Transcript

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL., Petitioners v. PARALYZED VETERANS OF AMERICA, ET AL.

No. 85-289

March 26, 1986

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:58 o'clock a.m.

APPEARANCES:

CHARLES FRIED, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf of Petitioners.

DOUGLAS L. PARKER, ESQ., Washington, D.C.; on behalf of Respondents.

PROCEEDINGS

CHIEF JUSTICE BURGER: Mr. Solicitor General, I think you may proceed whenever you're ready.

ORAL ARGUMENT OF CHARLES FRIED, ESQ. ON BEHALF OF PETITIONERS

MR. FRIED: Thank you, Mr. Chief Justice, and may it please the Court.

In this case the Civil Aeronautics Board, which at that time was the Government agency charged with the regulation of airline services, issued regulations under Section 504 regarding discrimination against handicapped persons. It limited those, it limited the reach of those regulations, to airline subsidized by the Federal Government, subsidized under the small communities program.

The Court of Appeals invalidated those regulations insofar as they were so limited, and on remand required the Department of Transportation, which is the successor agency to CAB, to extend the reach of these regulations to all commercial air carriers. It is that invalidation and that order on remand that we seek to have reversed.

In 1979 the Department of Transportation through its component the Federal Aviation Administration issued regulations regarding discrimination against handicapped persons in airport services, the FAA being the agency charged with and administering subsidies to airports. Those regulations have never been challenged and are not in issue in this case.

It is worth at the outset identifying what the underlying policy judgment of Section 504 is. That policy judgment is a commitment, I think it's a moral commitment, that handicapped persons must be allowed the opportunity to be independent and productive citizens. And that means removing barriers of discrimination to that independence, barriers usually erected by thoughtlessness and ignorance.

What this case is about, why there is a litigation at all, is because Congress chose to embody that policy in Section 504, not by legislating to the full extent of its very broad powers, for instance under the commerce clause as it did in Title VII, but rather Congress chose to limit the reach of its regulations to those receiving federal moneys and to the programs of those receiving federal moneys, thereby assuring that anyone receiving federal money accept as a condition of that receipt the obligation not to discriminate against handicapped persons.

This Congressional choice was by no means casual or unprincipled. Accepting the obligation to accommodate handicapped persons will not always be easy or costless, as this Court recognized in the case of Alexander and Choate.

It was a rational judgment for Congress when it first ventured into this area to limit the scope of regulation to those who choose to accept moneys from the Federal Government and to impose a condition on that receipt that in the assisted program they must accept the burden of regulation.

Now, when Congress has determined to restrain the reach of federal regulation, it behooves the United States to respect that judgment, as we have done in this case, I believe, and not to seek by strained and imaginative arguments to make the regulatory scheme more nearly universal after all.

That I think is what is at stake in this case.

QUESTION: Mr. Fried, would you mind giving us a bit of explanation about what the position of the Department of Transportation really is? It sounds like the Department agreed at least in part with the Respondents in that it wanted to apply certain regulations prohibiting discrimination to handicapped people by commercial airlines.

And so what is their position and what are they relying on if they intend to promulgate and make effective such regulations?

MR. FRIED: Justice O'Connor, the original regulations of the CAB would have reached all airlines, but not all aircraft. It was limited to aircraft with 30 or more seats. The final regulations in question here reached all airplanes, but only of subsidized carriers.

By executive order, all regulations under Section 504 -- and these regulations are issued under the statutory authority of Section 504 -- all regulations under Section 504 must be cleared and must be approved by the Department of Justice. Therefore, the expert agency to whom I believe deference is required in respect to the jurisdictional aspect, if you will, of these regulations is the Department of Justice.

The Department of Transportation is the expert agency and the agency deserving deference is respect to what are the needs of handicapped persons and how those needs may properly be accommodated. The Department of Justice by executive order is the expert agency in identifying the jurisdictional limits of Section 504, and in that --

QUESTION: Well, is Section 504 the only section on which the Department of Transportation could rely if it wanted to adopt these regulations?

MR. FRIED: There are two other sections under the Federal Aviation Act. Section 404(a) and 404(b) are pertinent. Section 404(a) required simply that all air carriers assure safe and adequate carriage. Section 404(b), which has since lapsed with the sunsetting of the CAB and with airline deregulation, forbade any unfair discrimination.

Now, the original regulations which were first promulgated in 1979 when 404(b) was still extant and when it had three more years of life, three or four more years of life before it, would have been able to use 404(b), the unfair discrimination peg, for the extent of those regulations.

But 404(b) has lapsed and is no longer available as a predicate for regulation, leaving only 404(a), which speaks only to obligations of safe and adequate carriage. And these regulations have not sought to have been promulgated and were not promulgated pursuant to that authority.

Now, the Court of Appeals and the Respondents call to our attention what they characterize as an anomaly, and that is that handicapped persons are protected in their use of airports and are protected in their use of a small number of subsidized carriers, but do not get the benefit of federal protection in the large number of commercial airlines.

