23-1217 Doherty v. Bice

United States Court of Appeals For the Second Circuit

August Term 2023

Argued: March 19, 2024 Decided: May 10, 2024

No. 23-1217

JASON DOHERTY,

Plaintiff-Appellant,

v.

PATRICIA BICE, Individually and as Dean of Student Affairs for Purchase College, State University of New York, JARED STAMMER, Individually and as Conduct Officer for Purchase College, State University of New York, QUI QUI BALASCIO, Individually and as Associate Dean of Student Affairs for Purchase College, State University of New York,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of New York No. 18-cv-10898, Nelson S. Román, Judge.

Before: CARNEY, SULLIVAN, and LEE, Circuit Judges.

Jason Doherty appeals from a judgment of the United States District Court for the Southern District of New York (Román, J.) dismissing his claims under the Americans with Disabilities Act (the “ADA”) for declaratory and injunctive relief and emotional distress damages against several current and former administrators of Purchase College, State University of New York (collectively, “defendants”). Doherty, a former student at Purchase College who has Asperger Syndrome, sued defendants after Purchase College issued no-contact orders against him at the request of three other students during his freshman orientation in August 2017. The district court granted judgment on the pleadings to defendants under Federal Rule of Civil Procedure 12(c), concluding that (1) it lacked subject matter jurisdiction over Doherty’s claims for declaratory and injunctive relief since they were moot, and (2) Doherty failed to state a claim for damages because emotional distress damages are not available under Title II of the ADA after the Supreme Court’s decision in Cummings v. Premier Rehab Keller, P.L.L.C.,

(2022). On appeal, Doherty challenges these conclusions and argues that, even if emotional distress damages are unavailable, the district court erred in not allowing him to assert claims for economic or nominal damages. We disagree. First, Doherty’s claims for declaratory and injunctive relief are moot given that the no- contact orders are not disciplinary actions, are not part of his permanent record, and expired upon his graduation. Second, emotional distress damages are not available under Title II of the ADA, which explicitly tracks the remedies, procedures, and rights available under the Rehabilitation Act. Finally, Doherty has forfeited any claims for other damages. Accordingly, we AFFIRM the judgment of the district court.

AFFIRMED.

E. CHRISTOPHER MURRAY (Merril S. Biscone, on the brief), Rivkin Radler LLP, Uniondale, NY, for Plaintiff-Appellant.

STEPHEN J. YANNI (Barbara D. Underwood, Ester Murdukhayeva, on the brief), New York State Office of the Attorney General, New York, NY, for Defendants-Appellees.

2 RICHARD J. SULLIVAN, Circuit Judge:

Jason Doherty appeals from the August 9, 2023 judgment of the United

States District Court for the Southern District of New York (Román, J.) dismissing

his claims under the Americans with Disabilities Act (the “ADA”) for declaratory

and injunctive relief and emotional distress damages against several current and

former administrators of Purchase College, State University of New York

(collectively, “defendants”). Doherty, a former student at Purchase College who

has Asperger Syndrome, sued defendants after Purchase College issued no-

contact orders against him at the request of three other students during his

freshman orientation in August 2017. The district court granted judgment on the

pleadings to defendants under Federal Rule of Civil Procedure 12(c), concluding

that (1) it lacked subject matter jurisdiction over Doherty’s claims for declaratory

and injunctive relief since they were moot, and (2) Doherty failed to state a claim

for damages because emotional distress damages are not available under Title II

of the ADA after the Supreme Court’s decision in Cummings v. Premier Rehab Keller,

P.L.L.C.,

(2022). On appeal, Doherty challenges these conclusions and

argues that, even if emotional distress damages are unavailable, the district court

erred in not allowing him to assert claims for economic or nominal damages. We

3 disagree. First, Doherty’s claims for declaratory and injunctive relief are moot

given that the no-contact orders are not disciplinary actions, are not part of his

permanent record, and expired upon his graduation. Second, emotional distress

damages are not available under Title II of the ADA, which explicitly tracks the

remedies, procedures, and rights available under the Rehabilitation Act. Finally,

Doherty has forfeited any claims for other damages. Accordingly, we AFFIRM

the judgment of the district court.

I. BACKGROUND

According to the facts alleged in the amended complaint, Doherty enrolled

as a student at Purchase College, State University of New York, in August 2017.

During freshman orientation, he went with some other students to a classmate’s

dorm room, where he encountered his classmate’s roommate, whom he knew

from before college and with whom he had a contentious history. Doherty left the

room and then attempted to reenter it. As Doherty tried to reenter, the roommate

yelled at Doherty to “get out” and closed and locked the door. App’x at 26.

