Before getting started on the blog entry for the week, which as I promised is a recap of the oral arguments held last Tuesday in two cases that very much could affect the world of disability rights, I would be remiss if I did not acknowledge the passing of Bob Dole. When it comes to the ADA, the two senators that come to mind immediately are Bob Dole on the Republican side and Tom Harkin on the Democratic side. Bob Dole was a tireless advocate for people with disabilities and was disabled himself. His record of service was incredible. He will definitely be missed. People with disabilities owe him a great debt of gratitude. More information about Bob Dole and what he accomplished can be found here.


Turning to the subject of the blog entry of the day, Becerra and Cummings, the Supreme Court heard oral argument in both cases last Tuesday. Becerra is a case that brings up the utility of Chevron deference. Cummings is the case that raises the issue of whether emotional distress damages are available under §504 of the Rehabilitation Act. As usual, the blog entry is divided into categories and they are: Becerra; Cummings intro; Cummings oral argument/Questions from the Justices; and Cummings if I were a betting person. Of course, the reader is free to read any or all of the blog entry. Since the blog entry is so short, the reader is probably going to want to read the whole thing, but I could see a reader just reading the Becerra or Cummings section too.





  1. The case involves interpreting a Medicare statute and its final implementing regulations. The final implementing regulations and how it got to that point are a mess and the parties did not disagree with that.
  2. The question before the court was essentially whether you could refuse to apply Chevron deference to a situation where the rulemaking was so messed up that only two people in the United States understood the rule.
  3. If I was a betting person, it looks like there was a majority of Justices ready to hold that a court does not have to apply Chevron deference when the procedural history of a rule is totally messed up and the final rule tortures the plain meaning of words. Such a holding would be an expansion of when a court does not have to find Chevron deference applicable. Such a holding would also not throw out Chevron deference entirely but just expand the ability of courts to not apply it. There are Justices that would like to throw Chevron deference out entirely but that wouldn’t be necessary in this case. Justice Roberts tends to be more of an incrementalist this way, and so he may be particularly receptive to that approach.



Cummings introduction


  1. In Barnes v. Gorman, here, the Supreme Court said that compensatory damages are available under the Rehabilitation Act but not punitive damages.
  2. Gebser, which Liese (discussed here), adopted, set out just what is deliberate indifference.
  3. The Rehabilitation Act is a contractual matter.
  4. A line of cases stretching back forty years says that innkeepers and common carriers that discriminate can be liable for emotional distress damages under §504.


Cummings Oral Argument/Question from the Justices


  1. Justice Barrett was interested in figuring out the best analogy for the case. She wondered whether the innkeepers and common carrier line of cases was the best analogy. Those cases have long held emotional distress damages are available in §504 cases.
  2. Justice Kavanaugh and many other Justices were concerned about emotional distress damages being uncapped.
  3. Justice Roberts pointed out that contractual remedies are a matter of state law, which isn’t all that helpful when trying to resolve the question before them.
  4. Justice Alito wanted a better understanding of the emotional cost of the discrimination. Justice Breyer in one of his hypotheticals attempted to address that concern.
  5. Justice Kagan, like Justice Barrett, also wondered if the common carrier and innkeeper cases was not the most analogous line of cases to look to.
  6. Justice Kavanaugh wondered why the nondiscrimination statutes should not be looked at.
  7. When it comes to Rehabilitation Act cases, the question is whether the contractual obligation was clear to the defendant. Justice Alito wondered whether that was a subjective or objective standard.
  8. There is also a line of cases saying that where nonpecuniary interests are involved, emotional distress damages are on the table. Justice Kagan wondered whether that line of cases was the best one to look to.
  9. Justice Barrett pointed out that emotional distress damages in §504 cases has been going on for 40 years.
  10. Justice Kavanaugh also wondered whether the innkeeper line of cases was not the best line of cases to look to.
  11. Justice Kagan pointed out that discriminatory harms are often stigmatic.
  12. Justice Gorsuch was pretty much silent.



Cummings If I Were a Betting Person


  1. Reading tea leaves based on Supreme Court oral arguments is always a fools errand, but it is fun to try.
  2. If I were a betting person, I am going to say that the Supreme Court is going to say by more than a simple majority that §504 of the Rehabilitation Act allows for emotional distress damages providing a person can show deliberate indifference per Gebser/Liese. By going with Gebser/Liese, the Supreme Court would also be able to say that deliberate indifference is different than punitive damages when it comes to §504 claims. So, there is no conflict between such a holding and the holding in Barnes v. Gorman. Such a holding would also allow the Supreme Court to be able to address their worry about uncapped emotional distress damages because deliberate indifference is a high standard.