We submit that this is not indeed an anomaly at all. It is the familiar result whenever legislation does not go as far as constitutional power would allow it, whenever Congress seeks to draw a line. Whenever a line is drawn, there will of course be cases on either side of that line which are quite close to each other.

But that is a fact which this Court, and I think any mature legal system, is entirely familiar with and should not be unduly bemused by. I don't think it's appropriate to belabor this anomaly, but rather the appropriate thing to do is to determine in an altogether straightforward way what was Congress' intent here.

And its intent was to regulate only recipients of federal financial assistance, and then only the assisted programs of such recipients. And our obligation in the Department of Justice was to faithfully and in a simple and straightforward way identify who is the recipient.

And it seemed that the recipient here is quite easily identified. It is the subsidized airline, or in respect to the regulations not in issue here it is the subsidized airport. Those are the recipients. There is no great mystery about that.

And the identification of the assisted program follows also rather directly and naturally. It is flying to small communities in the case of subsidized airlines. It is provision of airport services in the case of the subsidized airports.

Now, the Court --

QUESTION: Mr. Solicitor General, may I ask a little bit about the nature of the airport subsidy. Does that involve continuing payments for activities that go on in the airports, or are they like construction grants to build runways and buildings? What exactly is it?

MR. FRIED: They are construction grants to build runways, to build or improve lighting and safety, features having to do with airport operations, and they have on occasion, particularly in the past, although there are no such grants currently involved, been moneys for the actual construction of airport terminals.

QUESTION: As I understand it, the regulations contemplate some control over activities of lessees and concessionaires in the airport terminals, is that correct?

MR. FRIED: Well, that is a rather complicated point, and if you'll bear with me I'll try to sort it out.

QUESTION: My question is, why are they different from the airlines. That's the thrust of the question.

MR. FRIED: I would like to sort that out. There are regulations, and clearly the regulations we have here -- well, not the airline regulations, but the airport regulations, clearly protect the handicapped traveler, handicapped persons, is such airport activities as baggage handling, access to ticket counters and the like.

There are other regulations which were adopted under Title VI, which are not in issue in this case, and which were adopted prior to this Court's decision in North Haven and therefore of course prior to this Court's decision in the Grove City College case, which regulations spoke rather broadly and included restaurants, included taxi services, included car rental services, and so on.

And it is of course a question whether, had the regulations dealing with handicapped persons been extended in that way here, whether those would be valid. But we don't have that question before us now.

QUESTION: May I ask about the ticket handling, for example. Do they in substance say that a handicapped person must be given non-discriminatory treatment in connection with the sale of tickets? Do they in fact insist then that the ticket give them a ride on an airplane that's just like the non-handicapped person gets?

MR. FRIED: I think that would be the kind of stretch which we very much think going over the jurisdictional lines which Congress drew. What is meant by discrimination against handicapped persons in the ticketing process is that a handicapped person approaching the ticket counter should be able to approach the ticket counter, should be able to buy a ticket if one is available on the same basis as anyone else.

QUESTION: This is a transaction that the person has with the airline, which is I guess a lessee of the airport, isn't it?

MR. FRIED: The actual transaction of the purchase and sale of the ticket depends -- is not covered, no, because after all the ticket --

QUESTION: Well, isn't access -- aren't the facilities managed entirely by the airlines? The ticket selling and baggage handling, isn't that all done by the airlines?

MR. FRIED: Baggage handling is done by airline employees on facilities leased from the airport operators, so the facilities of the airline, as are for instance boarding activities are activities carried on often by airline personnel, but on facilities leased from the airport operator.

QUESTION: But normally when you have a -- your remedy if there is a violation of a 504 regulation is to withhold funds, I suppose, would be one thing you would do. If an airline said, we're just not interested in handling baggage for these handicapped people, they present us with all sorts of problems, we won't do it, what would the remedy be against the airlines? Would you cut off the money for the airport?

MR. FRIED: It's quite clear that the airport is under an obligation that, where there is a covered airport service, it may not slough off its 504 obligations by contracting those obligations out. So for instance, it cannot by leasing the whole airport building to some third party slough off its obligations to make that airport --

QUESTION: Well, but it normally doesn't do the baggage handling itself anyway. It's not something it would normally do. I mean, that's part of an airline operation, I would assume.

But you're suggesting that the airport regulation is -- the regulation may lawfully extend to control over the manner in which the airlines handle baggage within the airport terminal?

MR. FRIED: Yes, that is our contention and the regulations so provide, because that is a ground operation.

QUESTION: What about the process of boarding the aircraft itself?

MR. FRIED: Well, when we get to the point of the --

QUESTION: Or putting the baggage on the airplane.

MR. FRIED: If your question is directed at the seating of passengers, that is no longer an airport service. That has something to do with the actual flying of the plane. We don't think that flying planes is an airport service, to make the point directly.

