 at Grant, discontinued acts.” W.T. (internal omitted), and marks quotation 894; Bd. see also Hall v. that this case is moot. therefore County, 656 Conecuh Sch. Comm’rs of First, surprise that courts it comes as no Sept.1981) B Cir. Unit F.2d challenged (“To ..., likely to find that jurisdiction more defeat defendants reasonably likely to recur is not profes- their mere behavior offer than must more incident, constituted isolated and will where it that the ceased sion conduct unintentional, engaged revived.”). or was least Although government not be are more reluctantly. Conversely, we of a actors receive the benefit rebuttable likely to find a reasonable expectation of and enforced on multiple occasions, some- challenged recurrence when the behavior vehemently. times Director Amiel offered “continuing practice” constituted a undisputed was testimony that MRN owner See, otherwise e.g., deliberate. Steinberg W.T. Fred created what she termed Grant, 345 U.S. at 632 n. 73 S.Ct. 894 the MRN’s “policy,” animal and that she (“When defendants shown to have set- had spoken to him “several times over the a continuing practice tled into or entered years” regarding it. Consistent with this ..., conspiracy into a testimony, courts will not as- May after the 2004 Mullane sume that it incident, has been abandoned without Amiel placed a note in Mullane’s (internal proof.” “[ajs clear quotation stating, marks file per Dr. Steinberg no omitted)); Troiano, 382 F.3d at 1285-86 animals within facility” (emphasis add- (fact ed). challenged good- Anderson, too, behavior “was a complained that the faith effort to deal with an administrative incident involving Sheely was “the third dilemma” that likely pres- was “not to be year’s time within a time that this issue supported ent the future” finding of has surfaced once again.” mootness); Burger King Corp., 955 F.2d Nor does the record reflect that these (“five-year history at 684 of violations” cut only incidents involved low-level MRN em- against mootness); Hall, finding of 656 ployees. The Mullane incident—in which F.2d at (“longstanding practice” cut ultimately MRN police called the to en- mootness). against finding of force policy its animal and determined not says

MRN Sheely its treatment of to offer any Mullane further services— was “an isolated Anderson, incident” rather than the input by involved receptionist, a result of a “prior Amiel, entrenched policy.” director, The a and Steinberg, the own- undisputed testimony of MRN’s em- own er of MRN himself.11 The incident involv- ployees, however, strongly suggests Sheely Anderson, involved at least Sheely’s Amiel, treatment was Stannard, the result of a director, another and an years-long policy created MRN’s own- unidentified MRN employee named Car- er, ranks, communicated through MRN’s la.12 argues

11. MRN poodle, “appear nevertheless it had no did not to be’’ a service ani- policy Duncan, entrenched because neither the Mul- mal. See Susan L. APIC State-of- any lane prior Report: incident nor other Implications incident the-Art Service Sheely any Settings, incident resulted Animals in formal Health Care 28 Am. J. (2000) against (Def.’s claim discrimination Infection Control MRN. We Con- disagree. good N) part App. This on the cise Statement of luck of MRN Material Facts (“There does any par- not convert a series of at is no validated evidence least three year incidences within one ticular breed into an isolated is better in the role—service event, dogs breed.”). negate any any can nor does it the record size or evidence suggesting longstanding that MRN had a ani- policy. Similarly, mal we are similarly suggests reluctant 12. MRN that the incident accept MRN’s invitation to Sheely just discount the Mul- "misunderstanding.” merely lane incident says because MRN Sheely continues MRN that it believed intended to dog animal, to doubt that the involved in that incident take her service with its metal har- ness, itself, awas service animal. We will never know into the MRI examination room dog whether the was a service legitimately prevented animal or not and that it her from Amiel, so, Steinberg’s because doing on owner Fred any as it would have done with command, not, refused Mullane person, service after de- carrying disabled or metal on basis, termining person. record and de- their explains MRN that it believed —without spite prohibits the fact public Sheely's that the ADA this to be intention because when son, requiring proof Sheely accommodations from accompany that an stood to her never she animal is a dog, service animal—that accompany made it clear that she wished to (in Cir.1989) (11th F.2d 833-34 find that likely to Second, arewe more only case, “[u]n- came cessation non-moot when cessation moots case cessation [plaintiffs’] imminent threat der the change genuine by a defendant’s motivated (same); Hall, at 1000 lawsuit”); 656 F.2d avoid desire to his rather than of heart Agency, 620 Prot. v. Envtl. City Waco v. Citizens Co. liability. See Steel (in Cir.1980) n.& 10 F.2d 86-87 Env’t, Better “only six case, came cessation non-moot (1998) (“presump 140 L.Ed.2d argument”). days before oral oc when cessation injury of future tion” suit); Arrow Iron response to curs not “profession” Although a defendant’s Heckler, 67, 71-72, 464 U.S. Soc’y v. Honor standing practice, challenged to revive (1983); W.T. 78 L.Ed.2d make a case alone, suffice to “does not Grant, n. 73 S.Ct. 894 at Grant, moot,” U.S. W.T. (“It to duty courts beware of the 894, here, made has not even MRN by protes relief injunctive to defeat efforts Supreme representation the minimal reform, especial and repentance tations perhaps This is rejected in Grant. Court to an seems timed abandonment ly when suggest record does for the surprising, not ”); Co. v. .... Nat'l Adver. ticipate suit by a to desire that MRN was motivated (11th F.3d City Steinberg, MRN’s liability. Rick avoid Miami curiam) Cir.2005) (“[VJoluntary cessa (per and Business of Finance Vice President only moot will tion of offensive conduct Administration, as much his conceded it that the defendant litigation if is clear affidavit, purpose of the stating that “[t]he deprive to simply changed not course future to ... avoid dis- policy was written Troiano, 382 jurisdiction.”); the court of at issue [in as the one putes such (in case, cessation oc moot F.3d at 1285 MRN’s new timing case].” instant suit); St. Springs to Coral prior curred conclusion. MRN’s policy reinforces our Sunrise, City 371 F.3d strategy'— v. Sys., litigation Inc. change policy —and (11th Cir.2004) (same); lawsuit, Dow 1320, 1331-32 nine months into this came almost 1251, 1255 Kaye, discovery nearly v. 256 F.3d & Co. months eight Jones after Cir.2001) (11th (same); King mediation, to Burger appears n. 4 months of five (in case, in counsel. change F.2d at 684 non-moot with a Corp., 955 have coincided trial”); terminating Nat’l one immediately eve of after came “on the It was cessation Lauderdale, 934 another that MRN Fort firm in favor of City Adver. Co. v. law Inc., Cir.1991) (in (11th ADAhelp, non-moot services of employed the F.2d it Nor did policy. after it draft its case, help came six weeks suit new cessation to MRN that this long dis for it to occur day by motion to take the next followed against Dist., might make the lawsuit policy new miss); County Sch. Jager Douglas into, equipment to, danger beyond the the MRI actual MRI up but son not her words, room, suggests it In Anderson's examination examination room. dog goes where Sheely merely "the said that effect was made to this Anderson’s statement MRN goes." Although MRN admits "that Sheely’s she unstated only it because believed dog Sheely that could not accom- advised her go examination far as the MRI wish was to waiting area"— pany past her [main] court, considering this room. The district only the examination which includes liability purposes of MRN’s under issue waiting hallway area where also the room but RA, that a and the found the ADA parents of minor children non-disabled issue, no further but found fact exists on this although by all accounts permitted go, its question because of to address the need beyond dog Sheely's was denied access legal determination. go waiting room for several reasons main moot; summary judg- “expressly MRN moved for dant disavowed any intention of just conduct); grounds defending” on the of mootness two the ceased ment ACLU v. Bar, days later.13 Fla. 999 F.2d 1494-95 Cir.1993) (in case, non-moot defendant was Third, law, a controlling defen statements,” not “bound its court had acknowledge wrongdoing failure to dant’s back, “the to change discretion policy” its similarly suggests that cessation moti reasonably might do so con- where it merely by liability, vated desire to avoid policy’s validity); tinued to assert the old a live and furthermore ensures that dis (in Jager, F.2d at 833-34 non-moot between the pute parties remains. See case, promised defendants “never Grant, 73 S.Ct. 894 W.T. prior practice” resume the and “continue (noting “public having that the interest press appeal voluntarily legality practices mili settled[ ] ceased conduct should be declared consti- conclusion”); against a tates mootness tutional”); Hall, (in 656 F.2d at non- 1000 Inc., Walling v. Payne, Helmerich & 323 case, moot defendants “disputed the con- 37, 43, (1944) 11, 65 29 U.S. S.Ct. 89 L.Ed. of stitutionality practice day the up to the (controversy defendant remains where trial, of when defense counsel for the first consistently validity urged “has the of the they time indicated had no intention of be [practice] presumably would free to [it]”); reviving United States v. Bob Law- were [it] resume not some effective re Inc., Realty, 115, rence 474 F.2d made”); v. straint United States Trans- Cir.1973) (“[I]n the appellant’s face of own Ass’n, 290, Freight Mo. U.S. recognize inability to his transgressions of (“[M]ere (1897) 41 L.Ed. S.Ct. Act, the we decline to assume that he will is not important the most ob [cessation] future.”). not violate the Act in the ject litigation. this judgment of of the sought case, is upon court the of the consistently this MRN has of legality [challenged practice] the .... urged validity the of its actions toward illegality do not admit ... Sheely, controversy [Defendants] so that a the between ..., [promise] nor into parties legality not enter the over of those actions similar [practice]. contrary, by day On the remains. MRN continues to this answers, their the claim that Sheely defendants insist that because was not agreement perfectly proper patient is ... when incident was occurred she ”); benefit, .... see Springs Sys., also Coral St. it no denied no committed (in case, F.3d at 1332-33 moot defen- Simi- violation of Rehabilitation Act.14 Similarly, timing only qualified 13. occasion [n]o of otherwise individual with shall, apparently applied which MRN has disability solely by on its ... her reason of policy April imple- day disability, par- new one after or be excluded his from the —on and, menting in, significant- of, the new policy ticipation more be denied the benefits or be day ly, planned to one before MRN move for subjected pro- any to discrimination under summaty judgment grounds on the of moot- gram activity receiving or Federal financial this ness—limits extent to which incident “program .... [where] assistance or activi- n an reasonably powerful can be said to constitute ty” operations all means .. of evidence MRN’s to forever commitment corporation, partnership, entire other or adhering policy. to its new private organization any part which is extended Federal financial assistance. 794(a)-(b) added). Although (emphasis not 29 U.S.C. district court did base its grant summary judgment Congress specifically to in- this factor and amended the RA it, language Supreme we therefore need we observe clude broad after the not address this RA, amended, gave "program activity” interpre- under the as Court only litigation will moot if it is clear that Steinberg’s describes larly, affidavit sim changed course defendant beyond “go[ing] above policy new jurisdiction.” the court of ply deprive ADA and Florida requirements of the City Nat'l Co. v. Adver. Miami added). (emphasis law” say F.3d at 1333. We cannot confidence, says that binding precedent degree let alone with abso Our the case here.15 clarity, lute “voluntary cessation of offensive conduct Congress unduly fact” "there was real threat of a deemed to no tation that Paralyzed Op. Concurring Dep’t of Transp. v. in Part U.S. recurrent violation.” narrow. See 597, 605-06, Am., Dissenting n.l. We Veterans Part at do (1986); City having Grove L.Ed.2d the district court as ever read Bell, (prospec- Coll. there real concluded that was no (1984). now- tive) 79 L.Ed.2d 516 Given the ways. returning its old threat of MRN application Act to Rather, "all of broad what the district court said in brief entity, we operations of” an "entire” covered paragraph simply concluding Sheely's persuaded allegations are not may have taken this lawsuit to ”[w]hile it provides denied to her what action, that MRN voluntary force the record is such patients— parents minor non-disabled policy now clear that the written access namely, accompanying their the "benefit” of force, solving any problem that existed.” thus waiting hallway to the area —are not children (R.l-47 15-16) added). (emphasis This Indeed, cognizable Act. under the several determining does close to that MRN not come parties have held that disabled third courts reverting poses threat of to its no real old recipient accompanying primary the of a cov practices the future. We add that the dis- entity’s count as "otherwise ered services cited, trict never so let alone court much as See, e.g., Act. qualified under the individuals” controlling applied, legal the standard enunci- Grottenthaler, v. 907 F.2d Rothschild Supreme by determining ated the Court for (RA Cir.1990) (2d applies all to services of voluntary private cessation mooted a whether just relating entity, covered not those fered Laidlaw, case. at 120 S.Ct. See function, entity’s that central so school had to ("[A] claiming defendant that its volun- obligation parents provide to deaf of a an tary a compliance moots case bears the formi- hearing they interpreters child when at with showing absolutely dable burden of that it is meetings parents all tended to which were allegedly wrongful clear the behavior could Ctr., invited); Bravin v. Mt. Sinai Med. (em- expected reasonably not be recur.” to (S.D.N.Y.1999) (where F.Supp.2d added)). phasis hospital offered service of Lamaze classes to however, day, At the we read the end of the partners, and their it mothers-to-be chosen having the follow- district court as referenced RA was intentional discrimination under the undisputed MRN three facts: consulted deny sign interpreter language a a deaf to expert, policy, a written ADA established partner, regardless the of whether mother-to- employees. policy and the its transmitted alone); could have the class At be attended undisputed: These facts are it took additional Hosp., F.Supp. Helena kins St. lawsuit, only not a but nine months of inten- Aikins[, (N.D.Cal.1994) ("That Mrs. policy litigation change MRN to its sive on individual,] patient at deaf was not a St. Hel animals; service MRN has continued assert raising preclude her ena should from RA; that violate ADA or the it did not under the Act claims Rehabilitation based officials senior MRN had discussed MRN’s hospital’s failure to communicate effec occasions; policy service animal on several tively with her in connection with treat its case, prior giving the events rise to this husband.”). Piearing] ment of her MRN other run-ins with customers re- had says Judge garding 15. Cox that we should remand the animals. No matter how this service undisputed interpreted, issue to court mootness the district for further record is we are con- record, that, unpersuaded review. On this we of law— strained to conclude as a matter expeditious a remand further the squarely legal that would determination— this is (indeed, resolution of matter. MRN has not cannot establish even Among Judge suggests establishing) come that "it is things, other Cox close to abso- lutely wrongful allegedly behavior that the district court found as "critical clear the

