Cases by Issue - Disability Rights

United States v. Georgia - Oral Argument

Fri, 09 Jan 2009 14:48:57 +0000

Case:

United States v. Georgia

Media File:

04-1203_20051109-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Clement

Chief Justice Roberts: We'll hear argument first in United States versus Georgia, and Goodman versus Georgia.

General Clement.

Mr. Clement: Mr. Chief Justice, and may it please the Court--

Title II of the Americans with Disabilities Act validly abrogates the States' sovereign immunities as applied to the class of cases involving the unconstitutional treatment of disabled inmates.

That result follows from this Court's decisions in Nevada against Hibbs, and Tennessee against Lane.

In Lane, this Court held that it was clear, beyond peradventure, that Congress had an adequate basis to enact prophylactic legislation to ensure that individuals with disabilities had access to public services.

In reaching that conclusion, this Court surveyed a broad array of evidence, not just limited to the court access context, and, indeed, surveyed evidence involving prisons, in particular.

As a result, the sole remaining question, and the only question in Lane on which this Court applied an as applied analysis, is the question of whether or not Title II's remedies are congruent and proportional as applied to the particular context; here, the context of the discriminatory, inhumane, or otherwise unconstitutional treatment of inmates with disabilities.

Now, if one applies the congruence and proportionality analysis of Lane, in particular, in the prison context, it easily passes constitutional muster.

For all of the factors that this Court emphasized as making Title II appropriate in the court access context... the absence of absolute mandates, the inherent flexibility of the reasonable modification standard, the fact that benefits are limited to otherwise eligible individuals, the defenses for fundamental alterations or undue burdens... all of those factors apply with full force in this context.

Justice O'Connor: Can it... with respect to the reasonableness aspect, in Turner versus Safley, we said prison administrators have a good deal of latitude, in the prison context, in order to maintain order.

Now, do you see the reasonableness requirements of the Disabilities Act as being congruent with the Turner Safley reasonableness analysis?

Mr. Clement: Absolutely, Justice O'Connor.

And one of the reasons that I think that Title II is particularly congruent and proportional in the prison context is, the reasonable modification standard, which, after all, uses the term "reasonableness", is very well amenable to the kind of Turner deference standard this Court applied.

And, of course, just last term, this Court, in Johnson against California and Wilkins... and in the Wilkinson case, Cutter against Wilkinson, applied deference to prison officials even in the context of strict scrutiny.

And so--

Chief Justice Roberts: Are you--

Mr. Clement: --I think it--

Chief Justice Roberts: --suggesting--

Mr. Clement: --applies, a fortiori.

I'm sorry, Mr.--

Chief Justice Roberts: --Are you--

Mr. Clement: --Chief Justice.

Chief Justice Roberts: --suggesting that the ADA does not add to the burdens of the State officials, it just simply tracks what's already required under Turner?

Mr. Clement: Mr. Chief Justice, I don't... I don't... I'm not up here today saying there's no prophylaxis at all with respect to Title II, but I think it is proportional and congruent, and I think the prophylactic gap between what the Constitution protects and what Title II protects is relatively narrow in the prison context, both because if you think about one set of claims, the Turner claims, much of that deference can be brought in under the reasonable modification standard; and then, if you think of the other class of cases, those involving deliberate indifference, I think in those class of cases, this is... the prison context is one of the rare contexts in which the State is under an affirmative obligation to provide accommodations to the medical needs of inmates, including disabled inmates.

And I think the fact that here's a case where the Constitution requires affirmative accommodation also helps narrow the prophylactic gap.

Chief Justice Roberts: Under Turner, one of the considerations that can be taken into account are the budgetary limitations of State officials.

Does that apply under the ADA, as well?

Mr. Clement: I think it certainly could.

I think... if you look at the cases that we collect at footnote 17 of our reply brief, which are cases where the lower courts have applied Turner style deference to claims under the Rehabilitation Act or under Title II, I think some of those Courts of Appeals have clearly taken into account those kind of budgetary concerns.

Justice Kennedy: Of course, all of the concerns you've mentioned could be taken care of by injunctive relief.

You don't necessarily need damages.

Mr. Clement: Well, I think damages are an important aspect of the remedial scheme, Justice Kennedy.

I would also point out that, because a number of States have challenged the application of Title II, in the prison context, in particular, as not being valid Commerce Clause legislation, it's not a foregone conclusion that there would be injunctive relief available.

But I do think if we want to focus on the damage--

Justice Kennedy: Well, but if we held the Act was applicable for injunctive relief, it would... it would be, because I'm... the pert part of your argument is that you could have a attorneys fees and triple damages where trial attorneys levy against the State treasury, which is... which is what the Eleventh Amendment is largely concerned with.

That... all of that would follow from what you've said so far.

Mr. Clement: --Well, I'm not sure about the treble damages, but certainly compensatory damages would be available.

This Court, of course, in Barnes against Gorman, has already said that punitive damages are not available under Title II.

And I think if you look at compensatory damages--

Justice Kennedy: I know they're not available under Title II, but, I mean, as a constitutional matter, there's certainly nothing barring them, based on what you've told us so far.

Mr. Clement: --Well, I think punitive damages would be a harder case, in terms of proportional incongruence.

But this Court has, even in the absence of congressional action, found damages to be an appropriate remedy for unconstitutional or unlawful State conduct.

Take the Bivens cases, for example, or the Franklin case, in Title IX, and, I think, if damages are appropriate where Congress hasn't acted, I think where Congress has provided for damages, damages are clearly an appropriate remedy.

But, with respect to damages, in particular, I think it's important to note that the prophylactic gap here is not large, because, in the Title IX context, in the Gebser case, this Court has already said that, in order for there to be compensatory damages, there needs to be a showing of deliberate indifference.

And now, there may be some difference between what "deliberate indifference" means under Gebser and what "deliberate indifference" means under Farmer against Brennan, but, whatever that small gap is, that certainly seems manageable.

Justice Ginsburg: General Clement, in two respects, it... I think you have addressed the cost concern by comparing, in your brief, the Federal experience, which is subject to these controls, and you said it wasn't an inordinate expense, but you also pointed out that every State prison system is subject to the Rehabilitation Act, because they get Federal funds.

Is there a difference between the obligation that State systems would have under the Rehabilitation Act and under the ADA?

Mr. Clement: No, Justice Ginsburg, we don't think so.

But one thing I think it's important to emphasize is that, although at the current time period all 50 States take Federal funds for their prisons, so that all 50 States are subject to the Rehabilitation Act, that wasn't true at the time that the ADA was passed.

And I think what that illustrates is both that Title II plays an important gap filling role and also that, for whatever reason, I think, this is an area... prisons taking Federal funds... where the degree to which they take Federal funds may wax and wane over time.

And so, I don't think this is a situation where Title II is purely duplicative of the Rehabilitation Act, but the difference is really in terms of the scope of the coverage, not in terms of the substantive obligations under the--

Justice Ginsburg: And the--

Mr. Clement: --two provisions.

Justice Ginsburg: --damage remedies available under the Rehabilitation Act is--

Mr. Clement: I'm--

Justice Ginsburg: --Damages are available?

Mr. Clement: --Yes, they are, as to the States.

Justice Scalia: General--

Justice O'Connor: But this--

Justice Scalia: --Clement, I'm interested in another statute that has applicability in the circumstances, and that's Section 1983 and the Prison Litigation Reform Act.

Under the... under the Prison Litigation Reform Act, if you're bringing a constitutional claim under Section 1983, you have to exhaust your prison remedies before you can do that.

And that is not the case here, is that right?

Mr. Clement: No, I don't think that is right, Justice Scalia.

I think that we would... we would say that the PLRA fully applies to claims under Title II and there is an exhaustion remedy.

There is also, of course, an exhaustion remedy inherent in Title II, because, in order to get a reasonable modification, you have to ask for the modification in the first place.

We also think that the PLRA applies, in all its provisions, to Title II claims.

And one important provision to keep in mind is 1997e(e)... 42 U.S.C. 1997 e(e)... which is a limitations on the damages that are available.

And, under that provision, in order to get damages for emotional or mental injury, you have to also show some sort of physical injury.

And the lower courts have interpreted that to require at least the kind of more than de minimis injury you need under the Eighth Amendment.

And I think the PLRA, together with Title II, in the particular area of damages, which is what Justice Kennedy has pointed out is the particular area of concern under the Eleventh Amendment, is even a further narrowing of the relief that's available and a further narrowing of the prophylaxis under the Title II.

So, I do think the PLRA is actually something that actually helps make sure that the remedy here is congruent and proportional.

Justice Stevens: May I ask you to comment on this?

This problem of... just troubles me a little bit.

If we hold this provision unconstitutional because it is not congruent and proportional and so forth, does it not follow that the Title II is entirely unconstitutional, it cannot even be enforced by injunctive relief?

Mr. Clement: Because of the lack of the Commerce Clause nexus?

Is that the--

Justice Stevens: Well, it--

Mr. Clement: --concern, Justice Stevens?

Justice Stevens: --the whole basis for the constitutionality of the statute, I think, is the Enforcement Clause of the Fourteenth Amendment.

Mr. Clement: Well, it was... when it was originally enacted, Justice Stevens, it was supported by both the Commerce Clause and, of course the--

Justice Stevens: That's true of Title II, as well as Title I?

Mr. Clement: --That is... that's true, the statute generally... and it's true of Title II.

We would make... we would certainly defend the Act as valid Commerce Clause legislation.

But I do think that is a much more difficult argument as to Title II, generally, and particularly difficult argument with respect to prisons.

I think, in that respect, it's--

Justice Stevens: Right.

Mr. Clement: --telling that, if you go back to the Government's brief in Yeskey, when we were dealing with constitutional challenges to the application of Title II to prisons, the Government focused all its energy on defending it as valid Section 5 legislation--

Justice Stevens: Right.

Mr. Clement: --and dealt with the Commerce Clause in a footnote.

So, I think we certainly, at that point, were of the view that the Section 5 authority was the much stronger basis to defend the statute, especially in the prison context.

Justice Stevens: So, what I'm suggesting is that it is not merely a matter of damages that's at issue here, but the entire validity of Title II.

Mr. Clement: We agree with that, Justice Stevens.

And I would say, with respect to... I mean, again, I don't want to mislead you, in the sense that we would be here defending it as Commerce Clause legislation, but I think that's a tricky argument.

If it's possible, I'd like to reserve the rest of my time for rebuttal.

Argument of Samuel R. Bagenstos

Chief Justice Roberts: Thank you, General.

Mr. Bagenstos.

Mr. Bagenstos: Thank you Mr. Chief Justice and may it please the Court:

The Americans with Disabilities Act is congruent and proportional as applied to the prison setting for essentially three reasons.

The first is the nature of the constitutional right that's at stake in the prison setting.

As in the access-to-courts setting, this is a setting where States have affirmative constitutional duties, including, in many circumstances, duties of accommodation of inmates' disabilities.

The second reason relates to the record of constitutional violations in this context, a record in the context of State treatment of inmates with disabilities that is extensive, that is judicially documented and confirmed on a nationwide basis.

And the third reason relates to the [*13] tailoring of the ADA remedy, which the -- which General Clement has spoken about to some extent already -- both limitations inherent in the ADA itself and in the PLRA, which fully applies to ADA cases.

Justice Scalia: Do those violations that you allude to... is there an extensive record of violations by the State of Georgia?

Mr. Bagenstos: There is not.

The same... the record of constitutional violations is nationwide.

We don't have any judicial findings--

Justice Scalia: Well, you're--

Mr. Bagenstos: --of constitutional violations--

Justice Scalia: --But the money--

Mr. Bagenstos: --by Georgia.

Justice Scalia: --is not coming from the Nation, it's coming from the State of Georgia.

Was the State of Georgia guilty of constitutional violations?

Mr. Bagenstos: Well, I mean, of course, in this case, the lower court said that there might have been a constitutional violation that allowed that claim to proceed in the--

Justice Scalia: No, no, my--

Mr. Bagenstos: --companion--

Justice Scalia: --I mean a record... a record that would have justified applying, against the State of Georgia, prophylactic measures.

Mr. Bagenstos: --Well, we think the prophylactic measures are justified by the nationwide record, just as in this Court's case--

Justice Scalia: Even against people who played no part in that nationwide record.

Mr. Bagenstos: --Well, that's this Court's cases on prophylactic nationwide legislation, absolutely.

You know, in Tennessee versus Lane, this Court upheld nationwide prophylactic legislation on the basis of a record that included constitutional violations in only eight States.

Here, we have a record that touches on at least 37 States, if you look in pages 20 to 36 of our opening brief.

In--

Justice Breyer: This is... it's relevant to the... I just saw these as... I... just by chance, it... one of the cases in the SG's brief involved Georgia juvenile facilities, where mentally ill patients were restrained, hit, shackled, put in restraint chairs for hours, sprayed with pepper spray.

Mr. Bagenstos: --Well, I think--

Justice Breyer: And that seemed to be one instance coming out of Georgia.

Mr. Bagenstos: --I think that's right.

I think that's--

Justice Scalia: But was that before or after the enactment of this statute?

Mr. Bagenstos: --I believe that was pre-ADA, Your Honor.

Justice Scalia: Yes.

Mr. Bagenstos: But I think that the point... the point is that the record of constitutional violations here is a nationwide record.

It's a record that includes some incidents from Georgia.

It's a record that includes many incidents from many other States; as I say, 37 different States.

It's a record of constitutional violations that's been judicially confirmed.

We have courts actually finding--

Justice Scalia: Well--

Mr. Bagenstos: --in final adjudications--

Justice Scalia: --I'm looking at the--

Mr. Bagenstos: --constitutional violations.

Justice Scalia: --at the chart in one of the amicus briefs, which shows that there are, for Georgia... and it lists all the States... for Georgia, zero arguable State violations prior to the Act.

Mr. Bagenstos: Well, I think that's... I mean, I think that's because they exclude--

Justice Scalia: The--

Mr. Bagenstos: --juvenile facilities from their--

Justice Scalia: --Well--

Mr. Bagenstos: --consideration.

Justice Scalia: --State and local violations.

Mr. Bagenstos: Right.

Justice Scalia: But State and local units don't enjoy the sovereign immunity of the State.

Mr. Bagenstos: The... I mean--

Justice Scalia: You--

Mr. Bagenstos: --you know--

Justice Scalia: --don't need this Act to sue them.

Mr. Bagenstos: --Well, I would say, in Georgia, of course, State and... of course, local facilities are arms of the State in Georgia.

That's been the judicial holding.

And so, for Eleventh Amendment purposes, we would consider them.

But I would say the record of constitutional violations here that justifies nationwide prophylaxis is really far more extensive than the record that's been before this Court in Tennessee v. Lane and Nevada v. Hibbs and touches on touches on even more States than, you know, the nationwide literacy test ban that was upheld in Oregon v. Mitchell.

At the time this Court upheld that, only 22 States had literacy tests, I think.

Justice Stevens: May I ask you this?

The notion of our reviewing the adequacy of the evidence before Congress is something that's always seemed, sort of, puzzling to me.

Do you know what... what is... what standard do you suggest that we should apply in determining whether the evidence before Congress was sufficient?

Mr. Bagenstos: In determining whether the evidence before Congress was sufficient, I think, you know, this Court has said... I think the standard comes from City of Boerne... it's the congruence and proportionality test, but it recognizes that Congress has to have a great deal of leeway in determining where the line between enforcement and substantive change in the law lies.

And, you know, here we have, whatever standard we use, the kind of record of constitutional violations that justifies prophylaxis.

We have... we have constitutional rights that impose on States obligations of accommodation.

So, the ADA is, in no circumstance--

Justice Stevens: Yes, I understand your view is that, whatever the standard is, you win.

I'm just curious, do you have a--

[Laughter]

--do you have a formulation of what the proper standard should be?

Mr. Bagenstos: --Well, as I said, I think the... I do think that the proper standard should be the City of Boerne standard of congruence and proportionality, exercised with the kind of deference that this Court said in Boerne, which I think this Court adopted in Lane, to the factfinding capabilities of the... of the... of the Congress.

Chief Justice Roberts: I understand your submission... and that's what I heard from the Solicitor General, as well... on the difference between enforcement and the substantive right.

You're assuring us that we don't need to worry about that, because there's no great difference between what you think is required under the ADA and what's required under the Constitution.

Mr. Bagenstos: Well, Mr. Chief Justice, I think there is clearly a difference.

Right?

There's a prophylactic sweep to the statute.

It's just that it's not very much, in this context, for a number of reasons, one being the nature of the constitutional rights, that they impose requirements that are affirmative duties, the other being the way the reasonableness language of the ADA has been consistently read by lower courts to take account of context, and another being the Prison Litigation Reform Act, which further ties the ADA to the--

Chief Justice Roberts: But I'm just wondering if that's--

Mr. Bagenstos: --constitutional violation.

Chief Justice Roberts: --a reasonable reading of the ADA, which I had always understood to be a significant change in... in terms of what rights are available to the disabled.

And it seems to me quite different from Turner against Safley, which talks about the demands of the prison environment and the... and a high level of deference to prison administrators.

Do you think that approach is, in fact, consistent with what Congress had in mind with the ADA?

Mr. Bagenstos: I think that the approach of taking into account the significant State interest in uniform treatment in the prison setting uniquely, yes, is very much consistent with what Congress had in mind, just as this Court, in the Cutter case, you know, read the "compelling State interest" language, much more stringent language about the... about what the State has to satisfy... as taking--

Justice O'Connor: One--

Mr. Bagenstos: --account of--

Justice O'Connor: --One--

Mr. Bagenstos: --these concerns.

Justice O'Connor: --One concern is that, in the prison situation, the prison is exerting control over all aspects of the prisoner's daily life.

That's very different from just court access, as in Tennessee versus Lane, and it could require very extensive requirements, perhaps.

Is that a concern, or should it be, in the "congruence and proportionality" examination?

Mr. Bagenstos: Well, I think there are two sides to that coin.

I think, definitely, the scope of the ADA in the prison setting, you know, is important.

I think that the lower court's reading of Mr. Goodman alleges, may be entirely unreasonable, where what's at stake is attending an arts-and-crafts class, or something like that.

So, I think that is important, but I think the flip side of the... of the State's complete control over every aspect of the inmate's environment is, this is one of the few areas of Government where States have affirmative constitutional duties, including--

Justice Souter: Mr. Bagenstos, on this point, do we have any figures on what... I guess it's the Rehabilitation Act that applies to the Federal Prisons... do we have any figures on... you know, on what that has cost in required accommodations?

Mr. Bagenstos: --You know, I don't know the figures for that.

Perhaps the Solicitor General can answer as to what the burden has been on the Federal Government.

I think, you know, the Solicitor General states in his brief... in his reply brief, particularly... that the burden has not been significant, the Government--

Justice Souter: Yes.

Mr. Bagenstos: --has not--

Justice Ginsburg: It applies... it applies to State prisons, as well, because of its Spending--

Justice Souter: Well, yes, that's right.

Justice Ginsburg: --Clause legislation.

Justice Souter: Yes.

That's right.

Mr. Bagenstos: --That's true.

It does apply to State prisons, as well, Justice Ginsburg.

However, we... you know, we obviously can't be sure that it's always going to cover every State prison.

It hasn't, at times, in the past.

It might not, at times, in the future.

I think, you know, one of the significant aspects of the Rehabilitation Act is... and I think the amicus brief filed on behalf of Mr. Goodman by the former President George H. W. Bush really emphasizes this... the ADA was passed based on a firm conclusion by Congress that the Rehabilitation Act had failed, that it hadn't worked.

And I think the record of constitutional violations here shows that, that we have such an extensive record of judicially confirmed, judicially established findings of constitutional violations in the prison context, and we have constitutional rights that impose on States the same kinds of requirements, not in all particulars, but in very similar ways, as the ADA does, itself.

I think that's where... that's where the congruence and proportionality really comes in.

Justice Kennedy: Why is it so clear that damages are necessary and that equitable relief shouldn't suffice?

It's--

Mr. Bagenstos: Well--

Justice Kennedy: --it's puzzling... it's puzzling to me, the notion that trial attorneys and their clients can levy upon the funds in State treasuries under the Eleventh Amendment.

Why is it congruent and proportional to allow that?

Mr. Bagenstos: --Well, a couple of points about that.

I mean, the first is the deterrent function of damages is really essential in this context.

I think that's the import of the record of constitutional violations.

Section 1983 failed.