And seating a passenger is a necessary preliminary part of flying that passenger, and it takes place within the airplane.

Now, the boarding gate -- if you have an airport which does not have available facilities to allow handicapped persons to reach an airport, that airport is in violation of its 504 obligations, because of course there are airlines, some of them subsidized airlines and therefore they're compelled and other voluntarily, which do accommodate handicapped persons.

And therefore it would violate the direct intention of the statute and the regulation if those persons whom the airlines wish to accommodate couldn't get to their planes because the airport itself was interposing a barrier. That's precisely the kind of thing which is within the sights of this regulation.

QUESTION: Well, Mr. Solicitor General, suppose the airport makes sure the handicapped person can get to the boarding gate, wheelchairs and what-not, but it's the airline, I take it, that will either get the handicapped person on board or not. It's not the airport.

MR. FRIED: Once you are at the perimeter of the building, if you like -- and one can make --

QUESTION: Say you're at the boarding gate. The airport gets the handicapped person to where, to the gate, to gate A or wherever it is, and he is sitting there in his wheelchair. And then the airline says: Awfully sorry, but we don't furnish wheelchairs for you to get on the plane.

MR. FRIED: Justice White, here we are exactly at that line which is so troublesome.

QUESTION: I know, but which side of the line does this fall?

MR. FRIED: May I -- with your leave, may I try to draw the line more finely. If you have one of those devices which rolls out of the airport and then kind of attaches onto the airport, onto the airplane, we would submit that that's an extension of the boarding gate and the airport must not, must not not have available that kind of a device so that a handicapped person, should the airline be there to receive him, he should not be able to get to that airline.

But once you get to the door of the airplane, the airline takes over, that is correct. That's where I would draw the line.

QUESTION: When you say the door, you mean the bottom of the ramp or the top?

(Laughter.)

QUESTION: Well, Mr. Chief Justice, that's a case that troubled me, and I would distinguish between these devices which creed out of the building and attach onto the plane, and I think those devices are an extension of the terminal and therefore are covered, and --

QUESTION: Are you sure they're not owned by the airline?

MR. FRIED: I doubt that they're owned by the airlines, but even --

QUESTION: Well, they have the name of the airline on them.

MR. FRIED: Oh, but so does the building and so do the counters.

QUESTION: I've never seen a building that said "American Airlines."

QUESTION: Sections of it are labeled, are they not?

MR. FRIED: Oh, I think there's a good bit --

QUESTION: On these runways they've all got labels on them, and you don't have any -- they say the airline. I'm just raising the question.

MR. FRIED: Well, I think I would disagree, Your Honor, respectfully, that the presence of the name on that device is particularly significant.

QUESTION: Well, may I respectfully disagree with your determination that it is a part of the terminal, unless you're sure.

QUESTION: May I make a suggestion, that really you'd have the same question if you have it out on the runway, you have to walk to it, and then go up a stairway along the side of the plane. That might well be owned by the airline, and would still, I assume, under your position be an airport service.

MR. FRIED: Yes.

QUESTION: Even if owned by the airline.

MR. FRIED: The one case which I was struggling with and which I would call to your attention is in some of the smaller aircraft, where in fact the boarding stairway is a part of the aircraft itself. And at that point, I think we have a clear case of something that would not be covered.

Insofar as the boarding facilities are part of the services supplied by the airport, then those boarding facilities would be covered.

QUESTION: The thing that troubles me -- I hate to keep interrupting, but you say supplied by the airport. But does it in the Government's view make a difference whether those facilities are leased, owned, leased or owned by the airline, as opposed to being the property of the airport? I don't think it does.

MR. FRIED: I think, Justice Stevens, I think your suggestion is helpful, because the crucial point is not what short of the airplane itself is covered, and that's where we are bumping up against this line and having difficulty with, but the point that we insist on is, whatever short of the airplane may or may not be covered, one thing is quite clear: The airplane itself is not covered.

QUESTION: Under the regulations. But if the statute justifies the regulation for airline-owned equipment that is used on the airport, why doesn't it equally justify the airplane, what happens to the airplane while it's taxiing down the runway? That's the problem.

MR. FRIED: Justice Stevens, the way I would respond to that is that the regulations do not justify the actual airline operations because the airline is not a recipient of the assistance. And whether they do in fact justify the stairways or this creeping device or not is a difficult question, and we rather suppose that the regulations do include that.

But it's possible that we are incorrect on that point. What we wish to insist on is that the airline -- the airplane itself and its flying is not covered. And there I think the most helpful analogy would he, if we'd like to return to ground, is a highway.

And the program receiving money is highway assistance, and they are highway operators, people who keep highways in repair, who build them and maintain them and so on. Now, whatever else may or may not be a highway service, it seems to us that running a bus and providing bus transportation is not a highway service.

QUESTION: Running a baggage cart out from the terminal to the airplane is?