H89 Indeed, im- future litigation unlikely, may the record evidence—the most is it well come from calculate portant pieces policy longer which MRN that its new is no nearly preferable uniformly suggests course of action and revert itself— employed policy prefers MRN enacted and discretion- the old it apparently policy “go[es] ary it believes above believes to be On this legal. fairly debata- record, beyond” requirements of the law ble has not met MRN its “formida- ble,” doing “heavy it precisely preferred meeting because so to burden” Su- preme MRN litigation. “stringent” continued As stresses on Court’s standard for it has never been sued for mootness in a appeal, private voluntary before cessation violating Although the ADA the RA. showing “absolutely clear case— record MRN allegedly wrongful shows that has been behavior could reasonably expected faced service animal issues on multi- not be to recur.” Laidlaw, occasions, only apparently Sheely took ple (internal omitted). press trouble to claim in a quotation her court of marks In short, say If her

law. we conclude that claims are we cannot this case is moot, then should MRN determine that moot.16 reasonably expected could to recur.” in fact distinct doctrines which must not be added). Laidlaw, (emphasis Accordingly, 189-90, Id. we can confused. 528 U.S. at sending (internal omitted). no reason quotation discern S.Ct. 693 marks court mootness back to the district for further The difference between the two is that the finding. Springs former, review or fact Coral latter, See St. "capable but not the has a Sunrise, City Sys., Inc. v. 371 F.3d repetition, yet evading exception. review” Id. ("[0]n (11th Cir.2004) 1332 n. 10 numerous Moreover, occasions, appellate courts made this ensure, "[sjtanding doctrine functions to critical determination of whether reenactment among things, other that the scarce resources likely, challenged law was without re- federal courts devoted to those mand or deference to the district courts. On disputes parties in which the have a concrete peculiar facts and circumstances of this contrast, by stake. the time mootness case, we can not discern no reason to make a issue, brought been the case has and liti- (citations determination of this kind.” omit- gated .... the ad- To abandon case at an ted)); Miami, City Nat’l Adver. Co. v. 402 of stage may prove vanced more wasteful than 1329, (11th Cir.2005) curiam) (per 1334 F.3d 191-92, frugal.” Id. at 120 S.Ct. 693. As a (raising sponte justiciability prefacing sua and result, the "there are circumstances in which analysis its mootness as follows: "Given the (or prospect engage that a will defendant legal determining framework for when subse- resume) specula- harmful conduct be too legal quent challenge, events can moot a we support standing, specula- tive to but not too legal apply principles those to the facts of this 190, tive to overcome mootness.” Id. at case.”). 693; 190-91, id. S.Ct. see at 120 S.Ct. also (discussing City Angeles Lyons, Los v. court,

