Sheely v. MRI Radiology Network, P.A.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 24, 2007
No. 06-13791 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-61240-CV-JIC

ANNETTE SHEELY,

Plaintiff-Appellant,

versus

MRI RADIOLOGY NETWORK, P.A.,
d.b.a. University MRI-JFK,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(October 24, 2007)

Before ANDERSON, COX and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

At issue today are whether the plaintiff’s claims for injunctive and
declaratory relief under Title III of the Americans with Disabilities Act of 1990, 42

U.S.C. §§ 12181-12189, and Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794, became moot after the defendant voluntarily ceased the alleged

misconduct, and whether non-economic compensatory damages are available

under the Rehabilitation Act. After thorough review, we conclude that the

plaintiff’s claims are not moot because the defendant has not met its heavy burden

of showing under controlling law that it is “absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal

quotation marks omitted). We also hold that non-economic damages are indeed

available under the Rehabilitation Act. Accordingly, we reverse and remand for

further proceedings consistent with this opinion. Finally, we affirm the district

court’s determination that the plaintiff failed to state a claim under the Florida

Civil Rights Act, Fla. Stat. § 760.01 et seq.

I. Background

The essential facts, which we cull from this summary judgment record and

take in the light most favorable to the plaintiff, see Allison v. McGhan Med. Corp.,

184 F.3d 1300, 1306 (11th Cir. 1999), are these; unless otherwise noted, they are

undisputed. Plaintiff Annette Sheely (“Sheely”) has been legally blind since 1999,

2
and is aided by the use of an eighty-pound Labrador retriever guide dog. On June

7, 2005, Sheely accompanied her minor son to one of five diagnostic imaging

facilities owned and operated by the defendant MRI Radiology Network, P.A.

(“MRN”), where her son had an appointment to receive magnetic resonance

imaging (an “MRI”). When Sheely checked her son in, the receptionist, Felicia

Anderson (“Anderson”), asked whether Sheely’s dog was a service animal.1

Sheely replied that he was, and nothing more was said at that time. Sheely and her

son waited in the main waiting room for his appointment.

Beyond the main waiting room is a hallway, at the end of which is a

“holding area” with three or four chairs and a table with magazines on it where

patients wait once again to be called in for their actual examination. The holding

area also contains lockers where patients place certain belongings, including any

metal items like jewelry or watches, prior to entering the MRI suite. Off of this

hallway lie four examination rooms -- two MRI “suites,” one x-ray room, and one

ultrasound room. The typical MRI suite is divided into two rooms by glass.

Metal-sensitive MRI equipment and the patient are located in one room, while the

1
According to the implementing regulations of Title III of the Americans with
Disabilities Act, “[s]ervice animal means any guide dog, signal dog, or other animal individually
trained to do work or perform tasks for the benefit of an individual with a disability, including,
but not limited to, guiding individuals with impaired vision, alerting individuals with impaired
hearing to intruders or sounds, providing minimal protection or rescue work, pulling a
wheelchair, or fetching dropped items.” 28 C.F.R. § 36.104.

3
technician performs the examination remotely from the other side of the glass in

the adjoining room.

When Sheely’s son was called, he asked his mother to accompany him.

According to the deposition testimony of Lana Amiel, MRN’s Director of Front

Office Management (“Amiel”), parents who wished to do so were permitted to

accompany their minor children beyond the main waiting room to the “holding

area” at the end of the hallway. Nevertheless, when Sheely stood to accompany

her son, the receptionist, Anderson,2 told her that she would have to remain in the

main waiting room, since it was MRN’s policy that animals were not permitted

beyond that point. When Sheely asked if her dog would be permitted beyond the

main waiting room if she were the patient, Anderson said that the dog would still

not be permitted beyond the main waiting room, and that Sheely would only be

treated if she brought someone else to watch the dog in that area.

When Sheely asked why her service dog was not permitted beyond the main

waiting room, Anderson gave various reasons. According to Sheely, Anderson

said, among other things, that the policy existed for the dog’s safety, for Sheely’s

own comfort, and that it reflected the concern that the metal in the dog’s harness

might harm the MRI equipment. According to the police report filed following the

2
Anderson is apparently no longer with MRN and could not be located for deposition.

4
incident,3 Anderson similarly told the investigating officer that the dog was not

permitted in the MRI exam room because of the metal in the dog’s harness and for

the dog’s own safety, and that although Sheely would have been permitted in the

hallway waiting area, the dog was not permitted there because, in the officer’s

words, “having the animal in this area could have been a problem due to it being a

traveled hallway.” Anderson also told the officer that she believed that MRN was

a private facility, not a public accommodation subject to the Americans with

Disabilities Act, and that Sheely’s son was competent and did not need a parent to

accompany him. In an email sent to Amiel on the morning of June 9, Anderson

added that “[t]his was a very big dog and there would not be room for him to even

lie on the floor in the back hall waiting area for MRI patients.” MRN admitted in

its answer that it told Sheely her dog was not allowed past the waiting room “for

several reasons, including but not limited to, the issue of space, safety, compliance

with the applicable procedures for entry into the MRI room and the preclusion of

3
The next day, Sheely filed a complaint with the police about the incident, alleging that
MRN was in violation of Florida Statute § 413.08(3), which provides that “[a]n individual with a
disability has the right to be accompanied by a service animal in all areas of a public
accommodation that the public or customers are normally permitted to occupy.” Although the
police report concludes that “there did seem to be a technical violation of Florida Statute,” the
report also indicates that police declined to pursue charges with the Florida State Attorney’s
Office.

5
metal objects in a magnetic area.”4

Sheely’s son eventually proceeded alone beyond the main waiting room for

his appointment. Meanwhile, Sheely called MRN Director of Scheduling Jim

Stannard (“Stannard”), with whom she had had prior contact concerning MRN’s

accommodation of her disability, about the situation.5 According to Sheely,

Stannard told her that a parent was entitled to accompany her minor child beyond

the main waiting room, and that she was entitled to do the same with her dog, like

any other parent.6 Sheely says that Stannard then called Anderson, and that when

Anderson hung up with Stannard she said, “Well, we have to let her back.”

However, when she was still not admitted, Sheely again called Stannard.

4
Amiel later testified that animals are not allowed in the holding area, in part, “because
there are patients back there that are having certain types of studies that could have open IVs and
there could be airborne pathogens that could compromise the safety of the patients.” She said,
however, that this was “common knowledge” and her own personal belief, and that she had not
discussed this particular concern with anyone else at MRN.
5
When Sheely had called MRN to make the appointment for her son (a few days before
the appointment itself), the MRN staff member who answered requested that Sheely have a
sighted person call and make the appointment instead, so that Sheely’s son’s prescription could
be read to the MRN staff over the phone. Sheely complained to Stannard, who permitted her to
fax the prescription to MRN.
6
In his deposition testimony, Stannard did not provide a full account of his phone
conversation with Sheely or of any other relevant conversations he may have had with MRN
employees that day. He simply testified that he had told Sheely that there could be many reasons
why she was not being allowed to accompany her son with her dog, and that since he was remote
he would have to make some calls to the MRN employees on location who were involved with
the situation and get back to her. Although he apparently did not share this information with
Sheely at the time, Stannard testified that he had in mind several reasons, including “hygiene”
and the danger of any metal in the dog’s harness to the MRI equipment.

6
Sheely says that Stannard explained that he was currently on the phone with Amiel,

who had explained that she was denying Sheely’s dog access based on MRN

owner Fred Steinberg’s policy that animals are not permitted beyond the waiting

room, without exception for service animals. According to Amiel’s testimony, at

the time of the incident, MRN did not have a written policy covering either how

patients with disabilities would be accommodated generally, or how MRN would

approach service animals in particular. Instead, MRN had an unwritten “policy”

that service animals were permitted only in the main waiting room area, and that

she had spoken to Steinberg “several times over the years” regarding that policy.

In the end, Sheely was not permitted to take her dog beyond the main waiting

room.

The incident with Sheely was apparently not the first time that a patient had

disputed MRN’s unwritten service animal policy. Within one or two days of the

incident involving Sheely, Anderson emailed Amiel requesting that MRN develop

a “written policy regarding ‘pets’ in our facility,” complaining that the incident

with Sheely was “the third time within a year’s time that this issue has surfaced

once again.” (emphasis in original). Amiel likewise testified that animals had

been brought into MRN facilities “several times,” though she suggested that at

least some of these incidents involved pets rather than service animals.

7
 The record also contains information regarding a May 19, 2004, incident in

which a patient, Mary Rose Mullane (“Mullane”), appeared for her appointment

with her husband and her poodle, whom she alleged was her service animal.

Anderson and Amiel told Mullane that her dog was not allowed anywhere in the

facility, and that her husband would have to wait with the dog outside. When

Mullane refused, stating that she believed that MRN’s policy violated the ADA,

MRN asked her to leave, and eventually called the police to have the Mullanes

escorted off the premises. Anderson told the investigating officer that both Amiel

and Steinberg were notified of the incident as it unfolded and had responded that

Mullane was welcome so long as her dog left the building. The officer concluded

that no violation had occurred because MRN was a private business, not a “public”

place. After the incident, Amiel placed a note in Mrs. Mullane’s file indicating that

she was told “[a]s per Dr. Steinberg no animals within the facility,” that “[s]ervice

was denied,” and future appointments were not to be scheduled for her.7

7
MRN apparently refused to allow Mullane’s dog into the facility at all -- that is, not
even in the waiting area -- because it did not believe Mullane’s claim that the dog was a service
animal. In her deposition testimony in this case, Amiel explained that she contacted Steinberg
during the Mullane incident, and when she told him that the dog did not “appear [to her] to be” a
service animal, he said, in her words, that “common general household pets are not allowed in
the facility at all.” In her testimony, however, Amiel was unable to provide any basis for
determining whether an animal is a service animal or not. According to the police report,
Anderson told the officer that she did not ask Sheely to remove her dog from the premises
entirely because she recognized the dog as a service animal. In the note she placed in Sheely’s
son’s medical file, Anderson noted that Sheely’s dog “had papers attached to his side collar that
appeared to be accurate.” Anderson’s email to Amiel following the incident with Sheely,

8
 On July 27, 2005, about a month and a half after the incident, Sheely sued

MRN in the United States District Court for the Southern District of Florida.

Count one of her complaint sought declaratory and injunctive relief, as well as

costs and attorney’s fees, under Title III of the Americans with Disabilities Act, 42

U.S.C. §§ 12181-12189 (“ADA”). Count two sought the same relief, plus non-

economic compensatory damages, under Section 504 of the Rehabilitation Act, 29

U.S.C. § 794 (“RA”). Finally, count three sought the same relief, plus punitive

damages and interest, under the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq.

(“FCRA”), and Florida’s service animal statute, Fla. Stat. § 413.08.

On April 20, 2006, almost nine months into the lawsuit and after eight

months of discovery and nearly five months of mediation that ended in stalemate,

MRN moved for summary judgment, announcing that, two days earlier, it had

implemented a new, written Service Animal Policy that rendered all of Sheely’s

claims moot. According to the new policy, it is MRN’s

policy to follow all applicable laws with respect to allowing access to
‘service animals’ accompanying persons with disabilities. . . . The law
requires that all service animals that are trained to assist their owner
who has a disability be permitted access to areas where the user is
normally allowed to go unless its [sic] can be shown either (1) that a
service animal’s presence will result in a fundamental alteration of the
goods, services, facilities, privileges, advantages, or accommodations
offered, or (2) the facility’s safe operations would be jeopardized.

however, requested that MRN develop a “written policy regarding ‘pets’ in our facility.”

9
The policy instructs employees to first determine whether an animal brought into

the facility is a service animal or a pet, and if the latter, not to allow the animal

access to the facility. Next, if the animal is determined to be a service animal, the

employee must determine whether the service animal “will present either (a) a

direct threat to health or safety, or (b) a significant threat of disruption to the

services provided by the Company.” If an employee determines that either threat

exists, then the service animal will be denied access to the facility and will be

temporarily secured elsewhere. If neither threat is determined to exist, then the

animal is permitted to go “where its user is going in the facility,” including “all

waiting areas, restrooms, hallways, changing areas and ultra sound rooms.”8

Rick Steinberg, MRN’s Vice President of Finance and Business

Administration, emailed the policy to employees, who were required to print and

sign a form indicating that they had received the policy and understood that it

contains “very important information.” In an affidavit accompanying MRN’s

motion for summary judgment, Steinberg explained that

8
Service animals are permitted in x-ray and CAT scan rooms once the user has been
informed of the dangers to the animal of radiation exposure, and so long as the animal does not
significantly disrupt the services. Service animals are also permitted in MRI “chamber” rooms
once it is determined that the animal does not have any metal on or inside its body, provided
there is “no risk of significant disruption caused by the service animal to the MRI.” If the
service animal does not accompany its user into an examination room, MRN prefers that the user
arrange for a friend or family member to watch the animal in any of MRN’s waiting areas; if no
such friend or family member is available, then MRN will provide “a suitable temporary location
where the user can safely secure the service animal.”