MR. FRIED: It's possible, Justice Stevens, that if your concern prevails what you have succeeded is showing is that our regulations are too generous.

QUESTION: That's exactly right.

MR. FRIED: And that issue, of course, is not the issue before the Court. The claim is that they are not generous enough.

QUESTION: You were going to tell us, you were going to define the line with clarity for us, and that's what I'm really seeking, whether the line is really defined in the correct way.

MR. FRIED: I hope that there is sufficient clarity by drawing the line at the boundaries of the airplane for the straightforward reason that airlines don't receive the assistance and that flying is not an airport service, just as driving along a highway is not a highway service, it's a driving or a busing service.

If I may reverse the balance of my time for rebuttal, thank you.

CHIEF JUSTICE BURGER: Very well.

Mr. Parker.

ORAL ARGUMENT OF DOUGLAS L. PARKER, ESQ., ON BEHALF OF RESPONDENTS

MR. PARKER: Mr. Chief Justice and may it please the Court:

Justice Stevens' questions I think point to, very clearly to the position of the Respondents in this case. Our position is that where the Federal Government is providing money for the construction of airport runways, that it is not consistent with Section 504 to protect a handicapped person from discrimination at a gift shop located inside the terminal and not protect that same person from discrimination if she wishes to board an airplane sitting on the runway that is conducted with federal money.

The Government's position is that only the most peripheral activities at airports are covered, that so long as those activities have nothing to do with people boarding airplanes that they've covered. That I think, as your questions suggest, leads to something other than a bright line, something other than a bemusing anomaly, but a frustration of the purposes of Section 504.

That position, we submit, ignores the basic purposes for which the grants are provided, and it distorts the decision of this Court in Grove City College versus Bell.

The Court of Appeals below reached its conclusion that Section 504 had to extend to the landing and taking off at least of aircraft only after very careful consideration of the findings made by the Civil Aeronautics Board. Those findings are still very significant, even though the substance of the regulations are not before the Court.

The CAB and the DOT found that there was a problem of handicapped discrimination by airlines. There are real rights at stake here. The issues are not theoretical ones, but rather they are real ones.

The record below was replete with examples of actions by airlines which were arbitrary and inconsistent and which had the effect of denying access, and certainly causing a great deal of embarrassment and inconvenience, to any handicapped person who wished to use a commercial airline.

In response to that, after an extended rulemaking, the CAB came up with regulations. Those regulations are very limited in their scope, and it's correct that the substance of those regulations are not before the Court.

But it's important to keep in mind what they did and what they were trying to do. That was to try to make certain, at a minimum, that the decisions made by airline personnel in selling tickets, in providing boarding assistance, in letting people get on the airplane -- the idea was to make sure that those decisions were based on safety considerations and based on the actual need, on the factors that were necessary in order to provide air transportation, to eliminate the possibility or at least reduce the possibility that those kinds of decisions would be made based on irrational assumptions and prejudice.

Basically what the regulations do is to define the circumstances under which advance notice can be required, define the circumstances under which a person can be required to have an attendant.

My clients don't think those regulations are perfect by any means. They do seem to be a step in the right direction, however.

At the same time --

QUESTION: You challenged them in the Court of Appeals and the Court of Appeals upheld them?

MR. PARKER: That's correct. That's correct, Your Honor. We are not challenging the substance of them here.

It's interesting that the regulations also seem to be acceptable to the airlines. The regulations don't require any substantive structural modifications of the airplanes at all. They defer at every step of the way to safety consideration, both as established by the FAA and by airline personnel. And none of the airlines seem to claim, and no one has claimed specifically at least, that these particular regulations would impose any significant burden on the airlines.

Nevertheless -- I would add to that also that the Department of Transportation seems to agree with that position, that they don't impose any particular serious burden on airlines.

Nevertheless, as the result of this sort of jurisdictional misunderstanding between the Civil Aeronautics Board and the DOT, the regulations do not apply to any major airlines at all. And as a result of that, handicapped persons really have no protection if they wish to use airplanes and to fly on commercial airlines.

QUESTION: Have the commercial airlines continued to this day to conduct themselves in a manner which would be in violation of those proposed regulations?

MR. PARKER: Justice O'Connor, the airlines' activity is somewhat unpredictable. There are certainly airlines that have an excellent record and have not ever treated handicapped people in any kind of an unfair way. But one never knows.

Basically what these regulations did, I think, and that's the reason airlines seem rather satisfied with them, was to take the existing practices of the best airlines and sort of codify them and say these are acceptable standards and this is what you should be complying with.

The thrust of our argument here, I think -- and again, it goes to the question of drawing that sort of funny line at the airline. The thrust of our argument is that the Government's interpretation of what "program specificity" means leads to a very odd result. It certainly is a hard program to define, and we submit that the Government's program, however they have defined it, really doesn't make any sense and really makes Grove City, Grove City College versus Bell, almost impossible to apply.

