Further Thoughts on Spector

By Tom Goldstein
on Jun 14, 2005 at 8:43 am

I thought I would return to the Court’s decision in the Spector case, in which we represented the plaintiffs. The ruling got lost a bit in the shuffle because it was decided the same day as Raich.

The principal points of decision in the case were:

(i) whether the ADA applies to any cruise ships;
(ii) whether the ADA applies to foreign-flag cruise ships in particular;
(iii) whether the ADA’s application is limited to U.S. territorial waters;
(iv) with respect to foreign-flag ships, whether the statute applies only to a subset (e.g., those conducting round-trip cruises to and from the U.S.);
(v) how the ADA by its terms limits the scope of required accommodations (e.g., to those that are “readily achievable”); and
(vi) with respect to foreign-flag ships, whether the ADA’s application is limited by U.S. treaty obligations.

The Fifth Circuit resolved the case on (ii) – holding that the ADA doesn’t reach foreign-flag vessels at all because the statute doesn’t say anything about those vessels (i.e., it lacks a “plain statement” to that effect) – and didn’t reach any of the remaining issues because the case involved only foreign-flag ships.

The Supreme Court rejected the Fifth Circuit’s holding, but splintered on a number of the issues. For (i) – whether the ADA applies vel non to cruise ships at all – six Justices (Justice Kennedy, joined by Justices Stevens, Souter, Thomas, Ginsburg, and Breyer) held that it obviously does (“there can be no serious doubt,” slip op. 6); the remaining three Justices didn’t reach the issue. This question was relatively obvious (as demonstrated by the fact that the Court resolved it in only a few sentences), although Norwegian had contested it.

For (ii) – whether the ADA specifically applies to foreign-flag ships – the same six Justices agreed that it does, at least in part. The clear statement rule articulated by the plurality is very favorable to the broad application of U.S. law: “This Court has long held that general statutes are presumed to apply to conduct that takes place aboard a foreign-flag vessel in United States territory if the interests of the United States or its citizens, rather than interests internal to the ship, are at stake.” Slip op. 6. That rule is “subject only to a narrow exception”: a plain statement is required “insofar as [statutes] regulate matters that involve only the internal order and discipline of the vessel, rather than the peace of the port.” Id. at 7.

Both (iii) – whether the ADA applies only in U.S. waters – and (iv) – whether it applies only to those ships with the greatest connection to U.S. territory – went essentially undiscussed in the opinions, notwithstanding that the Justices could have invoked them to limit the statute’s application. (It’s an interesting example of how the oral argument in a case can be misleading: the parties didn’t focus on either issue in their briefs, but both occupied a substantial part of the argument.)

The Court instead agreed with the parties’ focus on (v) and (vi) – the limitations imposed by the statute itself and by U.S. treaty obligations. Here, I was surprised that the Court was so divided. The controlling opinion was issued by a plurality of only three Justices (Kennedy, Stevens, and Souter). These sorts of pluralities have been rare in recent years. The plurality held that the ADA likely does not require permanent, significant, structural changes to cruise ships. “A permanent and significant modification to a ship’s physical structure goes to fundamental issues of ship design and construction, and it might be impossible for a ship to comply with all the requirements different jurisdictions might impose. The clear statement rule would most likely come into play if Title III were read to require permanent and significant structural modifications to foreign vessels.” Slip op. 11.

The Court’s “most likely” caveat reflects the plurality’s conclusion that the scope of the “internal affairs” exception remains unclear:

The precise content of the category “internal affairs” (or, as it is variously denoted in the case law, “internal order” or “internal operations”) is difficult to define with precision. There is, moreover, some ambiguity in our cases as to whether the relevant category of activities is restricted to matters that affect only the internal order of the ship when there is no effect on United States interests, or whether the clear statement rule further comes into play if the predominant effect of a statutory requirement is on a foreign ship’s internal affairs but the requirement also promotes the welfare of United States residents or territory.

Slip op. 9-10. See also slip op. 2 n.2 (Scalia, J., dissenting) (“The plurality intimates that the clear-statement rule might be inapplicable in situations where, as here, the foreign-flag ships have a number of contacts with the United States.”).