16. MRN made before district and the of 95, 1660, 103 S.Ct. 75 L.Ed.2d presses appeal, voluntary an identical ces- (1983), plain- Court in which the “held that a argument doctrine sation under the of stand- standing injunc- tiff lacked initial to seek an urging given ing, that new its service-animal against police tion enforcement the policy, Sheely injury cannot that the show she policy chokehold because he could not credi- alleges by Although is redressable the court. bly allege threat that he faced realistic aris- Supreme Court often remarked that city- ing policy,” but from the "noted that a “the doctrine of can be described mootness as police wide moratorium on chokeholds—an standing the doctrine of set a time frame: surely already requisite personal action that diminished the slim that The interest must exist (stand- any particular litigation likelihood that individual commencement of by police throughout ing) would be choked not have must continue its existence —would (mootness),” injunc- mooted an valid claim for the Court has also warned that otherwise relief, description its compre- this "is not tive because moratorium mootness standing permanent,” and that and terms was and Olmstead hensive” mootness are not remedies, if In what deciding Compensatory III. Non-Economic statute, any, any we are available under the Rehabilitation Damages Under must, analysis, we begin our as Act case, language of the statute itself. summary granted court also district however, language statutory does remaining por- on the judgment to MRN 505(a)(2) take far. Section of the Reha us Act claim Sheely’s tion of Rehabilitation 1973, Act of as amended bilitation compensatory seeks non-economic 1978,18 simply provides that reme “[t]he grounds that such dam- damages, on the dies ... forth in title VI the Civil set under Act. ages are not recoverable Rights Act of 1964 shall be available to be a appears what We consider person by any act or failure to aggrieved only in our impression, first Court recipient by any act of Federal assistance in all the federal circuit courts [§ 504].” but U.S.C. 794a(a)(2).19 However, VI, § Title reverse. appeals,17 and 2176, 1028, (1992), L.C., 6, hold- 117 L.Ed.2d n. (1999), panoply legal in which Court that the "full remedies” is 144 L.Ed.2d § patient's challenging directly her ad- held that a lawsuit available under but not However, segregated damages). dressing confinement in a institution was emotional we postcomplaint by her transfer to a not mooted know of none has done so since Barnes. despite community-based program, the fact Rehabilitation, Comprehensive 18. See Ser- standing that she would have lacked initial vices, Developmental Disabilities Amend- transfer). complaint had she filed the after 95-602, ments of Pub.L. No. sec. Sheely argument As for MRN's lacks 505(a)(2), (1978). § 92 Stat. 2955 standing the instant case because to initiate only facility MRN's once can- she visited Congress surprising 19. It is not tied suffering not show that she is risk of future § remedies available under those that discrimination, the district court found that in VI. 504 of available under Title Section eight months between the incident RA, prohibit other like statutes that dis deposition testimony, Sheely question and her federally programs crimination assisted had an MRI center twice for visited herself activities, including Title IX of the Education son, and twice more for her and therefore §§ Amendments of 20 U.S.C. 1681— Sheely provided had held that more than Title II of the Americans with Dis might theoretically mere that she assertions amended, Act of 42 U.S.C. abilities facility We return to MRN’s for service. §§ § was modeled after 601 of agree Sheely standing had to initiate this result, language § Title VI. As a 504 is case. "virtually identical that of Title 601 of Darrone, Corp. VI.” Rail v. 465 U.S. had, Consol. appeals prior 17.Federal circuit courts of 624, 626, 1248, 104 79 568 S.Ct. L.Ed.2d important Supreme to the Court’s in decision (1984); Dep’t of Transp. also 181, see U.S. v. Para Gorman, Barnes U.S. 122 v. 536 S.Ct. Am., 597, lyzed Veterans 477 U.S. & n. 2097, 600 (2002), 230 the 153 L.Ed.2d considered of (1986). L.Ed.2d 494 damages availability of emotional under the VI, Compare § § 601 Title U.S.C. 2000d See, Young e.g., RA. v. Men’s Chris Schultz (1964): U.S., (1st tian Ass'n F.3d 290-91 shall, Cir.1998) (denying damages person emotional case No in the States on the in United discrimination); race, color, alleging ground origin, or unintentional East national be in, Univ., Polytechnic participation man v. & State excluded from denied Va. Inst. be of, (4th Cir.1991) (concluding subjected the benefits be to discrimi- F.2d or pain any program activity or re- compensatory and suf nation under fering ceiving Title Federal are not available under VI or financial assistance. RA); IX, 1681(a) § § § Va. v. Bd. with 901 of Title 20 U.S.C. Pandazides Educ., Cir.1994) (over (1972): 13 F.3d shall, ruling light person in the Eastman in of Franklin Gwin No United States sex, Schools, participation County nett Public be from basis excluded seq., prohibits recipients § et which dis fair they may U.S.C. 2000d notice that race, color, subject crimination on the basis of to them. In articulating its in programs notice, national and activities origin concern with the Court has some- assistance, financial does receiving federal times found it useful to analogize Spending expressly pri for a provide itself legislation Clause to a contract which action, vate cause of much less delineate government the federal provides money to Instead, specific judicial remedies. recipients exchange promise for their Court, VI, Supreme interpreting Title not to against parties. discriminate third action, implied right has “found an Third, consistent with this contract right this Congress acknowledged has metaphor, Supreme Court has distin- statute, leaving to the it be amendments guished between intentional and uninten- yond dispute private may individuals tional of Spending violations Clause stat- sue to enforce Title VI.” Barnes v. Gor utes. suggested, While Court has man, 181, 185, 122 2097, 153 deciding, without that victims of uninten- (2002) (citations, quo L.Ed.2d internal tional may discrimination be limited to omitted). marks, emphasis tation prospective preventing relief future viola- Thus, in determining whether emotional tions, clearly it has held that victims of damages are available under we additionally intentional discrimination are Supreme must ask what remedies retrospective entitled to to compen- relief private litigant suing Court has allowed a conduct, recipient’s past sate them for the recover, why. under Title VI recipient which the knew or should have known agree- violated terms of its A. government. ment particular, with the Supreme Our consideration of may victims of intentional discrimination jurisprudence yields Court’s VI Title Fourth, recover compensatory damages. following First, principles. Supreme however, Supreme Court has held repeatedly legal Court has held that where intentional victims of discrimination rights have been invaded and cause of Spending legislation violation of Clause available, action generally federal punitive damages. not recover Be- court may remedy use available punitive damages generally cause un- relief, afford full and that presumption this contract, available for breach the Court yield will only contrary congressional explained, recipients fair notice lack Second, statutory purpose. intent or funds, they that in federal accepting respect legislation, like VI and Title subjecting themselves to form of lia- RA, pursuant Congress’s enacted bility. Spending power, the Supreme Clause Supreme Although Court has that the Court has estab- presumption said must yield beyond any extent in lished doubt to some order to accommo- that victims of date the intentional may, fact that remedies for violations of discrimination under Title RA, legislation proper only such are if VI and under funding therefore the recover in, of, subjected qualified be denied the or be No with a benefits otherwise individual shall, disability the ... in United States any pro- to discrimination under education solely by disability, reason of her or his gram activity receiving or Federal financial in, participation the be de- excluded from assistance .... of, subjected nied the or be to dis- benefits RA, 794(a) § § and the 504 of 29 U.S.C. any program activity crimination under or (1973): receiving .... Federal financial assistance 1192 no clear rule from catego- reasoning, emerged and as a broad damages

compensatory general reasoning precise to the Guardians.22 spoken has not ry, the Court case, however, today in that damages opinions two compensatory available scope of enjoy to the of the full reviewing appear support the After statutes. under these Court, and are therefore nevertheless jurisprudence,20 Title VI Supreme Court’s discussing. compensa- worth that non-economic we conclude in- for are indeed available tory damages the Justice announced decision White RA. of the tentional violations opinion joined, in relevant the Court in an Rehnquist. Ser- Justice Justice White part, Civil In Association Guardians York, argued private plaintiffs pursuing that New 463 U.S. vice Commission of (1983), 3221, claims of unintentional discrimination 582, L.Ed.2d 866 103 77 S.Ct. “declaratory injunctive and private only entitled to had awarded the district court compliance future ordering in “to relief with seniority” order “back plaintiffs obli- VI,” along statutory regulatory and under Title declared make ‘whole’ [them] monetary non- the form gations. Additional relief “corresponding with money past uninten- there- otherwise based monetary derived entitlements Id. from,” to employer tional violations should be withheld.” and also ordered White, 598, 3221 (opinion about future ex- at plaintiffs consult with J.). rule,” said, “usual he 3221. While the Id. at S.Ct. aminations. Court, in Supreme legal rights “where have been invaded Five of the Justices available, a federal held that no such a cause of action separate opinions, four VI,21 any remedy to Title while court use available relief available under was relief,” Justices, afford full id. at separate opinions, S.Ct. four two Hood, 678, 684, (citing opinions sug- Bell v. As the number dissented. (1946)), rule in its L.Ed. this deeply divided S.Ct. gests, the Court was money damages from which are available under In absence of clear direction 20. Congress § it intended § as to remedies clear a [that is] authorizes provide VI or the for violations of either Tille plaintiff alleges who intentional discrimina- it, Su- subsequent statutes modeled on equitable bring action back- tion for struggled understandably preme Court reasoning pay,” way: this jurisprudence questions, these Guardians, ex- majority a of the Court today deep this analyze we marks of bears private pressed plaintiff view struggle. backpay; and under Title VI could recover argued permit does VI Two Title 21. no Member Court contended 608-10, private at all. Id. at cause action unavailable, backpay a rem- least as (Powell, J., concurring 106 S.Ct. 2705 edy un- discrimination. It is for intentional C.J.). by Burger, ar- judgment, joined Four grounds necessary to review here the for disparate gued plaintiffs’ claim that the interpretation this VI. It of Title suffices discriminatory impact, opposed treat- apply interpretation state that we now ment, cognizable VI. Id. under Title was not noted, which, 505(a)(2), §to as we have J., 610-11, (Powell, 106 S.Ct. 2705 concur- provides plaintiffs reme- 504 the C.J., by Burger, ring judgment, joined in the Therefore, dies set forth in Title VI. re- J.); Rehnquist, at 612 & n. id. having spondent, alleged dis- intentional (O'Connor, J., concurring S.Ct. crimination, may backpay recover reserving judgment) (expressly present § 504 suit. whether available claims Danone, Corp. v. Consol. Rail discrimination). intentional 79 L.Ed.2d 568 year badly (citation fractured (1984) omitted). Less than after and footnotes Guardians, Court decided a unanimous Court held, determining to the extent ”[w]ithout shown, necessary carry out the has been there can no “yields question where to be Congress frustrating recipient’s obligation or to avoid to what the intent of involved,” purposes program of the statute id. was and no that the VI, statutes, pursuant recipient obligation. aware of like Title enacted was In situations, it Congress’s Spending power, may Clause “the such be that the victim ... receipt of federal funds is consensual intentional discrimination should be matter,” 596, award, (citing entitled compensatory id. at S.Ct. to a as well Hosp. prospective Pennhurst Sch. & v. Halder as to relief in State the event the man, 1, 15, 101 S.Ct. 67 State continues with the program.” U.S. Id. at (1981), added); Wy (emphasis L.Ed.2d 694 and Rosado 103 S.Ct. see man, 397, 420-21, 20, 103 90 S.Ct. also id. at n. S.Ct. 3221. (1970)): 25 L.Ed.2d 442 Marshall, writing Justice while in dis advanced, Typically, before funds are sent, with agreed Justice White appropriate federal official will de- issue required reconciliation Bell grantee’s pro- termine whether the “any v. Hood presumption of available gram satisfy will the conditions of the remedy good done,” wrong to make id. grant private .... in a When later suit (Marshall, J., at dis brought by those for whose benefit the senting), with Title Vi’s nature very as a money federal was intended to be used spending-power provision, “contractual” id. determined, it contrary the State’s However, 103 S.Ct. Justice position, conditions attached to Marshall concluded the contract anal with, being complied are not funds ogy “only propriety reinforces may recipient be that the would rather awarding retrospective relief.” Id. at receipt money its federal terminate VI, said, Title S.Ct. 3221.23 he “unam than the unanticipated assume burdens biguously imposes a [of condition nondis Although .... identify a court grant on the federal crimination] mon enjoin violation and its continuance or eys,” “statutory and this mandate can order recipients pro- federal funds hardly notice”: escape “applicants for fed spectively perform their duties inci- eral literally sign assistance contracts in receipt dent money, to the of federal they which agree comply Title VI recipient option has the withdrawing ‘immediately and to take measures terminating prospective hence do necessary’ to so. This assurance is injunction. force of the aid, given ‘in consideration of federal Thus, Id. in cases of unintentional dis- the Federal Government extends assis crimination, immediately “it is not obvious tance ‘in reliance on’ the of com assurance grantee’s obligations what the under the 3221; pliance.” Id. 103 S.Ct. program surely federal were and it is 22-23, 103 see 630 nn. also id. at S.Ct. 3221 grantee obvious that the was aware that it (quoting agency implementing reg various administering program violation of Compli ulations and their “Assurance or regulations.” the statute Id. at recipients ance” contracts with of federal 103 S.Ct. 3221. funds). discriminate, duty This not to he said, hand, agrees

