Barnes v. Gorman, 536 U.S. 181, 10 (2002)

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Souter, J., concurring

makes it unnecessary to reach petitioners' alternative argument—neither raised nor passed on below 4—invoking the traditional presumption against imposition of punitive damages on government entities. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 784-785 (2000); Newport v. Fact Concerts, Inc., 453 U. S. 247, 262-263 (1981). The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Souter, with whom Justice O'Connor joins, concurring.

I join the Court's opinion because I agree that analogy to the common law of contract is appropriate in this instance, with the conclusion that punitive damages are not available under the statute. Punitive damages, as the Court points out, may range in orders of "indeterminate magnitude,"

Congress has unequivocally said otherwise. The ADA could not be clearer that the "remedies, procedures, and rights . . . this subchapter provides" for violations of 202 are the same as the "remedies, procedures, and rights set forth in" 505(a)(2) of the Rehabilitation Act, which is Spending Clause legislation. 42 U. S. C. 12133. Section 505(a)(2), in turn, explains that the "remedies, procedures, and rights set forth in title VI . . . shall be available" for violations of 504 of the Rehabilitation Act. 29 U. S. C. 794a(a)(2). These explicit provisions make discussion of the ADA's status as a "non Spending Clause" tort statute quite irrelevant.

4 Justice Stevens suggests that our decision likewise rests on a theory neither presented nor passed on below. Post, at 191-192. But the parties raised, and the courts below passed on, the applicability of Franklin v. Gwinnett County Public Schools, 503 U. S. 60 (1992), to the question presented. That case addressed Spending Clause legislation (Title IX) and cited the contract-analogy discussion in Pennhurst as the basis for its acknowledgment of a notice requirement. See 503 U. S., at 74-75. Respondent did argue (quite correctly) that petitioners had failed to rely on the Newport ground that Justice Stevens uses, Newport v. Fact Concerts, Inc., 453 U. S. 247, 262-263 (1981), see Brief for Respondent 41-43, but not that they had failed to rely on the contract analogy initiated in Pennhurst, Brief for Respondent 35-41.

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