I want to wish all those celebrating Passover, which started yesterday, and Easter, which is Sunday, a happy holiday.

This blog entry is divided into separate categories, but unlike my usual system, the categories are little bit different. Here we have: introductory comments, the case that is the subject of this blog entry (Burrage v. United States), whether a certain aspect of the court’s reasoning in that case (I call it reason 9), will become controlling as it might apply to ADA matters, and takeaways.

Introductory Comments

One of my most popular blog entries every day involves the United States Supreme Court decision in University of Texas Southwestern Medical Center v. Nasser where the United States Supreme Court in a 5-4 ruling, with Justice Kennedy being the swing vote, held that mixed motive is dead with respect to retaliation claims under title VII of the Civil Rights Act. As mentioned in that blog entry, the reasoning in that opinion is such that this decision most certainly means mixed motive is dead with respect to retaliation claims under the ADA; thereby, giving a huge victory to ADA defense lawyers. On the other hand, the reasoning of the majority is such, that mixed motive is now in play under title I of the ADA; thereby, giving a huge victory to ADA plaintiff employment lawyers. In a second blog entry, I discussed a case out of the District Court in Oregon holding that mixed motive is in play for employment discrimination claims under the ADA.

As anybody knows who has taken an introduction to law class, lower courts are bound by decisions of higher courts. Thus, if Nassar was the last word on mixed motive, there is, as I mentioned in my blog entries above, little doubt that mixed motive would apply to title I claims. However, what if the United States Supreme Court sends confusing messages, then what are the lower courts to do?

It is curious as to how I found out about the particular case that is the subject of this blog entry. My office is not far from the Emory Law school and I have had the privilege of benching various moot court teams as they prepare for their competitions. This year, I benched the criminal procedure team as they prepared for their competition. Their problem set was based upon two cases that were before the United States Supreme Court, which decisions came down before the regional competitions occurred.

The Case That Is the Subject of This Blog Entry (Burrage v. United States)

One of the cases that the problem set was based on was the case of Burrage v. United States.

Burrage is a criminal procedure case and therefore, would seem to have nothing to do with the ADA. However, that case is a causation case and that is where it becomes relevant for our purposes. In this case, a longtime drug user died following an extended binge that included using heroin purchased from Burrage. The purchase of the heroin from the defendant was a contributing cause to Burrage’s death but could not be said to be a but for cause. The controlled substances act imposes a 20 year mandatory minimum sentence on a defendant who unlawfully distributes a schedule one or two drug when death or serious bodily injury results from the use of such substance. Thus, the issue the U.S. Supreme Court was faced with was whether this statutory provision has any causation element to it. If so, what is that causation standard? Assuming a causation standard, the U.S. Supreme Court could have gone any of three ways. First, they could have applied a contributing factor test, which what was the grant of cert seemed to assume. Second, they could have applied a substantial factor test along the lines of what is commonly seen in tort law. Finally, they could have applied a but for causation test.

Scalia in coming to the conclusion that but for causation was the way to go and therefore reversing the Eighth Circuit’s imposition of the mandatory sentence reasoned as follows:

1. Because the enhancement increases the minimum and maximum sentences for a defendant, whether “death resulted,” is an element that has to be submitted to the jury and found beyond a reasonable doubt. Accordingly, the statutory phrase “resulting from,” must mean “death caused by.”

2. When the law speaks of causation, it speaks of both actual cause and legal cause.

3. Citing to the New Shorter Oxford English dictionary, Scalia says a fair interpretation of “results from,” is but for causation.

4. The Model Penal Code also says that conduct is the cause of a result if it is an antecedent but for which the result in question would not have occurred.

5. You can still use but for causation even where there is multiple causes so long as the other causes alone would not have produced a different result.

6. Scalia analogizes it to a baseball game where a team wins one to nothing and he goes on to say that every person competent in the English language and familiar with baseball would agree that the victory resulted from the home run and that it is besides the point that the victory also resulted from a host of other necessary causes, such as skillful pitching and the like. Therefore, it makes little sense to say that an event resulted from the outcome of some earlier action if the action merely played a nonessential contributing role in producing the event.

7. He cites to Nassar when he notes that they held that retaliation requires but for causation.

8. Scalia rejects the argument that contributing factor, which he equates with substantial factor, should be the rule because “results from,” requires that to result from use of the unlawfully distribute drug, not from a combination of factors to which drug use merely contributed. If Congress did not intend but for causation they could have specified as much and they didn’t. He also goes on to note that contributing factor, or substantial factor, is not a test that is easily applied.

What I find interesting about the court’s reasoning with respect to the rejection of contributing factor/substantial factor is that the court seems to assume that the two tests are the same. It doesn’t have to be that way. Contributing factor could conceivably refer to any factor while substantial factor could require a higher standard along the lines of tort law. In fact, Scalia mentions that very point in his opinion, when he says- citing to Prosser and Keeton’s Law of Torts- that even in tort law excepting the situation where two causes are independently effective-, no cases has been found where the act was a substantial factor when the event would have occurred without it. This isn’t quite the way I learned it back in law school and one wonders whether a scholarly analysis of tort law cases applying the substantial factor test would reach the conclusion that substantial factor and but for causation are really the same test.

9. Reasoning numbers 1-8 could be dealt with easily enough. However, Scalia also mentions in his opinion while discussing Nassar that but for causation is not limited to statutes using the term, “because of.” For example, the Supreme Court has held that “based on,” indicated but for causal relationship. They have also held that “by reason of,” requires at least a showing of but for causation.