10
 [t]he purpose of the written policy was to inform employees of
[MRN’s] commitment to follow the law with respect to service animal
access, to help employees identify service animals, to inform
employees of [MRN’s] rules related to service animal access and to go
above and beyond the requirements of the ADA and Florida law so as
to avoid future disputes such as the one at issue [in the instant case].

According to the affidavit, after the policy was implemented on April 18, a patient

with a service animal entered MRN’s Boca Raton facility on April 19 and was

permitted access in accordance with the policy.

However, MRN also moved for summary judgment on several alternative

grounds, including that MRN was never liable for any violation of the ADA or RA.

Specifically, MRN argued that under both the ADA and the RA, it was under no

obligation to accommodate Sheely until she explicitly requested the

accommodation of being permitted to accompany her son as far as the door to the

MRI room. Moreover, MRN claimed that it was not liable under the RA because it

did not deny Sheely, who was not the patient, any benefit. Finally, MRN argued

that Sheely failed to state a claim under Florida law.

Sheely cross-moved for summary judgment on all counts. The district court,

considering both motions together, granted summary judgment in favor of MRN

on all counts. The court held that Sheely’s claims for declaratory and injunctive

relief under the ADA and the RA were moot, given MRN’s voluntary cessation of

the allegedly wrongful conduct. As for the only remaining relief Sheely requested

11
under the RA, the district court determined that emotional damages are not

available under that statute. Finally, the district court concluded that Sheely failed

to state a claim under the Florida Civil Rights Act.

This appeal followed.

II. Mootness

Whether a case is moot is a question of law that we review de novo.

Troiano v. Supervisor of Elections in Palm Beach County, 382 F.3d 1276, 1282

(11th Cir. 2004).

Although the district court characterized its rejection of Sheely’s claims for

declaratory and injunctive relief as a grant of summary judgment for MRN

pursuant to Fed. R. Civ. P. 56, it is clear from the district court’s opinion that the

basis for its ruling was the lack of subject matter jurisdiction because of mootness.

We have repeatedly said that when a district court disposes of a case on

justiciability (mootness) grounds we will treat the district court’s determination as

if it was ruling on a motion to dismiss for lack of subject matter jurisdiction under

Fed. R. Civ. P. 12(b)(1), even if the district court mistakenly has labeled its ruling a

grant of summary judgment. Thus, for example, recently in Troiano we held that a

district court’s finding of mootness, although embodied in an order granting

summary judgment under Rule 56, must be treated “as if it were a ruling on a Rule

12
12(b)(1) motion.” 382 F.3d at 1278 n.2. And in United States v. Blue Cross &

Blue Shield of Ala., Inc., 156 F.3d 1098, 1101 n.7 (11th Cir. 1998), a panel of this

Court likewise ruled that a district court’s order granting summary judgment for

lack of federal question subject matter jurisdiction must be treated “as a dismissal

under Rule 12(b)(1).” See also Madison v. United States, 752 F.2d 607, 609 (11th

Cir. 1985) (per curiam) (examining a dismissal under the standards of Rule

12(b)(6) even though the district court denominated its ruling as a grant of

summary judgment); Parker v. McKeithen, 488 F.2d 553, 555 (5th Cir. 1974)

(same); Tuley v. Heyd, 482 F.2d 590, 593-94 (5th Cir. 1973) (“It is a familiar

principle that the label a district court puts on its disposition of a case is not

binding on a court of appeals.”).9 Accordingly, we treat the district court’s grant of

final summary judgment here as a dismissal for lack of subject matter jurisdiction

under Rule 12(b)(1).10

9
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
10
We have no doubt that the district court disposed of Sheely’s claims for declaratory
and injunctive relief on the grounds of mootness. To begin with, MRN moved for summary
judgment before the district court on, among others, justiciability grounds claiming both a lack
of standing and mootness. More significantly, the district court, although characterizing its
ruling as being a grant of summary judgment, entered that judgment on the declaratory and
injunctive relief claims because it concluded that the claims were moot. The relevant portion of
the district court’s opinion is entitled “Standing/Mootness.” (R.1-47 at 5.) Moreover, the
district court prefaced its final paragraph dealing with mootness precisely this way and cited to
Troiano, a mootness case. And if any doubt remained about the basis for its decision, the district
court made absolutely clear in its discussion of liability under the ADA that it viewed Sheely’s

13
 The district court found Sheely’s claims for injunctive and declaratory relief

under the ADA and the RA moot because MRN voluntarily ceased the behavior

Sheely challenges. We have explained the relationship between mootness and the

court’s subject matter jurisdiction this way:

Article III of the Constitution limits the jurisdiction of the federal
courts to the consideration of “Cases” and “Controversies.” . . . [A]
case is moot when it no longer presents a live controversy with respect
to which the court can give meaningful relief. If events that occur
subsequent to the filing of a lawsuit . . . deprive the court of the ability
to give the plaintiff . . . meaningful relief, then the case is moot and

claims for declaratory and injunctive relief as being moot. After explaining that the parties had
disagreed about whether Title III of the ADA required a plaintiff to make an affirmative request
for a reasonable accommodation, and whether it was relevant that MRN’s receptionist assumed
that Sheely wanted access to the MRI scan room itself, the district court expressly said that it
need not address these merits issues “[s]ince the Court has previously ruled that the claim under
the ADA in Count I is moot . . . .” (R.1-47 at 10) (emphasis added).
To be sure, the analysis of whether a case is moot overlaps with the analysis of whether a
permanent injunction is appropriate on the merits because both are concerned with the likelihood
of future unlawful conduct. But the two inquiries are strikingly different. As we discuss at
length below, a defendant seeking dismissal on mootness grounds under the doctrine of
voluntary cessation bears the extremely heavy burden of showing that it is absolutely clear that
he will not revert to his old ways. But whether a permanent injunction is appropriate -- a
question that we do not address and upon which we express no opinion -- turns on whether the
plaintiff can establish by a preponderance of the evidence that this form of equitable relief is
necessary. See United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953). We emphasize,
however, that, like the district court, we have decided only the mootness question; we offer no
opinion on the merits of Sheely's claims for declaratory and injunctive relief. Even though a
case is not moot, that does not mean that injunctive relief follows automatically; undoubtedly,
injunctive relief requires “something more than the mere possibility which serves to keep the
case alive.” W. T. Grant, 345 U.S. at 633. Therefore, nothing in this opinion should be read to
preclude the district court on remand, and after appropriate review, from deciding that equitable
relief is not warranted. See United States v. Concentrated Phosphate Export Ass’n, 393 U.S.
199, 203-04 (1968) (concluding that the case was not moot but noting that the district court was
not obligated to grant equitable relief on remand: “Of course it is still open to appellees to show,
on remand, that the likelihood of further violations is sufficiently remote to make injunctive
relief unnecessary. This is a matter for the trial judge.” (citation omitted)).

14
 must be dismissed.

Troiano, 382 F.3d at 1281-82 (citation omitted). However, “[t]he doctrine of

voluntary cessation provides an important exception to the general rule that a case

is mooted by the end of the offending behavior,” id. at 1282 (emphasis added):

It is well settled that a defendant’s voluntary cessation of a challenged
practice does not deprive a federal court of its power to determine the
legality of the practice. If it did, the courts would be compelled to
leave the defendant free to return to his old ways. In accordance with
this principle, the standard we have announced for determining
whether a case has been mooted by the defendant’s voluntary conduct
is stringent: A case might become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189

(2000) (internal quotation marks, citations, and alterations omitted; emphasis

added); see also United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (“[T]o

say that the case has become moot means that the defendant is entitled to a

dismissal as a matter of right. The courts have rightly refused to grant defendants

such a powerful weapon against public law enforcement.”).

The “formidable,” “heavy burden of persuading the court that the challenged

conduct cannot reasonably be expected to start up again lies with the party

asserting mootness.” Laidlaw, 528 U.S. at 190, 189 (alteration, internal quotation

marks, and citation omitted); see also Sec’y of Labor v. Burger King Corp., 955

15
F.2d 681, 684 (11th Cir. 1992) (describing the defendant’s burden as “heavy”). A

defendant’s assertion that it has no intention of reinstating the challenged practice

“does not suffice to make a case moot” and is but “one of the factors to be

considered in determining the appropriateness of granting an injunction against the

now-discontinued acts.” W. T. Grant, 345 U.S. at 633; see also Hall v. Bd. of Sch.

Comm’rs of Conecuh County, 656 F.2d 999, 1001 (5th Cir. Unit B Sept. 1981)

(“To defeat jurisdiction . . ., defendants must offer more than their mere profession

that the conduct has ceased and will not be revived.”). Although government

actors receive the benefit of a rebuttable presumption that the offending behavior

will not recur, private citizens are not entitled to this legal presumption. See

Troiano, 382 F.3d at 1283 (courts are “more apt to trust public officials than

private defendants to desist from future violations”).

While the district court recited, at the broadest level, the relevant legal test

for determining mootness in a voluntary cessation case, and although it

acknowledged that “courts are more likely to trust public defendants on a voluntary

cessation issue than private defendants,” it nevertheless concluded that on the

“undisputed record,” the instant case was moot. In so concluding, the district court

did not acknowledge, much less apply to this record, any of the basic factors that

both the Supreme Court and this Court have found important in determining

16
mootness where a private defendant has voluntarily ceased the conduct at issue.

Specifically, we have found relevant at least the following three factors: (1)

whether the challenged conduct was isolated or unintentional, as opposed to a

continuing and deliberate practice; (2) whether the defendant’s cessation of the

offending conduct was motivated by a genuine change of heart or timed to

anticipate suit; and (3) whether, in ceasing the conduct, the defendant has

acknowledged liability. The application of these factors to this undisputed record

yields the conclusion that it is not “absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur,” Laidlaw, 528 U.S. at 189

(internal quotation marks omitted), and therefore that this case is not moot.

First, it comes as no surprise that courts are more likely to find that the

challenged behavior is not reasonably likely to recur where it constituted an

isolated incident, was unintentional, or was at least engaged in reluctantly.

Conversely, we are more likely to find a reasonable expectation of recurrence when

the challenged behavior constituted a “continuing practice” or was otherwise

deliberate. See, e.g., W. T. Grant, 345 U.S. at 632 n.5 (“When defendants are

shown to have settled into a continuing practice or entered into a conspiracy . . .,

courts will not assume that it has been abandoned without clear proof.” (internal

quotation marks omitted)); Troiano, 382 F.3d at 1285-86 (fact that challenged

17
behavior “was a good-faith effort to deal with an administrative dilemma” that was

“not likely to be present in the future” supported finding of mootness); Burger

King Corp., 955 F.2d at 684 (“five-year history of violations” cut against finding of

mootness); Hall, 656 F.2d at 1000 (“longstanding practice” cut against finding of

mootness).

MRN says that its treatment of Sheely was “an isolated incident” rather than

the result of a “prior entrenched policy.” The undisputed testimony of MRN’s own

employees, however, strongly suggests that Sheely’s treatment was the result of a

years-long policy created by MRN’s owner, communicated through MRN’s ranks,

and enforced on multiple occasions, sometimes vehemently. Director Amiel

offered undisputed testimony that MRN owner Fred Steinberg created what she

termed the MRN’s animal “policy,” and that she had spoken to him “several times

over the years” regarding it. Consistent with this testimony, after the May 2004

Mullane incident, Amiel placed a note in Mullane’s file stating, “[a]s per Dr.

Steinberg no animals within the facility” (emphasis added). Anderson, too,

complained that the incident involving Sheely was “the third time within a year’s

time that this issue has surfaced once again.”