I think the second point about damages is, they're very limited in the prison context.

They're limited by this Court's decision in Barnes, no punitives.

They're--

Justice Kennedy: Well, where you say Section 1983 failed, the ADA could allow equitable remedies.

Mr. Bagenstos: --The ADA could allow equitable remedies, but... could certainly--

Justice Kennedy: And why--

Mr. Bagenstos: --allow--

Justice Kennedy: --And why shouldn't that... why shouldn't that suffice?

Mr. Bagenstos: --Well, I think, you know, this... something this Court has said repeatedly, that the deterrent function of damages is important... and here, we have... we have a very good... we have very good evidence that we need deterrents in this context.

We need deterrents because constitutional violations have continued and continued.

But I--

Justice Scalia: Why don't--

Mr. Bagenstos: --think that--

Justice Scalia: --Why don't you need it for 1983 violations?

Mr. Bagenstos: --But--

Justice Scalia: Constitutional violations.

Not just prophylaxis--

Mr. Bagenstos: --Well, there--

Justice Scalia: --but actual constitutional violations by the prisons under 1983--

Mr. Bagenstos: --I think it--

Justice Scalia: --that don't happen to relate to the handicapped and, thus, are not covered by this legislation.

You can't get damages there.

Mr. Bagenstos: --Well, you know, I think that the... with respect to constitutional violations that might not relate to people with disabilities, you know, that's something Congress could certainly consider in other legislation.

Here, Congress would... have, staring in front them... right +/?

a record of constitutional violations that showed... right +/?

proven constitutional violations showed that the 1983 remedy, which doesn't authorize damages against the State, wasn't working.

We need to have some additional remedy.

We need some additional deterrents and spur to compliance on the part of States.

But I think it's also important to note how limited the damages remedy in this context is.

It's not just the absence of punitive damages.

It's not just... you know, we also have the provision of the PLRA that says no damages for mental and emotional injury in the absence of physical injury, which means that, in the kinds of cases that are peripheral to core constitutional rights, we're not going to have damages anyway.

It also... we also have the exhaustion requirement of the PLRA, which imposes on plaintiff the requirement that they go to the prison and tell them, PLRA, we're very likely to have deliberate indifference, a problem that prison officials have refused to resolve--

Justice Scalia: Well, wait, but... you know, in 1983, when you exhaust your prison remedies, the prison fixes what was wrong, and that's the end of it.

But, under this Act, you go through your prison remedies, what do you ask the prison for?

Money?

The prison can't give you money, so they say,

"No, you can't get your money. "

I--

Mr. Bagenstos: --Well, I think--

Justice Scalia: --mean, the prison-remedy thing is... the only thing it does is make it take a longer time to get to court, but it does the prison no good.

It's going to be liable for damages anyway.

Mr. Bagenstos: --Well, I think that, of course, the prison can reduce its damages liability, and, of course, where we have a continuing violation after exhaustion, which is what... when people file these lawsuits, when they have continuing problems, like Mr. Goodman alleges were continuing problems in his case... we will have cases where we have very much... very likely to have deliberate indifference.

And so, I think that's an important thing, too.

I think the other important point about Turner v. Safley that the Solicitor General spoke about... right +/?

many of the constitutional rights in the prison setting that are significant here don't implicate Turner v. Safley.

Eighth Amendment cruel-and-unusual-punishment claims don't implicate Turner v. Safley, as this Court said in the Johnson case.

And we have a very substantial record of Eighth Amendment violations.

Of course, the Eighth Amendment requires accommodation of serious medical needs, as this Court has said ever since Estelle v. Gamble, and ADA.

And so, I think another very significant aspect of the congruence and proportionality here is how close the ADA's disability definition is to the class of people who implicate constitutional rights, affirmative constitutional rights of accommodation, under the Eighth Amendment itself.

And so, I think that's another very significant aspect of the tightness of the fit here.

But, here, I think the most salient fact is, if you ever had a record justifying prophylaxis nationwide, the record here, that touches on 37 different States, that includes, in many cases, statewide findings of constitutional violations, is it, it's a record that justifies, certainly, some prophylactic legislation; at least... at the very least, the minimal prophylaxis that we have in the ADA in the prison setting.

It's a kind of... it's a kind of prophylaxis that's very much like the kind of prophylaxis this Court has previously upheld in Tennessee v. Lane, where we had very similar affirmative constitutional obligations, and in Nevada v. Hibbs, where we had a much less significant record, nationwide, of constitutional violations.

And so, for all those reasons, you know, we believe that the ADA is congruent and proportional in the prison setting.

And if the Court has no further questions--

Chief Justice Roberts: Thank you, Counsel.

Mr. Bagenstos: --Okay.

Okay.

Argument of Gregory Andrew Castanias

Chief Justice Roberts: Mr. Castanias.

Mr. Castanias: Mr. Chief Justice, and may it please the Court:

Before I sit down today, I'd like to make three basic points, and hopefully I'll get to make... elaborate on each of them a little bit.

First of all, this case is not anything like Tennessee versus Lane.

It doesn't involve the very important civil right of access to courts, access to voting booths, or anything like that.

It involves--

Justice Breyer: But was there... there was a reporter who was one of the disabled people, I think, wasn't there, in Tennessee versus Lane?

Mr. Castanias: --I believe that's correct--

Justice Breyer: And so--

Mr. Castanias: --Your Honor.

Justice Breyer: --what is the right that that reporter has that's specific to courthouses?

Mr. Castanias: As I understand it, Your Honor, from reading the opinion, that right was the specific right to access the courts.

It's the public right of access to see court proceedings, like the people--

Justice Breyer: Well, was there any problem of that in Tennessee versus Lane?

I thought the courthouse officials there said,

"There'll be a trial. "

"No problem there, just whether you have to walk up the steps or don't, and we'll give you a trial down below. "

Was there... it's the right of access to courthouse, specially?

Mr. Castanias: --It's the right of access to courts, specifically, that was the context that was... that was created for purpose of the as-applied analysis in Lane.

The second point I hope I'll get to address today is the very fundamental differences between the prison context the... and the courthouse context at issue in Lane, and the reasons why the prison context that it's... that is at issue in this case makes this case so fundamentally different.

The prison context, as Justice O'Connor pointed out, is one where issues of safety and security and, as well, from the Court's decisions, issues of federalism and deference to prison officials hold sway.

Those were not at issue in Lane, and they--

Chief Justice Roberts: Well, your--

Mr. Castanias: --have a--

Chief Justice Roberts: --your friends on the other side say that's not a big deal, because the ADA looks only to reasonable accommodations; you can take all those factors into account; and presumably the lower courts would.

In other words, they say you're already subject to most of these obligations anyway, and it's just a little bit extra, under the ADA.

Mr. Castanias: --Well, Mr. Chief Justice, we respectfully, but strenuously, disagree with that submission, and I'll give you a very good example of what they're not talking about here.

What's happening under the ADA, as a practical matter in the prison context, is that it's giving prisoners trials on issues like whether or not they have access to the television room in the prison.

That's not a constitutional right.

Before the ADA, that was never understood to be a constitutional right.

Justice Ginsburg: Have Courts of Appeals approved those determinations?

Mr. Castanias: I'm not aware, Justice Ginsburg, of any Court of Appeals that has ruled on that yet, but I am aware of two District Court cases... I could give you the names of them... where summary judgment was denied, and a trial was given to the inmate.

One is Brown against King County Department of Adult Corrections--

Justice Ginsburg: And how many has it... in the District Courts, how many have been rejected when it's something like television or recreation?

Mr. Castanias: --Justice Ginsburg, without making any representations that I am going to canvas the universe on this, I have not seen a case where the District Court has rejected a trial in that respect.

And I think, Your Honor, this gives me an opportunity to talk about one of the fundamental problems--

Justice Ginsburg: Well, before you do that--

Mr. Castanias: --Sure.

Justice Ginsburg: --as I understand it, and as the Solicitor General confirmed, you are subject to the Rehabilitation Act, where the substantive scope is the same.

So, what... you are saying, in the prison context, this is undue, but you all... you are already subject to it under one Act.

And how has that been working out?

Mr. Castanias: Justice Ginsburg, I don't have any data on that, and we haven't... we don't have any in our brief.

The Solicitor General's data that he put in on the Federal Bureau of Prisons came in his reply brief, and we certainly haven't had--

Justice O'Connor: But do you--

Mr. Castanias: --an opportunity--

Justice O'Connor: --agree that--

Mr. Castanias: --to pull that together.

Justice O'Connor: --the Rehab Act contains the same essential requirements as ADA?

Mr. Castanias: Well, the Rehabilitation Act is a little different than the ADA, but it certainly is protective of many of the same rights.

I would think it would be protective of all of the same constitutional rights that the--

Justice O'Connor: And you agree that it applies at least where the States are accepting Federal money for the prison?

Mr. Castanias: --Well, as I understand it, Justice O'Connor, the Spending Clause power can be hived down on a program-by-program basis, not just as whether the State itself is receiving it.

So, without knowing specifically whether we're talking about the particular program--

Justice O'Connor: Does it apply in the prison in this case... the Rehab Act?

Mr. Castanias: --I don't know the answer to that, as I stand here, Justice O'Connor.

Justice Scalia: Mr. Schaerr, who's going to be representing some States as amici, will presumably have better information on that subject.

Mr. Castanias: I--

Justice Breyer: In your point of view, would it help if the Court said... I guess it would, but I... in order to get rid of this problem, if the Court said,

"Look, it says "reasonable". "

and of course a prison has special problems,

and, referring, say, to Turner versus Safley, said that,

"These things about television remote controls are not really, normally, a matter of unreasonableness. "

So, in other words, we hit... we... you give considerable discretion to the... to the warden, and the Act would have bite in cases where there is really a serious problem, like this one.

It's alleged to be a really serious problem.

Mr. Castanias: --Well, Justice Breyer, I think you're right to say that, except that that's not what the Act says.

The Act says--

Justice Breyer: I thought it said "reasonableness".

Mr. Castanias: --That's exactly right, and that... and the reasonable... the reasonable-accommodation or reasonable-modification standard of the ADA, both generally and specifically in Title II, imposes an affirmative burden on the States, which is very much unlike the rational-basis test of Cleburne.

It's very much unlike the rational-relationship test of Turner against Safley.

Quite the contrary, what happens in these cases... and this comes up in the television cases, as well as the access-to-chapels cases or any of the... any of the cases that the Petitioners have hypothesized... what happens in that case is, the Petitioner pleads that,

"I could access this if I only had a reasonable accommodation. "

and then the burden shifts to the State, at that point, to not just articulate reasonable grounds, but to, in fact, prove that it is not reasonable or that it would be an undue burden.

There is a case that the... that Petitioner Goodman has cited in both of his briefs to this Court, out of the Seventh Circuit, called Love against Westville Correctional Facility... comes out Indiana... and this case is a great example of why, Justice Breyer, the Turner against... the Turner against Safley integration into the reasonableness provisions of ADA Title II won't work, and isn't congruent and proportional, because--

Justice O'Connor: Is that case cited somewhere?

Mr. Castanias: --It is.

It's in both the... Petitioner Goodman's opening and reply briefs.

In the Love case... and this is... this is a law-school exam case, because the prisoner put forth his case, and the State of Indiana, while it was pre-Yeskey, nonetheless agreed that the ADA applied to the prison and, at the same time, didn't present any evidence.

And the prisoner won the case.

And they won the case, because all the State did is articulate reasons, like there was... it would cost too much.

And this court very clearly said,

"Look, you didn't put any evidence. "

"You lose. "

Now, that's what... that was one of the fundamental factors that caused this Court to find, in both Kimel and Garrett, the statutes unconstitutional, because the--

Justice Ginsburg: But maybe in the prison setting, the lower courts would pay some attention to the Court's recent decision in Cutter against Wilkinson, where the Court made it very clear that a high level of deference... even dealing with a strict-scrutiny standard for religious freedom... that a high level of deference would be paid to prison administrators' judgment of what safety and discipline requires inside a prison.

Wouldn't that... wouldn't that carry over to the ADA, were it to apply?

Mr. Castanias: --You--

Justice Scalia: We could say that--

Mr. Castanias: --But you--

Justice Scalia: --in this opinion.

I mean, that would make it happen, wouldn't it?

Mr. Castanias: --You could... I mean, you could absolutely say it.

You... the Court can say anything it wants here.

But the problem is, is that this was... this was one of the fundamental problems with ADA Title I--

Justice Ginsburg: Do you think that the--

Mr. Castanias: --and with the ADEA--

Justice Ginsburg: --that if the prison explained what their practices were, in terms of the needs of security, that a lower court will then say,

"Well, never mind that. "

"The Supreme Court just said it. "

"We don't have to enforce it? "

I don't think there would be that kind of lawlessness.

Mr. Castanias: --Well, I'm... I... Justice Ginsburg, were... if this Court were to uphold the damages remedy in this case, this would be what the States would be left to argue.

And in... while it is true that you have said, in a couple of recent cases, that strict scrutiny is not quite as fatal, in fact, as usual, that strict-scrutiny case that you're referring to is the true exception in the prison context, where strict scrutiny was applied.

And it involved the very important, very core Fourteenth Amendment right against racial discrimination.

Here, we're talking about a statute that was framed by Congress as basically trying to change the Cleburne rule, trying to bring an added level of scrutiny to claims, equal-protection--

Justice Ginsburg: It's interesting--

Mr. Castanias: --type claims.

Justice Ginsburg: --that you cite that case, in terms of Justice Scalia's remark,

"Watch what we do, not what we say. "

Cleburne was a remarkable case in that respect.

It purported to apply rational-basis review, but the plaintiffs won.

Mr. Castanias: That's exactly right, Justice Ginsburg.

And, in fact, the reason that the plaintiffs won is that the State, in that case, the State defendants, offered four reasons, all of which were found to be not legitimate State reasons.

It was a straightforward application of the rational--

Justice Ginsburg: But if you think--

Mr. Castanias: --basis test.

Justice Ginsburg: --if you think of the... any conceivable basis... doesn't even have to be offered if the... if it's, indeed, the rational-basis test.

It has been suggested that something more is going on in Cleburne, and, I think, in all candor, one would have to say so.

Because if you looked at the rational-basis test that had gone before, this one looked no better, no worse.

Mr. Castanias: I think that the Tennessee Solicitor General Moore, at the end of the Lane argument, said,

"We have to take the Court as... for what it does say. "

And it said it was applying rational-basis scrutiny in that case.

Justice Scalia: Mr. Castanias, suppose the Court agrees with you that the response here is not proportionate, and, hence, that the prophylactic aspects of this statute are invalid.

There remains the fact that the statute covers actual constitutional violations for which you don't need any special proportionality.

Certainly, the Government can allow the States to be sued for constitutional violations.

And the plaintiff here claims that some of the acts he's seeking damages for do amount to constitutional violations.

How can we possibly say that that suit does not lie?

Mr. Castanias: Well, I think, Your Honor, there are two answers to that.

First of all is, Section 1983 already did that.

And the reason that that... that may not--

Justice Scalia: It doesn't lie damages here.

Can you get damages under 1983?

Mr. Castanias: --Absolutely.

Justice Scalia: Against the State?

Mr. Castanias: You can get it against State officers acting--

Justice Scalia: State officers don't have any money.

[Laughter]

We're talking about damages against the State.

Mr. Castanias: --Well, you cannot get damages against the State--

Justice Scalia: Under--

Mr. Castanias: --under Section--

Justice Scalia: --1983--

Mr. Castanias: --1983, that's--

Justice Scalia: --absolutely.

Mr. Castanias: --right.

That is exactly right.

But the other answer, Justice Scalia, is that to get to that result... and I think it's remarkable that both Petitioners' counsel stood up here, and the way they framed the question was,

"This is just remedial for these actual constitutional violations in prison. "

To get to that result, you would have to rewrite the ADA in a way that would make the reasonable-modification or reasonable accommodations provision basically an empty vessel to put whatever constitutional law you want in--

Justice Scalia: No, no, I mean the portions that go beyond constitutional violations are no good.

I'm not... I'm not going to read it unrealistically so that it only includes constitutional violations.

But, to the extent that it includes constitutional violations, why isn't that lawsuit perfectly okay?

Mr. Castanias: --Let me... let me... let me pause for a second and think about that.

The... I think the problem with that... my instinct is that there is a problem with that, and I think the problem with that... not just because, Your Honor, I represent the State... but I think the problem with that is that it is, in no way, congruent to the constitutional rights.

In other words, what it's doing is, it's giving, only to a limited class of prisoners, a particular set of rights.

In a way, this is the... this is the underbreadth argument that we made in our brief that the... that the Petitioners, in their replies, made fun of a little bit.

But, quite honestly, this is... this... it would be giving disabled inmates... making them into a special class for purposes of constitutional violations that don't apply just to disabled inmates at all.

Quite the--

Justice Breyer: Well, that's--

Mr. Castanias: --contrary--

Justice Breyer: --This is true.

This is exactly the point I had asked about before.

This is a better point.

Because I thought that bridge was... that... was crossed in Lane.

That is, I don't see how you can say that Lane was not giving... saying it's constitutional to have prophylactic rules.

And that's why I raised the reporter.

I've never heard of a First Amendment right of a paper to send a particular reporter.

I mean, if there's a disabled reporter who couldn't get into the courtroom, I guess they could send a different reporter.

Maybe that's a First Amendment right, but I have not heard of it.

So, I thought that, really, Lane is saying,

"You can sweep, within the prophylactic rules, a lot of things that are not, in fact, constitutional violations, but simply discrimination against disabled people. "

Mr. Castanias: --I think, Justice Breyer, with regard to Lane, the right that was at issue was not the right of the paper to send a reporter, it was the right of the reporter--

Justice Breyer: I think there is a First Amendment right for a newspaper, for example, to send a particular reporter to the courtroom.

That's an interesting question.

I never thought of that one.

I--

Mr. Castanias: --No, actually, Justice--

Justice Breyer: --you don't think Lane stands for the proposition of their prophylactic rules being perfectly legitimate under the Eleventh Amendment, where you have a set of constitutional violations?

Mr. Castanias: --Justice Breyer, I think... I think I either misstated my answer to you, because I was trying to--

Justice Breyer: No, I was asking--

Mr. Castanias: --I--

Justice Breyer: --I'm--

Mr. Castanias: --Let me try to answer that and--

Justice Breyer: --Yes.

Mr. Castanias: --say to you that I think, first of all, the First Amendment right that was at issue there was the general right that's possessed by the public to attend court proceedings, not just a right that was inherent in the newspaper or the... a right that was prophylactically being exercised there.

Justice Kennedy, you asked the Petitioner's counsel about alternative remedies here, and I think there's an important point to make with regard to Title III of the ADA, and that's the title of the ADA that applies, not to public entities, as we have here, like the State prison, but the title that applies to public accommodations, like restaurants and hotels.

And it's important to note, I think, that, in that title, Congress did not provide for money-damages remedies.

Quite the contrary, it provided for an Attorney General action, and it provided for injunctive relief.

And so, the notion that States somehow are special and should be the ones that get damages against them for violating the... violating access rights is, in words that the Court has used... in Boerne and the cases following it, that is a real indignity to the States.

And, beyond that, the standard that applies--

Chief Justice Roberts: Well, presumably, that's because the prisoners don't have a lot of choice as to which accommodations they're going to select from.

[Laughter]

Mr. Castanias: --I'm not sure, Mr. Chief Justice, that it follows that damage... that damages follow from that observation.

And I think, with regard to the choices that are available to prisons, much has been made in this case about the affirmative obligations of the State to provide the minimum standards of health and safety for prisoners.

And I'd point out that, in the Court's decision in DeShaney... specifically, footnote 7... the former Chief Justice wrote for the Court that, in determining both the scope and how to satisfy those, there is an enormous amount of discretion imposed in the State.

So, it's hard to say that that provision is allowing for... that minimal affirmative burden that's on the State is in any way congruent with the broad affirmative remedies that are at stake in this case.

Now, if I could just go through, very quickly, the various constitutional rights that are being addressed here by the... that are being claimed here by the Petitioner, you can see, in each case, why it's not a proportional and congruent remedy to use Title II of the ADA to enforce them.

First of all, with regard to the Equal Protection Clause, it's almost obvious, from the findings of Congress, that they meant to impose a higher degree of scrutiny.