On the other Justice White when the recipient ob- attaches served, accept funding, a court “where intentional discrimination federal not when Guardians, argued private plain- 23. Justice Marshall See 463 U.S. at discrimination. 615, J., (Marshall, compensatory tiffs should able to recover dissenting). relief for both intentional and unintentional 1194 other VI- under the RA and Title agree- remedies breached

concludes that sug- White’s that the agreed thus called Justice statutes have was ment. He based See, are limit- breach gestion that remedies for Ma question “‘murky.’” e.g., was of relief “a bizarre view prospective ed to 762 County, Bd. Pinellas necke v. Sch. 632, Id. at 103 S.Ct. 3221. contract law.” (11th Cir.1985) n. (quoting F.2d 921 8 He concluded: Pavkovic, F.2d v. 753 approval Parks

Only retrospective relief by providing (7th Cir.1985)). Even the Su 1409 can the courts fulfill the private litigants admit, had ex preme “[w]ithout Court between the terms of the “contract” matter,” to opinion on the pressing recipients Federal Government as to among confusion the Circuits “some In ex- federal financial assistance. availability damages remedy of a moneys, recipients change for federal Robinson, 468 504.” Smith Be- promised have to discriminate. 1020 n. 82 L.Ed.2d is to ensure that cause Title VI intended (1984). subject person” “no to discrimination uncertainty, Against this background federally programs, private in assisted held, in panel this Franklin v. Court third-party as parties function beneficia- Schools, County F.2d ries these contracts. When court Public Gwinnett (11th that a has breached recipient Cir.1990), compensatory concludes re contract, it its should enforce broken plaintiffs lief private was unavailable to expectation promise by protecting the Title IX. Id. at intentional violations of recipient not discrimi- would high ease plaintiff 622. The was way nate. obvious to do is to The alleged who that she had school student private parties good position put as sexually by her coach and been harassed had con- they as would have been teacher; appeals panel time the performed. requires tract This been compensatory her claim for considered kind make whole precisely the reme- graduated and the damages, she had dy rejects .... that Justice White resigned, teacher had so no other (citations 632-33, Id. at form of relief would have benefited her. omitted). plaintiffs Denying compensatory Nevertheless, panel read Guardians as fact, said, often relief would he leave leaving open remediless, Title VI victims and would (and Title thus intentional violations of VI VI], thereby “depreciate[ which ] [Title IX24), Title followed the bind instead specifically to deal with ‘the intended Drayden Indepen case of v. Needville injustices and humiliations of racial and District, dent 642 F.2d Cir. School ” Id. at other discrimination.’ Apr.1981), A had Unit where Court (quoting H.R.Rep. S.Ct. 3221 No. 88th right action private held that Title Vi’s (1963), reprinted at 18 Cong., 1st Sess. an attempt no than “encompasses more 2394 (emphasis U.S.C.C.A.N. any discriminatory activity ceased.” added)). Franklin, (quoting Dray at 620 F.2d 133). den, Guardians, panel majorit F.2d at The only thing

After perhaps y25 noted, addition, considering federal the available that Justice courts White’s Franklin, agreed plicable VI in a Title IX context.” parties 24. that Tille “served as omitted). (citation IX, and footnote F.2d at 619 legislative antecedent for Title and that consequently, jurisprudential analysis specially Judge to state Johnson concurred opinions ap- the Justices' in Guardians ... panel's that he would have based the decision “important opinion provided in ditional in presumption Guardians favor a feder- guidance,” agreeing with Justice White al power appropriate court’s to award Spending legislation that where Clause is in cognizable relief a cause action. issue, may frequently at “relief be limited The correctness of this inference was nature, equitable in that which with made clear the following Term [in Con- recipient of federal thus retain funds Rail] solidated when Court unani- option terminating receipt such mously held ... [RA] author- injunction.” order to rid itself of an Id. izes an .... backpay award The 621, 103 at S.Ct. 3221. rule, general therefore, absent clear contrary direction to the by Con- however, review, all nine

On Justices of gress, federal power courts have the agreed Court that “a Supreme dam any appropriate award relief in a ages remedy” is indeed available under cognizable brought cause of pur- action Franklin, IX, Title and reversed. suant to a federal statute. 60, 1028, 76, 112 S.Ct. 117 L.Ed.2d 78, (1992); see also id. at S.Ct. 70-71, (citations Id. at 112 S.Ct. 1028 omit- J., (Scalia, in the concurring judg ted). ment, C.J., joined by Rehnquist, The “Congress Court concluded that in- J.). Thomas, White, writing Justice tended to limit application of [neither] this Court, began by reiterating Bell v. general principle the enforcement of presumption “although Hood’s we ex Title IX” “the nor available in remedies amine history the text statute to brought 71-72, suit under at Title IX.” Id. Congress determine intended whether 112 S.Ct. After 1028. the courts had rec- action, presume create a right we ognized implied private right of action all availability of un appropriate remedies IX, under Congress passed Title two Congress less indicated expressly oth amendments Title IX—as well as to 66, at (majori erwise.” Id. S.Ct. VI, RA, § Title 504 of the and the Age (citation omitted); ty opinion) see also id. Act of Discrimination 66-68, emphasized 112 S.Ct. 1028. He “general “deep rule” had roots in first, Rehabilitation Act jurisprudence,” [the id. at Court’s] 1003(a)(2), § Amendments Pub.L. S.Ct. and was the of a “long result No. Congress 100 Stat. abro- cases,” line of id. at 112 S.Ct. gated the States’ Eleventh Amendment Guardians Consolidated Rail statutes, all immunity providing four Darrone, Corp. v. in pertinent part that (including “remedies (1984) (see supra 79 L.Ed.2d 568 n. equity) remedies both law and in 21), far “eroding] from this traditional available for such violation same .the it,” presumption, in fact support id. at extent as such remedies available for 70, 112 1028: such against any a violation the suit majority public clear private entity

[A] [in ex- other than a Guardians] 2000d-7(a)(2). pressed the view that were State.” U.S.C. Supreme available under Title in an “[w]hile VI action Court determined that seeking says remedies for an intentional is true saving nothing vio- that this clause lation, challenged and no Justice about tra- the nature those other available alone, Drayden considering without ians. “dicta” opinion in Justice White’s in Guard- no- contrary monetary liable award. This indication remedies, absent statute, in a case ... pre- problem we tice does arise history of the the text or al- discrimination is this statute which intentional Congress enacted sume (cita- 74-75, at 112 leged.” rule in mind.” Id. S.Ct. 1028 prevailing traditional the omitted).26 73, 1028 Franklin, tion 503 U.S. at (citation omitted); 78, id. at 112 also see may may not have been Whatever (Scalia, J., the concurring in S.Ct. 1028 Franklin, before, “damages clear after (“Because legislation enacted judgment) of by fed remedy” for intentional violations law Court case subsequent [Supreme available funding recipients plainly eral right action implied private of finding an VI, § and thus under 504 of under Title IX], day to it too late in the under Title holding equitable the RA as well. a judicially implied exclu- address whether monetary un remedies available damages Title would be sion of under IX however, Spending legislation, der Clause Act Rehabilitation appropriate. The Supreme spoke only in of the Court terms ... as must be read Amendments 1986 It categories broad of remedies. was damages acknowledgment an implicit Gorman, 181, v. 122 until Barnes (citations omitted)). are available.” 2097, (2002), that 153 L.Ed.2d 230 S.Ct. amendment, the narrower Rights began