Grove City says that you look at the underlying statute and you look at what Congress thought they were funding. Congress here was not funding airports any more than they have funded colleges or higher education. They certainly, while they provide grants to airports, they are not, as the Solicitor General correctly pointed out, they are not grants for sort of running the airports.

They are discrete earmarked grants: We need to resurface our runway; we need to install lighting equipment so that airplanes can taxi around on our runways more safely. Those are the kinds of grants.

QUESTION: Well, are you saying, Mr. Parker, then that you do go back and look at the grant statute and just, and that is the program, whatever the grant was for?

MR. PARKER: Absolutely, absolutely. The grants here --

QUESTION: But then if you do that, and say one of the airlines decides not to comply with the anti-discrimination mandate of the statute, what do you do? Withdraw the money for the runway that the airline uses?

How do you enforce it against an airline?

MR. PARKER: There are various remedies that you can impose. I suppose that in this situation you would not terminate the grant. You would not tear up the runway, in effect.

The Justice Department has the authority, at least, and a court has the authority to enter injunctive relief and say, in the future --

QUESTION: I suppose they could do that even without the regulations if the statute covers the activity, couldn't they? Which in turn would mean, it seems to me, that they could enforce the statute against individual operators of private planes and the like.

MR. PARKER: They shouldn't be able to enforce it against an individual operator of a private plane because the individual operator of a private plane is simply not covered by the statute.

QUESTION: If a big airplane is covered when it lands and takes off, why isn't a small airplane?

QUESTION: They use the same runway.

MR. PARKER: They do, yes.

QUESTION: They use the same runway and the same --

MR. PARKER: And they receive exactly the same kind of assistance. The difference is that -- the difference is the posture that the airlines are in both vis a vis the airports and vis a vis their passengers.

QUESTION: You may have a small taxi operator who says, I just won't take people of a race that I don't like. I suppose Title VI would apply.

MR. PARKER: And that taxi operator would be covered, would be covered by Title VI.

QUESTION: Well, what about a private individual who says, I don't -- I'll just take my friends and I won't take take people of an opposite race?

MR. PARKER: A private individual who is not in opposition to deny access to someone else, a passenger, is not covered. The reason that person is not covered is because in that situation someone who uses a private plane, is lucky enough to have their own private plane, is not under our definition a recipient. They are --

QUESTION: Why not? He's using the airport facilities.

MR. PARKER: Because they're an ultimate beneficiary.

QUESTION: So is the big airline.

MR. PARKER: No. The big airline, with all respect, the big airline --

QUESTION: The small plane has two seats in the back and he can take guest or not. Why isn't that the same?

MR. PARKER: Because the -- it is not the same because the small airlines are not in a position -- for one thing, they are not in the business of providing transportation, and they are not in the position of denying access.

QUESTION: The word is "recipient," not "business."

MR. PARKER: I'm sorry?

QUESTION: The word is "recipient," not "business. "

QUESTION: Yes, it doesn't say anything about business.

MR. PARKER: That's correct. The definition of recipient is -- excludes ultimate beneficiaries. The question -- the reason this gets somewhat confusing, I think, is that you have to look at the statutory scheme and say who are the ultimate beneficiaries and who is or are the recipients here.

QUESTION: And that is in terms of the grant statute? In other words, who are the ultimate recipients under the grant statute and who are the beneficiaries?

MR. PARKER: That's correct. The statutes themselves unfortunately -- the statutes don't give you as much help in defining who the ultimate beneficiary is.

QUESTION: Well, maybe it isn't that complicated. Maybe it's just who received the federal money. And in Grove City the college actually received the federal money.

Now, here who receives the federal money?

MR. PARKER: The federal money in terms of cash is received by an airport authority.

QUESTION: Right.

MR. PARKER: The airport uses that to build a runway.

QUESTION: Yes, we know. But maybe the statute has to be applied as it's written as to who receives the federal money.

MR. PARKER: Well, I certainly agree that it does. I think the definitional question is helped a little bit by looking at what the Government -- what we agree on with the Government. First, we agree that the airports, as you correctly point out, are a recipient. The airport is undoubtedly a recipient; the airport authority is prevented from discriminating.

The airline passenger is, again by the Government's definition, an ultimate beneficiary. Where we differ from the Government is where the airlines fit into that. We say -- the Government says that the airlines are no different from their passengers and that they have no obligations to their passengers at all.

We say that the airlines are very different from their passengers, that they have a totally different kind of role with regard to their passengers.

QUESTION: Well, that may be true. But you still have to convince us that they are recipients.

MR. PARKER: Well, I agree with that. I think they are recipients because there's no question that the airports receive something. They receive the use of --

QUESTION: You mean the airlines?

MR. PARKER: I'm sorry, that's correct, the airlines. There's no question the airlines receive something. They receive the use of the runway, which is basically federal cash transformed into a runway. The grant says: Here's some cash; you're going to use it to build a runway.