By citing the words of Carolene Products, as well as Matthews against Lucas, that's... have justified heightened scrutiny to apply to the disabled, this is almost proof positive that Title II... and the ADA, in general... is changing the level of constitutional law.

It's not enforcing; it's changing the law.

Justice Scalia: Well, that just proves that they went too far.

It doesn't prove that, to the extent that it covers a constitutional violation, it's okay.

We will say the excess is bad.

Mr. Castanias: Well, Justice Scalia, I think the answer to that comes back to Kimel and Garrett.

The excessive change in the constitutional law was held to have crossed the line in that case.

And here, we have the same problems.

We have the changing of the burdens.

We have the changing of the level of scrutiny.

And we have the efforts, the same efforts that were used in Kimel and Garrett--

Justice Stevens: Do you think--

Mr. Castanias: --to make--

Justice Stevens: --the level of scrutiny applied in Cleburne was precisely the same rational-basis level that is applied in a lot of other rational-basis cases?

Mr. Castanias: --I think it was, Justice Stevens, because you can only talk about the conceivable remedies in the context of what the State puts forth.

And perhaps a creative judge could say,

"Aha, but that's the State... you didn't think about this one. "

And the fact that Justice White's opinion... I think it was Justice White's opinion for the court in Cleburne... didn't go on and think about four other conceivable bases, I don't think is a fault of the decisionmaking process at all.

With regard to the Petitioner's efforts to enforce the guarantee against cruel and unusual punishment, there is no intent standard in the ADA at all.

In fact, this would scrub out the deliberate-indifference standard entirely, and, in the... at least Goodman's reply brief, he admits that that basically would be what would happen.

He says that would be appropriate prophylaxis.

I think that is an astonishing claim in this case.

Justice Ginsburg: Can we go back, Mr. Castanias, to Justice Scalia's question about the core concerns?

And we have been told by Respondents that their core concerns are sanitation, mobility, protection from physical injury.

Now, that sounds to me like constitutional Eighth Amendment heartland.

Mr. Castanias: And in that case, Justice Ginsburg, if I could just briefly--

Chief Justice Roberts: Sure.

Mr. Castanias: --conclude?

In that case, Justice Ginsburg, the Constitution, through Section 1983, does provide a remedy.

It will provide a remedy that will get the prison to stop that.

If there are no other questions, we'd ask that the judgment be affirmed.

Argument of Gene C. Schaerr

Chief Justice Roberts: Thank you, Counsel.

Mr. Schaerr, we'll hear now from you.

Mr. Schaerr: Mr. Chief Justice, and may it please the Court:

Let me begin by attempting to answer Justice Scalia's questions... question about the Rehabilitation Act.

My understanding is that the key difference between the Rehabilitation Act and Title II is that... is that the Rehabilitation Act requires intentional conduct, which, obviously, is a much... a much higher standard.

Instead of dwelling on the record offered in support of Title II... and we agree with Georgia that the record was not sufficient... I'd like to focus on the congruence and proportionality requirements, which are quite separate from the record requirement, and which we believe are independently dispositive in this case, for two separate reasons.

But, first, I think it's important to recall the two key purposes that the congruence-and-proportionality analysis serves.

One of those, as the Court has reiterated, is to prevent Section 5 from becoming a kind of police power through which Congress can regulate the States and impose litigation and other burdens on them as though they were mere corporations.

The second purpose, of course, is ensuring that the specific remedies that Congress chooses, and especially the abrogation of sovereign immunity... sovereign immunity that this Court has held is within Congress's Section 5 power, are a measured response to Congress's legitimate goals.

And that's obviously important, because of the... of the... of the tension between the Section 5 power, on the one hand, and the Eleventh Amendment and other provisions of the Constitution that protect--

Justice Stevens: May I just--

Mr. Schaerr: --the State's sovereignty.

Justice Stevens: --be sure I understand this point?

Mr. Schaerr: Yes.

Justice Stevens: Are you, in fact, arguing that the statute might be... I know you don't agree with it... might be proportionate and congruent with respect to all of its prohibitions, but, to the extent it provides for a damage remedy, then it crosses the line?

Mr. Schaerr: I do believe that the statute could be invalidated on that ground alone, but I don't think the Court needs to do that, because I think it's clearly not congruent with constitutional requirements.

And let... and I believe there are--

Justice Stevens: But--

Mr. Schaerr: --four reasons for that.

Justice Stevens: --But is that... it... because it has a damage remedy, or would it be equally noncongruent without the damage remedy?

That's what I'm trying--

Mr. Schaerr: I--

Justice Stevens: --I'm following up on Justice Kennedy's question to your colleague.

Mr. Schaerr: --Well, the way... the way I would view it is that the damage remedy is disproportionate to Congress's legitimate goals in this case, for a couple of reasons.

Number one, as in... as in Florida Prepaid and some of this... some of this Court's other decisions, the abrogation of sovereign immunity is not limited to the specific areas that Congress and the courts have identified as the greatest concern, from a constitutional standpoint.

And, number two, the abrogation of sovereign immunity is not limited to the States, or categories of States, where there has been a finding of unconstitutional action.

So, we do think that that would be a sufficient basis to invalidate this statute's abrogation of sovereign immunity, but we also think that the statute is not at all congruent with the requirements of the Constitution.

And, as--

Justice Souter: Mr.--

Mr. Schaerr: --I said, I think there are four reasons for that.

Justice Souter: --Mr. Schaerr, before you go on, may I just ask you one question on the point that you made... and you made it in the brief... about the failure to establish a... some kind of a history of unconstitutional action in this particular State?

Do I understand you to claim that that is a... that a record of some sort must be made by Congress?

Or can a record of that sort be made in the courts, in the course of litigation, as a predicate for a particular lawsuit like this one?

Mr. Schaerr: Well, City of Boerne and other courts... other decisions of this Court say that, to be a valid exercise of Congress's Section 5 authority, it has to be a response to a record of constitutional violations.

Justice Souter: Right, but Congress--

Mr. Schaerr: And it's hard for me to--

Justice Souter: --but Congress normally operates on a... on a national scale--

Mr. Schaerr: --True.

Justice Souter: --so that, I mean, we... I guess, we would normally say,

"Well, you can show 40 States out of 50 were in trouble. "

"That's probably good enough to get you across the line, at least. "

But you're not saying that.

So, are you saying that Congress has got to make the record with respect to each individual State?

Mr. Schaerr: No, I'm not claiming that Congress necessarily has to make the record, but I believe the record has to have been created before Congress acts; otherwise, the--

Justice Souter: So, it could be done--

Mr. Schaerr: --legislation isn't--

Justice Souter: --it could be done--

Mr. Schaerr: --a response--

Justice Souter: --in the litigation of this case, then.

There could be a trial record of prior violations.

Mr. Schaerr: --No, I... I don't think the record in this case would satisfy it, because this... because--

Justice Souter: No, but my question is, Where does the record have to be made?

Does Congress have to make it, on a State-by-State basis, or may that record be made in the course of a trial in a particular State as a predicate for subjecting that State to liability in this instance?

Mr. Schaerr: --Well, this Court's decisions suggest that the record has to at least have been within Congress's awareness at the time the statute was passed.

Justice Souter: So that Congress could have known this, whether they specifically adverted to it, or not.

That would be sufficient.

Mr. Schaerr: I think that's correct.

Again, four reasons why Title II is not congruent with the... with the requirements of the Constitution.

First, as in Garrett, the substantive accommodation duty imposed by Title II far exceeds the requirements of the Constitution.

And to see why, we need look no further than Mr. Goodman's complaints that are in the Joint Appendix, the Government's Addendum C, and the Justice Department's implementing regulations, which are found at 28 C.F.R. Section 35.130(b).

And if you... if you look at Mr. Goodman's complaint, yes, there are some allegations there that obviously raise constitutional issues, but there are a lot of allegations that clearly state a claim under the Justice Department's interpretation of Title II, but, equally clearly, don't raise constitutional issues.

For example, on page 65, he has a claim seeking to make the TV lounge and other entertainment facilities wheelchair accessible.

Pages 53, 57, and 82, he makes a claim for better access to recreation facilities, rehabilitative exercises, and physical therapy.

At page 64 of the Joint Appendix, he makes a claim to force the State to install wheelchair-accessible bathrooms.

Justice Kennedy: And I'm saying this to help you.

I'd love to get reason 2.

I'm wondering--

[Laughter]

Mr. Schaerr: Okay.

Justice Scalia: Even if they're bad, why aren't the other ones good?

Mr. Schaerr: Well, in order to abrogate the State's sovereign immunity, there has to have been a valid exercise of Congress's power, and there has to be a statute that represents a valid exercise of that power; otherwise, there's no basis for subjecting the States to liability.

So, I don't think it's enough just to say,

"Maybe there... maybe there is an Eighth Amendment claim here that's legitimate, and maybe, therefore, in this case, the State's sovereign immunity can be abrogated. "

It has to be done pursuant to a legitimate exercise of Congress's power.

Reason number two, Justice Kennedy, is that, as in Boerne and Garrett, even where constitutional issues are implicated, Title II effectively imposes heightened scrutiny on many decisions that are subject to rational-basis review under the Constitution... for example, access to the law library, religious services, associational rights, those sorts of things.

And that, I think, is the key distinction between this case and Lane and Hibbs.

And so, as the Court put it in Garrett, even with the undue-burden exception, the statute makes unlawful a range of alternative responses that would be reasonable under the Constitution, but would fall short of imposing an undue burden on the employer.

Number three, as in Garrett, Title II prohibits standards and criteria that have a disparate impact on the disabled, even though that obviously wouldn't be enough to establish a constitutional violation if the disabled were a suspect class.

And, again, the Court need only look at the Justice Department's regulations to see how they impose a disparate-impact requirement.

And, fourth, again, as in Kimel and Garrett, Title II reverses the burden of proof.

As the Court held in Garrett, under the Constitution, classifications based on disability are prima facie--

Justice Breyer: Well, why isn't all that true of Lane?

Everything you've said is also true of the prophylactic part of Lane.

I mean, I've never heard that people took seriously... though maybe they should have... but, before the ADA, I have never heard there was a constitutional right of a disabled person to go to a courthouse on the second floor.

There were second-floor courthouses all over the country.

I don't know that was true of the bathrooms.

I don't know it was true of a lot of things in courthouses.

So, I think your argument could be made in schools, courthouses, all over the place.

And I take it that Lane said, "Prophylaxis"... whatever the word is... "of that sort"--

[Laughter]

"# is fine under Title II, given a core of constitutional violations. "

So, how do you distinguish them that?

Mr. Schaerr: --Well, I think it... one of the ways is the one... is the one I just mentioned a... mentioned a minute ago.

It's... Lane was certainly dealing with rights that have been considered by--

Justice Breyer: You mean--

Mr. Schaerr: --the Court--

Justice Breyer: --beyond a--

Mr. Schaerr: --to be--

Justice Breyer: --the average public, you had a constitutional right?

I mean, you might have.

I might be surprised.

But, interesting.

Mr. Schaerr: --Well, I--

Justice Breyer: The average person could have brought a lawsuit, a person in a wheelchair, and said,

"All the courthouses in this country, or in this county, are on the second floor, and moreover the bathrooms... I need a special bathroom. "

and they would have won without the ADA.

Why did we need the ADA, then?

Mr. Schaerr: --Well, I'm not sure the claim... I'm not sure, Justice Breyer, that the claim of the person who wanted access to the courthouse to serve as a reporter was necessary to the result in Lane in all of that.

Justice Breyer: Ah.

Ah, you're saying... I... what I just heard was, it's... the reporter just was a stand-in for the average person, that the average person had these constitutional rights, which may have been a--

Mr. Schaerr: I think that would be one way of understanding it, though not the only way.

Thank you.

Rebuttal of Paul D. Clement

Chief Justice Roberts: Thank you, Mr. Schaerr.

General Clement, you have four minutes remaining.

Mr. Clement: Thank you, Mr. Chief Justice.

Before I say anything else, I want to just clarify that the scope of the Rehab Act and Title II is really coextensive.

Mr. Schaerr made a reference to the fact that you need intentional conduct under the Rehab Act.

I think that was true for a while in the lower courts with respect to damages claims.

I think after this Court's decision in Gebser, in the context of damages claims, the lower courts have generally required deliberate indifference both in the Rehabilitation Act context and in the Title II Act context, to the extent they've reached the issue.

But with respect to the substantive obligations, they really are identical.

And I do think that's important, in a couple of ways.

In particular, I think it's worth remembering here that the damages remedy in Title II... and this is different than Title I, where there was a specific provision for back-pay... but in Title II, the damages remedy is just an incorporation of the damages remedy available under the Rehab Act, which, in turn, incorporates Title VI and Title IX remedies.

And those, of course, are entirely judge-made.

And so, one of the things this Court recognized in Gebser, in deciding there had to be deliberate indifference for a compensatory-damages claim, is, this Court said, the judge-made nature of those remedies gives the court a particularly free hand in making those remedies make sense, in terms of the statute, and, I would think, a fortiori, in terms of the Constitution.

So, if--

Chief Justice Roberts: General, when you... earlier, you told us that this doesn't add much to the Constitution, in Turner versus Safley, and then we hear about access to the TV lounge, which doesn't sound like a constitutional deliberate-indifference Eighth Amendment claim.

I mean, if it's important to us how much of this applies, how do we address that issue?

Mr. Clement: --Well, let me address the specter of all these claims for TV access, because I do think that that's something that can be taken care of in any number of respects.

One is, a sensible application of Turner-type principles to the reasonable-modification standard can certainly be done in a way to weed out those claims.

I also think... especially given Justice Kennedy's principal concern with damages, I think here's an area where the PLRA is particularly helpful, because I don't know what kind of physical injury you're going to be able to show to being denied access to the TV room.

And since that's what you need to show under the PLRA in order to recover any damages for mental and emotional suffering that I suppose you could try to bring a claim for emotional suffering for not seeing TV... I'm not sure which way that would cut... but, in any event--

[Laughter]

--I think, in those contexts, the PLRA is the gateway you need to some physical injury, so I think that's going to help weed these out as a matter of damages claims.

And so, I think that's going to have a helpfulness, too.

Also, I think, in some... in some sense, you can't lose sight of the fact that perhaps the reason that somebody's being denied access to the TV room is because they're in a wheelchair on the second floor, and the TV room and the law library and the religious services and everything else they need in the prison is on the first floor.

And, in those contexts, it may be an appropriate degree of prophylaxis.

But I guess what I would say is, I would think that this Court would want to interpret the PL... # I'm sorry, would want to interpret Title II in a way that avoids constitutional problems, rather than in a way that engenders it.

And so, to the extent the access to the TV room is critical to the constitutionality of the statute, I think the reasonable-modification standard provides plenty of tools to apply Turner-type principles and ameliorate the constitutional problems.

I mean, if you compared this case with Cutter against Wilkinson from last term, there you had a statutory strict-scrutiny standard that was specifically directed at the prisons in one other context.

And, nonetheless, this Court said,

"That can be applied with Turner deference-type principles. "

Here, you have a statute that applies broadly, and I would think it would be a very easy act of interpretation and constitutional avoidance to say that,

"In the prison context, we're going to interpret in a way that avoids constitutional difficulties. "

If I could try to address just one or two specific questions... Justice Souter, you asked about the practical experience of the Federal Government.

And, as we point out in our opening brief, at page 45, it's been less than 1 percent of our litigation, and less than 2 percent of our compliance cost.

Thank you, Mr. Chief Justice.

Chief Justice Roberts: Thank you, General. The case is submitted.

Attribution:

The Oyez Project

Featured:

Schaffer v. Weast - Oral Argument

Fri, 09 Jan 2009 14:48:54 +0000

Case:

Schaffer v. Weast

Media File:

04-698_20051005-argument.mp3

Related Transcript:

2005_04_698_argument.xml

Transcript:

Argument of William H. Hurd

Justice Stevens: We will now hear argument in Schaffer against Weast.

Mr. Hurd, you may proceed.

Mr. Hurd: Justice Stevens, and may it please the Court-- As Congress recently reaffirmed, the IDEA was enacted to protect the rights of children with disabilities, and the rights of their parents.

It is an Act intended by Congress to remedy a long history of discrimination that once kept these children from the schoolhouse door.

It is an Act intended, as this Court said in Rowley, to maximize parental involvement and to ensure that these children have access to an appropriate education.

Today, the intent of Congress, as shown by the text, structure, and purposes of the Act, calls for the burden of proof in administrative hearings to be placed on the school system, not on the parent.

The fourth circuit said that placing the burden on the party who initiates proceeding is the traditional rule.

But, there is no single traditional rule.

Instead, there is a collection of different rules.

Justice O'Connor: Now, Congress was silent on this subject of the burden of proof, was it not?

Mr. Hurd: Yes, it was, Justice O'Connor.

Justice O'Connor: Was there... did you find anything in the legislative history... I know some members don't care to look at that, but I would be willing--

[Laughter]

--that shows any discussion at all about the burden of proof question?

Mr. Hurd: We are aware of none, Your Honor. What we... what we have here is a situation where Congress, when it wishes to allocate the burden of proof one way or the other legislatively, knows how to do so.

It did so in the APA, for example, while adopting the rule that the fourth circuit said applies in this case.

But Congress did not adopt the rule in this case.

Justice Scalia: Excuse me.

Why didn't it?

I... why wasn't the APA applicable?

Mr. Hurd: Well, Your Honor, the APA governs Federal agencies, it doesn't--

Justice Scalia: I see.

Mr. Hurd: --govern proceedings--

Justice Scalia: I see.

Mr. Hurd: --under the--

Justice Scalia: So--

Mr. Hurd: --under the IDEA.

Justice Scalia: --what it if were... what it were a school on a Federal base?

Are they covered by this Act, by the way?

You know--

Mr. Hurd: Your Honor, there are--

Justice Scalia: --military schools on military--

Mr. Hurd: --DOD schools--

Justice Scalia: --DOD schools.

What do you do with them?

Are they governed by the APA?

Mr. Hurd: --We don't believe so, Your Honor.

Justice Scalia: No?

Mr. Hurd: They are not.

And part of the reason for that has to do with this unique structure of the Act.

It is a very nontraditional statute.

It is--

Justice Scalia: Well, you'd be suing some Federal agency.

I mean, it has to be some Federal agency that's running that school, and at least for that kind of a school the burden is clearly going to be on the person challenging the agency action.

Mr. Hurd: --I don't agree, Your Honor, and let me explain why, because of the unique structure of this Act, it creates an equal partnership between parents and the school system, with the purpose of that partnership being to produce an Individualized Education Program for the benefit of the child.

And, as this Court recognized in Honig, that IEP is the centerpiece of the entire statute.

Justice O'Connor: Yeah, well, what if you had an IEP that the parents had initially agreed with, and then they decide it isn't working well, they want to challenge it.

They shouldn't have a burden of proof?

Mr. Hurd: Your Honor, that would be a different situation, and courts below have reached different results on that.

We believe that the school system--

Justice O'Connor: Well, you mean the court has... every court faced with this problem is supposed to decide, in that particular case, who hast who has the burden?

Mr. Hurd: --No, Your Honor.

Some courts have decided that, where either party... the school system or the parents... challenges an existing IEP or wants to change an existing IEP, some courts have said the burden is always on the school system, some have said the party challenging has the burden.

But--

Justice O'Connor: Do you--

Mr. Hurd: --in this case--

Justice O'Connor: --do you think it's open to a State to adopt a general rule on who has the burden of proof under this statute?

Mr. Hurd: --Your Honor, we think that it is not.

We believe it is a Federal question that--

Justice O'Connor: Have some States purported to adopt a general rule on this?

Mr. Hurd: --Some have, Your Honor.

Justice O'Connor: And you think that's invalid.

Mr. Hurd: Well, we believe... yes, Your Honor, we believe it is a... it is a Federal law question.

What we do know, however, is that Maryland has adopted no rule on this question, no statute to allocate the burden, one way or the other.

And even if a State has the ability to adopt a rule, if it wishes to do so, that still leaves open the question of what rules should apply in the absence of a State based rule.

Now--

Justice Ginsburg: Mr. Hurd, do you recognize... to narrow what... the issue... that the parent objecting to the school's IEP would at least have a burden of coming forward?

In other words, I... are you speaking just of the ultimate persuasion burden?

Wouldn't the parents at least be required to come forward with some reason to believe that the State... the school district's plan is inadequate?

Mr. Hurd: --Your Honor, we don't believe that it's necessary.

We do recognize that is a different question.