The the the Court address second Civil specific 100- of which kinds of dam Restoration Act of Pub.L. No. coverage ages be available. 102 Stat. “broadened provi- antidiscrimination [the four] same § in under 202 plaintiff The Bames sued again making effort to sions” while “no RA, § the ADA and 504 and a right action or to alter restrict jury him million in compensa- awarded $1 any in presumption favor of traditional punitive tory damages and million $1.2 relief violation of a federal appropriate for court, however, damages. The district va- Franklin, 73,112 at right.” U.S. S.Ct. award, punitive damages holding cated the 1028. they are unavailable the stat- reversed, rely- The Finally, Supreme rejected Eighth Court utes. Circuit argument pre- emphasis that “the on Franklin’s Bell v. Circuit’s normal sumption reme- di- appropriate presumption in favor of all Hood that “absent clear contrary by Congress, dies because Title IX was rection to the apply should Congress’ power to award pursuant Spending enacted federal courts any cognizable at relief in a power.” appropriate Clause Id. S.Ct. lim- (majority opinion). brought pursuant cause of action to a fed- “[R]emedies [a]re statutes,” at Spending ited under such Clause eral statute.” Id. S.Ct. 2097 Franklin, explained, alleged (quoting “when Court U.S. added). unintentional,” 1028) (emphasis ap- violation but S.Ct. peals punitive damages, Court declined the defendant’s invitation court held “ integral to extend this rule to intentional viola- which it described as ‘an part judicial tions. of not law and the point permitting “[T]he Id. the common tradition ” arsenal,’ appropriate. vi- Id. monetary unintentional were therefore olation,” said, receiving Easley, it that the enti- (quoting “is Gorman F.3d (8th Cir.2001)). ty of will federal funds lacks notice that it that, case, monetary 26. The Court noted its unan- statutes do not authorize awards Franklin, 503 decision in Rail had fore- intentional violations.” imous Consolidated argument Spending closed the “that Clause 112 S.Ct. 1028. omitted) Pennhurst, of the Court Supreme (citing opin- All nine Justices tions opin- again separate two agreed, once ions of Justices White Marshall ions, began by Guardians, cases). The majority to reverse. and various Title IX noting said, that “the remedies for violations Previously, the Court it had applied § Reha- (1) of the ADA in Franklin, the contract “in analogy Act the rem- bilitation are coextensive with a damages remedy finding available in pri- private in a of action edies available cause Spending vate suits under Clause legisla- 185, 122 brought under Title VI.” Id. at (2) tion,” “defining scope Although the Court said was funding for which recipients may conduct “beyond dispute private that individuals money liable damages,” be held for with VI,” may Title sue to enforce it was “less that the result is liable recipient to third- such a what remedies are available in clear party only for beneficiaries “intentional suit”: that clear conduct violates the terms of the recognized statute,

In tradi- Franklin we “the for relevant but not its to failure any ap- tional in favor presumption of with comply vague language describing 186-87, for violation federal propriate objectives of a of the statute.” Id. at relief (citation omitted). right,” that since presump- and held this S.Ct. IX applies tion of to suits under Title applies,” same analogy “The the Court Amendment mon- Education of said, “in determining scope damages of etary And the damages were available. remedies,” 187, 122 id. at S.Ct. 2097: Court consis- interpreted Title IX remedy is appropriate only relief if the Franklin, tently with VI. howev- Title funding that, by recipient is notice er, scope “appro- did not describe accepting funding, exposes federal it it- up take priate question relief.” We to liability self of that nature. A fund- today. recipient generally on notice that (citations omitted; emphasis in Id. subject it to only not those remedies Barnes). provided explicitly legis- in relevant are not holding punitive damages lation, but also to those remedies tradi- VI, § available under Title tionally available in suits for breach ADA, RA, §or 504 of id. at contract. 2097, the Court Supreme explained S.Ct. (internal marks, quotation Id. emphasis,

that it had omitted). and citation Because “punitive repeatedly VI] characterized [Title damages, compensatory damages unlike other Spending legislation Clause injunction, generally available much the nature a contract: contract,” id. at for breach funds, recipients return for federal (Second) (citing S.Ct. Restatement agree imposed to comply federally (1981) §§ Contracts and various as a re- conditions. Just valid contract damages), on contract law and treatises terms, quires acceptance offer and of its VI, no and because Title which “mentions legitimacy Congress’ to power remedies,” clearly does not otherwise con- legislate spending power rests template possibility punitive dam- voluntarily recipient on whether the funding are not ages, recipients on notice knowingly of the “con- accepts terms they subject such id. damages, tract.” 187, 122 Nor can recipients at S.Ct. 2097. (internal quota- implicitly Id. S.Ct. be said have consented to alterations, marks, damages, emphasis, punitive tion and cita- for since it is un- liable relief, injunctive monetary agreed such addition to they have likely would are avail- exposure.” damages, category, as a broad disproportionate “unusual and Barnes, turn, RA. clari- 188, 122 able under the Id. S.Ct. damages— particular fies one form question for we address Significantly damages available. The punitive not—is reject instead today, but the Court did today is narrower open before us holding its pains' to harmonize took compensatory a subset of still: whether Bell Hood’s “well-settled Barnes with damages compensatory —non-economic Franklin, rule,” that “where reiterated available under 504 of the invaded, —is and a fed- legal rights been for Rehabilitation Act intentional discrimi- general right provides eral statute nation. We hold that is. invasion, federal courts sue for such remedy good to make use available First, the Barnes Court’s central reason done,” 189, 122 wrong id. at turning metaphor ap- to the contract omitted): (internal quotation marks ensuring concern with pears be its recipient violates When a federal-funds recipients have fair funding federal notice Spending legisla- of conditions Clause they subject are any liability of to which tion, to wrong the done is the failure by fairly We think it federal courts. obvi- obligation provide what the contractual law the conclu- supports ous'—-and case wrong and is “made requires; that frequent consequence dis- sion—that a of recipient compensates the good” when crimination that the will victim suffer third-par- or a Federal Government result, As a emotional distress. emotional by ty beneficiary ... caused for loss consequence is a distress foreseeable Guardians, at that See failure. funding “breach” of their “con- recipients’ (Marshall, J., dis- government tract” with the federal not to (“When a concludes that senting) a court against parties, third discriminate contract, its recipient breached they they therefore have fair notice that by promise broken should enforce the may subject liability to for emotional the re- protecting expectation Second, damages. although Supreme cipient not .... The would discriminate has made clear that Court contract way put private to this is to obvious do metaphor analyze appropriate used to re- they parties good position in as as Spending legislation lief under Clause the contract been have been had would that, just applying even contract law di- performed”). Punitive are not damages rectly yield to hand would not em- compensatory, and are therefore damages the answer that emotional are rule in Bell. braced within the described Finally, given recoverable under RA. Id. permitting recovery of emotional dam- will nature ages not contradict the

B. or, RA as Spending legislation as Clause discern, far we Contrary Sheely’s sugges as can otherwise interfere tion, Congress’s intent, by forms are Franklin did not hold that all we bound com v. damages, including presumption non-economic Bell Hood’s “federal pensatory damages, may remedy under courts use available are available Contrary good wrong Spending make done.” Emotional legislation. Clause however, contentions, damages compensato- did plainly MRN’s Barnes form ry damages designed good not unavail “make damages hold that such done,” wrong particular and we rea- merely able. Franklin teaches have to award to exercise our discretion award emotional race damages son for where, here, as distress is discrimination violation them emotional of 42 U.S.C. 1981); Shuler, § only victim v. alleged damage to the Stallworth F.2d Cir.1985) remedy only “available to make (upholding thus the wrong done.” take these award of emotional good damages We §§ in order. points noting injury that “[t]he in civil cases rights may be intangible here. It need be financial physical or humiliation damages but include As the concern Barnes Court’s distress”); Ward, and emotional Aaron v. reflects, basic plainly with notice (1911) 203 N.Y. 96 N.E. 737-38 is that longstanding rule of contract law (awarding damages emotional to ticketed “[d]amages are not recoverable loss guest bathhouse denied re- access and party in breach did derogatory ferred to term for one probable reason foresee as a result of ancestry); Jewish Odom Corp., v. E. Ave. the breach when the contract made.” Misc. N.Y.S.2d 314-16 (Second) Restatement Contracts (N.Y.Sup.Ct.1942) (awarding emotional (1981); Baxendale, Hadley see also damages to African-American guests hotel (Ex. 1854) (recoverable Rep. 145 Eng. denied service hotel restaurant because naturally are those that result race); of their see also Doe v. Dist. of breach, consequences from the or are the Columbia, 559, 565, 796 F.Supp. special unusual circumstances which (D.D.C.1992); Recanzone v. Coun- Washoe contemplation are in reasonable of the Dist., 1372, ty 1373, Sch. 696 F.Supp. 1378 contract). when parties making the (D.Nev.1988). matter As a of both common sense and law, a predicta- frequency case emotional distress is and acuteness ble, foreseeable, consequence and thus spawns which discrimination dis emotional Certainly, discrimination. federal courts in victim suggest tress that emotional long result,” found that of the RA a “probable have violations distress is Restate (Second) 351, § and other antidiscrimination statutes fre- ment of Contracts fund quently palpably ing and result in emotional breach of not recipients’ promise their See, discriminate, Bogle distress the victims. v. and e.g., recipients thus that (11th McClure, 1347, that, 332 F.3d in breaching, they have fair notice Cir.2003) subject (affirming may liability award of emotional be for emotional Similarly, for race in damages damages. punitive discrimination viola- whereas § plaintiffs “may range tion of U.S.C. damages where orders of ‘indeter “embarrassed, to having compen- testified felt hu- magnitude,’ minate untethered to miliated, stunned, confused, harm, angry, fright- and would pose sable thus a concern ened, discouraged, betrayed,” with one that not recipients funding federal could Barnes, you “I can’t what a testifying, begin reasonably anticipated,” to tell (Souter, J., toll it has taken on me. To be active U.S. at S.Ct. 2097 producing person concurring) (quoting majority opinion and then to sudden- 2097), ly just put damages, on the shelf and made to sit emotional through damages, own purpose my compensatory there no or no like other forms own, whole, my doing help plaintiff I could not that I to make the designed hurt”); Inc., Group, significant Ferrill v. Parker bear a and alto therefore Cir.1999) (affirm- F.3d gether relationship determinable to events that distress the contract is such emotional entity participated in which defendant foreseeable, lie: damages will emotional foreseen. and could have true, ordinary commercial