The question is, well, where do you put the airlines? The question is, did the Congress intend for --

QUESTION: Well, on that basis the passengers are recipients. There they are, there they are going down the runway in a plane, and that runway -- they're not ultimate beneficiaries any more than the airlines then.

MR. PARKER: No. The question -- I think it is a matter of labels. There's no question that it's a matter of deciding who to label as what. What we're emphasizing --

QUESTION: Kind of like finding a relevant market in an antitrust case.

MR. PARKER: Well, hopefully it's easier than that.

(Laughter.)

MR. PARKER: It may not be.

QUESTION: How do you -- on this airplane, you say when the passengers are on the airport they're covered; while they're walking down to get on the plane, they're covered; and as they go down the runway, they're covered. Isn't that your position?

MR. PARKER: That's correct, Justice Marshall.

QUESTION: At the end on the runway, what?

MR. PARKER: They remain covered. I cannot say that the airline's obligations --

QUESTION: That's pendent jurisdiction, I guess.

(Laughter.)

MR. PARKER: Something like that.

I cannot say that the airlines' obligation ceases when the wheels are no longer touching the ground. I think you've got to say that the program or activity which Congress intended to fund was airline or airport operations.

The specific grants are provided for the functioning of airplanes, and that I --

QUESTION: What about the --

MR. PARKER: I'm sorry.

QUESTION: What about the controllers, air controllers?

MR. PARKER: The air traffic control question I submit is not before the Court at this point. It was not the basis --

QUESTION: Who pays that?

MR. PARKER: The air traffic controllers are paid directly by the Federal Aviation Administration. That is a federally operated activity.

QUESTION: Well, isn't that just as important as the runway in this whole scheme?

MR. PARKER: Yes, it is. It is equally important.

QUESTION: You argued it, didn't you?

MR. PARKER: We argued it fully in the court below. We have not argued it --

QUESTION: And the Court of Appeals put it aside.

MR. PARKER: I'm sorry?

QUESTION: The Court of Appeals put it aside.

MR. PARKER: That's correct, the Court of Appeals did put that question aside.

It seems to me, in all candor, I think that the analysis is clearer -- it may not seem that way, but the analysis is clearer if we focus on the funds that go to airports, rather than the air traffic control system. I think conceptually they are very different kinds of --

QUESTION: Well, the airlines are certainly receiving something, some benefit from the air traffic control system.

MR. PARKER: Well, that's correct, they do.

QUESTION: It certainly hurt you to take it into consideration, can it?

MR. PARKER: No. I think it can be taken into consideration, and I think it does demonstrate something about the relationship, the peculiar posture of the American commercial airline industry.

QUESTION: But if that isn't -- if whatever they receive, if whatever they are receiving from the air traffic control system isn't enough, why is it enough to be receiving the aid of a runway?

MR. PARKER: Because I think the relationship with the runway and the relationship with the airport --

QUESTION: Well, they wouldn't even use the runway until the air traffic control says go.

MR. PARKER: Well, that's correct. I think -- I don't want to abandon the air traffic control issue altogether. I think it does provide some general evidence about the particular role that airlines play. However --

QUESTION: Well, if you're going to rely at all on the air traffic control, how about the weather service of the Government?

MR. PARKER: Well, I think the difference there is that the weather service is something that is available to everyone. It is not something --

QUESTION: Well, certainly the air traffic control service is available to a lot of people besides commercial airlines. It's available to private planes.

MR. PARKER: It is, although I think as a matter of fact it is not used as much by others. But that's a factual sort of distinction.

The significance, I think, here is not that these various things -- that is, the weather service, the air traffic control, the airports -- it's not simply that they are important and significant for the operation of the airport.

Rather, it is that the airport -- the relationship between the airline and the airport is especially peculiar. As we point out, the critical statute here, I think, is the Airport and Airway Funding statute. That I think provides the clearest model and the clearest analysis that we can focus on here.

QUESTION: Mr. Parker, while we're asking hypotheticals, what is the situation with respect to motor carriers that use the highways funded by the Federal Government?

MR. PARKER: Motor carriers I think are factually distinguishable.

QUESTION: Did you say distinguishable?

MR. PARKER: I'm sorry?

QUESTION: Did you say distinguishable?

MR. PARKER: Yes, I'm sorry. I think they are factually distinguishable.

QUESTION: Who receives the federal funds with respect to the highways?

MR. PARKER: I think we all receive those federal funds. I think there you really --

QUESTION: Who are they paid to?

QUESTION: Well, I didn't get mine.

(Laughter.)

MR. PARKER: What I should have said was that the federal highway system is indeed I think a public benefit that is generally available. The fact is -- and I don't think you can ignore this -- the fact is that we can buy cars. The federal highway system is much more in the nature of the public good.