In this case, for example, the school system was required to go first, but, initially, the parents were given the burden of proof.

It is a... it is a different question.

And let me address, if I may, the different paradigm that this kind of action presents, because it's very different than a traditional statute.

It goes back to this unique equal partnership.

Congress intends for that child to have an IEP.

And there are only two ways to get that IEP.

One is a consensus between parent and school system.

But if there is an impasse, Congress still wants that child to have an IEP, and there's only one way to carry out that congressional purpose; somebody has to step forward and ask for the hearing officer to make a decision.

And it makes little sense to burden a party just because that party is the one who stepped forward to advance the congressional goal by asking for the IE... hearing officer first.

Justice O'Connor: What case is your closest one to support the view that the Court should adopt some particular rule here, based on the scheme?

Mr. Hurd: Well--

Justice O'Connor: What do you rely on?

I just don't know where we look for the--

Mr. Hurd: --Your Honor, I would--

Justice O'Connor: --guiding principle.

Mr. Hurd: --I would... Justice O'Connor, I would point, for example, to your opinion in Gebser vs. Lago Vista, where you said that the general rule... this was not a burden of proof case, but, in any event, you said the general rule must yield to the purposes of the statute--

Justice O'Connor: Okay, but let--

Mr. Hurd: --in order to figure out--

Justice O'Connor: --let's talk--

Mr. Hurd: --congressional intent.

Justice O'Connor: --burden of proof cases.

What is your closest one where the courts are left to do this?

What do we look to?

Mr. Hurd: Well, Your Honor, the Court, last year, in Alaska versus EPA, said, there is no single rule, or principle, governing the allocation of the burden.

And in that case, this Court also said two other things that are important here.

One is, it put the burden on the Government in that case, regardless of whether the Government was the plaintiff or the defendant.

So, the idea of burdening the party who initiates the proceedings was projected there, and this Court said it looked at the purposes of the statute and saw no reason to place the burden differently, depending upon whether the Government came to court as the plaintiff or took unilateral action forcing the other side to come to court where the Government would be the defendant.

Justice Scalia: I understand the purposes of the statute argument.

The purpose of the statute is always to provide relief to someone who's been injured.

And to conclude, from this, that, therefore, the burden should be on the other side, in order... in order that people who are injured can get relief, is... I mean--

Mr. Hurd: Your Honor--

Justice Scalia: --that will always be the case.

Mr. Hurd: --Justice Scalia, the purpose of the statute is to obtain for the child an Individualized Education Program.

Justice Scalia: That's fine.

I... that's one sort of relief.

But, I mean, you have some relief at issue under every statute.

They want a needy person to be given justice.

And to say that, since that's their purpose, you should always put the burden on the other side, is... I just don't understand that argument.

Mr. Hurd: Well, Your Honor, this is a unique statutory scheme.

The purposes of the Act are set forth in the law very clearly... page 6 and 7 of the addendum to the blue brief... one is to ensure that all children with disabilities have available to them a free, appropriate public education.

And--

Justice Scalia: Sure.

Mr. Hurd: --that purpose is served far more, Justice Scalia--

Justice Scalia: And the Federal Tort Claims Act, for all I know, says, in its prologue... or, if it doesn't, it should have, or it could have... the purpose of this is to assure that every person who's been injured by a... by a Government tort obtains relief.

Mr. Hurd: --But let me, then, point out the very different paradigm between the ordinary tort claim statute and this statute.

In your ordinary tort claim statute, your ordinary litigation, the law starts out by being neutral with respect to the status quo.

And that's the reason why you have this rule... we don't think it is called "traditional rule" appropriately... but the general rule that you place the burden on the party who initiates litigation is because the law is neutral with respect to the status quo at the beginning of the lawsuit.

Here, the law is not neutral, because the status quo before the hearing is the child has no Individualized Education Program.

Justice Scalia: Well, that's--

Justice Souter: Well, that's where I am not understanding your argument.

There is an IEP in all of these cases.

I would understand your argument if the State... the school district said,

"We're not going to educate this kid. "

"Throw him into the pot with everybody else. "

"We won't give you an IEP. "

That's not what we've got here.

And, in fact, if that's what we had here, the burden of proof issue would be of no significance, because the State... the parents would walk in, and the only thing they'd have to do to satisfy "a" burden of proof would be to say,

"They didn't come up with an IEP. "

Mr. Hurd: Justice Scalia--

Justice Souter: Instead, what we have here is a fight about whether it's a good IEP or no IEP.

Mr. Hurd: --Justice Scalia, with all due respect, there is no IEP; there's only a proposed IEP.

And that is--

Justice Souter: Then--

Mr. Hurd: --the crucial difference--

Justice Souter: --then we're arguing about words.

Mr. Hurd: --The point, though, is that with--

Justice Souter: The State is not saying,

"We will not come up with an IEP. "

The State is saying,

"This is what we're going to give you. "

and the parents say, "It's not good enough".

Mr. Hurd: --Your Honor, that is not an IEP; that is a proposed IEP.

And it is not merely arguing about words; it goes to the heart of the statute.

Let me explain why.

Three things this Court has said... or the regulations say.

Number one, the regulations say that the parents and the school system are equal partners.

This Court said, in the Honig case, that Congress very much intended to strip school systems of the power to act unilaterally with respect to these children.

Thirdly, this Court said, in Rowley, the purpose of the statute is to maximize parental involvement.

Now, if we're equal partners at the table, what sense does it make for the school system to tell the parents that,

"We are equal partners here, but, if you disagree with me once we leave the table, I am presumed correct? "

Justice Scalia: --What sense does it make for the parents to tell that to the school system?

I mean--

Justice Souter: In an... in an equal partnership argument, nobody's got the burden of proof.

Mr. Hurd: Your Honor, in an equal partnership argument, nobody has the burden, because they initiated the proceeding to ask for the goal that Congress had in mind--

Justice Kennedy: In all events--

Mr. Hurd: --that the child have an IEP.

Justice Kennedy: --in all events, it seems to me that it's still cut against you.

This is a statutory scheme where, you point out, the parents have access to some initial consultation.

In most instances... or in many instances, people who are suing an institution don't have that initial access.

Here, the parents get much more initial information than most... than most petitioners do--

Mr. Hurd: They--

Justice Kennedy: --than most... than most complainants, than most aggrieved persons do.

Mr. Hurd: --Well, Your Honor, actually their discovery rights are less than what they would normally have.

But let me go to the idea, then, that we are--

Justice Kennedy: Then let--

Mr. Hurd: --equal partners--

Justice Kennedy: --let me point... let me point out something else.

Let's assume a state of affairs... just assume that school districts... many of them... independently and, I think, collectively, because school districts talk to each other... have a growing body of data and expertise about IEP.

And this is the basis on which you say that they should come forward.

It seems to me that, too, though, cuts against you, because when a school district has expertise, I think it's entitled to a presumption of governmental deregularity.

And you have to challenge it.

Mr. Hurd: --Your Honor, we disagree with that, because of the structure of the Act.

Again, it makes no sense to be equal partners at the table, and, once you reach an impasse, to say, well, you're going to presume one side is right.

Justice Breyer: That's a well established principle of administrative law.

I've never seen a case in administrative law where a party... a private party coming in and challenging a Government's action doesn't bear the burden of proof.

And Alaska isn't contrary to that.

Alaska, they were citing hornbook law, whether... what happens with the... if EPA normally does have a burden of proof when it challenges a State action, and that doesn't change, whether they bring it in a State proceeding or whether it's in a Federal proceeding.

I didn't think it was quite on point.

But maybe you know that I'm wrong on this.

And so--

Mr. Hurd: Well, Your Honor--

Justice Breyer: --is there a... can you think of any instance, in all of administrative law, where you didn't start out with the idea that a person challenging a... an agency action that's been taken, and so forth, doesn't have the burden of proof?

Mr. Hurd: --Your Honor, there is no analogous case, because--

Justice Breyer: That's what I--

Mr. Hurd: --because--

Justice Breyer: --I do think that, yeah.

Mr. Hurd: --because there is no analogous statute.

Justice Breyer: There isn't?

Mr. Hurd: There's no analogous statute.

There is no other statute we've been able to find where private citizens are made equal partners with Government in the design and approval of Government actions.

Justice Breyer: All right.

Does this every come up?

I mean, the other thing I wondered about this... it seems to me you have a hearing examiner and a district judge who have actually said what is only a law professor's dream.

They say,

"Oh, the evidence is precisely and equally in balance. "

I didn't know that happened in the real world.

I--

[Laughter]

--I thought that their... that judges normally did their job, which is, you look at complicated evidence, and you say,

"This side is a little bit better, or that side is a little bit better. "

Has this come up in... a lot, where they say, in this area, "Oh, it's exactly"--

Mr. Hurd: Well--

Justice Breyer: --"# in equipoise"?

Mr. Hurd: --Your Honor, I don't... I don't know how many times the hearing officer has said that.

I do think the burden of proof is not... is not... or the evidence is not balanced on a razor's edge.

I think it is a... is a broader table than that.

But let me explain, if I may, three reasons.

Justice Ginsburg: May I ask you, before you get to your three reasons, to go back to your... something that you said?

I asked you, Are you dividing the burden of production and persuasion?

And you said no, it's all on one side or the other.

But it seems to me your description of this proceeding, you said the school district goes first.

So--

Mr. Hurd: In this--

Justice Ginsburg: --the school district did come forward.

And is that the usual practice in these administrative hearings... if the first one to go to defend the plan is the school district, not the parents who are attacking it?

Mr. Hurd: --Your Honor, I believe that the typical procedure would be that the... whichever party has the burden of proof would go first.

Justice Ginsburg: But you said, in this case--

Mr. Hurd: It--

Justice Ginsburg: --the school district went first.

Mr. Hurd: --Yes, Your Honor.

In this particular case, the hearing officer had not yet resolved the burden of proof issue at the beginning of the hearing, and--

Justice Ginsburg: So, now, as a result of the fourth circuit's decision, do the parents always go first--

Mr. Hurd: --Oh--

Justice Ginsburg: --and not the school district?

The school district has a plan that it has put forward.

And it seemed to me logical, well, it has a plan, so it should defend it.

Mr. Hurd: --Your Honor, the typical rule is, obviously, that whichever party has the burden of proof in that proceeding would go first, but--

Justice Ginsburg: So, you think the ALJ... or the administrative hearing officer in this case told the State to go first... the school district to go first because he thought that maybe they had burden of proof, and would not have asked them to go first if he didn't?

Mr. Hurd: --Your Honor, there was a... it's unclear why he had them go first.

There was some State regulation... then in effect, no longer in effect... that suggested that perhaps the State had some initial burden in that case.

We're not necessarily asking that the... that the... that the State be required to go first.

What we are asking is that the State... excuse me, not the State... the local school system bear the burden of persuasion.

And there are three--

Justice Ginsburg: So, but you're saying this... this is an ad hoc thing.

There is no general practice about which one goes first.

Mr. Hurd: --Your Honor, the general practice would be that whoever has the burden of proof, the burden of persuasion, would also be the one to go first and go last.

That's the general practice in procedures.

And we believe it also applies here.

But we're not... what I'm... my point is that we are not wedded... this Court was to decide that the parents should go first, but the school system had the burden of persuasion, that would be fine with us.

In the cases where the burden of persuasion is going to be determinative, both sides are going to have substantial evidence before the hearing officer.

The question we think is most important here, if I may, is, Which allocation of the burden of proof best advances the purposes of Congress?

There are three reasons, at least, why we believe putting the burden on the school system best advances the purposes of the Congress.

Number one has to do with the risk of an erroneous decision.

This Court, for example, in Santosky, said What will happen if there is an erroneous decision?

It asked that question in the context of the standard of proof.

It is important to ask that same question here.

If the hearing officer makes a mistake and awards the child services that are not really needed, then the child will receive a somewhat better education than the law requires, and the school--

Justice Scalia: --And it's only play money, right?

Justice Stevens: Isn't the question, Who's going to pay for it?

Because this... doesn't the parent often go ahead and get the other... the better program, and then they ask for reimbursement for the... from the Government?

Mr. Hurd: --Well, not in that case, where the... my hypothetical was, where the hearing officer has awarded services--

Justice Stevens: But isn't it true that many of these fights occur after much of the education has already taken place--

Mr. Hurd: --Your Honor, because of--

Justice Stevens: --and they're fighting about who pays for it?

Mr. Hurd: --the wheels of justice grind slowly... sometimes they do, but they... the key point here is, look at what happens if the hearing officer denies services the child needs.

The child is going to be harmed, and, in the long run, society is going to be harmed, as this Court recognized in Rowley.

The harm to the child if the burden is erroneously... excuse me... the harm--

Justice Stevens: Well, that's--

Mr. Hurd: --to the child--

Justice Stevens: --that's not true if the parents can afford to pay for it, and have, in fact, paid for it.

Then the child is the neutral factor in it.

Of course, in some cases, what you say would be true, but not in--

Mr. Hurd: --Your Honor, in most cases--

Justice Stevens: --not in all cases.

Mr. Hurd: --it would be true.

These parents were fortunate... this child was fortunate, that they were able to pay for Brian's services until Montgomery County finally changed its mind and gave him the kind of services he had sought from the beginning, services they gave him once they were given the burden of proof.

But most parents are not going to be in that situation.

Most parents of children with disabilities are not going to be able to go out and obtain the services they need if the hearing officer does not award--

Justice Scalia: Mr. Hurd, here's--

Justice Stevens: This is true.

Justice Scalia: --here's my problem with your assertion that we have to decide it in the way that furthers the purposes of the statute.

We said, in other cases... and correctly, I think... that no statute pursues its purpose at all costs, that there are limitations upon its purpose.

It, of course, wants students who need this special help to get it, but it also does not want students who don't need this special help to get it.

And for you to say, "There's no harm done".

You know,

"If he... if he's given it when he doesn't need it. "

"What's the problem? "

"He goes to a better school. "

The problem is that this is not play money.

It's coming from somewhere; and, namely, on the citizens who have to pay for it.

Mr. Hurd: --Your Honor, my purpose is not to minimize the monetary interests involved, but it is to focus the Court's attention on the aspect of it that Congress had focused on.

Certainly, if we have an erroneous decision either way, there will be some loss.

If the loss is on the school system, it will not be unimportant; it will be some money.

If the loss is on the child, it will be in the squandering of human potential--

Justice Breyer: All right, that's true.

That's... I understand.

I sympathize with that point.

I'm worried, however, about the fact that this statute doesn't just cover the initial IEP.

It covers a whole range of things, including, for example, you have a hyperactive child.

The hyperactive child behaves badly in class.

The hyperactive child receives discipline related, say, to how it's placed.

Well, the parents might... properly, perhaps... think that was very unfair and wrong, and they might challenge that disciplinary mark.

There can be thousands of different kinds of issues that come up.

And, in all of these issues, is it supposed to be the burden of the school board, for example, to show that the teacher who had the child sit in the back of the class or received a bad discipline mark or something?

Does the... does the school board have to prove that the teacher was right?

Mr. Hurd: --Well, Your Honor, those cases would not arise under the IDEA--

Justice Breyer: Wouldn't it, if it were related to the placement?

Mr. Hurd: --Your Honor, your hypothetical did not change the child's placement.

Justice Breyer: No, no, I say that there are a number of... what I'm thinking of is a lot of interim decisions that come up that are affecting how the child is placed... whether in class, whether in that class, whether with a special teacher, whether without a special teacher, whether with somebody during the recess periods, whether not.

I mean, they're... these are very complicated matters, and there can be important overall matters, and there can be what I'd call interstitial matters.

Mr. Hurd: Your Honor, the initial matters you discussed... sent to the back of the room... the IDEA is not implicated there.

If the school system tries to change the child's placement, then this Court has already said that the school system bears--

Justice Breyer: What I'm driving at is... and I think it was well expressed in one of these cases, a New Jersey case, perhaps... but is it the same burden of proof whether the matter is interstitial or whether it's an initial placement or a change of--

Mr. Hurd: --Yes, sir.

Justice Breyer: --placement? Do we have the same burden of proof always on the school board, no matter what?

Mr. Hurd: I understand your question, Your Honor.

We believe the strongest possible case is, initially, where there is no IEP, where this is equal partnership, and the school system should be required to come forward and demonstrate this program is appropriate.

If, however, you have a... an agreed IEP and the parents say,

"Well, now we want to change that. "

then the case for the parents is, frankly, not so strong.

It is a different case.

And some courts have said, in those cases, the parents have the burden, as the district court did, actually, in this case, by way of dictum.

Other courts have said, no, the school system always have the... has the burden.

The Court need not go so far here as the New Jersey court went in Lascari, and say the school system always has the burden in order to the rule... rule for the parents in this case and say that, initially, when there is no IEP, only a proposed IEP... and, Justice Souter, Burlington used that word three times, IEP proposal> ["], which we think implies that it was not a real IEP... this... the Court need not decide the other issue in order to decide that when there is no IEP, only a proposal, and when you have equal parties before the hearing officer, that it makes no sense to allocate the burden on which one filed for the hearing officer first, who asked for the tiebreaker first.

That really makes no sense.

You have to, instead, we submit, decide the case based on which allocation of the burden in this situation is most in accord with the purposes of the statute.

Two purposes, if I may.

Protecting the rights of children with disabilities, and the rights of their parents, is what the statute says.

Protect them from whom?

What did Congress have in mind?

Obviously, to protect them, quite frankly, from the school systems, who had this history of discrimination, who are more powerful, if you will, in terms of both information and resources, and who have a financial incentive, as the Deal court recognized, to minimize the needs of the child.

Protecting the side that Congress meant to protect means putting the burden on the other side the school system.

Secondly, more fundamentally, the purpose is to ensure the children have an appropriate education.

The law doesn't say "promote".

It doesn't say "presume".

It doesn't say "risk".

It says "ensure".

In baseball, there's an old umpires rule that the tie goes to the runner.

In order to carry out purposes of this statute, when the evidence is in equipoise, the tie should go to the child.

I'd like to reserve the balance of my time for rebuttal.

Justice Stevens: Mr. Garre.

Argument of Gregory G. Garre

Mr. Garre: Thank you, Justice Stevens, and may it please the Court--

Petitioners rejected the educational plan found appropriate by local school officials, enrolled their child in an expensive private school, and then filed a due process complaint seeking reimbursement of $21,000 in private tuition expenses.

The court of appeals properly held that petitioners bore the burden of proof in that proceeding, just like--

Justice O'Connor: This is a case where the parents unilaterally decided to move the child to a private school, and then they sought tuition reimbursement?

Mr. Garre: --That's correct, Justice--

Justice O'Connor: Yes.

Mr. Garre: --O'Connor.

Petitioners bore the burden of--

Justice Ginsburg: As I understand it--

Justice Stevens: You don't contend the rule would be different if we were... if it was all prospective, do you?

Mr. Garre: --No.

Your Honor, we think the rule is the same in all of the various situations that could arise under the statute... the complaining party, whether it's the parents, as in this case, or the school district, as in many other instances.

And, Justice Breyer, you're right, one of the situations that is covered by this statute is where a child with a disability acts out in class, and the school has to take disciplinary action against that child.

In that situation, IDEA regulates the actions that the school district can take.

And if the parents believe that the school district has... take a more severe disciplinary action than is required by the statute, school... the school district, or the parents, could initiate a challenge in that situation.

In fact, there are many parts of the statute that we think speak to the question, or at least--

Justice Ginsburg: --Before we... you go onto the argument, your answer to Justice O'Connor, if I remember the facts correctly, wasn't quite right.

This child was in private school for years, and the parents weren't asking anybody to do anything, because... and it's only when the private school said,

"We have to... we can no longer put up with your child. "

"Your child has all these problems. "

--at that time, the parents then came to the school district and asked for an IEP.

Mr. Garre: --Justice Ginsburg, that's correct.

The child was in a private school, at which point in time, the private school suggested that they find... the parents find another environment for the child suitable for what they determined to be "special needs".

The parents contacted the local school district, and, at that point, the school district, in conjunction with the parents, devised an educational plan for the child.

Justice Ginsburg: Which the parents didn't think was acceptable and, in the interim, placed the child in another private school.

But it was not a case that they put the child in a private school first, and then sought reimbursement.

Mr. Garre: That is correct, Justice Ginsburg, except that the record does show that, during the time that the IEP was being developed, the parents applied for the child to attend a private school and actually accepted an application fee and enrolled the child in that school, and the ALJ in this case found that the parents had made a predetermined decision to send the student to child... the student--

Justice Ginsburg: I thought--

Mr. Garre: --to private school.