It is contract, damages are not recoverable disappointment, amounting to even analogy, the utilizing In the contract alleged anguish, because of breach. was the primary Court’s concern Barnes But damages are too remote. Such discussed, and ev- just problem notice we for the these are contracts entered into Court, sepa- three ery Member of pur- of a accomplishment commercial of the the limits opinions, emphasized rate Pecuniary para- pose. interests law used analogy Court contract .... settled long mount been [I]t However, problem.27 this discuss notice contem- recovery therefor was not just Barnes stands not assuming even natural and plated parties that a meta- proposition for the contract probable of the breach. Yet result determining phor illuminating purely all contracts are commercial Spending Clause available remedies we rights their nature. Some involve legislation, proposition but also for cherish, dignities respect, we emotions directly law more applies contract recognized by all as both sacred hand, body think we this personal. cases award of such yield law conclu- common would still damages mental and suffer- distress damages are recovera- sion emotional .... commonplace is a § ble for violations of 504 intentional Rudner, Stewart Mich. RA. (internal (1957) quotation N.W.2d omitted). marks and citations general rule is Although Thus, damages for of con the current rule is that emotional breach Restatement (Second) lie, breached-upon party actually Restatement that a tract will see “the simply recover emotional whenever of Contracts rule is kind way saying that emotional contract or the is of such a shorthand breach was a usually distress is foreseeable conse that serious emotional disturbance quence particularly likely of But when the nature of result.” Restatement breach. instance, opinion majority, to acknowl- 27. The for was careful read Court's as may note: edging! analogy ] that the contract-law give merely applies principle helpfully ex- fail to to Our such clear answers decision pressed applied many before: questions and times ac- other that be raised Spending that contractual nature recovery Spending private tions for under legislation implications for our Clause has legislation, as meas- proper Clause such scope available reme- construction of the damages. compensatory ure of imply, example, We that dies. do not J., (Souter, Id. at 122 S.Ct. 2097 concur- legislation Spending suits Clause added). ring) (emphasis Finally, Justice Ste- contract, prin- in that suits or contract-law vens, Breyer, joined by Ginsburg Justices and they ciples apply issues raise. to all that judgment only, and noted concurred in the Barnes, at 188 n. S.Ct. 2097 majority's what that the "novel reliance on (internal quotation marks and citation omit- been, most, analogy has a useful to con- ted; emphasis original); id. at see also far-reaching potentially tract law conse- ("[W]e have been careful not quences beyond go that well briefed issues imply apply rules to to that all contract-law argued and case.” Id. at in this Spending legislation.”). Clause Justice Sout- J., (Stevens, concurring in the er, in a O'Con- concurrence which Justice judgment). joined, nor said that he (Second) 353; § 3 E. barring damages] [emotional of Contracts see also actions for Farnsworth, Allan Farnsworth on Con- breach of contract. It all a ed.2004) (3d § that (explaining tracts 12.17 subject background matter and of the ”); awarded dam- Stewart, some courts have emotional .... contract 84 N.W.2d at ages the nature of contract (“[Objections where recovery for mental “particularly disturbance, made distress a emotional applicable equally to tort and breach, likely result” of while others have actions, contract have been so thoroughly damages “rep- awarded such based on the years demolished recent that we will not breach); of the rehensible” nature review.”); take the time for id. at 824 Lord, Richard A. Williston on (“[There Contracts a clear exception is] the ‘rule’ 2002) (“[W]here § other 64:7 ed. (if such) there now is damages for, pecuniary than benefits are contracted suffering mental are not recoverable in damages injury allowed for to a have been actions. They contract are. When we Damages person’s feelings.”); 25 C.J.S. contract ... have a concerned with “[wjhere charac- (explaining pecuniary aggrandizement but with mat- ter of the contract is such a nature solicitude, ters of mental concern and then a natural of the probable consequence and ... will inevitably necessarily breach pain breach will to inflict be mental anguish, pain result in mental and suffer- ..., anguish parties may presumed Far being .... from outside the con- mental respect have contracted with templation parties dam- [emotional anguish an element of and a ages] integral inseparable part therefor,” recovery noting had may be it.”); Lamm v. Shingleton, 231 N.C. that such include contracts “noncommer- (1949) (noting 55 S.E.2d contracts, ... involving cial or contracts “trend of modern decisions” emotional cherished, rights dignities respected, and damages are recoverable the con- “[w]here recognized by emotions all sacred as both personal tract is nature and the contrac- personal”). ... duty tual is so coupled matters of solicitude,

Courts, too, mental concern or or with have embraced the idea that ... damages may party emotional lie for sensibilities [that] breach See, “personal” known to e.g., parties contracts. Sullivan v. should be O’Connor, suffering Mass. 296 N.E.2d result from will its [mental] (1973) (“[Tjhere breach”).28 general 188-89 is no rule against category guest 28. One of contracts breach is hotel denied whose nation access to not, restaurant). course, "particularly likely Although deemed serious cause MRN carrier, emotioned disturbance” are “contracts of car an or a common some courts inn innkeepers passengers sufficiently riers and with and have found other entities to be (Second) guests.” analogous justify Restatement of Contracts to inns and carriers as to result, recovery by patrons § damages 353 As a that we of cmt. a. entities emotional for See, Aaron, today places public entity’s e.g., would refer to as of ac discrimination. long (acknowledging been for at commodation have liable 96 N.E. 737-38 "dis- held damages of emotional under a breach con tinction between common carriers and inn- See, theory. e.g., Boyce GreeleySquare obliged persons keepers, tract v. who are serve all to 106, Co., (1920) them, Hotel 126 and 228 N.Y. N.E. 647 who seek accommodation from (emotional damages public operator’s keepers places of awarded for of amusement or resort, insulting guest); toward hotel such as the of the defen- behavior Gilles bathhouse theaters, Co., 347, dant, pie Heights Brooklyn may v. R.R. and [which] 178 N.Y. the like .... (same, (1904) pas [they] 70 N.E. and whom 857 toward train discriminate serve (e Odom, senger); pleasef],” holding 34 N.Y.S.2d at but that the latter of 314-16 class mot 'strictly' pri- damages awarded ional for racial discrimi- businesses "cannot be said to 1202 to law, Court refused damages Supreme and the notable

Under contract permitting emo- exception longstanding RA in award under the Barnes.29 personal of con- damages for breach tional emotional distinguishes the sharply