QUESTION: If you have the automobile and ride in buses, passenger buses, is that different really from riding airplanes on airports? I don't know. Does Section 504 apply to all of it?

MR. PARKER: I think if I were a bus company I would try to argue that it should not apply to me. I'm not certain that that would succeed. But I think it I were a bus company I would argue: Look, I don't have the kind of relationship to the federal highway system that these airlines have to airports.

QUESTION: You couldn't function at all unless you had the highways.

MR. PARKER: Well, that's true, that's true. But I think there are two factual -- two basic distinctions. One is that the bus company is going to say: I am not, I the bus company, am not in a position to truly deny access, because as a matter of fact people do really -- most people really do have cars.

Also, I think if I were the bus company I would argue that the Government doesn't have to consult with me before they can get a -- before they can build a highway. In other words, there really is, and I don't think we can ignore it, there really is not just a sort of functional interdependence between airports and airlines, but there is a contractual and statutory relationship between them that I think is significant, and I think Congress had that in mind.

Let me go back, if I could, to this line of questioning about what is covered at the airport and what is not. The Government -- because I really would like to emphasize that. The Government recognizes that the grants for a runway cover-- even though the grant is only for a runway, triggers coverage of some things that go on inside the terminals: the ticket counter, the baggage claim area, gift shops, and that sort of thing.

However, it is quite clear that it does not cover everything that goes on inside the terminal. The Government's briefs continually try to draw a distinction between in-flight activities and presumably everything else.

And I think that the questions that were raised before demonstrate that the Government's line is -- I'm not even sure it's arbitrary. It's very unclear as to what is covered and what is not.

It does not cover the sale of a ticket. It does not cover boarding. It does not cover whether the airline has to assist a person in boarding or not. It does not cover wheelchair storage. All of those things occur well before the person even gets to the gate. Some of them occur when a person just calls into the airport.

And it's a little hard to know exactly what the Government's definition of a program or activity is here. It seems that it is -- that it seems inconsistent with the statute to try to slice up the program or activity in that way.

It certainly would seem --

QUESTION: Mr. Parker, may I ask you, what sort of things are covered at the airport? Is it things like structural ramps and access facilities and rest room facilities and things like that that would be part of the structure itself, as opposed to activities in a gift shop?

MR. PARKER: You mean under the existing regulations?

QUESTION: Under the existing regulations. For example, what does a gift shop have to do to comply with the regulations?

MR. PARKER: The gift shop example comes basically from the Title VI regulations, which the Government now seems to be suggesting may not be all that valid after all, although they've been in existence for ten or twelve years. Longer than that; 20 years.

The gift shop and the restaurant sort of analogies come out of the Title VI regulations, and presumably that person, the person in the gift shop, would be required udder Title VI obviously not to discriminate on the basis of race.

If the 504 regulations applied to the gift shop, I assume that person would have to comply in some reasonable way, and that is -- what we're primarily talking about here, of course --

QUESTION: Did you go through any of these grants?

MR. PARKER: I'm sorry?

QUESTION: The grants themselves, did you see them, look at them?

MR. PARKER: I have a listing of the grants.

QUESTION: I'm wondering if my tax money is being used to construct gift shops.

MR. PARKER: Justice Marshall, I think that in some cases it probably is. The structure of the statute is initially, the way it was set up and the way under the 1970 statute especially, was to fund activities relating to the landing and taking off of airplanes. That's runways, taxiways, and that sort of thing. Under the 1970 statute, you couldn't use any of the money --

QUESTION: That would also include a bar?

MR. PARKER: A bar?

QUESTION: Yes, whiskey bar.

MR. PARKER: Well, it would.

QUESTION: Do you need that for an airplane?

MR. PARKER: It doesn't seem essential.

QUESTION: I bet you can fly an airplane without liquor.

MR. PARKER: I think that all of this, I think, points out the sort of peculiarity. It seems to me that the Government's definition starts from the wrong end, that it says, it sort of assumes, airport services, when in fact the grants are not provided for airport services. They are provided for, if anything, runway, landing and takeoff kinds of services.

QUESTION: Mr. Parker, I'm trying to think of tough questions to ask you. What about port authorities? They provide all sorts of services for passengers who use ships.

MR. PARKER: A port authority --

QUESTION: Docking facilities, wharves, channels, everything. And certainly they are recipients of federal funds.

MR. PARKER: If the relationship of -- and I take it the question extends to a ship or a shipping company that uses that port authority.

QUESTION: My question? I didn't hear you.

MR. PARKER: I'm sorry. I take it that the question is not whether the port authority itself is covered, but rather whether it would extend, and I take it if a port authority receives a federal grant.

QUESTION: Well, your concern is to make sure that handicapped passengers are properly treated when they fly. I suggest they also should be properly treated when they ride buses and also when they, for whatever reason, go on a tour to the Caribbean and have to use a port facility.

So the question in my mind is where does one draw the line, really, speaking of lines.