Nor does the record reflect that these incidents involved only low-level

MRN employees. The Mullane incident -- in which MRN ultimately called the

18
police to enforce its animal policy and determined not to offer Mullane any further

services -- involved input by Anderson, a receptionist, Amiel, a director, and

Steinberg, the owner of MRN himself.11 The incident involving Sheely involved at

least Anderson, Amiel, Stannard, another director, and an unidentified MRN

employee named Carla.12

11
MRN argues nevertheless that it had no entrenched policy because neither the Mullane
incident nor any other incident prior to the Sheely incident resulted in any formal claim of
discrimination against MRN. We disagree. This good luck on the part of MRN does not convert
a series of at least three incidences within one year into an isolated event, nor does it negate the
record evidence suggesting that MRN had a longstanding animal policy. Similarly, we are
reluctant to accept MRN’s invitation to discount the Mullane incident merely because MRN
continues to doubt that the dog involved in that incident was a service animal. We will never
know whether the dog was a service animal or not because Amiel, on owner Fred Steinberg’s
command, refused Mullane service after determining -- without any record basis, and despite the
fact that the ADA prohibits public accommodations from requiring proof that an animal is a
service animal -- that the dog, a poodle, did not “appear to be” a service animal. See Susan L.
Duncan, APIC State-of-the-Art Report: The Implications of Service Animals in Health Care
Settings, 28 Am. J. Infection Control 170, 171 (2000) (Def.’s Concise Statement of Material
Facts App. N) (“There is no validated evidence that any particular breed is better in the role --
service dogs can be any size or any breed.”).
12
MRN similarly suggests that the incident with Sheely was just a “misunderstanding.”
MRN says that it believed Sheely intended to take her service animal, with its metal harness, into
the MRI examination room itself, and that it legitimately prevented her from doing so, as it
would have done with any person, disabled or not, carrying metal on their person. MRN
explains that it believed this to be Sheely’s intention because when Sheely stood to accompany
her son, she never made it clear that she wished to accompany her son up to, but not into, the
actual MRI examination room. In Anderson’s words, Sheely merely said that “the dog goes
where she goes.” Although MRN admits “that MRN advised Sheely that her dog could not
accompany her past the [main] waiting area” -- which includes not only the examination room
but also the hallway waiting area where non-disabled parents of minor children are permitted to
go, and although by all accounts Sheely’s dog was denied access beyond the main waiting room
for several reasons that go beyond the danger to the MRI equipment in the examination room, it
suggests that Anderson’s statement to this effect was made only because it believed Sheely’s
unstated wish was to go as far as the MRI examination room. The district court, considering this
issue for purposes of MRN’s liability under the ADA and the RA, found that a question of fact
exists on this issue, but found no further need to address the question because of its legal

19
 Second, we are more likely to find that cessation moots a case when

cessation is motivated by a defendant’s genuine change of heart rather than his

desire to avoid liability. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

109 (1998) (“presumption” of future injury when cessation occurs in response to

suit); Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 71-72 (1983); W. T. Grant,

345 U.S. at 632 n.5 (“It is the duty of the courts to beware of efforts to defeat

injunctive relief by protestations of repentance and reform, especially when

abandonment seems timed to anticipate suit . . . .”); Nat’l Adver. Co. v. City of

Miami, 402 F.3d 1329, 1333 (11th Cir. 2005) (per curiam) (“[V]oluntary cessation

of offensive conduct will only moot litigation if it is clear that the defendant has

not changed course simply to deprive the court of jurisdiction.”); Troiano, 382 F.3d

at 1285 (in moot case, cessation occurred prior to suit); Coral Springs St. Sys., Inc.

v. City of Sunrise, 371 F.3d 1320, 1331-32 (11th Cir. 2004) (same); Dow Jones &

Co. v. Kaye, 256 F.3d 1251, 1255 n.4 (11th Cir. 2001) (same); Burger King Corp.,

955 F.2d at 684 (in non-moot case, cessation came “on the eve of trial”); Nat’l

Adver. Co. v. City of Fort Lauderdale, 934 F.2d 283, 286 (11th Cir. 1991) (in non-

moot case, cessation came six weeks after suit followed the next day by motion to

dismiss); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 833-34 (11th Cir.

determination.

20
1989) (in non-moot case, cessation came only “[u]nder the imminent threat of the

[plaintiffs’] lawsuit”); Hall, 656 F.2d at 1000 (same); City of Waco v. Envtl. Prot.

Agency, 620 F.2d 84, 86-87 & n.10 (5th Cir. 1980) (in non-moot case, cessation

came “only six days before oral argument”).

Although a defendant’s “profession” not to revive the challenged practice,

standing alone, “does not suffice to make a case moot,” W. T. Grant, 345 U.S. at

633, here, MRN has not made the minimal representation the Supreme Court

rejected in W.T. Grant. This is perhaps not surprising, for the record does suggest

that MRN was motivated by a desire to avoid liability. Rick Steinberg, MRN’s

Vice President of Finance and Business Administration, conceded as much in his

affidavit, stating that “[t]he purpose of the written policy was to . . . avoid future

disputes such as the one at issue [in the instant case].” The timing of MRN’s new

policy reinforces our conclusion. MRN’s change in policy -- and litigation strategy

-- came almost nine months into this lawsuit, after eight months of discovery and

nearly five months of mediation, and appears to have coincided with a change in

counsel. It was immediately after terminating one law firm in favor of another that

MRN employed the services of ADAhelp, Inc., to help it draft its new policy. Nor

did it take long for it to occur to MRN that this new policy might make the lawsuit

against it moot; MRN moved for summary judgment on the grounds of mootness

21
just two days later.13

Third, under controlling law, a defendant’s failure to acknowledge

wrongdoing similarly suggests that cessation is motivated merely by a desire to

avoid liability, and furthermore ensures that a live dispute between the parties

remains. See W. T. Grant, 345 U.S. at 632 (noting that the “public interest in

having the legality of the practices settled[] militates against a mootness

conclusion”); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43 (1944)

(controversy remains where defendant “has consistently urged the validity of the

[practice] and would presumably be free to resume [it] were not some effective

restraint made”); United States v. Trans-Mo. Freight Ass’n, 166 U.S. 290, 308

(1897) (“[M]ere [cessation] is not the most important object of this litigation. The

judgment of the court is sought upon the question of the legality of the [challenged

practice] . . . . [Defendants] do not admit . . . illegality . . ., nor [promise] not to

enter into a similar [practice]. On the contrary, by their answers, the defendants

claim that the agreement is . . . perfectly proper . . . .”); see also Coral Springs St.

Sys., 371 F.3d at 1332-33 (in moot case, defendant “expressly disavowed any

13
Similarly, the timing of the only occasion on which MRN has apparently applied its
new policy -- on April 19, one day after implementing the new policy and, more significantly,
one day before MRN planned to move for summary judgment on the grounds of mootness --
limits the extent to which this incident can reasonably be said to constitute powerful evidence of
MRN’s commitment to forever adhering to its new policy.

22
intention of defending” the ceased conduct); ACLU v. Fla. Bar, 999 F.2d 1486,

1494-95 (11th Cir. 1993) (in non-moot case, defendant was not “bound by its court

statements,” had “the discretion to change its policy” back, and reasonably might

do so where it continued to assert the old policy’s validity); Jager, 862 F.2d at 833-

34 (in non-moot case, defendants “never promised not to resume the prior practice”

and “continue to press on appeal that the voluntarily ceased conduct should be

declared constitutional”); Hall, 656 F.2d at 1000 (in non-moot case, defendants

“disputed the constitutionality of the practice up to the day of trial, when defense

counsel for the first time indicated they had no intention of reviving [it]”); United

States v. Bob Lawrence Realty, Inc., 474 F.2d 115, 127 (5th Cir. 1973) (“[I]n the

face of appellant’s own inability to recognize his transgressions of the Act, we

decline to assume that he will not violate the Act in the future.”).

In this case, MRN has consistently urged the validity of its actions toward

Sheely, so that a controversy between the parties over the legality of those actions

remains. MRN continues to this day to insist that because Sheely was not the

patient when the incident occurred she was denied no benefit, and it committed no

violation of the Rehabilitation Act.14 Similarly, Steinberg’s affidavit describes the

14
Although the district court did not base its grant of summary judgment on this factor
and we therefore need not address it, we observe that under the RA, as amended,

[n]o otherwise qualified individual with a disability . . . shall, solely by reason of

23
new policy as “go[ing] above and beyond the requirements of the ADA and Florida

law” (emphasis added).

Our binding precedent says that “voluntary cessation of offensive conduct

will only moot litigation if it is clear that the defendant has not changed course

simply to deprive the court of jurisdiction.” Nat’l Adver. Co. v. City of Miami,

402 F.3d at 1333. We cannot say with any degree of confidence, let alone with

her or his disability, be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance . . . . [where] “program or activity” means all of the
operations of . . . an entire corporation, partnership, or other private organization .
. . any part of which is extended Federal financial assistance.

29 U.S.C. § 794(a)-(b) (emphasis added). Congress specifically amended the RA to include this
broad language after the Supreme Court gave “program or activity” an interpretation that
Congress deemed to be unduly narrow. See U.S. Dep’t of Transp. v. Paralyzed Veterans of Am.,
477 U.S. 597, 605-06 (1986); Grove City Coll. v. Bell, 465 U.S. 555, 570-74 (1984). Given the
now-broad application of the Act to “all of the operations of” an “entire” covered entity, we are
not persuaded that Sheely’s allegations that MRN denied to her what it provides to non-disabled
parents of minor patients -- namely, the “benefit” of accompanying their children to the hallway
waiting area -- are not cognizable under the Act. Indeed, several courts have held that disabled
third parties accompanying the primary recipient of a covered entity’s services count as
“otherwise qualified individuals” under the Act. See, e.g., Rothschild v. Grottenthaler, 907 F.2d
286, 292 (2d Cir. 1990) (RA applies to all services offered by covered entity, not just those
relating to entity’s central function, so that school had an obligation to provide deaf parents of a
hearing child with interpreters when they attended meetings to which all parents were invited);
Bravin v. Mt. Sinai Med. Ctr., 58 F. Supp. 2d 269, 272 (S.D.N.Y. 1999) (where hospital offered
service of Lamaze classes to mothers-to-be and their chosen partners, it was intentional
discrimination under the RA to deny a sign language interpreter to a deaf partner, regardless of
whether the mother-to-be could have attended the class alone); Aikins v. St. Helena Hosp., 843
F. Supp. 1329, 1337 (N.D. Cal. 1994) (“That Mrs. Aikins[, a deaf individual,] was not a patient
at St. Helena should not preclude her from raising claims under the Rehabilitation Act based on
the hospital’s failure to communicate effectively with her in connection with its treatment of her
[hearing] husband.”).

24
absolute clarity, that this is the case here.15 Indeed, the record evidence -- the most

important pieces of which come from MRN itself -- nearly uniformly suggests that

MRN enacted and employed a discretionary policy that it believes “go[es] above

15
Judge Cox says that we should remand the mootness issue to the district court for
further review. On this record, we are unpersuaded that a remand would further the expeditious
resolution of the matter.
Among other things, Judge Cox suggests that the district court found as a “critical fact”
that “there was no real threat of a recurrent violation.” Op. Concurring in Part and Dissenting in
Part at __, __ n.1. We do not read the district court as ever having concluded that there was no
real (prospective) threat of MRN returning to its old ways. Rather, what the district court said in
a brief concluding paragraph simply was that “[w]hile it may have taken this lawsuit to force
such voluntary action, the record is clear that the written access policy is now in force, thus
solving any problem that existed.” (R.1-47 at 15-16) (emphasis added). This does not come
close to determining that MRN poses no real threat of reverting to its old practices in the future.
We add that the district court never so much as cited, let alone applied, the controlling legal
standard enunciated by the Supreme Court for determining whether voluntary private cessation
mooted a case. See Laidlaw, 528 U.S. at 190 (“[A] defendant claiming that its voluntary
compliance moots a case bears the formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.” (emphasis added)).
At the end of the day, however, we read the district court as having referenced the
following three undisputed facts: MRN consulted an ADA expert, established a written policy,
and transmitted the policy to its employees. These additional facts are undisputed: it took not
only a lawsuit, but nine months of intensive litigation for MRN to change its policy on service
animals; MRN has continued to assert that it did not violate the ADA or the RA; senior MRN
officials had discussed MRN’s service animal policy on several occasions; and prior to the
events giving rise to this case, MRN had other run-ins with customers regarding service animals.
No matter how this undisputed record is interpreted, we are constrained to conclude that, as a
matter of law -- and this is squarely a legal determination -- MRN cannot establish (indeed, has
not even come close to establishing) that “it is absolutly clear the allegedly wrongful behavior
could not reasonably be expected to recur.” Id. (emphasis added). Accordingly, we can discern
no reason for sending the question of mootness back to the district court for further review or
fact finding. See Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1332 n.10 (11th
Cir. 2004) (“[O]n numerous occasions, appellate courts have made this critical determination of
whether reenactment of the challenged law was likely, without remand or deference to the
district courts. On the peculiar facts and circumstances of this case, we can discern no reason
not to make a determination of this kind.” (citations omitted)); Nat’l Adver. Co. v. City of
Miami, 402 F.3d 1329, 1334 (11th Cir. 2005) (per curiam) (raising justiciability sua sponte and
prefacing its mootness analysis as follows: “Given the legal framework for determining when
subsequent events can moot a legal challenge, we apply those legal principles to the facts of this
case.”).

