Barnes v. Gorman - Oral Argument - April 23, 2002

Barnes v. Gorman

Media for Barnes v. Gorman

Audio Transcription for Opinion Announcement - June 17, 2002 in Barnes v. Gorman

Audio Transcription for Oral Argument - April 23, 2002 in Barnes v. Gorman

William H. Rehnquist:

We'll hear argument next in No. 01-682, Kay Barnes v. Jeffrey Gorman.

Mr. Robbins.

Lawrence S. Robbins:

Thank you, Mr. Chief Justice, and may it please the Court: The Eighth Circuit held in this case that a private plaintiff may obtain punitive damages in an action brought against municipal government defendants under section 504 of the Rehabilitation Act of 1973 and title II of the Americans with Disabilities Act.

Although the court of appeals identified substantial evidence in the legislative record that Congress never intended this result, it thought that this Court's decision in Franklin against Gwinnett County Public Schools left it little or no choice in the matter.

As the Eighth Circuit read Franklin, once a cause of action has been created or inferred, it presumptively carries with it all common law remedies, including punitive damages, unless Congress has specifically said otherwise.

Sandra Day O'Connor:

Mr. Robbins, did any... did the petitioners raise the Newport case at any time below?

Lawrence S. Robbins:


Sandra Day O'Connor:

Why not?

Lawrence S. Robbins:

The... the party--

Sandra Day O'Connor:

I mean, it looks like the most obvious source of law on this topic.

What's going on here?

Lawrence S. Robbins:

--In the lower court, my client took the position that it was, in fact, an arm of the State, not an arm of the municipal government.

For various factors... it cited various factors that in its view warranted an Eleventh Amendment immunity, not a City of Newport immunity.

The court of appeals, in the decision being reviewed before this Court today, rejected that argument.

We have not separately sought certiorari on that decision.

But I... I do want to add on that point, Justice O'Connor, that in our view it would be a mistake to take respondent's suggestion that because my client took that position in the lower court, that this Court should therefore turn a blind eye to the City of Newport doctrine.

It seems to us that it's quite analogous to a situation in which a litigant, for example, decided to argue only legislative history in the lower court and then before this Court... and then someone said, well, you're therefore constrained not to look at the words of the statute.

That seems--

William H. Rehnquist:

It doesn't change the issue, I take it.

Lawrence S. Robbins:

--It does not change the issue.

The position the client took below was always that punitive damages are unwarranted for a variety of reasons, including a reason that we are now urging by virtue of the client having lost the Eleventh Amendment immunity issue below.

Ruth Bader Ginsburg:

Was there a reason?

Anthony M. Kennedy:

And I suppose it's not like an immunity from suit that can be waived.

It's... we use the term immunity, but it's not that sort of immunity.

Lawrence S. Robbins:


It... it is exactly the sense in which it was used in City of Newport as a background principle of law that Congress is assumed to have taken into consideration in enacting the actual test.

And we--

Antonin Scalia:

Doesn't the Eighth Circuit allow you to argue in the alternative?

I mean, you couldn't have said we have Eleventh Amendment immunity and... and if we don't, we're a municipality, and therefore Newport applies.

You could have done that, I suppose.