MR. PARKER: I think you have to draw the line, Justice Powell, in terms of whether or not there's a federal statute that provides money to that port authority.

QUESTION: I'm sure it does.

MR. PARKER: I think that's correct, I think it does. I think you would have to look at the specific grant statute.

The peculiarity of this particular grant statute is that it doesn't simply say: Here's money; go run an airport. It says: You apply for a grant; we are only going to give money to someone who applies for a grant, who identifies a specific project, and then you can get the money for that specific project. But they are not sort of generalized grants that are provided.

And again, I think you'd have to look at the specific question.

I would, in the time that I have remaining, want to touch on a sort of separate argument here, and that is the arguments that are raised in parts two and three of our brief. Those arguments accept the Government's definition. I'm not sure I want to do that now.

We accept the Government's definition of the relevant program or activity as an airport, and we conclude that, even if that is the program or activity, that is if you define it as narrowly as the Government suggests as only airport services, our suggestion in that part of our brief is that under the DOT's own regulations that that airport nevertheless has some obligations not to discriminate and not to facilitate discrimination by other entities with which it deals.

The Government seems to be suggesting in its reply brief that a program or activity such as an airport exists sort of in a bell jar, sort of hermetically sealed off from everything else that goes on, and suggests that an airport can enter into a contract with a third party that denies access to the airport.

The regulations, which we cite in our brief and which are the DOT's own regulations, those regulations suggest that that's not true; that an airport, even if the program or activity is defined only as an airport, that that airport nevertheless has some obligations and cannot enter into contracts with third parties.

QUESTION: So you would say that an airport under the regulations could say to the airline: If you're going to discriminate against the handicapped, we're no longer going to lease you space in the airport.

MR. PARKER: That's exactly correct, and that is exactly --

QUESTION: That's your argument right now?

MR. PARKER: Yes, Justice White, it is.

QUESTION: But that is not something the Court of Appeals used, is it?

MR. PARKER: No, it's not. It's separate, it is a separate argument, and it is driven forward by --

QUESTION: Which you're making as a Respondent.

MR. PARKER: That's correct, Your Honor.

It picks up the question that Justice O'Connor asked at the outset, and that is whatever hardened to DOT here. The DOT proposed regulations, which we cite and which are included in the appendix to our brief, which would do exactly what we asked in parts two and three.

We therefore request that the Court, this Court, affirm the judgment of the Court of Appeals and remand the regulations to the Department of Transportation.

Thank you very much.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Solicitor General? You have six minutes remaining.

ORAL ARGUMENT OF CHARLES FRIED, ESQ., ON BEHALF OF PETITIONERS

MR. FRIED: Thank you very much, Mr. Chief Justice.

I would like first of all to emphasize, because the point is of great importance not just in this base but as a general matter of interpreting Section 504 and Title VI, that the proper way to proceed -- and this is where the Court of Appeals we think erred -- is in this sequence:

First, identify the recipient. That spells the outer limit of regulatory power. And then identify the program of that recipient which is covered. That's precisely what this Court did in the Grove City College case, and it worked very hard at it. And we don't think that the procedure the Court of Appeals used helps analysis.

QUESTION: Well, under your argument do you ever get to the second question?

MR. FRIED: You do not in respect to the commercial airlines, because the commercial airlines are not recipients.

QUESTION: Are not recipients.

MR. FRIED: That is correct.

QUESTION: In your analysis, just the recipient is the person or the entity to whom the entity goes?

MR. FRIED: That is correct, Justice.

QUESTION: And that's the end of the case?

MR. FRIED: It's the end of this case.

QUESTION: This case, exactly.

MR. FRIED: It certainly wasn't the end of the Grove City College case. It's important to --

QUESTION: Now we've got this case. But in this case, you just say the money went to the airport authority and that's all there is to it.

MR. FRIED: That is correct, Justice White. And the Court of Appeals we think went about it the other way. They constructed it at the highest level of generality, a program, and then said that people participating in that program thereby become recipients.

They did it in the wrong sequence, and that is what threatens to obliterate the distinction between beneficiaries on one hand, which is a very wide class or persons, including the employees of the airlines and the others, the distinction between beneficiaries and recipients.

It also threatens to obliterate the distinction, as the Court of Appeals did, we think, between the program and the general policy which Congress had in mind. That is what we think also occurred here.

On a practical level, there is a problem. There are what one might call good airlines, airlines that make a real effort to accommodate handicapped persons. And certainly it would be a serious matter if those airlines which seek to accommodate handicapped persons were unable to do so because of discrimination by airports.

What the regulations and the interpretation we're asking for here does is to ensure that travelers, handicapped travelers, are not disadvantaged in that way. The reach is not broader than that.

It might be a good idea if the reach were broader than that, but that seems to us to be a plea which is properly addressed to the Congress.

Thank you very much.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 11:57 a.m., oral argument in the above-entitled case was submitted.)