25
and beyond” the requirements of the law precisely because it preferred doing so to

continued litigation. As MRN stresses on appeal, it has never before been sued for

violating the ADA or the RA. Although the record shows that MRN has been

faced with service animal issues on multiple occasions, apparently only Sheely

took the trouble to press her claim in a court of law. If we conclude that her claims

are moot, then should MRN determine that future litigation is unlikely, it may well

calculate that its new policy is no longer the preferable course of action and revert

to the old policy it prefers and apparently believes to be legal. On this fairly

debatable record, MRN has not met its “formidable,” “heavy burden” of meeting

the Supreme Court’s “stringent” standard for mootness in a private voluntary

cessation case -- showing that it is “absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S. at 189

(internal quotation marks omitted). In short, we cannot say that this case is moot.16

16
MRN made before the district court, and presses on appeal, an identical voluntary
cessation argument under the doctrine of standing, urging that given its new service-animal
policy, Sheely cannot show that the injury she alleges is redressable by the court. Although the
Supreme Court has often remarked that “the doctrine of mootness can be described as the
doctrine of standing set in a time frame: The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue throughout its existence (mootness),”
the Court has also warned that this description of mootness “is not comprehensive” and that
standing and mootness are in fact distinct doctrines which must not be confused. Laidlaw, 528
U.S. at 189-90 (internal quotation marks omitted). The difference between the two is that the
latter, but not the former, has a “capable of repetition, yet evading review” exception. Id. at 190-
91. Moreover, the “[s]tanding doctrine functions to ensure, among other things, that the scarce
resources of the federal courts are devoted to those disputes in which the parties have a concrete
stake. In contrast, by the time mootness is an issue, the case has been brought and litigated . . . .
To abandon the case at an advanced stage may prove more wasteful than frugal.” Id. at 191-92.

26
 III. Non-Economic Compensatory Damages Under the Rehabilitation Act

The district court also granted summary judgment to MRN on the remaining

portion of Sheely’s Rehabilitation Act claim that seeks non-economic

compensatory damages, on the grounds that such damages are not recoverable

under the Act. We consider what appears to be a question of first impression, not

only in our Court but in all of the federal circuit courts of appeals,17 and reverse.

As a result, “there are circumstances in which the prospect that a defendant will engage in (or
resume) harmful conduct may be too speculative to support standing, but not too speculative to
overcome mootness.” Id. at 190; see also id. at 190-91 (discussing City of Los Angeles v.
Lyons, 461 U.S. 95 (1983), in which the Court “held that a plaintiff lacked initial standing to
seek an injunction against the enforcement of a police chokehold policy because he could not
credibly allege that he faced a realistic threat arising from the policy,” but “noted that a citywide
moratorium on police chokeholds -- an action that surely diminished the already slim likelihood
that any particular individual would be choked by police -- would not have mooted an otherwise
valid claim for injunctive relief, because the moratorium by its terms was not permanent,” and
Olmstead v. L.C., 527 U.S. 581, 594 n.6 (1999), in which the Court held that a patient’s lawsuit
challenging her confinement in a segregated institution was not mooted by her postcomplaint
transfer to a community-based program, despite the fact that she would have lacked initial
standing had she filed the complaint after the transfer).
As for MRN’s argument that Sheely lacks standing to initiate the instant case because she
only visited MRN’s facility once and cannot show that she is at risk of suffering future
discrimination, the district court found that in the eight months between the incident in question
and her deposition testimony, Sheely had visited an MRI center twice for herself and twice more
for her son, and therefore held that Sheely had provided more than mere assertions that she
might theoretically return to MRN’s facility for service. We agree that Sheely had standing to
initiate this case.
17
Federal circuit courts of appeals had, prior to the Supreme Court’s important decision
in Barnes v. Gorman, 536 U.S. 181 (2002), considered the availability of emotional damages
under the RA. See, e.g., Schultz v. Young Men’s Christian Ass’n of U.S., 139 F.3d 286, 290-91
(1st Cir. 1998) (denying emotional damages in case alleging unintentional discrimination);
Eastman v. Va. Polytechnic Inst. & State Univ., 939 F.2d 204, 208 (4th Cir. 1991) (concluding
that compensatory damages for pain and suffering are not available under Title VI or § 504 of
the RA); Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 830 (4th Cir. 1994) (overruling Eastman
in light of Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), and holding that the
“full panoply of legal remedies” is available under § 504, but not directly addressing emotional

27
 In deciding what remedies, if any, are available under any statute, we begin

our analysis, as we must, with the language of the statute itself. In this case,

however, the statutory language does not take us far. Section 505(a)(2) of the

Rehabilitation Act of 1973, as amended in 1978,18 simply provides that “[t]he

remedies . . . set forth in title VI of the Civil Rights Act of 1964 shall be available

to any person aggrieved by any act or failure to act by any recipient of Federal

assistance . . . under [§ 504].” 29 U.S.C. § 794a(a)(2).19 However, Title VI, 42

damages). However, we know of none that has done so since Barnes.
18
See Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, Pub. L. No. 95-602, sec. 120, § 505(a)(2), 92 Stat. 2955 (1978).
19
It is not surprising that Congress tied the remedies available under § 504 to those that
are available under Title VI. Section 504 of the RA, like other statutes that prohibit
discrimination in federally assisted programs or activities, including Title IX of the Education
Amendments of 1972, 20 U.S.C. §§ 1681-1688, and Title II of the Americans with Disabilities
Act of 1990, as amended, 42 U.S.C. §§ 12131-12165, was modeled after § 601 of Title VI. As a
result, the language of § 504 is “virtually identical to that of § 601 of Title VI.” Consol. Rail
Corp. v. Darrone, 465 U.S. 624, 626 (1984); see also U.S. Dep’t of Transp. v. Paralyzed
Veterans of Am., 477 U.S. 597, 600 & n.4 (1986). Compare § 601 of Title VI, 42 U.S.C. §
2000d (1964):

No person in the United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance.

with § 901 of Title IX, 20 U.S.C. § 1681(a) (1972):

No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance . . . .

and § 504 of the RA, 29 U.S.C. § 794(a) (1973):

28
U.S.C. §2000d et seq., which prohibits discrimination on the basis of race, color, or

national origin in programs and activities receiving federal financial assistance,

does not by itself expressly provide for a private cause of action, much less

delineate specific judicial remedies. Instead, the Supreme Court, in interpreting

Title VI, has “found an implied right of action, and Congress has acknowledged

this right in amendments to the statute, leaving it beyond dispute that private

individuals may sue to enforce Title VI.” Barnes v. Gorman, 536 U.S. 181, 185

(2002) (citations, internal quotation marks, and emphasis omitted).

Thus, in determining whether emotional damages are available under § 504,

we must ask what remedies the Supreme Court has allowed a private litigant suing

under Title VI to recover, and why.

A.

Our consideration of the Supreme Court’s Title VI jurisprudence yields the

following principles. First, the Supreme Court has repeatedly held that where legal

rights have been invaded and a cause of action is available, generally a federal

court may use any available remedy to afford full relief, and that this presumption

No otherwise qualified individual with a disability in the United States . . . shall,
solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance . . . .

29
will yield only to a contrary congressional intent or statutory purpose. Second,

with respect to legislation, like Title VI and the RA, enacted pursuant to

Congress’s Spending Clause power, the Supreme Court has said that the

presumption must yield to some extent in order to accommodate the fact that

remedies for violations of such legislation are proper only if funding recipients

have fair notice that they may be subject to them. In articulating its concern with

notice, the Court has sometimes found it useful to analogize Spending Clause

legislation to a contract in which the federal government provides money to

recipients in exchange for their promise not to discriminate against third parties.

Third, consistent with this contract metaphor, the Supreme Court has

distinguished between intentional and unintentional violations of Spending Clause

statutes. While the Court has suggested, without deciding, that victims of

unintentional discrimination may be limited to prospective relief preventing future

violations, it has clearly held that victims of intentional discrimination are

additionally entitled to retrospective relief to compensate them for the recipient’s

past conduct, which the recipient knew or should have known violated the terms of

its agreement with the government. In particular, victims of intentional

discrimination may recover compensatory damages. Fourth, however, the

Supreme Court has held that victims of intentional discrimination in violation of

30
Spending Clause legislation may not recover punitive damages. Because punitive

damages are generally unavailable for breach of contract, the Court has explained,

recipients lack fair notice that in accepting federal funds, they are subjecting

themselves to this form of liability.

Although the Supreme Court has established beyond any doubt that victims

of intentional discrimination may, under Title VI and therefore under the RA,

recover compensatory damages as a broad category, the Court has not spoken to

the precise scope of available compensatory damages under these statutes. After

reviewing the Supreme Court’s Title VI jurisprudence,20 we conclude that

non-economic compensatory damages are indeed available for intentional

violations of the RA.

In Guardians Association v. Civil Service Commission of New York, 463

U.S. 582 (1983), the district court had awarded private plaintiffs “back seniority”

in order “to make [them] ‘whole’ under Title VI,” along with “corresponding

monetary and nonmonetary entitlements . . . derived therefrom,” and also ordered

the employer to consult with the plaintiffs about future examinations. Id. at 588.

Five Justices of the Supreme Court, in four separate opinions, held that no such

20
In the absence of any clear direction from Congress as to the remedies it intended to
provide for violations of either Title VI or the subsequent statutes modeled on it, the Supreme
Court has understandably struggled with these questions, and the jurisprudence we analyze today
bears the deep marks of this struggle.

31
relief was available under Title VI,21 while four Justices, in two separate opinions,

dissented. As the number of opinions suggests, the Court was deeply divided in its

reasoning, and no clear rule emerged from Guardians.22 The general reasoning of

two opinions in that case, however, today appear to enjoy the support of the full

Court, and are therefore nevertheless worth discussing.

Justice White announced the decision of the Court in an opinion joined, in

relevant part, by Justice Rehnquist. Justice White argued that private plaintiffs

pursuing claims of unintentional discrimination are entitled only to “declaratory

and injunctive relief ordering future compliance with the declared statutory and

21
Two argued that Title VI does not permit a private cause of action at all. Id. at 608-10
(Powell, J., concurring in the judgment, joined by Burger, C.J.). Four argued that the plaintiffs’
claim for disparate impact, as opposed to discriminatory treatment, was not cognizable under
Title VI. Id. at 610-11 (Powell, J., concurring in the judgment, joined by Burger, C.J., and
Rehnquist, J.); id. at 612 & n.1 (O’Connor, J., concurring in the judgment) (expressly reserving
the question whether damages are available for claims of intentional discrimination).
22
Less than a year after a badly fractured Court decided Guardians, a unanimous Court
held, “[w]ithout determining the extent to which money damages are available under § 504, [that
it is] clear that § 504 authorizes a plaintiff who alleges intentional discrimination to bring an
equitable action for backpay,” reasoning this way:

In Guardians, a majority of the Court expressed the view that a private plaintiff
under Title VI could recover backpay; and no Member of the Court contended
that backpay was unavailable, at least as a remedy for intentional discrimination.
It is unnecessary to review here the grounds for this interpretation of Title VI. It
suffices to state that we now apply this interpretation to § 505(a)(2), which, as we
have noted, provides to plaintiffs under § 504 the remedies set forth in Title VI.
Therefore, respondent, having alleged intentional discrimination, may recover
backpay in the present § 504 suit.