tracts punitive from the

damages Sheely seeks 959, 1995) Bank, (Ala. vate,” although might 653 961-62 plaintiff "the So.2d and that (breach altogether pertaining to the of to the con admission contract have been denied bathhouse, residence); Gruenberg hav- the defendant plaintiffs' defendant's of struction 566, Co., with ing voluntarily Cal.Rptr. into a contract entered Ins. v. Aetna 9 Cal.3d agree- 1032, premises 480, (1973) (breach admitting to the her her of P.2d bathing, her status to facilities for afford of insurance contract for bad faith denial passenger a of a to that of claims); became similar Browning-Ferris Decker business's guest innkeeper,” Inc., a of an Colo., common carrier or 447-48 931 P.2d Indus. of she, too, entitled recover emo- so that was (Colo. 1997) (breach employment contract of by "improper expulsion” damages tional for employer employees in vio where terminated Moreover, operator). the ratio- anti-Semitic disciplinary company’s progressive lation of prom- finding implied nale for an contractual Roe, Ill.App.3d policy); Doe v. by innkeepers, com- ise of decent treatment (1997) N.E.2d 650-51 Ill.Dec. carriers, analogs their foreshadows mon (breach fiduciary lawyer's duty to his of aspects public modern accommoda- some Mills, Inc., client); Galaxy Carpet McManus v. tions law: (breach (La.Ct.App.1983) 433 So.2d 854 quasi innkeeper of an is of [T]he business provide carpeting, non-defective contract character, many privi- public with invested enjoyment principal where "intellectual leges, correspondingly Sullivan, contract”); and burdened object of the 296 N.E.2d innkeeper .... great responsibilities (breach aesthetically at 188-89 of contract to willing Stewart, as able holds out himself through rhinoplasty); improve nose guests (breach entertain for hire .... One of physician's 84 N.W.2d at 825 things public guest for at a inn section); which a hire promise perform a Caesarean upon right respectful and Lamm, (breach has the to insist at 812-14 of con S.E.2d decent at the hands of the inn- casket). treatment provide leakproof If these tract to keeper an essen- and his servants. That is enough permit personal re contracts part ex- tial of the contract whether it is covery damages, we there for emotional think press guest implied. right or This of the little dis can be doubt that contracts not to necessarily implies obligation on the sufficiently personal. criminate also part innkeeper his he nor neither fact, guest, very or 29. In same section of the Re- servants will abuse insult indulge speech conduct or statement that the Barnes Court cited for upon unnecessarily bring physical proposition punitive damages dis- are un- him Barnes, contract, comfort or distress of mind. available breach of see Ford, De 193 N.Y. N.E. illustrates Wolf v. Aaron, (1908); compensatory damages 529-30 see also 96 N.E. that non-economic 738; Gillespie, 70 N.E. at are recoverable in certain circumstances. See (Second) gone further be 355 cmt. Modern courts even Restatement Contracts ("A a, yond exception employed innkeeper/common carrier illus. school teacher B. of contract and without and found emotional available breach truly .discharges by excluding range breaches wide of contracts. notice B A him from See, Am., e.g., Munday Mgmt. building by stating pres- v. Waste N. the school Inc., (breach (D.Md.1998) discharged. F.Supp. pupils ence of the that he is Re- A, agreement employer gardless discharging retali A settlement where B’s motive against brought damages employee punitive ated who sex cannot recover from B. A had suit); compensatory damages recover discrimination and sexual harassment can under Co., 1282, 347, damages Huskey F.Supp. including any § v. Nat’l Broad. 632 rule stated in (N.D.Ill.1986) (breach 1292-93 contract to emotional disturbance that are allowable by (emphasis § protect privacy blur in of filmed individuals under rule stated 353.” faces); added)). ring their Sexton v. St. Clair Fed. Sav.

1203 Univ., Inc., 1338, F.Supp.2d nautical 269 3. (M.D.Fla.2003), 1340 which itself relied the con- Having concluded neither only pre-Franklin, pre-Barnes on two dis- Supreme metaphor tract Court trict proposition court cases for the available determining found useful in damages emotional are unavailable under Spending legisla- remedies under Clause RA). recovery tion nor achial contract law bars Moreover, damages particular- such are damages, the Bell of emotional we turn to where, here, ly appropriate as emotional presumption, v. Hood which Barnes only is the alleged damage distress to the reaffirmed, Court “federal courts victim and thus the only remedy “available good remedy use available to make done,” good Franklin, to make the wrong Barnes, 189, at wrong 536 done.” U.S. 66, 503 at 112 (quoting U.S. S.Ct. 1028 added). (emphasis 122 S.Ct. 2097 Bell, 773), 327 U.S. at 66 S.Ct. and the again, striking Once we see difference way only “put private parties good as damages rejected between the punitive position they as have been would had the Barnes emotional is- damages and the Barnes, performed,” contract been 536 today. punitive damages sue Whereas (internal 189, 122 quota- U.S. at S.Ct. 2097 compensatory, “are not and are therefore omitted); Franklin, tion marks see 503 not embraced within the rule described (rejecting U.S. at 112 1028 S.Ct. Bell,” 122 id. at S.Ct. emotional argument that Title IX relief should be damages a form of plainly compensato- are to backpay prospective limited dam- ry damages designed to good “make ages part damages because such would wrong unper- done.”30 We are therefore plaintiff offer no relief where neither the by suaded the district court’s brief discus- nor her alleged student harasser continued damages holding sion that emotional Lamm, school); attend 55 S.E.2d cf. “only by barred Barnes’s rule that com- (“The contract inter a body] 813 was [to pensatory provide damages failing to predominantly personal in nature and no obligation the contractual are recoverable.” pecuniary substantial loss would follow its (relying equally Order at 12 on the brief plaintiffs] [The breach. widow mental sensibilities, concern, her Embry-Riddle decision v. Aero- and her soliei- Witbeck See, Memphis Cmty. e.g., clearly compensable injuries v. Sta Sch. Dist. distress un- chura, 299, 307, Act, 477 U.S. Housing th[e] standard” Fair der (1986) ("[C]ompensatoiy L.Ed.2d dam permits § seq., 3601 et which recov- U.S.C. ages may only out-of-pocket not include loss is, damages” damages ery "actual —that harms, monetary and other but also such in "compensation which constitute for the vic- juries reputation, personal impairment injuries, punishment perpe- for the tim’s humiliation, anguish and mental suffer wrongdoing”); Damages 25 C.J.S. trator’s (internal ing.” quotation marks and alteration ("[M]ental pain suffering § is an 247, 254, omitted)); Carey Piphus, v. compensatory, of actual or as distin- element (1978) L.Ed.2d 252 punitive, guished exemplary from or dam- § (holding purpose that "the basic of a alia, Prom, Inc., ages.” (citing, v. inter Amos per compensate be to award should (N.D.Iowa 127, 131, 1953) F.Supp. injuries by deprivation sons for caused (holding, plaintiff alleged in case where she rights,” constitutional and that "mental and "intentionally maliciously refused emotional caused denial of distress solely ballroom admission defendant’s be- procedural process compensable due itself is [black],” she cause in violation of state 1983”); Dep’t Sec’y, Banai statute, rights "[d]amages Times, civil for emo- ex F.3d Hous. & Urban Dev. rel. suffering 1997) tional distress or mental humilia- (holding 1207 & Cir. n. embarrassment, compensatory, exemplary”))). “anger, tion are and emotional held that the FCRA’s narrow for the district court prime the considerations tude were ”). “public of accommodation” does definition .... contract MRN, Sheely may

not to and apply § not broader definition “import” 413.08’s C. into “public of accommodation” the FCRA. funding from the entity accepts When an agree. We exchange in government, does so federal provides Section 760.07 of the FCRA promise against a not to for discriminate any “[a]ny violation of Florida statute A of fore- third-party users its services. of making unlawful discrimination because consequence discrimination is seeable of ... ... ... handicap area[ ] in the of victim, and emo- emotional distress public gives accommodations rise to long been damages tional available damages cause action for all relief and of in accommo- public for contract breach 760.11(5), § greater in unless Thus, described where one of the dations context. expressly provided are for.” damages bargained for government benefits the 760.02(11) “[fjor provides that Section funding recipient’s promise not to §§ and purposes of 760.01-760.11 discriminate, recipient cannot claim to i.e., § of purposes 760.07— may fair that it be lack notice liable 509.092”— damages intentionally when it emotional accommodations” means “Public promise. Supreme breaches accommodation, places public lodg- of awarding Court’s concern notice ings, principally engaged facilities Spending for violations of remedies Clause selling consumption food for on legislation operates as a constraint stations, premises, places gasoline —which of ex- presumption on Bell v. Hood thus entertainment, and cov- —is hibition other satisfied, obliged and we adhere to Each of the fol- ered establishments. presumption Bell’s that we award which lowing establishments serves “any remedy good make available public place public is a accommoda- short, wrong done.” we conclude that meaning tion of this within section: emotional are available make (a) inn, hotel, .... Any motel § whole the victims violations (b) Any facility ... en- principally Act, accordingly, we Rehabilitation gaged selling food .... reverse the district court. (c) Any place of exhibition or en- .... tertainment Rights Act IV. Florida Civil 760.02(ll)’s Thus, § “public definition of Although we have reversed on include accommodations” does not medical Sheely’s ADA claims and the like MRN. facilities RA, affirm grant we court’s district summary judgment In- Sheely’s Sheely to MRN does contend otherwise. stead, state claim under the Florida notes that is a place law Civil she MRN Act, § Fla. Rights seq. public sep- Stat. 760.01 et accommodation under Florida’s (“FCRA”). statute, That arate provides argues statute for a service animal private action private right provides right for violation of her with statute, against Florida of action MRN under the FCRA. discrimination Florida 413.081, turn, persuaded. §§ Statutes 413.08 We Florida Statute provide provides that disabled individuals have the individual with “[a]n 413.08 right by disability accompa- has the to be accompanied right service animals places nied animal in all of a public accommodation. The service areas 760.11(3). public § or accommodation that “In the event com- public that the normally to occu- permitted mission determines that there reason- customers is 413.08(3), § “public able to believe py,” discriminatory id. defines cause that a “places ..., broadly practice to include has occurred aggrieved accommodation” invited,” may ... general public person [b]ring id. a civil ... to which action ” 413.08(l)(c). § of the Although any competent jurisdiction § 760.07 court .... 760.11(4)(a) added). provides private § a action Id. right (emphasis FCRA How- ever, making Florida statute” discrimi- “any commission “[i]f determines places ..., of public nation in accommodation there is not reasonable the com- cause unlawful, § expressly 760.02 of the mission dismiss .... complaint FCRA shall that its narrow definition of If “public aggrieved person request states does not § 760.07. applies hearing accommodation” an administrative ... within Sheely may import days, therefore claim will be barred.” Id. 760.11(7). § “public § 413.08’s broader definition of ac- commodation” into the As the FCRA. Although Sheely a timely filed noted, district court this conclusion does complaint Commission, with the appar § If gut lodging, 760.07. MRN were ently concluded that there was not reason establishment, food, or entertainment discriminatory able believe that a cause right § would provide private 760.07 of practice had occurred in violation § action for violation of 413.08. Sheely FCRA. The Commission’s letter to

