Barnes v. Gorman, 536 U.S. 181, 11 (2002)

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Cite as: 536 U. S. 181 (2002)

Stevens, J., concurring in judgment

ante, at 188, untethered to compensable harm, and would thus pose a concern that recipients of federal funding could not reasonably have anticipated. I realize, however, and read the Court's opinion as acknowledging, that the contract-law analogy may fail to give such helpfully clear answers to other questions that may be raised by actions for private recovery under Spending Clause legislation, such as the proper measure of compensatory damages.

Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, concurring in the judgment.

The judgment of the Court of Appeals might be reversed on any of three different theories: (1) as the Court held in Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981), absent clear congressional intent to the contrary, municipalities are not subject to punitive damages; (2) an analysis of the text and legislative history of 504 of Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 (ADA) indicates that Congress did not intend to authorize a punitive damages remedy for violations of either statute;1 or

(3) applying reasoning akin to that used in Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), that the remedies for violations of federal statutes enacted pursuant to Congress' spending power should be defined by the common law of contracts, third-party beneficiaries are not allowed to recover punitive damages.

Petitioners did not rely on either the first or the third of those theories in either the District Court or the Court of Appeals. Nevertheless, because it presents the narrowest basis for resolving the case, I am convinced that it is an appropriate exercise of judicial restraint to decide the case

1 This was the theory that was adopted by the Court of Appeals for the Sixth Circuit in Moreno v. Consolidated Rail Corp., 99 F. 3d 782, 788-792 (1996). It was also the only theory discussed and rejected by the Court of Appeals below.

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