My last weekend was absolutely crazy. Then, client matters kind of took over. Therefore, I am later than usual in getting my blog up for the week. Glad to say, here it is.

In a recent post, I discussed the survivability of ADA claims. It all seemed pretty cut and dry. That is, look to the most applicable state law and figure things out. However, I just came across a case from the Eastern District of Virginia decided on January 27, 2015, Flaum v. Gloucester Lanes, 2015 U.S. Dist. LEXIS 9182 (E.D. Va. January 27, 2015) that says there may be another way to look at it. Same kind of facts as the other one. That is, a person died during the pendency of an ADA claim. The issue here was whether attorneys fees survived. The court said that whether an ADA claim survives is not a matter of state law at all. Rather, relying on this case from the District Court of Minnesota (Kettner v. Compass Group USA, Inc., 570 F. Supp. 2d 1121 (D. Minn. 2008), said that whether an ADA claim survives is a question of federal common law. They cited extensively from Kettner, which said that cases relying on 42 U.S.C. § 1988(a) were mistaken because neither the Americans with Disabilities Act nor the Rehabilitation Act were referenced in that statute. Further, they agreed with the Kettner court that courts saying otherwise were not supporting their conclusions with any persuasive analysis or in fact any analysis at all of the statutory language.

So, that led me to read the Kettner decision. As mentioned above, the District Court of Minnesota in Kettner held that whether an ADA claim survives was a question of federal common law and they had two main reasons for that conclusion. First, Congress had numerous opportunities to expand the scope of § 1988(a) to the ADA and the Rehabilitation Act but declined to do so even though they did extend it to several other Acts. Second, as noted above, the courts taking the state law approach not only did not engage in any persuasive analysis, or for that matter any analysis at all of the statutory language, rather they simply seemed to ignore the actual language of § 1988(a) on the principle that the section applied broadly to any claims sounding in civil rights. That approach was simply not supported by analysis of the statute.

Since it is a matter of federal common law as to whether an ADA claim survives under these two cases, the question then becomes what is the federal common law. Kettner tells us that under federal common law, only actions for penalties or forfeitures do not survive. Since the ADA is a remedial statute, all causes of actions under the ADA will survive under federal common law except for liquidated or punitive damages.

What does this all mean? Well, it means that if you are faced with the question of whether an ADA or Rehabilitation Act claim survives, the first thing you want to do is check your jurisdiction to see how it handles this particular matter. If it goes the state law approach, and that does not benefit your client, feel free to argue under Flaum (I’m not sure if that decision will be published), and under Kettner (which was published), that decisions referencing back to state law are simply wrong and federal common law should prevail.