Consol. Rail Corp. v. Darrone, 465 U.S. 624, 630-31 (1984) (citation and footnotes omitted).

32
regulatory obligations. Additional relief in the form of money or otherwise based

on past unintentional violations should be withheld.” Id. at 598 (opinion of White,

J.). While the “usual rule,” he said, is that “where legal rights have been invaded

and a cause of action is available, a federal court may use any available remedy to

afford full relief,” id. at 595 (citing Bell v. Hood, 327 U.S. 678, 684 (1946)), this

rule “yields where necessary to carry out the intent of Congress or to avoid

frustrating the purposes of the statute involved,” id. In statutes, like Title VI,

enacted pursuant to Congress’s Spending Clause power, “the receipt of federal

funds . . . is a consensual matter,” id. at 596 (citing Pennhurst State Sch. & Hosp.

v. Halderman, 451 U.S. 1, 15 (1981), and Rosado v. Wyman, 397 U.S. 397, 420-21

(1970)):

Typically, before funds are advanced, the appropriate federal official
will determine whether the grantee’s . . . program will satisfy the
conditions of the grant . . . . When in a later private suit brought by
those for whose benefit the federal money was intended to be used it
is determined, contrary to the State’s position, that the conditions
attached to the funds are not being complied with, it may be that the
recipient would rather terminate its receipt of federal money than
assume the unanticipated burdens. . . . Although a court may identify
the violation and enjoin its continuance or order recipients of federal
funds prospectively to perform their duties incident to the receipt of
federal money, the recipient has the option of withdrawing and hence
terminating the prospective force of the injunction.

Id. Thus, in cases of unintentional discrimination, “it is not immediately obvious

what the grantee’s obligations under the federal program were and it is surely not

33
obvious that the grantee was aware that it was administering the program in

violation of the statute or regulations.” Id. at 598.

On the other hand, Justice White observed, “where intentional

discrimination has been shown, there can be no question as to what the recipient’s

obligation under the program was and no question that the recipient was aware of

that obligation. In such situations, it may be that the victim of the intentional

discrimination should be entitled to a compensatory award, as well as to

prospective relief in the event the State continues with the program.” Id. at 597

(emphasis added); see also id. at 597 n.20.

Justice Marshall, while writing in dissent, agreed with Justice White that the

issue required a reconciliation of the Bell v. Hood presumption of “any available

remedy to make good the wrong done,” id. at 624 (Marshall, J., dissenting), with

Title VI’s very nature as a “contractual” spending-power provision, id. at 633.

However, Justice Marshall concluded that the contract analogy “only reinforces the

propriety of awarding retrospective relief.” Id. at 632.23 Title VI, he said,

“unambiguously imposes a condition [of nondiscrimination] on the grant of federal

moneys,” and this “statutory mandate can hardly escape notice”: “applicants for

23
Justice Marshall argued that private plaintiffs should be able to recover compensatory
relief for both intentional and unintentional discrimination. See Guardians, 463 U.S. at 615
(Marshall, J., dissenting).

34
federal assistance literally sign contracts in which they agree to comply with Title

VI and to ‘immediately take any measures necessary’ to do so. This assurance is

given ‘in consideration of’ federal aid, and the Federal Government extends

assistance ‘in reliance on’ the assurance of compliance.” Id. at 629-30; see also id.

at 630 nn.22-23 (quoting various agency implementing regulations and their

“Assurance of Compliance” contracts with recipients of federal funds). This duty

not to discriminate, he said, attaches when the recipient agrees to accept federal

funding, not when a court concludes that it has breached that agreement. He thus

called Justice White’s suggestion that remedies for breach are limited to

prospective relief “a bizarre view of contract law.” Id. at 632. He concluded:

Only by providing retrospective relief to private litigants can the
courts fulfill the terms of the “contract” between the Federal
Government and recipients of federal financial assistance. In
exchange for federal moneys, recipients have promised not to
discriminate. Because Title VI is intended to ensure that “no person”
is subject to discrimination in federally assisted programs, private
parties function as third-party beneficiaries to these contracts. When a
court concludes that a recipient has breached its contract, it should
enforce the broken promise by protecting the expectation that the
recipient would not discriminate. The obvious way to do this is to put
private parties in as good a position as they would have been had the
contract been performed. This requires precisely the kind of make
whole remedy that Justice White rejects . . . .

Id. at 632-33 (citations omitted). Denying plaintiffs compensatory relief would in

fact, he said, often leave Title VI victims remediless, and would thereby

35
“depreciate[] [Title VI], which was specifically intended to deal with ‘the injustices

and humiliations of racial and other discrimination.’” Id. at 625-26 (quoting H.R.

Rep. No. 914, 88th Cong., 1st Sess. at 18 (1963), as reprinted in 1964

U.S.C.C.A.N. 2391, 2394 (emphasis added)).

After Guardians, perhaps the only thing federal courts considering the

available remedies under the RA and other Title VI-based statutes have agreed on

was that the question was “‘murky.’” See, e.g., Manecke v. Sch. Bd. of Pinellas

County, 762 F.2d 912, 921 n.8 (11th Cir. 1985) (quoting with approval Parks v.

Pavkovic, 753 F.2d 1397, 1409 (7th Cir. 1985)). Even the Supreme Court had to

admit, “[w]ithout expressing an opinion on the matter,” to “some confusion among

the Circuits as to the availability of a damages remedy under § 504.” Smith v.

Robinson, 468 U.S. 992, 1020 n.24 (1984).

Against this background of uncertainty, a panel of this Court held, in

Franklin v. Gwinnett County Public Schools, 911 F.2d 617 (11th Cir. 1990), that

compensatory relief was unavailable to private plaintiffs for intentional violations

of Title IX. Id. at 622. The plaintiff in that case was a high school student who

alleged that she had been sexually harassed by her coach and teacher; by the time

the appeals panel considered her claim for compensatory damages, she had

graduated and the teacher had resigned, so that no other form of relief would have

36
benefitted her. Nevertheless, the panel read Guardians as leaving open the

question of damages for intentional violations of Title VI (and thus Title IX 24), and

instead followed the binding case of Drayden v. Needville Independent School

District, 642 F.2d 129 (5th Cir. Unit A Apr. 1981), where the Court had held that

Title VI’s private right of action “encompasses no more than an attempt to have

any discriminatory activity ceased.” Franklin, 911 F.2d at 620 (quoting Drayden,

642 F.2d at 133). The panel majority25 noted, in addition, that Justice White’s

opinion in Guardians provided “important guidance,” agreeing with Justice White

that where Spending Clause legislation is at issue, “relief may frequently be limited

to that which is equitable in nature, with the recipient of federal funds thus

retaining the option of terminating such receipt in order to rid itself of an

injunction.” Id. at 621.

On review, however, all nine Justices of the Supreme Court agreed that “a

damages remedy” is indeed available under Title IX, and reversed. Franklin, 503

U.S. 58, 76 (1992); see also id. at 78 (Scalia, J., concurring in the judgment, joined

by Rehnquist, C.J., and Thomas, J.). Justice White, writing for the Court, began by

24
The parties agreed that Title VI “served as the legislative antecedent for Title IX, and
that consequently, the jurisprudential analysis of the Justices’ opinions in Guardians . . . is
applicable in a Title IX context.” Franklin, 911 F.2d at 619 (citation and footnote omitted).
25
Judge Johnson concurred specially to state that he would have based the panel’s
decision on Drayden alone, without considering the “dicta” in Justice White’s opinion in
Guardians.

37
reiterating Bell v. Hood’s presumption that “although we examine the text and

history of a statute to determine whether Congress intended to create a right of

action, we presume the availability of all appropriate remedies unless Congress has

expressly indicated otherwise.” Id. at 66 (majority opinion) (citation omitted); see

also id. at 66-68. He emphasized that this “general rule” had “deep roots in [the

Court’s] jurisprudence,” id. at 66, and was the result of a “long line of cases,” id. at

69, and that Guardians and Consolidated Rail Corp. v. Darrone, 465 U.S. 624

(1984) (see supra n.21), far from “erod[ing] this traditional presumption, . . . in fact

support it,” id. at 70:

[A] clear majority [in Guardians] expressed the view that damages
were available under Title VI in an action seeking remedies for an
intentional violation, and no Justice challenged the traditional
presumption in favor of a federal court’s power to award appropriate
relief in a cognizable cause of action. The correctness of this
inference was made clear the following Term [in Consolidated Rail]
when the Court unanimously held that the [RA] . . . authorizes an
award of backpay. . . . The general rule, therefore, is that absent clear
direction to the contrary by Congress, the federal courts have the
power to award any appropriate relief in a cognizable cause of action
brought pursuant to a federal statute.

Id. at 70-71 (citations omitted).

The Court concluded that “Congress intended to limit [neither] application

of this general principle in the enforcement of Title IX” nor “the remedies

available in a suit brought under Title IX.” Id. at 71-72. After the courts had

38
recognized an implied private right of action under Title IX, Congress passed two

amendments to Title IX -- as well as to Title VI, § 504 of the RA, and the Age

Discrimination Act of 1975.

In the first, the Rehabilitation Act Amendments of 1986 § 1003(a)(2), Pub.

L. No. 99-506, 100 Stat. 1845, Congress abrogated the States’ Eleventh

Amendment immunity under all four statutes, providing in pertinent part that

“remedies (including remedies both at law and in equity) are available for such a

violation to the same extent as such remedies are available for such a violation in

the suit against any public or private entity other than a State.” 42 U.S.C. §

2000d-7(a)(2). The Supreme Court determined that “[w]hile it is true that this

saving clause says nothing about the nature of those other available remedies,

absent any contrary indication in the text or history of the statute, we presume

Congress enacted this statute with the prevailing traditional rule in mind.”

Franklin, 503 U.S. at 73 (citation omitted); see also id. at 78 (Scalia, J., concurring

in the judgment) (“Because of legislation enacted subsequent to [Supreme Court

case law finding an implied private right of action under Title IX], it is too late in

the day to address whether a judicially implied exclusion of damages under Title

IX would be appropriate. The Rehabilitation Act Amendments of 1986 must be

read . . . as an implicit acknowledgment that damages are available.” (citations

39
omitted)).

The second amendment, the Civil Rights Restoration Act of 1987, Pub. L.

No. 100-259, 102 Stat. 28, “broadened the coverage of [the same four]

antidiscrimination provisions” while again making “no effort to restrict the right of

action . . . or to alter the traditional presumption in favor of any appropriate relief

for violation of a federal right.” Franklin, 503 U.S. at 73.

Finally, the Supreme Court rejected this Circuit’s argument that “the normal

presumption in favor of all appropriate remedies should not apply because Title IX

was enacted pursuant to Congress’ Spending Clause power.” Id. at 74 (majority

opinion). “[R]emedies [a]re limited under such Spending Clause statutes,” the

Court explained, “when the alleged violation was unintentional,” but the Court

declined the defendant’s invitation to extend this rule to intentional violations. Id.

“[T]he point of not permitting monetary damages for an unintentional violation,” it

said, “is that the receiving entity of federal funds lacks notice that it will be liable

for a monetary award. This notice problem does not arise in a case . . . in which

intentional discrimination is alleged.” Id. at 74-75 (citation omitted).26

Whatever may or may not have been clear before, after Franklin, a “damages

26
The Court noted that, in any case, its unanimous decision in Consolidated Rail had
foreclosed the argument “that Spending Clause statutes do not authorize monetary awards for
intentional violations.” Franklin, 503 U.S. at 75.

40
remedy” for intentional violations by federal funding recipients is plainly available

under Title VI, and thus under § 504 of the RA as well. In holding that equitable

and monetary remedies are available under Spending Clause legislation, however,

the Supreme Court spoke only in terms of broad categories of remedies. It was not

until Barnes v. Gorman, 536 U.S. 181 (2002), that the Court began to address the

narrower question of which specific kinds of damages may be available.