But we don't think that the facts of this case bear on the question of who bears the burden of proof in the run of the Mine case.

It's--

Justice Scalia: Mr. Garre, you... or, Mr. Garre, you said, in your earlier statement, that sometimes the school district will be the complaining party.

How does that... how does that come up?

Mr. Garre: --Your Honor, there are three situations in which the school district can be the complaining party.

First, where a parent refuses to subject his child to evaluation for special services under the Act, and the school district disagrees and initiates that action.

Justice Scalia: Now, why would the school district have to take any action?

Why wouldn't it just--

Mr. Garre: Well, under the statute--

Justice Scalia: --just say,

"The child can't come to class. "

"He's too disruptive. "

period?

Mr. Garre: --The Congress placed on school districts the obligation to identify disabled children within their jurisdiction.

Justice Scalia: Right.

Mr. Garre: And when they have... they believe they identified such children, and they request the parents to subject them to the evaluation... Congress placed on the school districts to at least conduct an evaluation in that situation, and if parents disagree--

Justice Scalia: Okay.

Mr. Garre: --school districts can initiate. The second situation is in... is where children act up in the classroom.

The school... the statute places restrictions on how the school district can discipline a child if the school district determines that the misbehavior is a manifestation of the child's disability.

In that situation, if the... if the school district believes that more severe discipline is warranted than would be allowed under the statute, the school district has to initiate the hearing in order to get an ALJ to allow it to take more severe action.

And the third situation is where the school district disagrees with a parent's request for an independent educational evaluation.

Parents can request, as part of the developmental process of an educational plan, to have an independent educational evaluation conducted on their child, paid for at public expense.

Most of the times, that's conducted without incidence.

In some situations, if school districts believe that that expense was not warranted, they could initiate a proceeding.

And in all those cases, we acknowledge that... under the traditional rule, that the complaining party, the party that initiates the action and seeks relief, bears the burden of proof in that proceeding.

Justice Ginsburg: --Mr. Garre, do you have any numbers, overall, how... of the incidence of the parents going to the administrative hearing first, as opposed to the school district?

Isn't it overwhelming that, in these proceedings, the parents are the one... ones who initiate the hearing?

Mr. Garre: Your Honor, I don't have those statistics.

I would... I think it's probably true that in most instances it's the parents who are initiating the hearing.

That would not have been news to Congress, however.

Congress, in the statute... and this is one of the things that we think is important, bearing on the burden of proof... placed on parents the obligation to plead their case... that is, to identify both the problem with the educational plan that they've seen... and this is in 20 U.S.C. 1450(b)(7)... as well as the proposed solution that they would... that they would like to see the court adopt.

Now--

Justice Ginsburg: When we go back to the... an answer you gave before, when we were going through what, in fact, happened, the suggestion that maybe the parents were just trying to get the private school tuition reimbursed, the... there was a finding, wasn't there, in the district court, in the... this is in the petitioner's appendix, at 46 and 47... the district court said,

"The parents in no way prevented the IEP from being formulated or otherwise failed, in good faith, to consider it. "

Mr. Garre: --The... Your Honor, that's correct.

I think that the district court also acknowledged, though, that the parents probably were interested in sending their child to private school.

I think, either way, we're not suggesting that the record in this case requires the Court to take one result or another on the fundamental question of who bears the burden of proof.

We think that the complaining party bears the burden of proof.

That's the rule--

Justice Breyer: Well, if I take... if I accept your view of that, that would be a Federal rule written into the statute.

And that would mean that, even if the Department of Education came to a different conclusion, or even if we have a bunch of States that come to a different conclusion, or even if it's in Minnesota, they want to have a rule that

"sometimes it's one way, sometimes the other way. "

we couldn't do that.

But if I were a Member of Congress, and never thought about the issue, which I think this void in the statute suggests, I might think it would work out better if we left it up to each State to do it whatever way they wanted here, if we left it up to the Department of Education to promulgate whatever rules they wanted.

Now, couldn't we hold that?

Mr. Garre: --Yes, Your Honor, and, in fact, we've suggested that.

In fact--

Justice Breyer: Well, you haven't suggested leaving it up to each State, because you're suggesting a uniform rule.

So, what... how would you have it?

Mr. Garre: --Well, Your Honor, to be clear, we think that this... that the statute establishes a Federal floor.

It is spending clause... a federal floor... it is... or a default rule that--

Justice Breyer: Oh, it's just--

Mr. Garre: --unless--

Justice Breyer: --a default rule.

Mr. Garre: --Exactly.

That the--

Justice Breyer: All right.

If it's just a default rule, that's a big improvement, because any State can do it any way it wants.

Mr. Garre: --And that--

Justice Breyer: But then, why not, here, send it back and say that the ALJ tried to answer the wrong question?

He tried to answer the question of what was the Federal law, but what he really should have done was ask about what's the State law.

And if he has a hard time figuring it out, perhaps he should look at that evidence harder and see.

Maybe--

Justice O'Connor: Well, is there any doubt, here, that there's no State law?

Mr. Garre: --No, Your Honor, and I believe you just heard Mr. Hurd acknowledge that there is no statute or regulation on this.

Justice Breyer: --No, but I've never heard of a State without law.

There is no--

Mr. Garre: Well--

Justice Breyer: --black hole in the law--

Justice O'Connor: On the burden of proof in IEP cases--

Justice Breyer: --Well--

Justice O'Connor: --I should have said.

Mr. Garre: --And, Your Honor, the Maryland case law adopts a traditional rule for administrative proceedings.

We cite the case, in page 18 of the red brief.

Importantly, though, what petitioners--

Justice Scalia: These cases are appealed to Federal courts normally, aren't they?

Mr. Garre: --These cases... the Congress gave them the right to bring a civil action in Federal court.

Justice Scalia: In Federal courts.

And most of these cases are in Federal courts.

And you're... you want to condemn Federal courts to figuring out what the State burden of proof is?

Mr. Garre: Well, Your Honor, I think... we analogize it to the question of the substantive amount of benefits to which parents are entitled under the Act.

We think that this spending clause legislation would allow a State to adopt a higher standard than the standard that this Court established in Rowley for a free and appropriate public education, and that that would be the standard that would apply in a proceeding.

And so, too, we think, with the question of the burden of proof.

If States wanted to voluntarily assume the burden of proof for their own school districts in these proceedings, which this Court has characterized as a substantive rule of law... the question of who bears the burden of proof... we think that States could do so, and that that would be the rule that applies.

We don't quarrel with that.

Justice Ginsburg: It's not hypothetical.

Isn't it... it isn't hypothetical.

States... isn't it true that some States have said that, in these hearings, the school district will have the burden of proof?

Mr. Garre: Yes, Your Honor.

We believe... I believe eight States have said that.

Three States... at least three States have said that the burden of proof is on the parents in these proceedings.

Some States have taken different views and said if... I believe it's--

Justice Kennedy: Well--

Mr. Garre: --Minnesota has said that--

Justice Kennedy: --to the... to the extent that we're concerned about unnecessarily increasing costs on school districts, and burdens on school districts, why shouldn't we have a uniform Federal rule?

In other words, if we agree with your position that ordinary allocations puts this on the complainant, we have to conserve resources, and so forth, why should we allow States to have a different rule, when we're dealing with the administration of a Federal program?

Mr. Garre: --Well, Your Honor, because of the spending clause nature of the legislation.

That's what we think, that--

Justice Scalia: Well, would you--

Mr. Garre: --this establishes a Federal floor that States can go beyond if they want to assume more costs under the Act.

Justice Scalia: --Well, you have a statute that... you know, it's in... it's in great detail... on administrative procedures.

It obviously... you know, decision of hearing officer, administrative procedures, disclosure, evaluations, and recommendations.

And you think the Federal Government goes into all this detail and doesn't care who has the burden of proof?

That seems, to me, most unlikely.

Mr. Garre: Well, Justice Scalia, we agree, in the sense that we think that the statute establishes at least a default rule.

And, just to be clear, if the Court holds that Federal law establishes the traditional rule, then, obviously, we would be very happy with that decision.

What we... what we reject to strenuously is petitioner's position that Federal law imposes an unstated burden on the school districts in all proceedings initiated under the Act.

Justice Stevens: May I--

Mr. Garre: That would be--

Justice Stevens: --ask this question?

You've described three situations in which you have the burden of at least proceeding, and I guess persuasion, too... and, of course, there's a difference between the two.

And I was just trying to think, if I were a hearing officer, and I thought, well, the issue in this case is whether the parents' objections to the IEP are valid, I think the first thing I'd want to know is, What is the IEP, and who's the best person to tell me about it?

And wouldn't the county be in the best position to explain what has been done and, sort of, get the... get the hearing started, and so forth?

Mr. Garre: --Well, Justice Stevens, Congress has answered that problem, in the sense that it requires, in response to a complaint, the school district to submit the proposed... the IEP, the educational plan, it's adopted, as well as the other considerations... the other options it considered and why it didn't accept those other options.

So, that evidence... and I think we're talking about the burden of production--

Justice Stevens: Right.

I--

Mr. Garre: --not the--

Justice Stevens: --understand.

Mr. Garre: --burden persuasion there... that evidence already is required to be exchanged and disclosed.

Here--

Justice Stevens: But then, at the hearing, who... who introduces the first exhibit or the first witness?

Mr. Garre: --Well, the way it's done in the States right now is, where, in the jurisdictions where school districts bear the burden of persuasion, they are required to go first.

And that increases the costs and complexity of these trials for school districts, because the... before the parents have put on their evidence as to why they think an educational plan is inappropriate or is... in this case, why they think the school district hasn't properly characterized their child's disability, the school district has to go forward and present its case, which is a more complex... it's... there's more guesswork involved--

Justice Stevens: May I ask this?

Are there any jurisdictions in which the burden of proceeding is different from the burden of persuasion?

Mr. Garre: --I don't know the answer to that question, Justice Stevens.

I think it would be a very unusual rule.

Justice Stevens: I know, analytically, it's a different issue.

But it would seem to me the normal rule would be whoever goes first has the burden of the persuasion.

Mr. Garre: That's absolutely correct, and that's certainly the way that we think it would... it would, more preferably, operate under the statute.

But the question before the Court in this case is, Who bears the burden of persuasion?

That's a very important question under the Act.

It's not just, with respect, an academic question about the number of cases in with... in which the evidence is mathematically in equipoise.

It is going not have a much broader impact on the implementation of the statute, because it's going to be decisive, or at least potentially decisive, in cases like this, where you've got a battle of the experts.

I think--

Justice Breyer: --Why?

Why should it be?

I mean, that's very interesting to me.

Why shouldn't the law be such that particularly... you have evidence on both sides and a neutral decision maker who sits there... that it encourages that decision maker to decide.

It's one thing if the record's blank.

But not where they have a lot of experts.

Decide.

Don't retreat to something like announcing, "Oh, it's in equipoise".

Mr. Garre: --The... we would agree with you, Justice Breyer, but, in practice, many of these cases, the dispute is over the provision of experimental therapies for children with disabilities, particularly children with autism, where medically and educationally--

Justice Breyer: Sure, but then to do that is not really to look to the interests of the child or the board.

I mean, it is to allow a sort of doctrine from left field, nothing to do with the merits, to decide the case.

Mr. Garre: --No, Your Honor.

We think that what it is to do is to give effect to the traditional presumption of regularity, which is, ultimately... if you do have a tie, whose judgment ought to be given effect?

And under the statute, where Congress recognized that State and local governments would retain the primary authority over educational decisions... and in the Rowley case, where this Court reaffirmed that... we think that, combined with the traditional presumption of regularity... which is that the actions and decisions of public officials are presumed to be taken in good faith, and presumed to be correct... those factors counsel strongly in favor of the traditional rule here.

Petitioners--

Justice Ginsburg: Mr. Garre, if you... if you had a situation, say, under Title 7... and you pointed out in your brief that, in most benefit cases, most... the person... whether it's Social Security... the person who is making the claim has the burden of proof.

But there is something different about this setup, because the statute does obligate the school district to come up with a plan.

And so, I was thinking, if you have a Title 7 case, and the plaintiff prevails on the merits, and then there's a question of remedy, and the employer said,

"I propose this... these changes to remedy the violation. "

wouldn't the employer in that case have the burden of establishing the adequacy of the plan that it has come up with to remedy the problem?

Mr. Garre: --I think if you're talking about an affirmative defense or something beyond the threshold question of whether there has been discrimination, or as in a Social Security Act case question of whether an eligible person has been denied the benefits--

Justice Ginsburg: No, you made--

Mr. Garre: --to which he's entitled--

Justice Ginsburg: --that determination has been made--

Mr. Garre: --I--

Justice Ginsburg: --that the... that there has been a violation.

And then the question is, What remedy?

And the employer proposes a remedy.

Wouldn't the employer have the burden of showing the adequacy of the remedy that the employer--

Mr. Garre: --I think the plaintiff would still bear the burden of showing that he is... he or she has been discriminated against--

Justice Scalia: Well, there's no violation here.

I mean, this is a totally different--

Mr. Garre: --Well--

Justice Scalia: --situation.

I mean--

Mr. Garre: --And that's my threshold--

Justice Kennedy: --there hasn't been finding of any violation by the school district.

The school district--

Mr. Garre: --That's my threshold point--

Justice Kennedy: --But I... but I'm interested in--

Mr. Garre: --that that's--

Justice Kennedy: --I'm interested in Justice Ginsburg's question.

Let's assume you show a violation.

Is there... is there any law on who has the burden of--

showing that the remedy is sufficient?

Mr. Garre: --I think when we talk about the burden of proof, we're talking about the essential elements of the claim, whether there's been a violation.

So I think--

Justice Kennedy: But when I ask--

Mr. Garre: --so I think we're asking--

Justice Kennedy: --You're asking about the--

Mr. Garre: --a different question.

Justice Kennedy: --about the... wait a minute.

Let's say that the... we find that there's a violation.

Mr. Garre: I don't... in that situation, there may be... I mean, in the same way that, in the sentencing, in the criminal context, other considerations come into play, it doesn't resolve it here.

Placing the burden of proofing on school districts in these proceedings would erode the trust and confidence that Congress placed in the judgments of State and local educational officials.

It would create a demoralizing and destabilizing educational regime in which the judgments--

Justice Stevens: Of course, the background--

Mr. Garre: --of--

Justice Stevens: --of the Act is, Congress was very dissatisfied with most of the judgments being made by local officials--

Mr. Garre: --Well--

Justice Stevens: --in this whole area.

Mr. Garre: --But, Your Honor, Congress found that State and local governments would retain the primary responsibility for making educational--

Justice Scalia: --But you say this is--

Mr. Garre: --decisions under the Act.

Justice Scalia: --okay.

You say all these horrible consequences are perfectly okay, so long as the States do it.

Mr. Garre: Well--

Justice Scalia: I mean, if the consequences are that horrible, how can you allow the States to put the burden on the other side?

Mr. Garre: --Our position is that... is that the Federal law creates a floor, Justice Scalia, that Congress established the rules--

Justice Scalia: Well, I understand that.

Mr. Garre: --that it thought was appropriate, and then States--

Justice Scalia: But your... your parade of harm just never--

Mr. Garre: --But--

Justice Scalia: --never gets started, once you... once you acknowledge that the States can blow the whistle to start the parade.

Mr. Garre: --In that situation, though, States are voluntarily assuming the burden on their own school districts.

Justice Ginsburg: --Is there any--

Mr. Garre: Here--

Justice Ginsburg: --Now we have a number of States that do put the burden on the school district.

Is there any indication that the cost is higher in those States than in States that put the burden on the parents?

Mr. Garre: --I think that the cost of the hearings... there are not statistics on that, precisely, but the cost of hearings are going to be greater, because school districts--

Thank you, Your Honor.

Justice Stevens: Mr. Salmons.

Argument of David B. Salmons

Mr. Salmons: Thank you, Justice Stevens, and may it please the Court--

Several features of the IDEA confirm that Congress intended the traditional allocation of the burden of proof to apply to the administrative hearings under the Act, and the most important of these--

Justice Scalia: Absent different disposition by the States?

What's the Government's position?

Can the States change this burden, just the background, you know... unless you... unless you think it's okay to, you know--

Mr. Salmons: --Your Honor, the--

Justice Scalia: --have the heavens fall... we don't want the heavens to fall.

Mr. Salmons: --Your Honor, the Government has always understood... and this Court has understood... that this is spending clause legislation, and that the requirements of the Act establish a floor, and that that's true with regard with the substantive provisions of the Act, as well as the procedural ones.

And let me give you one example.

I will concede that this may seem somewhat anomalous, but this an unusual statute.

In Rowley, for example, this Court construed the meaning of the term

"a free, appropriate public education. "

and it determined... in fact, it rejected a construction of that term that would have required maximizing the educational benefit to the child.

There are States that have adopted that high substantive requirement for their schools.

And when someone brings an action, either at a due process hearing or in Federal or State court, a separate civil action under statute, the courts apply that higher State standard.

We think the same would be true with regard to a State's decision to adopt more restrictive... or more protective, excuse me, procedural provisions for the parents with children with disabilities.

It is left up to the States.

The Federal law--

Justice O'Connor: In other words--

Mr. Salmons: --just establishes a floor.

Justice O'Connor: --your answer is yes, the States may adopt a burden of proof... here... standard?

Mr. Salmons: States may, and States have.

What we think is--

Justice Ginsburg: And do you have--

Mr. Salmons: --improper--

Justice Ginsburg: --do you have any information in... to the question I asked earlier... in the States that have said,

"School district, you bear the burden. "

do we know whether there's more litigation?

Do we know whether there has been a notable increase in the costs in those States that have placed the burden on the school districts?

Mr. Salmons: --Your Honor, I would say that we don't have any evidence that is as strong as we would like on that.

What we do have, and what I would refer the Court to, is the 2003 GAO report on the way in which the... these provisions have been implemented.

That is... it's cited on both respondent's and petitioner's brief, and it was relied on by Congress in the 2004 amendments.

And what it... what it demonstrates is that 80 percent... nearly 80 percent of all due process hearings nationwide have occurred in just six jurisdictions, five States and the District of Columbia, and that... and that, in those States... it happens to be the case at all, but Maryland, which is one of those states... have clear rules that put the burden of proof on the school districts, and that the costs--

Justice Scalia: This--

Mr. Salmons: --I'm sorry.

Justice Scalia: --These other cases that you refer to, where... that involve spending legislation, where the States go beyond what is minimally required... I suspect that they are cases where it really is an imposition on the States, and they accept it.

Here, the imposition is not on the States, it's on the local school districts.

And very often, the interests of a local school district is quite different from the interests of the people, you know, down State, in the State capital.

I'm... I am loath to think that just because a State supreme court says that every school district in the State has to bear the burden of proof, that Congress intended that to be the case.

I think it's a different... a different situation, where the spending is money that's coming out of the... ultimately, out of the pocket of the school district.

Mr. Salmons: Your Honor, it may very well be that you would want something more than just a court decision.

And I--

Justice O'Connor: Do we have to--

Mr. Salmons: --and the States that have done it--

Justice O'Connor: --decide that here?

Mr. Salmons: --No, I don't think--

Justice O'Connor: Maryland--

Mr. Salmons: --we do, Your Honor.

Justice O'Connor: --doesn't have--

Mr. Salmons: Maryland--

Justice O'Connor: --such a rule.

Mr. Salmons: --Maryland does not.

And I think, in fact, the only thing... the only question that's truly presented in this case is whether the Federal statute mandates the unusual burden... shift of placing the burden on the schools in all cases.

And we think that clearly wasn't what Congress intended.

And let me point to the provision of the statute we think is the most relevant, and that is the requirement that the parents... or the complaining party file a complaint to initiate the due process hearing.

And that traditional pleading regime requires that the... in this context, the parents come forward and identify, with specificity and with supporting facts, the problem with the school's educational program and how they would propose to solve that problem.

And, in 2004, Congress went even further and mandated that parents cannot even obtain a due process hearing until they've first complied with this due process notice requirement, and that the contents of the parents' complaint will strictly define the subjects that can be addressed at the hearing.

And we think that is strong evidence that Congress intended the traditional allocation of the burden of proof.

Justice Stevens: And may I be sure I didn't misunderstand something you said earlier?