Shortly thereafter, while Doherty was standing in the hallway with another friend,

two campus police officers approached and asked for their identification. When

4 Doherty asked what he did wrong, one of the officers yelled at him and threatened

him with arrest and a restraining order if he did not leave the dorm.

Later that day, Jared Stammer, Purchase’s Conduct Officer, called Doherty

and informed him that three students – the classmate, the roommate, and a third

individual whom Doherty did not know – had requested school-issued no-contact

orders against him, which Stammer then emailed to Doherty. 1 News of the no-

contact orders soon spread via an online chatroom. Doherty thereafter sought to

have the no-contact orders removed and asserted that, in issuing the orders,

Purchase had discriminated against him based on his disability. Notwithstanding

Doherty’s requests, the Dean of Student Affairs, Patricia Bice, and the Associate

Dean of Student Affairs, Qui Qui Balascio, informed him that he could not

challenge the no-contact orders and that Purchase would not vacate them.

In November 2018, Doherty brought suit against defendants, asserting

claims pursuant to

and the ADA. In 2019, defendants moved to

dismiss Doherty’s amended complaint. The district court granted the motion with

respect to the section 1983 claims but allowed Doherty’s ADA claim for monetary

1Each no-contact order directed Doherty and the person requesting the order to not have any contact with each other in person or by any other means, and provided that a violation of the order would result in disciplinary action.

5 relief against Stammer in his official capacity, as well as Doherty’s ADA claims for

monetary, declaratory, and injunctive relief against Bice and Balascio in their

official capacities, to proceed.

During discovery, defendants filed a motion to dismiss the remaining

claims pursuant to Rule 12(c), which the district court granted. First, the district

court found that the ADA claims for declaratory and injunctive relief were moot

because Doherty was no longer a student, and therefore no redress was available.

The district court rejected Doherty’s argument that the orders could affect his

future professional and educational prospects, since the no-contact orders were

not reflected on Doherty’s permanent academic record, were not disciplinary

actions, and were not shared with other universities or prospective employers.

Second, the district court found that Doherty’s claims for emotional distress

damages must be dismissed because such damages are not available under Title II

of the ADA. The district court reasoned that, because Title II of the ADA expressly

incorporates the remedies set forth in the Rehabilitation Act, and because the

Supreme Court held in Cummings that the Rehabilitation Act does not allow claims

for emotional distress damages, such damages must be unavailable under Title II

as well. The district court further concluded that Doherty’s attempt to reframe his

6 emotional distress claims as claims for breach-of-contract damages failed because

he identified no specific contract and offered no evidence of economic damages

beyond his allegation that his emotional distress made it difficult for him to use

Purchase’s facilities. This appeal followed.

II. STANDARDS OF REVIEW

“We review de novo a district court’s decision to grant a motion for judgment

on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).” Lively v.

WAFRA Inv. Advisory Grp., Inc.,

, 301 (2d Cir. 2021) (internal quotation

marks omitted). When a defendant moves under Rule 12(c) to dismiss a complaint

for failure to state a claim, the standard for granting the motion “is identical to that

for granting a Rule 12(b)(6) motion.”

(internal quotation marks omitted).

“Thus, we will accept all factual allegations in the complaint as true and draw all

reasonable inferences in [Doherty]’s favor.” Johnson v. Rowley,

(2d

Cir. 2009).

“We generally review de novo questions of standing and mootness.” Conn.

Citizens Def. League, Inc. v. Lamont,

(2d Cir. 2021). “To resolve

jurisdictional issues, we may consider affidavits and other materials beyond the

pleadings, but we cannot rely on conclusory or hearsay statements contained in

7 the affidavits.” Cooke v. United States,

(2d Cir. 2019); see also

Makarova v. United States,

(2d Cir. 2000) (explaining that a court

“may refer to evidence outside the pleadings” when resolving a motion to dismiss

for lack of subject matter jurisdiction).

II. DISCUSSION

Doherty argues that the district court erred in dismissing his claims for

declaratory and injunctive relief as moot and his damages claims as unavailable

under Title II of the ADA. He further argues that the district court erred in not

allowing him to pursue claims for economic or nominal damages. We disagree.