The plaintiff in Barnes sued under § 202 of the ADA and § 504 of the RA,

and a jury awarded him $1 million in compensatory damages and $1.2 million in

punitive damages. The district court, however, vacated the punitive damages

award, holding that they are unavailable under the statutes. The Eighth Circuit

reversed, relying on Franklin’s emphasis on the Bell v. Hood presumption that

“absent clear direction to the contrary by Congress, the federal courts have the

power to award any appropriate relief in a cognizable cause of action brought

pursuant to a federal statute.” Id. at 184 (quoting Franklin, 503 U.S. at 70-71)

(emphasis added). The appeals court held that punitive damages, which it

described as “‘an integral part of the common law tradition and the judicial

arsenal,’” were therefore appropriate. Id. (quoting Gorman v. Easley, 257 F.3d

738, 745 (8th Cir. 2001)).

All nine Justices of the Supreme Court once again agreed, in two separate

41
opinions, to reverse. The majority began by noting that “the remedies for

violations of § 202 of the ADA and § 504 of the Rehabilitation Act are coextensive

with the remedies available in a private cause of action brought under Title VI.”

Id. at 185. Although the Court said it was “beyond dispute that private individuals

may sue to enforce Title VI,” it was “less clear what remedies are available in such

a suit”:

In Franklin, we recognized “the traditional presumption in favor of
any appropriate relief for violation of a federal right,” and held that
since this presumption applies to suits under Title IX of the Education
Amendment of 1972, monetary damages were available. And the
Court has interpreted Title IX consistently with Title VI. Franklin,
however, did not describe the scope of “appropriate relief.” We take
up this question today.

Id. (citations omitted; emphasis in Barnes).

In holding that punitive damages are not available under Title VI, § 202 of

the ADA, or § 504 of the RA, id. at 189, the Supreme Court explained that it had

repeatedly characterized [Title VI] and other Spending Clause
legislation as much in the nature of a contract: in return for federal
funds, the recipients agree to comply with federally imposed
conditions. Just as a valid contract requires offer and acceptance of its
terms, the legitimacy of Congress’ power to legislate under the
spending power rests on whether the recipient voluntarily and
knowingly accepts the terms of the “contract.”

Id. at 186 (internal quotation marks, alterations, emphasis, and citations omitted)

(citing Pennhurst, the opinions of Justices White and Marshall in Guardians, and

42
various Title IX cases). Previously, the Court said, it had applied the contract

analogy (1) in Franklin, “in finding a damages remedy available in private suits

under Spending Clause legislation,” and (2) in “defining the scope of conduct for

which funding recipients may be held liable for money damages,” with the result

that a recipient is liable to third-party beneficiaries only for “intentional conduct

that violates the clear terms of the relevant statute, but not for its failure to comply

with vague language describing the objectives of the statute.” Id. at 186-87

(citation omitted).

“The same analogy applies,” the Court said, “in determining the scope of

damages remedies,” id. at 187:

a remedy is appropriate relief only if the funding recipient is on notice
that, by accepting federal funding, it exposes itself to liability of that
nature. A funding recipient is generally on notice that it is subject not
only to those remedies explicitly provided in the relevant legislation,
but also to those remedies traditionally available in suits for breach of
contract.

Id. (internal quotation marks, emphasis, and citation omitted). Because “punitive

damages, unlike compensatory damages and injunction, are generally not available

for breach of contract,” id. at 187-88 (citing Restatement (Second) of Contracts §§

355, 357 (1981) and various treatises on contract law and damages), and because

Title VI, which “mentions no remedies,” does not otherwise clearly contemplate

the possibility of punitive damages, funding recipients are not on notice that they

43
are subject to such damages, id. at 187. Nor can recipients be said to have

implicitly consented to be liable for punitive damages, since it is unlikely that they

would have agreed to such “unusual and disproportionate exposure.” Id. at 188.

Significantly for the question we address today, the Court did not reject but

instead took pains to harmonize its holding in Barnes with Bell v. Hood’s

“well-settled rule,” reiterated in Franklin, that “where legal rights have been

invaded, and a federal statute provides for a general right to sue for such invasion,

federal courts may use any available remedy to make good the wrong done,” id. at

189 (internal quotation marks omitted):

When a federal-funds recipient violates conditions of Spending Clause
legislation, the wrong done is the failure to provide what the
contractual obligation requires; and that wrong is “made good” when
the recipient compensates the Federal Government or a third-party
beneficiary . . . for the loss caused by that failure. See Guardians, 463
U.S. at 633 (Marshall, J., dissenting) (“When a court concludes that a
recipient has breached its contract, it should enforce the broken
promise by protecting the expectation that the recipient would not
discriminate. . . . The obvious way to do this is to put private parties in
as good a position as they would have been had the contract been
performed”). Punitive damages are not compensatory, and are
therefore not embraced within the rule described in Bell.

Id.

B.

Contrary to Sheely’s suggestion, Franklin did not hold that all forms of

damages, including non-economic compensatory damages, are available under

44
Spending Clause legislation. Contrary to MRN’s contentions, however, Barnes did

not hold that such damages are unavailable. Franklin merely teaches that in

addition to injunctive relief, monetary damages, as a broad category, are available

under the RA. Barnes, in turn, clarifies that one particular form of damages --

punitive damages -- is not available. The open question before us today is

narrower still: whether a subset of compensatory damages -- non-economic

compensatory damages -- is available under § 504 of the Rehabilitation Act for

intentional discrimination. We hold that it is.

First, the Barnes Court’s central reason for turning to the contract metaphor

appears to be its concern with ensuring that federal funding recipients have fair

notice of any liability to which they are subject by federal courts. We think it

fairly obvious -- and case law supports the conclusion -- that a frequent

consequence of discrimination is that the victim will suffer emotional distress. As

a result, emotional distress is a foreseeable consequence of funding recipients’

“breach” of their “contract” with the federal government not to discriminate

against third parties, and they therefore have fair notice that they may be subject to

liability for emotional damages. Second, although the Supreme Court has made

clear that the contract metaphor used to analyze appropriate relief under Spending

Clause legislation is just that, even applying contract law directly to the question at

45
hand would yield the answer that emotional damages are recoverable under the

RA. Finally, given that permitting recovery of emotional damages will not

contradict the nature of the RA as Spending Clause legislation or, as far as we can

discern, otherwise interfere with Congress’s intent, we are bound by Bell v. Hood’s

presumption that “federal courts may use any available remedy to make good the

wrong done.” Emotional damages are plainly a form of compensatory damages

designed to “make good the wrong done,” and we have particular reason to

exercise our discretion to award them where, as here, emotional distress is the only

alleged damage to the victim and thus the only “available remedy to make good the

wrong done.” We take these points in order.

1.

As the Barnes Court’s concern with notice plainly reflects, a basic and

longstanding rule of contract law is that “[d]amages are not recoverable for loss

that the party in breach did not have reason to foresee as a probable result of the

breach when the contract was made.” Restatement (Second) of Contracts § 351

(1981); see also Hadley v. Baxendale, 156 Eng. Rep. 145 (Ex. 1854) (recoverable

damages are those that naturally result from the breach, or are the consequences of

special or unusual circumstances which are in the reasonable contemplation of the

parties when making the contract).

46
 As a matter of both common sense and case law, emotional distress is a

predictable, and thus foreseeable, consequence of discrimination. Certainly,

federal courts have long found that violations of the RA and other

antidiscrimination statutes frequently and palpably result in emotional distress to

the victims. See, e.g., Bogle v. McClure, 332 F.3d 1347, 1354, 1359 (11th Cir.

2003) (affirming award of emotional damages for race discrimination in violation

of 42 U.S.C. § 1983, where plaintiffs testified to having felt “embarrassed,

humiliated, stunned, confused, angry, frightened, discouraged, and betrayed,” with

one testifying, “I can’t begin to tell you what a toll it has taken on me. To be an

active and producing person and then to suddenly be just put on the shelf and made

to sit there through no purpose of my own or no doing of my own, I could not help

that I was hurt”); Ferrill v. Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999)

(affirming award of emotional damages for race discrimination in violation of 42

U.S.C. § 1981); Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th Cir. 1985)

(upholding award of emotional damages under §§ 1981 and 1983, noting that

“[t]he injury in civil rights cases may be intangible as here. It need not be financial

or physical but may include damages for humiliation and emotional distress”);

Aaron v. Ward, 96 N.E. 736, 737-38 (N.Y. 1911) (awarding emotional damages to

ticketed bathhouse guest denied access and referred to by a derogatory term for one

47
of Jewish ancestry); Odom v. E. Ave. Corp., 34 N.Y.S.2d 312, 314-16 (N.Y. Sup.

Ct. 1942) (awarding emotional damages to African-American hotel guests denied

service at hotel restaurant because of their race); see also Doe v. Dist. of Columbia,

796 F. Supp. 559, 565, 573 (D.D.C. 1992); Recanzone v. Washoe County Sch.

Dist., 696 F. Supp. 1372, 1373, 1378 (D. Nev. 1988).

The frequency and acuteness with which discrimination spawns emotional

distress in the victim suggest that emotional distress is a “probable result,”

Restatement (Second) of Contracts § 351, of funding recipients’ breach of their

promise not to discriminate, and thus that recipients have fair notice that, in

breaching, they may be subject to liability for emotional damages. Similarly,

whereas punitive damages “may range in orders of ‘indeterminate magnitude,’

untethered to compensable harm, and would thus pose a concern that recipients of

federal funding could not reasonably have anticipated,” Barnes, 536 U.S. at 190-91

(Souter, J., concurring) (quoting majority opinion at 188), emotional damages, like

other forms of compensatory damages, are designed to make the plaintiff whole,

and therefore bear a significant and altogether determinable relationship to events

in which the defendant entity participated and could have foreseen.

2.

In utilizing the contract analogy, the Barnes Court’s primary concern was

48
the notice problem we just discussed, and every Member of that Court, in three

separate opinions, emphasized the limits of the contract law analogy the Court used

to discuss this notice problem.27 However, even assuming that Barnes stands not

just for the proposition that a contract metaphor is illuminating in determining the

available remedies under Spending Clause legislation, but also for the proposition

that contract law applies more directly to the question at hand, we think this body

of common law would still yield the conclusion that emotional damages are

recoverable for intentional violations of § 504 of the RA.

Although the general rule is that emotional damages for breach of contract

27
The majority, for instance, was careful to note:

Our decision merely applies a principle expressed and applied many times before:
that the contractual nature of Spending Clause legislation has implications for our
construction of the scope of available remedies. We do not imply, for example,
that suits under Spending Clause legislation are suits in contract, or that
contract-law principles apply to all issues that they raise.

Barnes, 536 U.S. at 188 n.2 (internal quotation marks and citation omitted; emphasis in original);
see also id. at 186 (“[W]e have been careful not to imply that all contract-law rules apply to
Spending Clause legislation.”). Justice Souter, in a concurrence in which Justice O’Connor
joined, said that he

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.

Id. at 191 (Souter, J., concurring) (emphasis added). Finally, Justice Stevens, joined by Justices
Ginsburg and Breyer, concurred in the judgment only, and noted that the majority’s “novel
reliance on what has been, at most, a useful analogy to contract law has potentially far-reaching
consequences that go well beyond the issues briefed and argued in this case.” Id. at 192-93
(Stevens, J., concurring in the judgment).

49
will not lie, see Restatement (Second) of Contracts § 353, this rule is simply a

shorthand way of saying that emotional distress is usually not a foreseeable

consequence of breach. But when the nature of the contract is such that emotional

distress is foreseeable, emotional damages will lie:

It is true, in the ordinary commercial contract, damages are not
recoverable for disappointment, even amounting to alleged anguish,
because of breach. Such damages are . . . too remote. But these are
contracts entered into for the accomplishment of a commercial
purpose. Pecuniary interests are paramount. . . . [I]t has long been
settled that recovery therefor was not contemplated by the parties as
the natural and probable result of the breach. Yet not all contracts are
purely commercial in their nature. Some involve rights we cherish,
dignities we respect, emotions recognized by all as both sacred and
personal. In such cases the award of damages for mental distress and
suffering is a commonplace . . . .

Stewart v. Rudner, 84 N.W.2d 816, 823 (Mich. 1957) (internal quotation marks

and citations omitted).

Thus, the current Restatement rule is that a breached-upon party actually

may recover emotional damages whenever “the contract or the breach is of such a

kind that serious emotional disturbance was a particularly likely result.”