Did you say that in most jurisdictions the... by local option, the States have elected to adopt your adversary's--

Mr. Salmons: No--

Justice Stevens: --position?

Mr. Salmons: --no, Your Honor, I did not.

What I indicated is that one of the unusual aspects of these due process hearings is that they occur very infrequently, only about 5 for every 10,000 children receiving educational benefits under the Act nationwide.

In certain jurisdictions, there is a very high incidence of these hearings.

And Congress, in 2004, was clearly concerned about the costs that those hearing were imposing, and were diverting funds away from the real purposes of the Act.

Now, getting back to the statute, we think--

Justice Stevens: I'm not sure you answered my question.

Did you not tell us that in the States where there... the largest volume of these hearings... in most of those States the burden is on the school board?

Mr. Salmons: --That's correct, Your Honor.

What I was saying is that I can't tell you that more States than not have adopted one rule--

Justice Stevens: No, I--

Mr. Salmons: --or the other.

Justice Stevens: --Not the number of States.

Mr. Salmons: But most--

Justice Stevens: Number of hearings.

Mr. Salmons: --of the due process hearings that occur in--

Justice Stevens: Yeah.

Mr. Salmons: --in the country--

Justice Stevens: Yeah.

Mr. Salmons: --occur in jurisdictions--

Justice Stevens: I think--

Mr. Salmons: --where, either by court or by rule--

Justice Stevens: --And this was... I wanted to point... was that mostly... in those jurisdictions, was it by court or by rule?

Mr. Salmons: --Your Honor, I don't have that information.

Most, I think, of the jurisdictions were... most of the jurisdictions have the burden on the schools, because that's what the courts... the Federal courts have construed the Federal statute to require.

What... the reason I have a difficult time answering that is because the amount of due process hearings varies so widely from one jurisdiction to another.

Justice Stevens: Right.

Mr. Salmons: And part of that is because of the rules and the ways in which it's been adopted.

Justice Stevens: See, this is really a unique statute in so many ways.

We've learned, over the years, that discrimination is being treated like everybody else in this... in this statute, unusual discrimination.

And I'm just wondering, it's... I find it surprising and significant that those who have been free to pick the right rule have picked the rule your opponent--

Mr. Salmons: Well, no... Your Honor, there are several States that have clearly placed the rule... by rule, on the... on the... on the person initiating--

Justice Stevens: --Right.

Mr. Salmons: --the hearing.

And, in fact, I would say most States probably have a sort of State APA--

Justice Stevens: And the States that have--

Mr. Salmons: --very similar to the Federal APA.

Justice Stevens: --the States where most of the hearings have taken place and have taken the opposite view, has--

Mr. Salmons: Well--

Justice Stevens: --that been true for a number--

Mr. Salmons: --It--

Justice Stevens: --of years?

Mr. Salmons: --There may be a cause and effect issue there, Your Honor.

It may be the case that the types... that by encouraging the type of litigation under the Act by switching the burden of proof has resulted in more cases being brought.

The interesting fact--

Justice Stevens: I see what you mean.

Mr. Salmons: --from the 2004 amendments is that Congress sought to reduce the amount of litigation under the Act by, for example, allowing--

Justice Stevens: But those States--

Mr. Salmons: --for the first time--

Justice Stevens: --Apparently that's... this has been... this is not really a brand new statute.

We're going back to the '70s--

Mr. Salmons: --That's correct.

Justice Stevens: --with this statute.

And is it true that for most of that period that's been the rule, where most of litigation has taken--

Mr. Salmons: I... Your Honor, I believe it's the... I can't answer that.

I think it's... it's most... it's more recent than that.

And I think the explosion of litigation under the Act is more recent than that.

Justice Stevens: --Right.

Mr. Salmons: And Congress has been very concerned about that.

Now, by requiring that the parent's due process complaint define the contours of the hearing, we think Congress has signaled where the burden of proof should be.

And, in addition to that, it seems... it seems to us that it has addressed the policy and fairness concerns the petitioners rely on so much.

As this Court recognized in Rowley, it's through the procedural protections of the Act that Congress sought to ensure that parents had sufficient information and resources to defend the interests of their child.

And we think, by place... this complaint notice requirement represents a considered judgment by Congress that those procedural protections will have done their jobs and that parents will be in a strong enough position to adequately defend the interests of their child in any hearing.

And that's certainly true if you would compare the position of the parents under this Act with benefits claimants and civil rights plaintiffs in any number of other Federal statutes.

If Your Honors have no more questions, thank you.

Justice Stevens: Mr. Hurd, you have about three minutes left.

Rebuttal of William H. Hurd

Mr. Hurd: Thank you, Your Honor.

Let me begin by focusing on the costs of placing the burden on the school system.

Five years ago, the United States said, when it was then, in this case, on the side of the parents, that placing the burden on the school district, quote,

"should not substantially increase the workload for the school. "

end quote, page 12 of its brief in 2000.

The National School Board Association figures show that the total costs of mediation, due process hearings and litigation works out to about $22 per head for every child in special education.

That's not a lot of money to devote to the enforcement--

Justice Scalia: For each hearing or... for each hearing or just--

Mr. Hurd: --Total, Your Honor.

The total figure, nationwide, is 146.5 million.

If you divide that number by the 6.7 children in special ed--

Justice Scalia: --Oh.

Mr. Hurd: --it's about--

Justice Scalia: Oh.

Mr. Hurd: --$22 a head.

And that--

Justice Scalia: I think it would be more realistic to divide it by the number of hearings, rather than by the number of heads.

Mr. Hurd: --Well, Your Honor, the total... the total figure is 146.5 million.

It is a drop in the bucket compared to the 11.4 billion that Congress appropriates.

Moreover, Your Honor--

Justice Souter: Do you know what the--

Mr. Hurd: --there's no indication--

Justice Souter: --do you know what the figure is per hearing?

Mr. Hurd: --Per hearing--

Justice Souter: Yeah.

Mr. Hurd: --Your Honor, is going to vary.

But there's no indication--

Justice Souter: Well, no.

You divide the number of hearings by the figure you've just mentioned, and that's the result.

Have you... have you done--

Mr. Hurd: --There are about 3,000--

Justice Souter: --the arithmetic?

Mr. Hurd: --there are about 3,000--

Justice Souter: Three--

Mr. Hurd: --hearings, but that $146 million is not just the hearings; it also includes mediation, it includes litigation.

And there's no basis to conclude that putting the burden on the parents is going to decrease, rather than increase, hearings.

If you let the school systems slide by without being held accountable, they are likely to be less thorough in preparing their IEPs, as they were in this case.

And when they're less thorough, there will be more understatement, more disputes, and less consensus.

May I also point out, in response to Justice Breyer's point, if there is to be no Federal law... this question, if it is purely State law... then it ought to be remanded back to the Maryland district court to ascertain what Maryland law is on this point.

And, Justice O'Connor, while there is no statute or regulation on point, there are certainly background principles of law that Maryland has, just as we've been arguing here at the Federal level, that would dictate for Maryland where that burden of proof should lie.

Now, opposing counsel, the Government, has pointed out that there are these pleading requirements.

But these are not traditional pleading requirements, where one side makes allegations and the other side goes,

"admit, admit, deny, deny. "

If you look on page 12 of the addendum, you see the portion of the statute that requires the kind of response the Government must make.

It's not admit/deny.

It is to give, essentially, a detailed explanation for its position, just as the parents have given a detailed explanation for their position.

And, between those two positions, you can tell who should have the burden of proof.

I see my time is up.

Thank the Court.

Attribution:

The Oyez Project

Featured:

Spector v. Norwegian Cruise Line Ltd. - Oral Argument

Fri, 09 Jan 2009 14:49:04 +0000

Case:

Spector v. Norwegian Cruise Line Ltd.

Media File:

03-1388_20050228-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Thomas C. Goldstein

Justice Stevens: We'll now hear argument in Spector against the Norwegian Cruise Line.

Mr. Goldstein.

Mr. Goldstein: Justice Stevens, and may it please the Court:

The petitioners in this case are American citizens who took cruises to and from this country on tickets bought here that call for the application of U.S. law.

They were subject to discrimination by respondent, a U.S. based company on the land, in the ports, and in the waters of the United States.

The question presented is whether the Americans With Disabilities Act applies or instead whether respondent's conduct is lawful because the case is controlled by Bahamian law, which freely permits cruise lines to discriminate against persons with disabilities.

Justice O'Connor: Mr. Goldstein, may I inquire of you whether other countries, for instance, in the EU area, have applied their own disability laws to some of the cruise ships that touch base in their courts?

Mr. Goldstein: Justice O'Connor, our research does not reveal that the question has arisen in the EU.

I can, however, provide you some information, and that is that... two points I think.

The first is they subscribe... the members of the EU subscribe to the same conventions and to UNCLOS just the way we do, which gives the port state plenary authority within its ports and internal waters.

And I have a couple of case citations for you on this issue.

In the ECJ, the Diva Navigation case, 1992, ECR I-6019.

It has not arisen in the EU, but it has arisen in Australia.

Australia has a disability law.

It applies that law to cruise ships, and the rule in Australia is that the port state law applies rather than the flag state law.

And the citation for that is the Union Shipping case, 2002, NSWCA 124 CA 40379/01.

I don't know what those numbers mean.

Justice O'Connor: Thank you.

And would you also address at some point how the treaty on Safety of Life at Sea would affect the resolution here?

For example, it has, as I understand it, requirements that there be watertight doors and those doors have to be set above the level of the floor so you couldn't roll a handicapped wheelchair or something over it.

Now, do you anticipate that there would have to be structural changes if you were to prevail that would conflict with the treaty on Safety of Life at Sea?

Mr. Goldstein: No, and you have put your finger on the point, and that is that there are no conflicts.

We know that for a couple of reasons.

The first is that there has been a detailed rule making underway in which the regulatory authorities charged by Congress with implementing the ADA have spent quite some time.

They have produced this single spaced, half inch thick document that is dedicated to making--

Justice O'Connor: Are they in effect yet?

Mr. Goldstein: --They are not, but in terms of whether or not the statute, when it's applied, would conflict, you would look to this document and they took as their regulatory mission to make sure there were no such conflicts.

What they did... let me take your example specifically and then put... place it within the statutory framework.

Within the ADA and a question of the combings, what they said is, that's right.

In certain cases SOLAS requires that the coamings be a certain height.

If the coamings are below the bulkhead level, where you would be worried about water coming in below, that is not an accessible route, and so you don't have to worry about it at all.

Above there, you ramp up to the coaming and ramp down, unless that's structurally infeasible.

So they... what they did is they... and this is the broader point.

they applied the rule of the ADA that a change to the structure of the vessel only has to be implemented if it's readily achievable.

And what the regulatory authorities determined is that if there is any conflict with SOLAS at all, that change need not be made.

Now, you... Justice O'Connor, you also focused on the fact that there are some of our claims that implicate the structure of the ship.

They are, however, a distinct minority, and we ought not lose sight of this because I don't think the other side has any good argument at all, under international law or anything else, that would explain why they can charge a person with a disability double.

Justice Kennedy: Can you tell me just a little bit about that, how it works?

Suppose that you prevail in this case... and it does seem to me that the... the charging the double doesn't involve modification of the ship, obviously.

How does it work if you have, oh, say, an English passenger who buys an English ticket and is charged double... I don't know if that's the English law, but let's assume... then he comes on a cruise ship and he goes to New York and Miami and... and New Orleans?

Can he... does he... could he then sue, if... if we rule for you in this case?

Mr. Goldstein: I would think on the question of the charging double, the answer to that question would be no because it would present a traditional, not unique to the ADA, choice of law question, and that is, if you're in England and you buy a ticket in England, your ticket is going to be subject to English common... in that case, the English disability law.

There is an English disability law.

It doesn't discuss cruise ships.

It's... but it's broadly written.

But with respect to the structure of the ship, I think that English passenger with a disability... say that you come across to the United States and you want to get off in New York.

I think that Congress clearly intended that that person would be able to come off a... off the dock in a wheelchair, back onto the dock on the wheelchair; while you were in U.S. ports and you're staying in your cabin, that you would be able to, in your accessible... your accessible rest room, have grab bars.

We are... and... and let me not pass too quickly by the fact that even when we talk about some structural changes in the ship, by and large we're talking about things that have nothing to do with... Justice O'Connor, you focused the name of the treaty is the Safety of Life at Sea.

Whether the bathroom doors swing in and out has nothing to do with that.

Whether there is--

Justice Ginsburg: Mr. Goldstein, may... may I take it from your answer that it doesn't make any difference in your view, your answer to the question about the... the ship leaving from a port in England and going many places and touching base in New York, that kind of a voyage, or what this case seems to be where the vast majority of the passengers are from the United States, the port of departure is in the United States, the port of return is in the United States.

You don't seem to distinguish those cases because you say in the New York port, it doesn't matter if it's really a U.S. centered cruise or a cruise centered in Italy or any place else.

Is that correct?

Mr. Goldstein: --I think your formulation is exactly right, Justice Ginsburg.

It doesn't matter to us where the cruise is centered.

We do, however, and this Court's precedents do, however, leave room for a highly unusual cruise that I'm not aware exists.

Take, for example, a situation in which a cruise comes from England to the United States.

It doesn't pick up any passengers here.

They just visit.

They stop in 15 other countries.

They stop here.

The same passengers get up on the ship and leave.

This Court's precedents involving maritime choice of law leave room for the conclusion that says, look, we just don't think--

Justice Ginsburg: But if we go back to what is the more usual situation--

Mr. Goldstein: --Yes.

Justice Ginsburg: --Then you are, in effect, saying that the U.S. rules the world.

Even if the home port, the place where this vessel is usually berthed, says we... we don't require our ships to take care of the handicapped, you are, in effect, saying no matter what the other ports say, what the U.S. law is is going to govern because practically if you're going to design the ship to meet the U.S. requirements, you're not going to rip those out when the ship goes elsewhere.

Mr. Goldstein: Justice Ginsburg, we disagree with the characterization that the U.S. rules the world, of course.

We're talking about the fact Congress exercised its sovereign authority to control vessels in its ports and internal waters, just as in... take the Cunard example.

In the Cunard case, there were countries... and I understand it didn't involve the structure of the ship, but the principle is the same.

There were countries that required alcoholic beverages to be on those vessels, and--

Justice Scalia: We... we could... we could require ships that are docked in the United States to pay their crews according to United States Jones Act requirements or United States minimum wage laws and so forth.

We don't do that.

We could do it, but we don't because it conflicts with... with the law of the flag and... and that's the usual... it's not a matter of our power to do it.

We could do it, of course, but it's just not something we ordinarily do.

Mr. Goldstein: --Well, Justice Scalia, I actually disagree with your characterization and would like to point you to a couple of precedents.

The Benz and McCulloch cases, which are very important to the respondents, were very important to the Fifth Circuit, embody the principle that you just described, to some extent, and that is that when you have a foreign ship in our waters, we will not apply the NLRA to the labor contract between the foreign crew and the foreign vessel.

But when Americans are involved, we do apply the NLRA, and that's the Ariadne precedent that the... and... and in fact, Ariadne is the most on point case because it--

Justice Scalia: Was... was that the ship or was it longshoremen?

Mr. Goldstein: --It was longshoremen working on the ship complaining about safety conditions on the ship.

Justice Scalia: Longshoremen.

Longshoremen based... based on shore.

Right?

Mr. Goldstein: Based on shore, but so are the passengers.

Justice Scalia: That's a different--

Mr. Goldstein: But it is a different situation, but I think it's more analogous.

Not only were the... the protests in Ariadne directed at the safety conditions on the foreign flagged vessel, but they were directed at the passengers.

If I could--

Justice Breyer: What's... what's the scope of what you're talking about here?

I mean, are... it says cruise ships.

So I had assumed those are those big ships that carry people mostly around the Mediterranean from Florida.

But based on what you're saying, now I think you're talking about something more.

Are you talking, for example, about a merchant vessel that comes from, say, Saudi Arabia and has a few passengers?

What's the... what's the scope of the definition?

Mr. Goldstein: --The... well, that... the definition... we would have to return to the ADA.

If a merchant ship has a few passengers, it would not be a specified form of public transportation or a public accommodation.

Justice Breyer: Because?

It... what it does is it carries oil, but a certain number of people like to be on a ship with oil, I guess.

And so every... every month they take 12 people and they put them in a cabin somewhere and they love it.

Justice Scalia: --It's cheaper.

It's cheaper too.

[Laughter]

Mr. Goldstein: I'm not aware of... of--

Justice Breyer: No, no.

I... but all right.

Now, I'm... I'm being facetious.

Mr. Goldstein: --Yes.

Justice Breyer: But I am aware of... of people who have certainly gone on cruises on what is a primarily merchant ship.

Now that... that I think is a common thing.

Mr. Goldstein: If... let me--

Justice Breyer: Are you talking... because I think that makes a difference for the reason that once you talk about those, you're talking about primarily foreign flagged vessels that are rarely but sometimes in the United States where the costs would be very high probably to change the ship and the benefit to Americans would be tiny.

All right.

So I... I want to know what you're talking about.

Mr. Goldstein: --Okay.

Let me first say... and just to... to lock the point down in that cost is accounted for in the definition of what is readily achievable.

But let's go to the definition of specified public transportation because this will tell us what's going to be covered by the ADA.

And just for the transcript, the citation is... this is section 12181(110).

It's... it's very short, but it's at the middle of page 12 of the blue brief.

Specified public transportation means transportation by bus, rail, or any other conveyance other than by aircraft, which has its own statute, that provides the general public with general or special service on a regular and continuing basis.

That too would be covered.

And only the public places on the ship would be covered by it.

Can I just return briefly to my Ariadne point?

Because I just wanted... that's a case where the... the NLRA was applied.

And let me just read to you what the protest was that the NLRA was applied to because it fits perfectly with this case.

And again, for the transcript, this is in the lower court opinion at 215 So.

2d 53.

This was the handbill.

Warning.

Is your cruise ship a floating death trap?

Can a substandard foreign flagged cruise ship turn your holiday into a Holocaust?

They were very illiterate.

If thousands of unsuspecting Americans continue to place their lives in jeopardy every day on cruises aboard foreign flagged floating fire traps.

And that... that was a foreign flagged ship.

They we're concerned about the passengers.

Justice Scalia, you also gave the example of the Jones Act, but remember that the Rhoditis case and the Uravic case, which involved injuries in the United States, then the Jones Act did apply.

And that was... and Rhoditis was a case in which someone was on the ship and a chain broke and they were injured as a result of it, and U.S. law applied.

This is a situation in which millions of people in the United States are spending billions of dollars on cruises, and it seems--

Justice Stevens: Yes, but I... if I understand you correctly, your case really isn't limited to cruise ships.

It's limited to ships that come into... passenger ships, which would include the Queen Mary and Queen Elizabeth, all the rest of them.

Wouldn't it?

Mr. Goldstein: --Yes, but I... I take it that the... you know--

Justice Stevens: And the fact that it's based in Miami or it had mostly American customers really is not relevant to the legal issue.

Is it?

Mr. Goldstein: --It... it is in the sense that it makes this the recurring scenario that Congress would have been aware of when it enacted the ADA in--

Justice Stevens: But, of course, they would have been aware of those that are also less American in their patronage and so forth.

Mr. Goldstein: --That's true.

In the very rare case, which I am not aware of, in which a cruise ship comes to the United States, doesn't pick up passengers, then it's possible that the... that the ADA would not apply.

Justice Stevens: No, but we're not necessarily thinking of a cruise ship, just the transatlantic liner that goes from Liverpool to Miami or something.

That would be covered.

Mr. Goldstein: It would in... in U.S. territory.

That's right.

Justice Breyer: But there's no way they can change the ship structurally when it's in New York and not have it changed structurally when it's in Europe.

So the mystery to me at this moment is what is the universe of ships that I would not say fit the ordinary word cruise.

What they are are ships that go between Asia and San Francisco, Los Angeles, or New York and Europe, or maybe through the Suez Canal.

They're only here a little bit of the time.

Their passengers are mostly not American.

Now, is that something I should worry about?

If that were your case, I would be very worried.

If that's just a little bit of... of added significance, then I want to know what to do about it.

Mr. Goldstein: Let me tell you what I know, and that is that the other side has not identified any problems of this... this type.

My research has not revealed some situation where we have a lot of these ships.

I did carefully study the... the itineraries of the major cruise lines, and 95 percent plus of all of their trips go out from the United States and come back to the United States.