The Court notably held that limitations on required structural modifications apply to both foreign and domestic ships – although the latter is not particularly significant because only a couple of those ships exist – because it (in a portion of Justice Kennedy’s opinion that formed a full majority rather than a plurality) read the ADA itself by its terms not to require many of the accommodations in question. The Court held that changes that would create a conflict with international treaties would not be “readily achievable” under the ADA. The Court also held that the statute would not require accommodations that undermine safety – a conclusion that will have implications for other applications of the ADA.

These limitations on the ADA may ultimately be the case’s lasting legacy. As Justice Scalia wrote in dissent, “The Court asserts that Title III would not produce conflicts with the requirements of SOLAS and would not compromise safety concerns. This argument comes at the expense of an expansive en passant interpretation of the exceptions to the barrier-removal requirements of Title III–which interpretation will likely have more significant nationwide effects than the Court’s holding concerning Title III’s application to foreign-flag vessels.” Slip op. 5. This is a valuable lesson in litigation at the Court, where the Court may decide issues like these that are quite significant but that may (as here) have gone unbriefed by the parties.

On the scope of required structural changes, the Court divided five-to-four. Four Justices – Justice Thomas concurring, and Justices Scalia, dissenting, joined by the Chief Justice and Justice O’Connor – would have adopted a rule even more favorable to the cruise lines. Justice Thomas would not have required any structural changes. The dissenters, as noted, wouldn’t have applied the statute to foreign-flag cruise ships at all. That is the result Norwegian had argued for.

Two Justices – Justice Ginsburg concurring, joined by Justice Breyer – would have adopted a rule more favorable to our clients. They would have held – at least with respect to the Fifth Circuit’s “plain statement” requirement – that the “plain statement” rule is even narrower, such that the ADA applies absent a direct conflict with the requirements of international law. That is the result we had argued for. (This is another example of how oral argument can be misleading. Justices Ginsburg and Breyer had seemed to have considerable trouble with our position, but they wrote most favorably to us, although Justice Ginsburg included a footnote suggesting that one subject of questioning at argument – merchant ships – would present a harder case than cruise ships.) The nub of the disagreement seems to be that the concurrence read the plain statement rule to apply in cases of “conflict” with foreign law, whereas the plurality read it to apply when (to its mind) Congress would have expected the matter to be resolved by foreign rather than domestic law.

The case was remanded, and the decision leaves a number of issues unresolved. Obviously, the scope of the “significant” structural changes that cruise lines need not make may be hotly disputed. The ADA’s application outside of U.S. territorial waters remains unresolved. (Although it did not press the point, the government’s position was essentially that the statute applies to the ship while outside our territory as long as the contract was formed here.) The government also issued a substantial set of regulatory guidance for cruise lines that very likely will now be reconsidered.

At bottom, the plurality seems to have accepted our view that it is implausible to believe that Congress didn’t intend the ADA to apply to accommodations as important as cruise ships, almost all of which are foreign-flagged. This is the kind of common-sense reasoning that I think is very effective in the Court these days. The outcome of presuming that the ADA does not apply produces a result that is so unlikely that the Court holds that no presumption exists in the first place:

Cruise ships flying foreign flags of convenience offer public accommodations and transportation services to over 7 million United States residents annually, departing from and returning to ports located in the United States. Large numbers of disabled individuals, many of whom have mobility impairments that make other kinds of vacation travel difficult, take advantage of these cruises or would like to do so. To hold there is no Title III protection for disabled persons who seek to use the amenities of foreign cruise ships would be a harsh and unexpected interpretation of a statute designed to provide broad protection for the disabled. §12101. The clear statement rule adopted by the Court of Appeals for the Fifth Circuit, moreover, would imply that other general federal statutes–including, for example, Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U.S.C. § 2000a et seq.–would not apply aboard foreign cruise ships in United States waters. A clear statement rule with this sweeping application is unlikely to reflect congressional intent.

Ultimately, the case is a win for the plaintiffs. The Fifth Circuit had refused to apply the ADA to foreign-flag cruise ships and the Supreme Court reversed, holding that the cruise lines must eliminate all non-structural and some structural discrimination. But it is certainly not the complete victory we sought, as significant barriers to access for persons with mobility impairments may remain.