Moreover, Sheely failed to ex you “[b]ased states that on the information her under we provided, haust administrative remedies pursue unable to 760.02(1l)’s provides “[a]ny § the FCRA. The Act matter further” because def aggrieved person public a violation of inition of accommodation does not complaint §§ apply 760.01-760.10 file a with to MRN. circum “Under these stances,” concluded, you Human Re the letter [Florida] [Commission [on “unless within days alleged days vio within 10 lations] advise us Equal lation .... with the on which our [or] federal information we have based incorrect, Employment Opportunity Commission or decision we will no fur take any government your inquiry.”31 with unit of the state on There is no ther action agen provid which is a fair-employment-practice Sheely evidence in record that §§ cy under 29 C.F.R. ed 1601.70-1601.80.” the Commission further informa 760.11(1). days days § of the tion of the Id. “Within 180 within under the terms letter, filing complaint, requested of the commission she an adminis or if hearing days shall determine there is reasonable trative within 35 under 760.11(7). result, discriminatory cause to believe that As a failed to Sheely [a] practice has occurred in violation of the administrative exhaust her remedies Rights Florida Civil Act of 1992.” Id. the Act.32 21, 2005, Although July 31. the Commission's if the commission determined that there was cause,” Sheely we expressly did not that the reasonable read the Commission's letter state cause,” reporting Sheely finding of no found no letter as Commission "reasonable 760.11(8) although § cause. provides that if "the reasonable commission fails to conciliate determine Contrary Sheely's suggestion, there the fact whether is reasonable cause complaint days this issue under this section within 180 that the district court did not reach filing complaint, aggrieved We court of the is irrelevant. can affirm the district (4), person may proceed long judgment "the as entered is correct on under subsection so that the ma- problem is The reasons, court termination. the district these For fact-finding on in jority engages to summary judgment granted properly effectively grants issue mootness claim. law Sheely’s state on MRN Sheely to on issue summary judgment oppor- MRN the by denying of mootness Conclusion V. is- disputed in its favor tunity resolve met its burden MRN has Because policy. regarding new fact sues of that the “absolutely clear that it is showing summary judgment court’s The district rea- could not wrongful behavior allegedly “policy modification found that the order Laidlaw, recur,” sonably expected could have this Court exactly the relief (internal S.Ct. record is Plaintiff [and] [t]he granted omitted), this case is marks quotation consulted that Defendant undisputed Further, first time for the we hold moot. a formal written expert, ADA established damages compensatory non-economic that policy this written and transmitted policy, Act. under the Rehabilitation available 8) (internal (R.l-47 at employees.” to all court’s the district reverse therefore We omitted). The court conclud- punctuation and remand these issues holdings on two threat of was no real ed there consistent proceedings further violation, rec- stating that “the recurrent However, affirm the dis- we opinion. this policy that the written access ord is clear summary judgment to grant of trict court’s force, solving any problem in thus is now Florida law. Sheely’s claim under MRN 15-16.) (R.1^7 at Conse- that existed.”1 in part, in REVERSED AFFIRMED granted court sum- the district quently, and REMANDED. part, only because mary judgment MRN MRN show that would Sheely failed to in COX, concurring part Judge, Circuit future violations. likely commit dissenting part: majority’s fact-find- disagree I with the opin- Judge III of Marcus’s join Part I likely MRN is the issue of whether ing on dealing with non-econom- the court ion discriminatory allegedly continue its Act the Rehabilitation ic likely to re- MRN is practices. Whether (RA), join Judge I IV of Marcus’s Part in the future challenged conduct new its Sheely failed to state holding opinion province finding within sole a factual I from law. dissent under Florida claim example, in Troiano court. For the trial in Part of his II mootness discussion Elections, 382 F.3d Supervisor v. fact-finding. court’s light of the opinion (11th Cir.2004), the dis- we characterized district the business of the Fact-finding is of whether the determination trict court’s appeals. court of court-not challenged its would renew con- defendant finding and reviewed a factual duct this court is whether as issue before The Similarly, error. Id. at 1285. for clear granted sum- properly district court Phosphate United States Concentrated the mootness issue. mary judgment on Ass’n, judg- Export summary majority decides (1968), Supreme Court 21 L.Ed.2d 344 de- I concur improper. ment fact, ignores majority critical which 1. The legal ground regardless grounds undisputed, court characterized district addressed, rejected by district adopted or only referenced it states that court when Ship United Supply, Inc. v. Bonanni court.” undisputed mootness discus- facts its three Cir.1992). States, 959 F.2d Maj. Op. n.15. at 1188-89 sion. See voluntary the determination of future stated cessation factor —whether violations was a “matter for the trial challenged conduct was part isolated or judge.” 393 U.S. at 89 S.Ct. at pattern majority finds that MRN’s —the It is the responsibility district court’s of Sheely treatment was the result of a findings, to make factual not ours. S.S. “years-long policy,” contrary MRN’s con- Silberblatt, Inc. v. ex rel. Lambert tention that it was an isolated incident. (5th Cir.1965) (“It Corp., 353 F.2d disputed This is a issue of fact best re- not the province of this court to deter- by solved the district court. On the sec- mine the essential on which judg- facts voluntary ond cessation factor —the reason based; proper ment is that is the function ceasing for challenged activity —the court.”). the trial majority credibility makes a determination majority correctly adhere to its intentions to erity of MRN’s Cross-Appellees. “may MRN well saying that policy, new No. 05-17019. longer policy is no that its new calculate action and revert course of preferable Appeals, Court of United States Maj. Op. policy prefers----” to the old Eleventh Circuit. constitutes a statement at 1189. This is within the credibility finding 24, 2007. Oct. —one court—and is of the trial province sole Steinberg’s statement

contrary to Mr. (“All policy. with the comply

intention to read, employees required

[MRN] Animal the Service and follow

understand acknowledgment from

Policy sign an they will fact do writing

verifying ¶ 5.)) (R.l-30, The Steinberg Aff.

so.” inten- that MRN’s thought court

district were sincere. policy to follow the

tions

(“The undisputed [MRN] record is established a expert, an ADA

consulted transmitted this policy,

formal written employees---- policy

written to all granted would have

relief that the Court accomplished already been (R.l-47 policy].” adoption [the

[MRN’s] 8.)) appellate not the first time

This is ap- fact-finding engaged

court has But, I right. not make it

peal. that does

respectfully dissent. notes regarding MRN’s motivation imple- district court did not consider the three menting policy a new toward service ani- voluntary cessation factors2 nor make fac- mals. The majority states that “the rec- findings tual on the issue of continued suggest ord does that MRN was motivated harm, therefore, we have no factual by a liability” desire to avoid and that findings appeal. Maj. Op. to review on See MRN’s Vice President of Finance and at 1188-89 n.15. The district court did not Administration, Business Rick Steinberg, however, findings, make factual because conceded as much when he said that the summary believed MRN was due judg- purpose policy was to “avoid future ment on the mootness issue because the disputes Maj. such as Op. [this one].” record undisputed was that MRN would But, 1186. a complete reading of his state- challenged practices. not renew its If suggests genuine ment motivation for summary judgment improper, was enacting policy. Steinberg Mr. states grant summary court should reverse the judgment and remand the case to the dis- trict court with try instructions to either purpose of the policy [t]he written or, minimum, the case at a conduct an employees to inform commit- [MRN’s] evidentiary hearing to findings make ment to follow the respect law with fact on the issue of future harm. access, animal help employees service animals, identify service to inform em- Instead, majority applies the three ployees of rules related to ser- [MRN’s] factors for the first time on appeal and vice animal go factual access and to above and findings process, makes in the de- spite beyond saying “undisput- requirements that the record is of the ADA ed.”3 For example, regarding the first and Florida law so as to avoid future (1) dispute, The three factors are: whether the chal- that MRN would not renew its chal- unintentional, lenged conduct was isolated or lenged practices Interestingly, in the future. deliberate; (2) opposed continuing however, as majority opposite reaches the voluntary whether the defendant’s cessation “undisputed” conclusion on this record. (3) litigation; was timed so as to avoid Further, support fact-finding for its with liability. whether the defendant admitted court, majority out remand to the trial Maj. Op. at 1184. appeal cites another case where the record on undisputed. Maj. Op. was said to be at 1189 majority quotes justification 3. The as its (citing Springs Sys., City fact-finding n.15 Coral St. Inc. v. the district court’s statement that Sunrise, "undisputed.” 371 F.3d record is While it true Cir. 2004) ("The that the district court said the record is undis- facts of this case are not in dis showed, puted, pute.”)). it believed the record without one at issue [in as the disputes such America, UNITED STATES case]. Plaintiff-Appellee-Cross- ¶ 4.) (R.l-30, Aff. Steinberg Appellant, adopted the Therefore, MRN whether the current to moot in an effort policy new compli- come into simply to litigation or Defendant, Barry ROBISON, Charles and RA is also ADA ance with the resolved McWane, Inc., Defendant-Appellant, that should be question of fact court. the district Devine, Delk, Michael James majority the sinc- Finally, questions Defendants-Appellants-

Case Details

Case Name: Sheely v. MRI Radiology Network, P.A.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Nov 7, 2007

Citation: 505 F.3d 1173

Docket Number: 06-13791

Court Abbreviation: 11th Cir.