Justice Ginsburg: But you told me... and I want to make sure this is your answer... that it doesn't matter, that as long as the ship comes to a U.S. port as part of this overall journey, you... you answered that question and I thought that was your candid answer, that it doesn't matter that these... these particular cruise ships ply mostly U.S. waters and U.S. trade and are centered, even have their principal place of business in the United States.

You're not concentrating on that category.

You are saying that the ADA applies so long as the ship puts in at... at a U.S. port, picks up passengers.

It applies not only while it's in the port, but practically for every other place the ship goes.

That's why I asked isn't this the United States rules the world on what... your argument you made.

Mr. Goldstein: Justice Ginsburg, here I think is the difference, and that is, that while U.S. law may have an extraterritorial consequence, just like our maritime tort law and the like, you cannot in Europe enforce the ADA.

The fact that the structural changes--

Justice Souter: Well, you can enforce the... the discrimination provisions, but the structural provisions don't have to be enforced.

Once the step is changed, they're not going to change it when they get 3 miles out.

Mr. Goldstein: --That's right.

But Justice... Justice Ginsburg's point... I take it to be a more particular one.

It's true that our law will have consequences abroad, but it is not the case that the U.S. rules the world.

Justice Souter: Well, it rules the world unless the world does not want to use the United States ports as ports of call.

Mr. Goldstein: Justice... Justice Souter, I... I simply disagree, and that is, when you talk about the U.S. ruling the world, in a... in the context, say, of ARAMCO, we talked about the enforceability of U.S. law abroad.

When the United States has tort standards or vehicle manufacturing standards and the like, all of those have consequences abroad for how devices are made and brought into the country.

But that doesn't mean that... what's going on is the plenary authority of the United States to enforce its laws in its ports and in its internal waters.

That very rule always will have extraterritorial consequences.

Justice Scalia: We're not questioning the authority.

We're questioning whether Congress intended that to be the case.

We have a rule that... that requires a clear statement when it has effects of this sort.

Mr. Goldstein: Justice Scalia, we disagree, and let me just take you to your cases.

I did that, I think, in the Jones Act and the NLRA context.

But let's just state the rule, and that is, from the Wildenhus's Case and that's at page 12.

Foreign law governs matters of discipline and all things done on board which affected only the vessel and those belonging to her and did not involve the peace or dignity of the country or the tranquility of the port.

And what we're talking--

Justice Stevens: But, Mr. Goldstein, there's another aspect that troubles me.

Your view, as I understand, only applies while the ship is in American waters so that if, for example, you complain about the training for a safety drill, if they conducted those after they'd gone out 20 miles to sea, there would be... there would be no violation of the... the statue.

Would there?

Mr. Goldstein: --That is... that is a difficult question.

We have not... we have not pleaded such a claim.

Justice Stevens: In other words, I'm trying to understand.

You don't know what your position is--

Mr. Goldstein: No.

Justice Stevens: --with respect to what would otherwise be violations of the statute that occur on the high seas.

Mr. Goldstein: We do believe it would be covered because the accommodation was purchased here, although we haven't raised the claim in this Court.

If I could reserve the remainder--

Justice Stevens: Yes, but I think we should... the cruise ships are entitled to know whether they may freely discriminate against people in the casinos and so forth when they're on the high seas.

Mr. Goldstein: --We--

Justice Stevens: You don't know the answer to that.

Mr. Goldstein: --Justice Stevens, our position is that because of the definition of commerce in the ADA, when you purchase a public accommodation in the United States, that is an agreement to provide a public accommodation and it doesn't--

Justice Stevens: So your view is not limited to what happens in the territorial waters.

Mr. Goldstein: --That is right, although we have... we would win the case on the internal waters and the territorial waters, and we haven't asserted in this Court a claim relating to the high seas.

If I could reserve the remainder of my time.

Justice Stevens: Mr. Salmons, may I ask before you begin whether the United States agrees that the statute would apply to the activities of these ships when they're on the high seas?

Argument of David B. Salmons

Mr. Salmons: Justice Stevens, and may it please the Court:

We do not think that title III of the ADA was intended to apply extraterritorially.

That said, we think there is a question that would need to be resolved as to whether applying the ADA to a public accommodation that was entered into in the United States, that began in the United States, a necessary term of which we believe would be nondiscrimination, would in fact be an extraterritorial application of U.S. law.

Justice Scalia: When... when the ship is out on the high seas?

Mr. Salmons: That's correct, Justice Scalia.

Justice Scalia: You think that's a hard question--

Mr. Salmons: No.

We think the better view--

Justice Scalia: --whether that's an extraterritorial application of U.S. law?

Mr. Salmons: --No.

We think the better view, in fact, Justice Scalia, is that that would not be an extraterritorial application of U.S. law.

But if the Court were to disagree, then we would say title III does not apply at that time.

Justice Ginsburg: Do you--

Justice Scalia: I don't know what extraterritorial application means if it doesn't mean that, that a ship that is not in the United States is bound by United States law.

What... why isn't that extraterritorial application?

Mr. Salmons: The reason, Justice Scalia, would be because the accommodation that was offered, that was entered into, and that began in the United States... and... and I would point out... I think this is important to keep in mind--

Justice Souter: What you're saying is it would... I thought you were saying that it would be the enforcement of the domestic contract of which the... the statutory provisions would be an implied term.

Isn't that it?

Mr. Salmons: --Yes.

Yes, that's correct.

Justice Souter: It does not apply of its own force.

It applies because two parties in the United States contracted that it would apply.

Is that it?

Mr. Salmons: That's correct.

Now... now, I... I would just add that I think it... you could characterize a public accommodation, you know, five nights lodging, for example.

If that's entered into in the United States and... and that begins in the United States, that a necessary term of that is nondiscrimination, and--

Justice Stevens: Well, then if you--

Mr. Salmons: --if you have an ADA claim that governs that even if the discrimination occurred abroad, that would only relate to those things tied into the accommodation.

Justice Stevens: --But if you're on a round trip ticket from Liverpool to Miami and back, it would depend on where you bought the ticket.

Mr. Salmons: Well, again, we... we think that if accommodation begins here in the United States, that... that a necessary term of that is nondiscrimination.

Now, whether you characterize that as a contract claim or as a substantive application of the ADA, I'm not sure there's much of a difference.

Justice Souter: Yes, but Justice Stevens' question is you buy the ticket in Liverpool.

Is the ADA... an... an American buys the ticket in Liverpool to come to the United States.

Mr. Salmons: To come to the United States.

Justice Souter: Is the ADA an applied term of that contract?

Mr. Salmons: I would... I would assume not, although the question then would be whether or not it's a public accommodation that's been offered in the United States.

Justice Scalia: Don't... don't all--

Justice Kennedy: Even in U.S. waters?

That wouldn't make sense.

An American buys a ticket in... in Liverpool.

He's disabled.

He goes to New York, Miami, New Orleans, and he's discriminated at... at each step.

No... no coverage just because of where he bought the ticket?

Mr. Salmons: No, no, Justice Kennedy, that's not our position.

Let me... let me try and be clear.

We think that any vessel that comes into the internal waters and ports of the United States and offers a public accommodation or a specified public transportation service to our residents is subject to the ADA.

Justice Ginsburg: --Do you--

Justice Breyer: Well, that means--

Mr. Salmons: If... if you had a situation... I'm sorry.

Justice Breyer: --No, go ahead.

Mr. Salmons: If you had a situation where you had a ship that... let's say, that began in... in Great Britain and came here, it didn't pick up passengers here in the United States, I think that the better view would be, sure, United States law could apply to it because it's in our internal waters, but that as a substantive matter, with regard to the ADA, I don't know why that would be a public accommodation within the meaning of the ADA because it's not an accommodation that's offered--

Justice Ginsburg: --But do you--

Mr. Salmons: --or available to United States residents.

Justice Ginsburg: --Do you agree with Mr. Goldstein that nothing turns on... one might characterize this kind of cruise as U.S. centered, but his answer was as long as they put in, a regular cruise stop, they pick up, unload passengers, they take them back again on the ship, so long as they touch base at a U.S. port, letting off and picking up passengers, the ADA applies?

Do you agree with that interpretation?

Mr. Salmons: As I understand what Your Honor just said, I think that I would.

Let me just clarify, though.

We think the relevant question is whether that ship would... has offered a public accommodation or a specified public transportation service--

Justice Ginsburg: This is my--

Mr. Salmons: --in the United States, and if the answer is yes--

Justice Ginsburg: --Let... let me ask you the same question that I asked Mr. Goldstein.

Even in the Cunard case, the prohibition case, they couldn't have liquor in the U.S. port, but when they leave and they go to Jamaica, they could pick up rum there.

They could have liquor all the rest of the time so long as, when they enter and leave the U.S. port, they didn't have the liquor aboard.

Here what you're saying is what goes in the... for the New York port goes for every other place where this ship puts in.

Mr. Salmons: --Well, again, I... not as a matter of... not as a matter of extraterritorial application of U.S. law, but that is our position with regard to a public accommodation that begins in the United States.

I... I think the... the important--

Justice Ginsburg: Suppose it doesn't begin in the United States in that it... it starts in, say, The Bahamas, and stops at--

Mr. Salmons: --I should probably should not have said begin, Your Honor.

What I mean is if it... if the public accommodation is provided for in the United States, that would be covered by the terms of the ADA, we think the ADA applies.

Justice Breyer: Then you're saying exactly what everybody is worried about.

I take it there is no way really for a ship to... they either have the right door or they don't have the right door.

And we're interested in the set of cases in which they're going to have to change their doors.

And what I came in here thinking was we're talking about ships that pick up people and sail in Florida and sail around the Caribbean.

That's the... now, I've heard nothing but we're not talking just about those.

We are talking about ships like I'm the last human being alive that went on a Swiss ship to Europe.

Okay?

[Laughter]

50 years ago.

And... and we're talking about those ships, or we're talking about merchant ships that also say to the public, come as a passenger.

Now, I would like to... not what you're arguing.

You're going to say, yes, we are arguing it.

I want to know... say something to relieve my concern about that set, which was Justice Ginsburg's concern.

We are trying to rule the world in respect to those ships that only come here occasionally or it isn't a big part of their business, but they want to come to pick up American passengers.

Mr. Salmons: Sure.

Sure.

And what I would say with regard to that is that you're right that our broad view is that the ADA applies if that... if they're offering public accommodation here in the United States.

But if you reject that, I think there are several ways you could approach that.

One would be to apply traditional choice of law factors that are... that are applicable in maritime, and you could conclude, you know, based on sort of whether or not there are sufficient contacts here and whether or not--

Justice Kennedy: Well, you're saying that this is your position, but don't worry about it because we'll reject your position?

Mr. Salmons: --No, no.

He asked me to say something that... that would... would help his concerns.

What I'm trying to say--

Justice Breyer: One thing might be true, what you're not saying, is there really aren't very many of those ships, or another thing you might say, which you're not saying because maybe isn't true, is almost all of those ships that there are are already subject to tougher... tougher rules, say, in Europe.

But you don't say either of those.

Mr. Salmons: --No.

No--

Justice Breyer: Since you don't you say either of those, I think neither may be true.

Mr. Salmons: --Well, I don't know the specific number.

I would think that there are not many that the... that this... what you're concerned with primarily here are cruise ships that are in the business of providing public accommodations.

But I would add as well... and I think this is very important that the Court keep in mind... that the clear statement rule, as it's... as it's posited by respondent here, would not just apply to the ADA.

It would apply to all U.S. laws, and that would include title II of the Civil Rights Act of 1964 in its prohibition of racial discrimination, and I would find that that would be a remarkable construction.

Justice Scalia: --It depends on what... what kind of laws you're talking about.

Laws that require the crew to be treated differently are... are quite different from law... laws that... that require a passenger to be treated a certain way in the United States.

Mr. Salmons: Justice Scalia, you're correct, and that's precisely why they have--

Justice Scalia: And laws... laws that require structural alteration of a ship are quite different from laws that say while you're in United States waters, you won't discriminate on the basis of race.

Mr. Salmons: --If... two... two responses, if I may, Your Honor.

And that is, if you... if that is the conclusion you reach, then you still need to remand this case because there are an awful number of claims that are precisely those kinds of claims that the Fifth Circuit would not allow.

Secondly, I think you're wrong with regard to the scope of the clear statement requirement.

There is no requirement that you have to have a clear statement to apply a U.S. law to a foreign vessel.

There is only a requirement that you need a clear statement if the conduct at issue would relate only to the internal matters of that vessel.

And here you're dealing with public accommodation--

Justice Scalia: If we haven't expressed it yet, we ought to express it then.

Mr. Salmons: --Well, I disagree, Your Honor.

And what I would point you to is... is that the long... every time this Court has spoken with regard to the clear statement requirement relating to foreign flagged ships, it has referred to the internal order doctrine.

And that is embodied in a number of bilateral agreements that go back for centuries.

The... the treaty that was at issue in the Wildenhus's Case expressly said that if the... if the conduct did not relate to members of the crew but to passengers or other members of the port state or otherwise affected the interests of the port state, that the port state law would apply.

And that is the general rule.

The international regime that governs this area by its terms provide minimum standards and leaves it available to port states and to flag states to add additional requirements.

That would mean--

Justice Souter: Mr. Salmons, one of the alternatives you threw out, not as a response to clear statement, but as a... a response to the issue that was being raised by it, was the provision of the statute that it was intended to exercise the... the fullest extent of the... of the commerce power.

And The... The Bahamas respond to that by saying you could have said exactly... or argued exactly the same thing in McCulloch.

What is your response to that?

Mr. Salmons: --Well, I... I would disagree with that on... on a couple of respects.

The first is that the definition of commerce here is broader than it was and specifically refers to travel between the United States and foreign countries.

The only other statute we're aware of that says that is title II of the Civil Rights Act of 1964.

In addition--

Justice Souter: Well, may I just ask you a... a factual question?

I didn't go back to the text to check this.

Does the text of this statute say in these words basically we are exercising the fullest possible extent of the commerce power?

Mr. Salmons: --Absolutely, Justice Souter.

What... what the text of the statute says--

Justice Souter: And it's not in McCulloch.

Mr. Salmons: --That's correct.

What the text of this statute says is that... in fact, this is the definition of commerce that relates only to title III of ADA.

And it says precisely that it includes travel between foreign countries and the United States and that Congress was intending to... to reach the full sweep of its... its constitutional authority.

Justice Stevens: Thank you, Mr. Salmons.

Mr. Frederick.

Argument of David C. Frederick

Mr. Frederick: Thank you, Justice Stevens, and may it please the Court:

This case is about congressional intent not congressional power.

Congress undoubtedly has the power--

Justice O'Connor: Could you address the last point?

Mr. Frederick: --Yes.

It was not the fullest extent of the commerce power.

That statute was at issue in this Court's case concerning the Lanham Act where the Court said that a violation of the Lanham Act that occurred in Mexico but had an effect in the United States was intended to be covered by Congress because that commerce clause, Justice Souter, did state to the fullest extent of Congress' power under the Commerce Clause of the Constitution.

This statute does not say that.

This statute talks about commerce in and between States and territories, and it is much closer to the statute language that this Court addressed in the ARAMCO case where--

Justice Souter: So it... it doesn't have the fullest extent language then.

Mr. Frederick: --That's correct.

That's correct.

Justice Ginsburg: How does it compare to title II of the Civil Rights Act of 1964?

Mr. Frederick: Well, there are slight differences in the language, but I don't think that's dispositive because title VII of the Civil Rights Act, which this Court addressed in the ARAMCO case, the Court... the Chief Justice's opinion there said that that language was not enough to express the intent.

Justice Ginsburg: So that would be the same for title II, which is the public accommodations part of the Civil Rights Act of 1964.

So I take it that you are saying that on these foreign flagged vessels, just as the ADA would be inapplicable, so title II, the public accommodations part of the Civil Rights Act of 1964, would be inapplicable.

Mr. Frederick: It's all a question of congressional intent, Justice Ginsburg, and there's no indication of an intent that Congress needed to address any problem that arose with respect to that form of discrimination.

Justice Ginsburg: So your... but your answer is, there being no such indication, that a ship putting in at a U.S. port was free to discriminate among its passengers on the basis of race.

Mr. Frederick: Well, there would be no U.S. congressional statute that would address that, Justice Ginsburg.

There would be a violation of the Bahamian constitution which prohibits--

Justice Ginsburg: I'm asking about the U.S. law and policy which says no segregation, no discrimination in places of public accommodation.

Mr. Frederick: --As I said, I'm not aware that there has ever been an instance of that in the cruise industry.

Congress has not addressed that.

We're talking about foreign ships here.

And I want to get back to the structural features of the ship because the ADA fundamentally--

Justice O'Connor: Well, but this is a good question, and what is your position?

That the ship could engage in racial discrimination while in U.S. ports on the selling of tickets and the provision of accommodations while in U.S. ports and within the 3--

Mr. Frederick: --Justice O'Connor, our position is that Congress has not spoken to the question, and so there is no congressional statute that is on point.

Justice Souter: Then your answer, I take it, is yes, it can discriminate and it can discriminate because Congress has not told it not to.

Is that it?

Mr. Frederick: No.

No.

Our position is that it can't discriminate because a different law proscribes that--

Justice Souter: So far as United States law is concerned, it could.

Mr. Frederick: --Yes.

Justice Ginsburg: And the same answer for 1981?

Mr. Frederick: Justice Ginsburg, as I said, Congress has not extended its laws to the full reach of U.S. territorial power, and this Court has maintained that position ever since the Charming Betsy case 200 years ago, The Schooner Exchange case, and Brown v. Duchesne.

Justice Kennedy: Well, let's put it this way.

So my understanding of your answer is that we could write an opinion ruling for you but leaving these other questions open?

I don't see how we can do that.

Mr. Frederick: What you say, Justice Kennedy, is that the clear statement canon requires Congress to say when it intends to apply a law to a foreign vessel.

Congress didn't do that.

Justice Kennedy: But if I'm writing the opinion and I put that down and rule for you, it seems to me that I then answered necessarily Justice Ginsburg's question in the negative.

Mr. Frederick: You do, Justice Kennedy.

And just as this Court in the ARAMCO case said that title VII doesn't apply to the foreign... work in a foreign land by an American company of an American--

Justice Kennedy: But these--

Mr. Frederick: --Justice Kennedy, Congress hasn't extended criminal laws of the United States to the full reach of U.S. power.

It is only proscribed 15 offenses that will apply in the special maritime jurisdiction.

Justice Ginsburg: Mr. Frederick, this is... this is what concerns me about your answer.

I know that Mr. Goldstein took the position that it doesn't matter what kind of operation this is, but the operation that we're dealing with, it sells tickets mainly to... what percentage of its passengers are from the U.S.A.?

Mr. Frederick: Approximately two thirds to three quarters in any given year.

Justice Ginsburg: And does it normally start the voyage and end it in U.S. ports?

Mr. Frederick: The majority of them do.

Justice Ginsburg: And how much of its advertising budget is pitched at U.S. customers?

Mr. Frederick: Justice Ginsburg, there... all of those questions are going to be answered as a predominant marketing effort, et cetera is directed to the U.S. market.

Justice Ginsburg: Well, this is the anomaly.

You're asking us to buy an interpretation.

An enterprise is U.S. centered in terms of where it gets its business and that enterprise, nonetheless, is not bound by what is our bedrock anti discrimination law both with regard to customers, passengers, and employment.

Mr. Frederick: And the reason, Justice Ginsburg, is that that law imposes structural changes on vessels that go to other ports.

Justice Scalia: Why don't you... why don't you try to draw that line?

Why don't you say that just as the applicability or not may depend upon whether you're dealing with a crew of a foreign ship or whether you're dealing with an American who happens to be injured on board that ship, so also it may depend upon whether the antidiscrimination law in question is one that at least in some of its applications requires structural changes or not?

That would enable you to say the ADA doesn't apply, but would not compel you to say that title II doesn't apply.

Mr. Frederick: We are talking--

Justice Scalia: You're not willing to take such a limited position.

Mr. Frederick: --Well, Justice Scalia, I think the Court could certainly carve out in its clear... articulation of the clear statement principle some of these lines.

It becomes very--

Justice O'Connor: --Well, the ADA itself makes an exception for things that aren't readily achievable.

I mean, you could certainly lean on that because a structural change probably isn't readily achievable.