A. Doherty’s Claims for Declaratory and Injunctive Relief Are Moot.

The district court did not err in concluding that Doherty’s claims for

declaratory and injunctive relief were moot in light of his graduation from

Purchase. On appeal, Doherty asserts in a conclusory fashion that the no-contact

orders have not been vacated or expunged from his permanent academic record,

but he fails to acknowledge or dispute the declaration of a nonparty assistant dean

at Purchase – made under penalty of perjury – that no-contact orders “are not

reflected on students’ permanent academic records at Purchase College” in the

first place, App’x at 116, and “are not shared with prospective employers or as part

8 of records sent on behalf of students seeking admission to another college or

university,”

. If there were any remaining doubt as to Doherty’s record

at Purchase, the assistant dean dispelled it by further declaring that the no-contact

orders “at issue in this litigation have expired and are no longer in effect,” id. at

73, and “are not reflected on . . . Doherty’s permanent academic record,” id. at 116.

Doherty points to no evidence contradicting or even questioning the dean’s

declaration.

While a declaratory judgment or injunction could have provided relief to

Doherty when he was still a student at Purchase, now that he has graduated and

the no-contact orders have expired, the relief Doherty seeks “could provide no

legally cognizable benefits.” Fox v. Bd. of Trs. of State Univ. of N.Y.,

, 140

(2d Cir. 1994); see also Already, LLC v. Nike, Inc.,

(2013) (“A case

becomes moot – and therefore no longer a Case or Controversy for purposes of

Article III – when the issues presented are no longer live or the parties lack a legally

cognizable interest in the outcome.” (internal quotation marks omitted)). While

some claims for declaratory or injunctive relief may survive a student’s graduation

– perhaps, for example, claims based on an enduring disciplinary record, see

Winnick v. Manning,

, 548 n.3 (2d Cir. 1972) – here there is no indication

9 of any enduring record of the no-contact orders. The district court therefore did

not err in concluding that Doherty’s claims for declaratory and injunctive relief

were moot.

Doherty briefly argues that his claims are not moot because Purchase’s

process for issuing no-contact orders is likely to repeat itself. But the “capable of

repetition, yet evading review exception” to mootness is not applicable “unless the

repetition would affect the same complaining party.” Altman v. Bedford Cent. Sch.

Dist.,

, 71 (2d Cir. 2001) (internal quotation marks omitted). Since

Doherty has graduated from Purchase and has no plans to renew his education

there, he has not pleaded any facts from which we could infer that he is likely to

be subject to a Purchase no-contact order again. Moreover, Doherty is not suing

in a representative capacity on behalf of similarly situated individuals. Cf. Cook v.

Colgate Univ.,

(2d Cir. 1993) (“We have suggested that a student’s

claim may not be rendered moot by graduation if he or she sued in a

‘representational capacity’ as the leader of a student organization.”). Accordingly,

Doherty’s claims for declaratory and injunctive relief are moot.

10 B. Emotional Distress Damages Are Unavailable under Title II of the ADA.

The district court concluded that Doherty’s claims for emotional distress

damages failed as a matter of law because such damages are unavailable under

Title II of the ADA after the Supreme Court’s decision in Cummings. We agree.

In Cummings, the Supreme Court observed that “Congress has enacted four

statutes prohibiting recipients of federal financial assistance from discriminating

based on certain protected grounds”: “Title VI of the Civil Rights Act of 1964,”

“Title IX of the Education Amendments of 1972,” “the Rehabilitation Act,” and

“the Affordable Care Act.” 596 U.S. at 217–18. While “[n]one of these statutes

expressly provides victims of discrimination a private right of action to sue the

funding recipient in federal court,” the Supreme Court found an implied right of

action as to Title VI and Title IX, which Congress acknowledged in subsequent

amendments. Id. at 218. And both the Rehabilitation Act and the Affordable Care

Act “expressly incorporate[] the rights and remedies provided under Title VI.” Id.;

see 29 U.S.C. § 794a(a)(2);

(a).

In defining the scope of the implied right of action found in Title VI – and

incorporated by the Rehabilitation Act and the Affordable Care Act – the Supreme

Court has “applied [a] contract-law analogy,” under which a particular remedy is

11 “appropriate relief in a private Spending Clause action only if the funding

recipient is on notice that, by accepting federal funding, it exposes itself to liability

of that nature.” Cummings, 596 U.S. at 219–20 (internal quotation marks omitted).

As a rule, a funding recipient can be presumed to be “aware that, for breaching its

Spending Clause ‘contract’ with the Federal Government, it will be subject to the

usual contract remedies in private suits,” which include compensatory damages

and injunctive relief, but exclude, for example, punitive damages.

.

Applying that rule, the Supreme Court concluded that recovery for emotional

distress damages was unavailable under the cause of action incorporated into the

Rehabilitation Act and the Affordable Care Act because “emotional distress is

generally not compensable in contract.”

(internal quotation marks omitted).