Restatement (Second) of Contracts § 353; see also 3 E. Allan Farnsworth,

Farnsworth on Contracts § 12.17 (3d ed. 2004) (explaining that some courts have

awarded emotional damages where the nature of the contract made emotional

distress a “particularly likely result” of breach, while others have awarded such

50
damages based on the “reprehensible” nature of the breach); 24 Richard A. Lord,

Williston on Contracts § 64:7 (4th ed. 2002) (“[W]here other than pecuniary

benefits are contracted for, damages have been allowed for injury to a person’s

feelings.”); 25 C.J.S. Damages § 100 (explaining that “[w]here the character of the

contract is of such a nature that a natural and probable consequence of the breach

will be to inflict mental pain or anguish . . ., the parties may be presumed to have

contracted with respect to mental anguish as an element of damages and a recovery

may be had therefor,” and noting that such contracts include “noncommercial

contracts, . . . or contracts involving rights cherished, dignities respected, and

emotions recognized by all as both sacred and personal”).

Courts, too, have embraced the idea that emotional damages may lie for

breach of “personal” contracts. See, e.g., Sullivan v. O’Connor, 296 N.E.2d 183,

188-89 (Mass. 1973) (“[T]here is no general rule barring [emotional damages] in

actions for breach of contract. It is all a question of the subject matter and

background of the contract . . . .”); Stewart, 84 N.W.2d at 822 (“[O]bjections to

recovery for mental disturbance, applicable equally to tort and contract actions,

have been so thoroughly demolished in recent years that we will not take the time

for review.”); id. at 824 (“[There is] a clear exception to the ‘rule’ (if there now is

any such) that damages for mental suffering are not recoverable in contract actions.

51
They are. When we have a contract concerned . . . not with pecuniary

aggrandizement but with matters of mental concern and solicitude, then a breach . .

. will inevitably and necessarily result in mental anguish, pain and suffering. . . .

Far from being outside the contemplation of the parties [emotional damages] are an

integral and inseparable part of it.”); Lamm v. Shingleton, 55 S.E.2d 810, 813

(N.C. 1949) (noting the “trend of modern decisions” that emotional damages are

recoverable “[w]here the contract is personal in nature and the contractual duty . . .

is so coupled with matters of mental concern or solicitude, or with the sensibilities

of the party . . . [that] it should be known to the parties . . . that [mental] suffering

will result from its breach”).28

28
One category of contracts whose breach is deemed “particularly likely to cause serious
emotional disturbance” are “contracts of carriers and innkeepers with passengers and guests.”
Restatement (Second) of Contracts § 353 cmt. a. As a result, entities that we would today refer
to as places of public accommodation have long been held liable for emotional damages under a
breach of contract theory. See, e.g., Boyce v. Greely Square Hotel Co., 126 N.E. 647 (N.Y.
1920) (emotional damages awarded for operator’s insulting behavior toward hotel guest);
Gillespie v. Brooklyn Heights R.R. Co., 70 N.E. 857 (N.Y. 1904) (same, toward train
passenger); Odom, 34 N.Y.S.2d at 314-16 (emotional damages awarded for racial discrimination
against hotel guest denied access to restaurant). Although MRN is not, of course, an inn or a
common carrier, some courts have found other entities to be sufficiently analogous to inns and
carriers as to justify the recovery of emotional damages by patrons for the entity’s
discrimination. See, e.g., Aaron, 96 N.E. at 737-38 (acknowledging the “distinction between
common carriers and innkeepers, who are obliged to serve all persons who seek accommodation
from them, and the keepers of public places of amusement or resort, such as the bathhouse of the
defendant, theaters, and the like. . . . [which] may discriminate and serve whom [they] please[],”
but holding that the latter class of businesses “cannot be said to be ‘strictly’ private,” and that
although “the plaintiff might have been denied admission altogether to the defendant’s
bathhouse, . . . the defendant having voluntarily entered into a contract with her admitting her to
the premises and agreeing to afford facilities for bathing, her status became similar to that of a
passenger of a common carrier or a guest of an innkeeper,” so that she, too, was entitled to
recover emotional damages for “improper expulsion” by anti-Semitic operator). Moreover, the

52
 Under contract law, the notable and longstanding exception permitting

emotional damages for breach of personal contracts sharply distinguishes the

emotional damages Sheely seeks from the punitive damages the Supreme Court

rationale for finding an implied contractual promise of decent treatment by innkeepers, common
carriers, and their analogs foreshadows some aspects of modern public accommodations law:

[T]he business of an innkeeper is of a quasi public character, invested with many
privileges, and burdened with correspondingly great responsibilities. . . . The
innkeeper holds himself out as able and willing to entertain guests for hire . . . .
One of the things which a guest for hire at a public inn has the right to insist upon
is respectful and decent treatment at the hands of the innkeeper and his servants.
That is an essential part of the contract whether it is express or implied. This
right of the guest necessarily implies an obligation on the part of the innkeeper
that neither he nor his servants will abuse or insult the guest, or indulge in any
conduct or speech that may unnecessarily bring upon him physical discomfort or
distress of mind.

De Wolf v. Ford, 86 N.E. 527, 529-30 (N.Y. 1908); see also Aaron, 96 N.E. at 738; Gillespie, 70
N.E. at 859.
Modern courts have gone even further beyond the innkeeper/common carrier exception
and found emotional damages available for breaches of a truly wide range of contracts. See,
e.g., Munday v. Waste Mgmt. of N. Am., Inc., 997 F. Supp. 681 (D. Md. 1998) (breach of
settlement agreement where employer retaliated against employee who had brought sex
discrimination and sexual harassment suit); Huskey v. Nat’l Broad. Co., 632 F. Supp. 1282,
1292-93 (N.D. Ill. 1986) (breach of contract to protect privacy of filmed individuals by blurring
their faces); Sexton v. St. Clair Fed. Sav. Bank, 653 So. 2d 959, 961-62 (Ala. 1995) (breach of
contract pertaining to the construction of plaintiffs’ residence); Gruenberg v. Aetna Ins. Co., 510
P.2d 1032, 1042 (Cal. 1973) (breach of insurance contract for bad faith denial of business’s
claims); Decker v. Browning-Ferris Indus. of Colo., Inc., 931 P.2d 436, 447-48 (Colo. 1997)
(breach of employment contract where employer terminated employees in violation of
company’s progressive disciplinary policy); Doe v. Roe, 681 N.E2d. 640, 650-51 (Ill. App. Ct.
1997) (breach of lawyer’s fiduciary duty to his client); McManus v. Galaxy Carpet Mills, Inc.,
433 So. 2d 854 (La. Ct. App. 1983) (breach of contract to provide non-defective carpeting,
where “intellectual enjoyment was a principal object of the contract”); Sullivan, 296 N.E.2d at
188-89 (breach of contract to aesthetically improve nose through rhinoplasty); Stewart, 84
N.W.2d at 825 (breach of physician’s promise to perform a Caesarean section); Lamm, 55
S.E.2d at 812-14 (breach of contract to provide leakproof casket). If these contracts are personal
enough to permit recovery for emotional damages, we think there can be little doubt that
contracts not to discriminate are also sufficiently personal.

53
refused to award under the RA in Barnes.29

3.

Having concluded that neither the contract metaphor the Supreme Court has

found useful in determining the available remedies under Spending Clause

legislation nor actual contract law bars recovery of emotional damages, we turn to

the Bell v. Hood presumption, which the Barnes Court reaffirmed, that “federal

courts may use any available remedy to make good the wrong done.” Barnes, 536

U.S. at 189 (emphasis added).

Once again, we see a striking difference between the punitive damages

rejected in Barnes and the emotional damages at issue today. Whereas punitive

damages “are not compensatory, and are therefore not embraced within the rule

described in Bell,” id. at 189, emotional damages are plainly a form of

compensatory damages designed to “make good the wrong done.”30 We are

29
In fact, the very same section of the Restatement that the Barnes Court cited for the
proposition that punitive damages are unavailable for breach of contract, see Barnes, 536 U.S. at
187-88, illustrates that non-economic compensatory damages are recoverable in certain
circumstances. See Restatement (Second) of Contracts § 355 cmt. a, illus. 1 (“A is employed as
a school teacher by B. In breach of contract and without notice B discharges A by excluding him
from the school building and by stating in the presence of the pupils that he is discharged.
Regardless of B’s motive in discharging A, A cannot recover punitive damages from B. A can
recover compensatory damages under the rule stated in § 347, including any damages for
emotional disturbance that are allowable under the rule stated in § 353.” (emphasis added)).
30
See, e.g., Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986)
(“[C]ompensatory damages may include not only out-of-pocket loss and other monetary harms,
but also such injuries as impairment of reputation, personal humiliation, and mental anguish and
suffering.” (internal quotation marks and alteration omitted)); Carey v. Piphus, 435 U.S. 247,

54
therefore unpersuaded by the district court’s brief discussion holding that

emotional damages are barred by Barnes’s rule that “only compensatory damages

for failing to provide the contractual obligation are recoverable.” Order at 12

(relying on the equally brief decision in Witbeck v. Embry-Riddle Aeronautical

Univ., Inc., 269 F. Supp. 2d 1338, 1340 (M.D. Fla. 2003), which itself relied only

on two pre-Franklin, pre-Barnes district court cases for the proposition that

emotional damages are unavailable under the RA).

Moreover, such damages are particularly appropriate where, as here,

emotional distress is the only alleged damage to the victim and thus the only

“available remedy to make good the wrong done,” Franklin, 503 U.S. at 66

(quoting Bell, 327 U.S. at 684), and the only way to “put private parties in as good

a position as they would have been had the contract been performed,” Barnes, 536

254, 264 (1978) (holding that “the basic purpose of a § 1983 damages award should be to
compensate persons for injuries caused by the deprivation of constitutional rights,” and that
“mental and emotional distress caused by the denial of procedural due process itself is
compensable under § 1983”); Banai v. Sec’y, U.S. Dep’t of Hous. & Urban Dev. ex rel. Times,
102 F.3d 1203, 1207 & n.4 (11th Cir. 1997) (holding that “anger, embarrassment, and emotional
distress are clearly compensable injuries under th[e] standard” of the Fair Housing Act, 42
U.S.C. § 3601 et seq., which permits recovery of “actual damages” -- that is, damages which
constitute “compensation for the victim’s injuries, not punishment for the perpetrator’s
wrongdoing”); 25 C.J.S. Damages § 94 (“[M]ental pain and suffering . . . is an element of actual
or compensatory, as distinguished from exemplary or punitive, damages.” (citing, inter alia,
Amos v. Prom, Inc., 115 F. Supp. 127, 131, 132 (N.D. Iowa 1953) (holding, in case where
plaintiff alleged she was “intentionally and maliciously refused admission to defendant’s
ballroom solely because she is [black],” in violation of a state civil rights statute, that
“[d]amages for emotional distress or mental suffering or humiliation are compensatory, not
exemplary”))).

55
U.S. at 189 (internal quotation marks omitted); see Franklin, 503 U.S. at 75-76

(rejecting the argument that Title IX relief should be limited to backpay and

prospective damages in part because such damages would offer no relief where

neither the plaintiff student nor her alleged harasser continued to attend the

school); cf. Lamm, 55 S.E.2d at 813 (“The contract [to inter a body] was

predominantly personal in nature and no substantial pecuniary loss would follow

its breach. [The widow plaintiff’s] mental concern, her sensibilities, and her

solicitude were the prime considerations for the contract . . . .”).

C.

When an entity accepts funding from the federal government, it does so in

exchange for a promise not to discriminate against third-party users of its services.

A foreseeable consequence of discrimination is emotional distress to the victim,

and emotional damages have long been available for contract breach in the public

accommodations context. Thus, where one of the benefits the government has

bargained for is the funding recipient’s promise not to discriminate, the recipient

cannot claim to lack fair notice that it may be liable for emotional damages when it

intentionally breaches that promise. The Supreme Court’s concern with notice in

awarding remedies for violations of Spending Clause legislation -- which operates

as a constraint on the Bell v. Hood presumption -- is thus satisfied, and we are

56
obliged to adhere to Bell’s presumption that we may award “any available remedy

to make good the wrong done.” In short, we conclude that emotional damages are

available to make whole the victims of violations of § 504 of the Rehabilitation

Act, and accordingly, we reverse the district court.