More on Reasoning 9

If reason 9 become controlling, it could have a huge impact on ADA matters. First, both title I and title III of the ADA contain on the basis language. Second, title II of the ADA contains by reason of language. Are there arguments against reason 9 becoming controlling with respect to title I and title III ADA matters? In my opinion, there are and those arguments would be as follows:

1. Reason 9 is arguably dicta as this reason wasn’t necessary to the decision in Burrage

2. The reasoning of Justice Kennedy in Nassar suggests that reason 9 could not become controlling with respect to title I and, for that matter, title III matters. In particular in Nassar:

A. Justice Kennedy and the majority make a distinction between status-based claims and retaliation claims. Status-based claims are subject to a mixed motive analysis as a result of the Price Waterhouse v. Hopkins decision, which he discusses in some detail. He also discusses how the Civil Rights Act was amended in 1991 so as to allow for limited recovery for mixed motive situations.

B. Justice Kennedy spends some time talking about Gross v. FBL Financial Services and that but for causation is required for claims under the Age Discrimination in Employment Act. He notes that title VII is very comprehensive, and therefore, its specific structure needs to be taken as it is laid out. In particular, the structure of title VII of the Civil Rights Act makes clear that status discrimination gets treated in one way and that there is no indication that retaliation should be treated in the same way. What is critical here for our purposes is that disability discrimination is status discrimination. That is, the plaintiff is alleging that an employer has discriminated against him based upon his or her status, i.e. having a disability.

C. Justice Kennedy said that if Congress wanted mixed motive to apply to retaliation claims, “it could have inserted the motivating factor provision as part of the section applying to all such claims, such as 42 U.S.C. §2000e-5, which establishes the rules and remedies for all title VII enforcement actions.” (emphasis added). With respect to the ADA, this language is a virtual slam dunk that mixed motive is in play with respect to title I claims because the ADA specifically references 42 U.S.C. § 2000e-5 as the remedies available to a plaintiff alleging discrimination under title I of the ADA. See 42 U.S.C. § 12117(a). I should point out here that further support of the argument that the ADA’s reference to § 2000e-5 in title I means that Congress intended to include mixed motive is the legislative history of why “qualified individual with a disability,” was kept in. In particular, Congress wanted to make clear that the indirect burden of proof, which presumes a motivating factor, was still in play. H.R. Rep. 110-730(I) at discussion of, “Discrimination on the Basis of Disability.” Further, that same legislative intent also says that the reason why Congress went from “because,” from the original ADA to “on the basis,” in the amendments act was to make the ADA more like title VII so that the emphasis would be placed on the critical inquiry of whether a qualified person with a disability have been discriminated against on the basis of disability and not on the question of whether a particular person was even a person with a disability in the first place. Id.

D. Justice Kennedy specifically cites to the ADA. In particular, he notes that the ADA is also a comprehensive statutory scheme and that Congress in the ADA clearly spoke to retaliation separate and apart from status-based claims.

3. As mentioned by the Oregon District Court decision in a blog entry mentioned above, there is this:

A. The amendments act to the ADA dropped “because,” in favor of “on the basis of disability,” as the causation standard.

B. The amendments act to the ADA was done specifically for the purpose of broadening the scope of the ADA after the Supreme Court had interpreted the ADA narrowly.

C. The court referred to the legislative history regarding “on the basis of,” which, as we have talked about before, says that the ADA is meant to mirror the structure of nondiscrimination protection found in title VII of the Civil Rights Act. That legislative history, as we have mentioned before, also talks about how indirect evidence and mixed motive cases should be permitted under the ADA discrimination causes of action.

D. The court also noted plaintiff’s argument stating that under Nassar motivating factor applies to status-based claims, which a title I ADA suit most certainly is.

E. The court concluded that the ADA discrimination provision is substantially more similar to title VII status-based discrimination than to the retaliation provision, and accordingly, existing precedent in the Ninth Circuit, which uses motivating factor, had to be respected.


1. I am very glad that I benched (since I know that this term also applies to what members of the Jewish faith, particularly those tracing their ancestry to Europe – Ashkenazics- call grace after meals, I always do a double take when I hear the term in the moot moot court context), the Emory Law school criminal procedure moot court competition because this particular case has a definite impact on the world of ADA jurisprudence. In particular, it most likely means that mixed motive causation under title II of the ADA is dead because that title uses “by reason of,” language. Prior to this decision, I think an argument could have been made that the difference between “solely by reason of,” and “by reason of,” meant that the omission of the word solely in title II of the ADA was significant, particularly in light of the changes to title I and title III of the ADA with respect to getting rid of the “because of,” language in favor of, “on the basis language.” Therefore, title II arguably could get a mixed motive jury instruction but the Rehabilitation Act could not. I am not sure that this argument will work anymore in light of reason 9. I suppose a counter argument would be that title II still involves status-based discrimination. However, it’s remedies are tied into the Rehabilitation Act and the causation standard in title II of the ADA was not changed by the amendments. All of that when combined with reason 9 would make it very difficult, in my opinion, for this counter argument to succeed.

2. Will reason 9 become controlling with respect to title I and title III of the ADA? I don’t think so because of Justice Kennedy’s opinion in Nassar, which the Oregon District Court based their decision upon. Also, the nature of title III being what it is, mixed motive rarely comes up in title III matters. Even so, this decision now give defense attorneys permission to argue that Nassar notwithstanding, but for causation is the rule for title I claims. Again, as mentioned above, it is hard to believe that such an argument would succeed because it would mean doing away with the reasoning of Justice Kennedy in Nassar. That said, reason 9 arguably makes such an attempt no longer frivolous.

3. One wonders if this decision will have a huge impact on tort law with respect to cases involving substantial factor when it comes to causation. Will state courts revisit substantial factor cases using Scalia’s reasoning in this case? If so, will they get different results from what they currently do if they apply Scalia’s test of whether the multiple causes play an essential contributing role in producing the event. If so, is “essential contributing role,” the same as, “but for?”

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