The parties do not dispute that recovery for emotional distress damages is

unavailable under the Rehabilitation Act after Cummings. Nor do the parties

dispute that Title II of the ADA expressly incorporates the remedies, procedures,

and rights provided in the Rehabilitation Act. Nevertheless, Doherty argues that

recovery for emotional distress damages is available under Title II because the

ADA, unlike the Rehabilitation Act, is not Spending Clause legislation. We are not

persuaded.

12 Title II of the ADA states that “[t]he remedies, procedures, and rights set

forth in section 794a of title 29 shall be the remedies, procedures, and rights this

subchapter provides to any person alleging discrimination on the basis of

disability in violation of section 12132 of this title.”

. 2 While

Doherty is correct that the ADA is not Spending Clause legislation, that distinction

is of no moment since section 12133 expressly links the “remedies, procedures, and

rights” provided by Title II to the “remedies, procedures, and rights” set forth in

the Rehabilitation Act.

Indeed, the Supreme Court has already addressed Doherty’s argument in

the context of punitive damages. In Barnes v. Gorman, the Supreme Court held that

punitive damages were not available under the Title VI implied cause of action

because “punitive damages, unlike compensatory damages and injunction, are

generally not available for breach of contract.”

(2002). The

Supreme Court went on to conclude that “[b]ecause punitive damages may not be

awarded in private suits brought under Title VI of the 1964 Civil Rights Act, it

follows that they may not be awarded in suits brought under § 202 of the ADA

2In turn, 29 U.S.C. § 794a(a)(2) provides: “The remedies, procedures, and rights 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 or Federal provider of such assistance under section 794 of this title.”

13 and § 504 of the Rehabilitation Act.” Id. at 189. In a footnote, the Supreme Court

specifically rejected the contention that the “analysis of Title VI does not carry over

to the ADA because the latter is not Spending Clause legislation.” Id. at 189 n.3.

To this end, the Supreme Court noted that “[t]he ADA could not be clearer” that

its “remedies, procedures, and rights” are tied to those in the Rehabilitation Act,

which makes “the ADA’s status as a non[-]Spending Clause tort statute quite

irrelevant.” Id. (internal quotation marks omitted).

Because recovery for emotional distress damages is unavailable under the

Rehabilitation Act’s cause of action, we now hold that such recovery is likewise

unavailable under Title II of the ADA, which explicitly borrows the “remedies,

procedures, and rights” of the Rehabilitation Act. Accordingly, Doherty’s claims

for emotional distress damages fail as a matter of law.

C. Doherty Has Forfeited Any Claims for Other Damages.

Finally, Doherty seeks to assert claims for economic and nominal damages.

But he expressly disavowed any claims for other damages when he repeatedly

stated during this now-five-years-running litigation that he was not asserting

injuries or damages besides those grounded in emotional distress. For example,

in response to defendants’ interrogatories, Doherty stated that he “is not claiming

14 economic injuries” and that he “is not alleging any other injuries” besides

emotional distress. App’x at 79. Later, in an objection to a magistrate judge’s

discovery order, Doherty insisted that he “claims only garden variety emotional

distress.” Dist. Ct. Doc. No. 58 at 2.

Doherty attempted to walk back these statements in his response to

defendants’ motion to dismiss, asserting that in fact he had been seeking “damages

that are analogous to breach of contract damages” all along. App’x at 86. The

district court rejected this argument as an unconvincing attempt to “reframe [the]

emotional damages claim as a claim for contractual damages.” Doherty v. Bice, No.

18-cv-10898 (NSR),

, at *5 (S.D.N.Y. Aug. 9, 2023). The district

court did not address nominal damages in its order, since the only reference to

such damages in Doherty’s opposition to the motion to dismiss was while

recounting the facts of a case he cited regarding attorney fees. See App’x at 94. At

no point did Doherty attempt to further amend his complaint to seek nominal or

economic damages.

On appeal, Doherty ignores these shortcomings and blithely refers to his

“other claims for damages,” including his claim for “nominal damages.” Doherty

Br. at 17, 23. But Doherty cannot will his way into a complaint that he did not file,

15 and he certainly cannot amend his complaint on appeal. Accordingly, we hold

that the district court did not err in concluding that Doherty “only s[ought]

monetary damages for . . . emotional distress.” Doherty,

, at *4.

The additional damages claims he asserts on appeal are forfeited. 3

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

3Doherty argues for the first time in his reply brief that he was not required to explicitly request nominal damages in his complaint. We decline to address this argument, since “[i]ssues raised for the first time in a reply brief are generally deemed [forfeited].” Pettaway v. Nat’l Recovery Sols., LLC,

, 305 n.2 (2d Cir. 2020) (internal quotation marks omitted).

16