IV. Florida Civil Rights Act

Although we have reversed on Sheely’s claims under the ADA and the RA,

we affirm the district court’s grant of summary judgment to MRN on Sheely’s state

law claim under the Florida Civil Rights Act, Fla. Stat. §760.01 et seq. (“FCRA”).

That statute provides for a private right of action for violation of any Florida

discrimination statute, and Florida Statutes §§ 413.08 and 413.081, in turn, provide

that disabled individuals have the right to be accompanied by service animals in

places of public accommodation. The district court held that the FCRA’s narrow

definition of “public accommodation” does not apply to MRN, and that Sheely

may not “import” § 413.08’s broader definition of “public accommodation” into

the FCRA. We agree.

Section 760.07 of the FCRA provides that “[a]ny violation of any Florida

statute making unlawful discrimination because of . . . handicap . . . in the area[] of

. . . public accommodations gives rise to a cause of action for all relief and

damages described in § 760.11(5), unless greater damages are expressly provided

57
for.” Section 760.02(11) provides that “[f]or the purposes of §§ 760.01-760.11 and

509.092” -- i.e., for purposes of § 760.07 --

“Public accommodations” means places of public accommodation,
lodgings, facilities principally engaged in selling food for consumption on the
premises, gasoline stations, places of exhibition or entertainment, and other
covered establishments. Each of the following establishments which serves the
public is a place of public accommodation within the meaning of this section:

(a) Any inn, hotel, motel . . . .
(b) Any . . . facility principally engaged in selling food . . . .
(c) Any . . . place of exhibition or entertainment. . . .

Thus, § 760.02(11)’s definition of “public accommodations” does not include

medical facilities like MRN.

Sheely does not contend otherwise. Instead, she notes that MRN is a place

of public accommodation under Florida’s separate service animal statute, and

argues that this provides her with a private right of action against MRN under the

FCRA. We are not persuaded. Florida Statute § 413.08 provides that “[a]n

individual with a disability has the right to be accompanied by a service animal in

all areas of a public accommodation that the public or customers are normally

permitted to occupy,” id. § 413.08(3), and defines “public accommodation”

broadly to include “places to which the general public is invited,” id. §

413.08(1)(c). Although § 760.07 of the FCRA provides a private right of action

for “any Florida statute” making discrimination in places of public accommodation

58
unlawful, § 760.02 of the FCRA expressly states that its narrow definition of

“public accommodation” applies to § 760.07. Sheely therefore may not import §

413.08’s broader definition of “public accommodation” into the FCRA. As the

district court noted, this conclusion does not gut § 760.07. If MRN were a lodging,

food, or entertainment establishment, § 760.07 would provide a private right of

action for a violation of § 413.08.

Moreover, Sheely has failed to exhaust her administrative remedies under

the FCRA. The Act provides that “[a]ny person aggrieved by a violation of §§

760.01-760.10 may file a complaint with the [Florida] [C]ommission [on Human

Relations] within 365 days of the alleged violation . . . . [or] with the federal Equal

Employment Opportunity Commission or with any unit of government of the state

which is a fair-employment-practice agency under 29 C.F.R. §§ 1601.70-1601.80.”

Id. § 760.11(1). “Within 180 days of the filing of the complaint, the commission

shall determine if there is reasonable cause to believe that [a] discriminatory

practice has occurred in violation of the Florida Civil Rights Act of 1992.” Id. §

760.11(3). “In the event that the commission determines that there is reasonable

cause to believe that a discriminatory practice has occurred . . ., the aggrieved

person may . . . [b]ring a civil action . . . in any court of competent jurisdiction . . .

.” Id. § 760.11(4)(a) (emphasis added). However, “[i]f the commission determines

59
that there is not reasonable cause . . ., the commission shall dismiss the complaint. .

. . If the aggrieved person does not request an administrative hearing within . . . 35

days, the claim will be barred.” Id. § 760.11(7).

Although Sheely timely filed a complaint with the Commission, it

apparently concluded that there was not reasonable cause to believe that a

discriminatory practice had occurred in violation of the FCRA. The Commission’s

letter to Sheely states that “[b]ased on the information you provided, we are unable

to pursue this matter further” because § 760.02(11)’s definition of public

accommodation does not apply to MRN. “Under these circumstances,” the letter

concluded, “unless you advise us within 10 days . . . that the information on which

we have based our decision is incorrect, we will take no further action on your

inquiry.”31 There is no evidence in the record that Sheely provided the

Commission with further information within 10 days under the terms of the letter,

or that she requested an administrative hearing within 35 days under § 760.11(7).

As a result, Sheely failed to exhaust her administrative remedies under the Act.32

31
Although the Commission’s July 21, 2005, letter to Sheely did not expressly state that
the Commission found no “reasonable cause,” and although § 760.11(8) provides that if “the
commission fails to conciliate or determine whether there is reasonable cause on any complaint
under this section within 180 days of the filing of the complaint, an aggrieved person may
proceed under subsection (4), as if the commission determined that there was reasonable cause,”
we read the Commission’s letter as reporting to Sheely a finding of no reasonable cause.
32
Contrary to Sheely’s suggestion, the fact that the district court did not reach this issue
is irrelevant. We can affirm the district court so long as “the judgment entered is correct on any

60
 For these reasons, the district court properly granted summary judgment to

MRN on Sheely’s state law claim.

V. Conclusion

Because MRN has not met its burden of showing that it is “absolutely clear

that the allegedly wrongful behavior could not reasonably be expected to recur,”

Laidlaw, 528 U.S. at 189 (internal quotation marks omitted), this case is not moot.

Further, we hold for the first time that non-economic compensatory damages are

available under the Rehabilitation Act. We therefore reverse the district court’s

holdings on these two issues and remand for further proceedings consistent with

this opinion. However, we affirm the district court’s grant of summary judgment

to MRN on Sheely’s claim under Florida law.

AFFIRMED in part, REVERSED in part, and REMANDED.

legal ground regardless of the grounds addressed, adopted or rejected by the district court.”
Bonanni Ship Supply, Inc. v. United States, 959 F.2d 1558, 1561 (11th Cir. 1992).

61
COX, Circuit Judge, concurring in part and dissenting in part:

I join Part III of Judge Marcus’s opinion for the court dealing with non-

economic damages under the Rehabilitation Act (RA), and I join Part IV of Judge

Marcus’s opinion holding that Sheely failed to state a claim under Florida law. I

dissent from the mootness discussion in Part II of his opinion in light of the court’s

fact-finding. Fact-finding is the business of the district court–not the court of

appeals.

The issue before this court is whether the district court properly granted

summary judgment on the mootness issue. The majority decides that summary

judgment was improper. I concur in that determination. The problem is that the

majority engages in fact-finding on the mootness issue and effectively grants

summary judgment to Sheely on the issue of mootness by denying MRN the

opportunity to resolve in its favor disputed issues of fact regarding the new policy.

The district court’s summary judgment order found that the “policy

modification is exactly the relief this Court could have granted to Plaintiff [and]

[t]he record is undisputed that Defendant consulted an ADA expert, established a

formal written policy, and transmitted this written policy to all employees.” (R.1-

47 at 8) (internal punctuation omitted). The court concluded that there was no real

threat of a recurrent violation, stating that “the record is clear that the written

62
access policy is now in force, thus solving any problem that existed.”1 (R.1-47 at

15-16.) Consequently, the district court granted summary judgment to MRN only

because Sheely failed to show that MRN would likely commit future violations.

I disagree with the majority’s fact-finding on the issue of whether MRN is

likely to continue its allegedly discriminatory practices. Whether MRN is likely to

renew its challenged conduct in the future is a factual finding within the sole

province of the trial court. For example, in Troiano v. Supervisor of Elections, 382

F.3d 1276 (11th Cir. 2004) , we characterized the district court’s determination of

whether the defendant would renew its challenged conduct as a factual finding and

reviewed it for clear error. Id. at 1285. Similarly, in United States v. Concentrated

Phosphate Export Ass’n, 393 U.S. 199, 89 S. Ct. 361 (1968), the Supreme Court

stated that the determination of future violations was a “matter for the trial judge.”

393 U.S. at 203-04, 89 S. Ct. at 364. It is the district court’s responsibility to make

factual findings, not ours. S.S. Silberblatt, Inc. v. U.S. ex rel. Lambert Corp., 353

F.2d 545, 550 (5th Cir. 1965) (“It is not the province of this court to determine the

essential facts on which the judgment is based; that is the proper function of the

trial court.”).

1
The majority ignores this critical fact, which the district court characterized as
undisputed, when it states that the court only referenced three undisputed facts in its mootness
discussion. See Maj. Op. at n.15.

63
 The majority correctly notes that the district court did not consider the three

voluntary cessation factors2 nor make factual findings on the issue of continued

harm, and therefore, we have no factual findings to review on appeal. See Maj. Op.

at n.15. The district court did not make factual findings, however, because it

believed MRN was due summary judgment on the mootness issue because the

record was undisputed that MRN would not renew its challenged practices. If

summary judgment was improper, the court should reverse the grant of summary

judgment and remand the case to the district court with instructions to either try the

case or, at a minimum, conduct an evidentiary hearing to make findings of fact on

the issue of future harm.

Instead, the majority applies the three factors for the first time on appeal and

makes factual findings in the process, despite saying that the record is

“undisputed.”3 For example, regarding the first voluntary cessation factor–whether

2
The three factors are: (1) whether the challenged conduct was isolated or unintentional,
as opposed to continuing and deliberate; (2) whether the defendant’s voluntary cessation was
timed so as to avoid litigation; and (3) whether the defendant admitted liability. Maj. Op. at .
3
The majority quotes as its justification for fact-finding the district court’s statement that
the record is “undisputed.” While it is true that the district court said the record is undisputed, it
believed the record showed, without dispute, that MRN would not renew its challenged practices
in the future. Interestingly, however, the majority reaches the opposite conclusion on this
“undisputed” record.
Further, as support for its fact-finding without remand to the trial court, the majority cites
another case where the record on appeal was said to be undisputed. Maj. Op. at n.15 (citing
Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1324 (11th Cir. 2004) (“The facts
of this case are not in dispute.”)).

64
the challenged conduct was isolated or part of a pattern–the majority finds that

MRN’s treatment of Sheely was the result of a “years-long policy,” contrary

MRN’s contention that it was an isolated incident. This is a disputed issue of fact

best resolved by the district court. On the second voluntary cessation factor–the

reason for ceasing the challenged activity–the majority makes a credibility

determination regarding MRN’s motivation for implementing a new policy toward

service animals. The majority states that “the record does suggest that MRN was

motivated by a desire to avoid liability” and that MRN’s Vice President of Finance

and Business Administration, Rick Steinberg, conceded as much when he said that

the purpose of the policy was to “avoid future disputes such as [this one].” Maj.

Op. at __. But, a complete reading of his statement suggests a genuine motivation

for enacting the policy. Mr. Steinberg states that

[t]he purpose of the written policy was to inform employees of
[MRN’s] commitment to follow the law with respect to service animal
access, to help employees identify service animals, to inform
employees of [MRN’s] rules related to service animal access and to go
above and beyond the requirements of the ADA and Florida law so as
to avoid future disputes such as the one at issue [in this case].

(R.1-30, Steinberg Aff. ¶ 4.)

Therefore, whether MRN adopted the new policy in an effort to moot the

current litigation or simply to come into compliance with the ADA and RA is also

a question of fact that should be resolved by the district court.

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 Finally, the majority questions the sincerity of MRN’s intentions to adhere

to its new policy, saying that MRN “may well calculate that its new policy is no

longer the preferable course of action and revert to the old policy it prefers . . . .”

Maj. Op. at . This statement constitutes a credibility finding–one that is within

the sole province of the trial court–and is contrary to Mr. Steinberg’s statement of

intention to comply with the policy. (“All [MRN] employees are required to read,

understand and follow the Service Animal Policy and sign an acknowledgment

from verifying in writing that they will in fact do so.” (R.1-30, Steinberg Aff. ¶ 5.))

The district court thought that MRN’s intentions to follow the policy were sincere.

(“The record is undisputed that [MRN] consulted an ADA expert, established a

formal written policy, and transmitted this written policy to all employees. . . . The

relief that the Court would have granted . . . has already been accomplished by

[MRN’s] adoption of [the policy].” (R.1-47 at 8.))

This is not the first time an appellate court has engaged in fact-finding on

appeal. But, that does not make it right. I respectfully dissent.

66