Mr. Frederick: --Justice O'Connor, Congress, when it talked about readily achievable, did so in terms of cost.

It didn't do so in terms of conflict with the laws of other nations or--

Justice Breyer: Well, is there... is there... I mean, you're giving me the answer I thought the other side would give me.

All right?

And I appreciate it actually.

[Laughter]

You say that two thirds of these people, the customers, are American.

So we're dealing with a business that is primarily American, not a business like the Swiss ship except in exceptional cases.

Then you say, all right, still it's a problem because of structural changes we'll have to make.

What changes?

That is to say, I would have thought I could have read, but I haven't, that other countries like Europe also have discrimination laws against disabled people, and therefore, given that fact and given the document that Mr. Goldstein produced, it is highly unlikely that your clients will have to make any significant structural change that they wouldn't have had to make anyway.

Mr. Frederick: --That's--

Justice Breyer: Now, what's the response to that?

Mr. Frederick: --Well, that's completely false.

In... in the year 2000, the United States Government issued a report that contained an extensive appendix, which we've cited in our brief, that details in laborious detail the conflicts between land based ADA standards and SOLAS.

Now, I can give you some specifics, if you would... that are fairly practical, such as the ADA requires under the interpretation advanced by the petitioners that there be a disabled access cabin on every level of the ship, but SOLAS requires that passengers with disabilities be placed near evacuation points.

Justice Kennedy: --Why... why can't you just fight that battle by battle on what's reasonably achievable?

Because in order to avoid that problem, what you're telling us is that a cruise line can charge a... a disabled person double the price--

Mr. Frederick: As a matter of fact--

Justice Kennedy: --because they're a nuisance.

And that's your position.

Mr. Frederick: --Justice Kennedy, as a matter of fact, we categorically deny the claims of discrimination here.

We're having to fight this on the basis of assuming the... the allegations are true, but they are categorically false.

And--

Justice Ginsburg: But it doesn't matter what you want to do as a matter of good will.

The question is what the law requires you to do, and you're saying it's up to us, we govern.

You're not governed by U.S. antidiscrimination law.

Mr. Frederick: --Justice Ginsburg, what the other side wants is a case by case method of decision making in which a district judge becomes the special master of the cruise industry so that each claim of discrimination that would require some modification to the ship--

Justice Kennedy: That happens to every employer under... in the United States under the reasonably achievable standard.

Mr. Frederick: --And that's why, Justice Kennedy, it's a question of congressional intent.

The very same Congress debated extensively about whether to impose design requirements on foreign ships in the Oil Pollution Act of 1990, and it decided to buck the international system knowingly by imposing a design requirement that double hulls be imposed on oil tankers, foreign oil tankers.

Justice Stevens: Mr. Frederick, that brings up a question I've been meaning to ask you.

To what extent was this whole problem of the application of this statute to the foreign vessels discussed in the legislative history of these statutes?

Mr. Frederick: Zero.

There is not one word about vessel--

Justice Breyer: All right.

If... if that's so and if you look at the earlier cases... but all I could get out it is that those earlier cases... the Court tries to do what it really would have thought Congress would have intended in the circumstances.

And if that's so, why wouldn't Congress really have intended that a business that's two thirds American has to abide by American law?

Mr. Frederick: --Because it was encroaching on an area of foreign sovereignty.

Foreign ships are governed by foreign laws.

Justice Breyer: Does... does Britain... or does Britain or does the European Union, for example, forbid you to charge this double price?

Mr. Frederick: I don't--

Justice Breyer: Does European law... I'd be surprised if it doesn't forbid it, but do you know?

Mr. Frederick: --I... I don't know the answer to European law on charging of an additional price, but I would point out that pricing, like evacuation procedures, do go to the structure of the vessel.

And we're talking here fundamentally in the ADA about structural changes that they want to impose that go... when ships travel, they can't dismantle those structural changes when they leave U.S. waters.

Justice Stevens: Mr.... may I ask this question to you?

What about a... an American-flagged ship?

Does the statute apply or not?

Mr. Frederick: Well, the Fifth Circuit reserved that question.

Justice Stevens: What is your view?

Mr. Frederick: Our view is that there are arguments that can be made that it does not because Congress didn't--

Justice Stevens: What is your view?

Not what arguments can be made.

What is your view?

Mr. Frederick: --Well, I think--

[Laughter]

No.

I think our view is that it doesn't.

Justice Stevens: It does not apply.

Mr. Frederick: It does not apply because Congress didn't express the intent.

Justice Stevens: So really, we're not concerned with the fact this is a foreign flagged ship.

You're concerned with the fact it's a ship.

Mr. Frederick: The... there's a difference and... and there are about 1,000 U.S. flagged ships that carry passengers, so that if Congress had given any thought to the question, it is reasonable to suppose it might have distinguished between U.S. ships for which U.S. law directly governs and foreign ships that are governed by a different law.

The fact--

Justice Scalia: Do we need... do we need a clear statement for United States ships?

I thought your case rested on a clear statement requirement.

Is there any clear statement requirement for U.S. ships?

Mr. Frederick: --No, no, Justice Scalia.

Justice Scalia: So why... why isn't there a clear difference between the two?

Mr. Frederick: Because there aren't any words in the statute that go to ships.

The best they can do is a catchall phrase at the end of bus, rail, and any other means of conveyance.

Justice Scalia: Well, that's pretty good.

Mr. Frederick: Well, it's not--

[Laughter]

Justice Scalia: If you don't require a clear statement, that's... that's good enough, it seems to me.

Mr. Frederick: Well--

Justice Scalia: Your... your case hangs on the fact that, you know, when Congress wants to... to rule the world and say all ships in the... in the world that touch at our ports have to have this kind of a thing, it says so clearly.

It doesn't have to say so with perfect clarity with respect to American ships.

Mr. Frederick: --With respect to foreign ships, there is a clear statement rule and that clear statement rule is embodied in the fact that a foreign ship is governed by the law of the flag state where it is registered.

That's been the rule for 200 years.

And the other side's position--

Justice O'Connor: Well, is that limited, though, just to things that affect the internal order of the ship?

Is that the context in which we've articulated that rule?

Mr. Frederick: --Well, it's been articulated in several different contexts.

In the Brown v. Duchesne case, the Court 150 years ago articulated in a patent case where the Court said that a patented device on the ship, which was the French ship in Boston Harbor infringing an American patentholder, would not apply U.S. patent law.

And the Court said, because we can't conceive that Congress would have imagined this general language to encroach on the sovereignty of a foreign ship.

Now, the other side has exactly two sentences to say about that case, but that is the case that is directly on point because that case says that when you are dealing with American laws that are generally written, you would not ordinarily apply them to a foreign ship unless Congress said so specifically.

Justice Souter: But... but in that case, there was... as I understand it, there was no legal relationship of any sort between the supplier of the patent infringing object and the ship in the United States.

So it at least made sense to classify that with internal order as opposed to external relationships arguably involving... or implicating American law.

You've got exactly the opposite situation here.

You've got contracts made in the United States with the foreign cruise line.

You didn't have that in your patent case.

Mr. Frederick: Well, Justice Souter, you have a foreign ship owned by a foreign corporation built in a foreign country under foreign engineering standards--

Justice Ginsburg: With its principal place of business in the United States.

Mr. Frederick: --For a time before that ship moves into another market.

Justice Souter: Its significant external... its significant commercial relationships are in the United States with people in the United States performed partially in the United States.

Mr. Frederick: In just the same way that McCulloch the Court said that labor standards for a course of business that is regular between Honduras and the United States is not going to be sufficient to apply--

Justice Ginsburg: The crew members were Honduran in that case.

Mr. Frederick: --They were.

Justice Ginsburg: This... if you just look at it, suppose you were not a lawyer and you look at this operation.

You'd say that's got U.S.A. written all over it.

The passengers are from the U.S.A..

The company is centered in Florida.

And then you have this flag of convenience that it flies which can legitimately govern the relationship with its crew.

But to say that it governs the relationship with passengers, it seems to me very strange.

And also the ticket says, passenger, if you're going to sue us, it's got to be in the United States and under U.S. law to boot.

Mr. Frederick: But a choice of law clause, Justice Ginsburg, has never been held to incorporate law in the sense that laws that don't apply are going to be incorporated.

I'm not aware of any choice of law clause that... that simply takes in every domestic statute.

Justice Ginsburg: Just... it's just one other indicia that one looks at this operation and says this belongs to the U.S.A..

A practical judgment, I think, would come down there.

Mr. Frederick: And... and you would have... under their theory, you would have the Consumer Products Safety Act, the Food and Drug Act, OSHA, all sorts of other statutes of general application that are now going to be imposed on foreign vessels simply because they do a lot of business in the United States.

The problem here, as a matter of congressional intent, is we don't know what Congress thought about this, and because Congress--

Justice Kennedy: Well, we... we do... we do have the rule if it... if it applies to the internal operations of the ship, and so far as the crew is concerned, the Jones Act and OSHA, it seems to me, may well be governed by the law of the flag.

Mr. Frederick: --And the internal operations of the ship, Justice Kennedy, is part and parcel of how it is designed, what are the evacuation points, how are the cabins laid out, what ramps are placed where, how... everything about the ship's design--

Justice Kennedy: That's a part of the case I'm not sure about, and it seems to me, again, it can be fought out under the reasonably achievable--

Mr. Frederick: --It doesn't... Justice Kennedy, the problem with that theory is it just doesn't comport with the language of... of the statute.

Congress didn't think in terms of... as it did in the Oil Pollution Act, it said, if there's a conflict with international law, work it out.

Get the Coast Guard with the foreign nations and work out the conflict.

It didn't put anything like that in this statute, which is a further indication that if Congress wants to extend this kind of disability protection, it can do that, but it ought to do so willingly.

And the Government has had 13 years to come up with rules that would govern cruise ships, and the best they've done, a few days before the top side briefs in this case were filed, is to issue proposed draft guidelines for ferries, not cruise ships.

Most of the regulations that they are pointing to wouldn't have an application to a large passenger cruise ship.

If Congress wants to change this, it certainly has the power, but this Court need not open up a Pandora's box of domestic legislation to apply to foreign ships where Congress has not expressed the intent to do that.

Justice Souter: Could you go back to Justice Breyer's question about the number of foreign ships?

Once we get beyond cruise lines, does it... would... would the... the application on your view cover the... the dozen passengers who decide they want to take a trip on a... on a cargo boat?

Mr. Frederick: Yes.

I don't perceive a limiting principle to the other side's position.

In fact, there's an amicus brief written where there's only one or two stops in the United States a year, and under their view, that ship would be governed by the ADA as well.

If... if Congress wants to enact these limits, it's certainly free to do so, but this is a highly complex area and ships are different from land based accommodations because you have to be able to evacuate people within 30 minutes.

And so when we train people, we have--

Justice Stevens: But doesn't it... on the other... on the other side of the coin, apart from the structural problem... and I understand the arguments on both sides there.

With respect to things like safety drills and access to gambling tables and all that, it seems to me that your answer to that would be, well, we'll just do that once we're on the high seas so there's no conflict with the statute when we're out there.

Mr. Frederick: --As a matter of fact, Justice Stevens, we give evacuation drills to the disabled in a different way.

We have special access and assistance squads that go to persons with physical challenges to get them off the vessel in an event of a... a need for evacuation.

That's a different procedure than most passengers, but it's... it is one that is in place.

Justice Stevens: Thank you, Mr. Frederick.

Mr. Garre.

Argument of Gregory G. Garre

Mr. Garre: Thank you, Justice Stevens, and may it please the Court:

Applying title III of the Americans With Disabilities Act to foreign flagged vessels would invite precisely the sort of international discord, conflict, and confusion that Congress presumably seeks to avoid when it writes American laws.

Justice Ginsburg: Do you agree with Mr. Frederick's answer about title II of the Civil Rights Act of 1964?

I mean, a lot of countries don't prohibit discrimination.

Mr. Garre: Justice Ginsburg, first let me make clear that the Bahamian Government does and all of its cruise vessels are governed by that prohibition.

Justice Ginsburg: I'm asking about the application of U.S. law.

Mr. Garre: We think that that question can be resolved along the lines that Justice Scalia suggested, which is that when you're dealing with a matter that goes to the internal affairs of the ship... and there... we would suggest that there is more central to the internal affairs of the ship than its construction and design.

Under international law, article 94 of the Law of... Law of the Sea Convention, which the Bahamian Government has ratified... and by the way, the United States has not, and that's an important principle for this Court to keep in mind... foreign flagged states may be bound by different international treaties than the United States.

Simply trying to draw some conflict resolution device that would deal with treaties that the United States has entered into, international nations have not will not address that problem.

Justice Ginsburg: So before you go on to that, I want to be clear on your answer to title II of the Civil Rights Act of '64.

There's... you say, well, that's easier to comply with.

But that's not the principle under which you're operating.

Mr. Garre: No.

With respect, Justice Ginsburg, our principle is that when it comes to the matters that under international law have been traditionally governed by the flag state, then when Congress writes its laws, we presume that unless Congress clearly indicates an affirmative intention to address those matters, it did not intend to.

When Congress wrote the ADA, not a word of the statute indicates that it considered the international repercussions of applying that law to foreign flagged vessels.

Not a word--

Justice Souter: What about the... what about the full sweep argument?

Let's sort of come full circle on that.

You... you say the full sweep argument is no good because the same thing could have been made in McCulloch.

The response was there is--

Justice Scalia: What's... what's the full sweep argument?

I don't--

Justice Souter: --Full sweep of the commerce power.

Mr. Garre: --Justice Souter, first of all, it's... it... the statute doesn't say full sweep.

It says sweep, and that's in the findings of the ADA.

It's reprinted on page 32 of petitioners' brief.

And second of all, the definition of Congress, which doesn't contain that sweep language, is almost identical to the definition of commerce in McCulloch, which is on page 15, note 3 of that decision, and that definition, the United States argued in the McCulloch case, was not sufficient to extend U.S. labor laws to foreign flagged vessels.

It's important to understand the... the potential international conflicts that extending the ADA to foreign flagged vessels could create.

There are more than 40 nations that have adopted anti discrimination laws for the disabled.

Three nations have... have adopted laws for domestic vessels: Britain, Canada, and Australia.

If a country like the United States extended its laws to foreign vessels that entered its ports, then other nations may well follow suit.

And if you take a simple hypothetical example, the Queen Mary II traveling from South Hampton to New York, if you look at the guidelines that Britain has adopted for domestic vessels, those guidelines contain different structural and design requirements than the draft guidelines that the United States have promulgated.

There are different requirements for door widths.

There are different requirements for sloping.

There's different requirements for the watertight compartments.

There are different requirements about whether vessels have to be... have accessible cabins all throughout the ship.

Justice Scalia: --When you say different, you mean you cannot comply with both.

Mr. Garre: Well--

Justice Scalia: Is that what you mean?

Or... or are those just minimums and... and the United States would... would comply with those minimums?

Mr. Garre: --Justice Scalia, I think in some you could and in others you couldn't.

And... and that's an important... important point.

Justice Kennedy: And incidentally just for the... are... this ship has... these are regulations that help the disabled?

Mr. Garre: Yes, Your... yes, Your Honor.

And... and in many cases, it's not going to be clear which regulation is going to be more accommodating to the disabled and which is not.

Justice Breyer: Could they work that out?

That is, if two thirds of our universe really is American-based, in terms of customers, and we're now only talking about conflicts in... real conflicts that... that affect, say, one third of the universe, that's also true in areas like antitrust or others where the enforcement authorities get together and they try to write memoranda that... that work this out in a reasonable way.

Could... could the same thing happen here if such real conflicts did emerge?

Mr. Garre: We don't think so, Justice Breyer.

Justice Breyer: Because?

Mr. Garre: We would take the same approach that this Court emphasized in... in the McCulloch case, which is that kind of ad hoc balancing analysis would wreak havoc for the question whether a significant regulation like the ADA would apply to a vessel.

How would foreign vessels know, when they enter U.S. ports, whether they have to undertake the extraordinary changes--

Justice Breyer: The answer would be yes, you do.

You do have to, and then if there's some other authority that wants to get involved in this, the two authorities would work it out.

Mr. Garre: --Justice Breyer, the way that those issues are worked out in the international shipping context is through the International Maritime Organization.

This organization has been responsible for crafting scores of conventions, hundreds of shipping codes, and it's already begun to address the issue of accessibility on ships for the disabled and the elderly.

We cite the 1996 guidelines in our brief.

Those guidelines right now are... are not binding guidelines, but they could well become binding guidelines.

And when an organization like the IMO addresses this question, it resolves--

Justice Breyer: That's perfect because then the Government says that once it becomes a matter of binding international rule, anything that conflicts with that will be viewed as not reasonably achievable.

So all you have to do is that and then there's no longer a problem with American law, according to them.

Mr. Garre: --Well, we don't think the readily achievable language in the first case in any way contemplates conflicts with international law.

This Court has a separate canon that's almost as old as the country that it presumes Congress doesn't intend to interfere with international obligations or international laws, including customary international law, as you wrote for the Court last term in... in the Empagran case.

We presume that American legislatures give respect to the interests of sovereign nations when they write their laws, and we don't assume that Congress intends to intrude on the sovereign interests of other nations.

And that's what extending the ADA to foreign flagged ships would do.

The Bahamian Government has a solemn responsibility under international law and under its own law to govern the construction and design of all flags of all ships that fly... fly its flags.

Article 10 of the Geneva Convention on the High Seas recognizes that flag states have responsibility for the construction and design of ships.

Article 94 of the Law of the Sea Conventions specifies that flag states have responsibility over administrative, technical, and labor matters, including construction and design matters.

These are precisely the sorts of matters that for centuries the flag state has been responsible for.

And in the Brown v. Duchesne case, this Court recognized that, a case that dealt with the application of patent laws to the construction and design of a foreign flagged vessels.

There are going to be conflicts within... between international law and the requirements of the ADA, but first of all, there's going to be confusion.

It's been more than a decade since the ADA was passed, and we don't even have final regulations as to what rules apply.

And in the meantime, foreign flagged vessels are going to have to be reviewing the case law in the United States courts, determining on a vessel by vessel, design specification by design specification as to what standards apply.

That's only going to create additional international discord and confusion.

Petitioners proposed solution to this problem we think is telling.

They urge this Court in their reply brief if there is a problem after the ADA is extended to foreign flagged ships and other nations begin to follow suit and you have a crazy made... maze of different regulations applying to construction and design, then at that point, the United States can go to the IMO and ask it to clean up the mess.

With respect, we think they have it backwards.

The purpose of the IMO and the international framework that exists for governing regulation of shipping is to establish a uniform set of rules in the first instance.

The IMO has already begun to address the problem at issue in this case, accessibility for the disabled.

They are available to address that in a multilateral fashion.

And Congress, in enacting the ADA, gave no indication that it weighed any of the international repercussions of the action that petitioners urges the case... petitioners urge the Court to take in this case.

And we would urge this Court to return this matter to Congress.

Congress is in the position to weigh the risk of international confusion, to weigh the potential for international discord and to address those matters as it sees... sees fit.

If there are no further questions.

Justice Stevens: Thank you, Mr. Garre.

Mr. Goldstein, you have about 40 seconds.

Rebuttal of Thomas C. Goldstein

Mr. Goldstein: Justice Breyer and Justice Ginsburg, our position is the one that can accommodate your concerns.

Theirs cannot.

Just like in Empagran, where this Court built in comity considerations, relying on cases like Lauritzen that involved foreign flagged ships, it said, look, even if the text of the Sherman Act or the FTAIA could literally reach it, in these cases that we don't think Congress could have conceived of, we're not going to apply the statute.

But here, we have a situation in which this company has 95 percent of its cruises going in and out from the United States.

Millions of people, and billions of dollars in commerce are affected by this statute and Americans that Congress had to have in mind.

Justice Stevens: Thank you, Mr. Goldstein.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Tennessee v. Lane - Oral Argument

Fri, 09 Jan 2009 14:49:07 +0000

Case:

Tennessee v. Lane

Media File:

02-1667_20040113-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Michael E. Moore

Chief Justice Rehnquist: We'll hear argument now in No. 02-1667, Tennessee v. George Lane.

Mr. Moore.

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

Whether the Court chooses to view Title II of the Americans with Disabilities Act in the entirety of its indiscriminate application through every facet of every state program, activity, and service, or in the alternative, as the private respondents urge, in the narrow courthouse access context, presented by the particular allegations of the complaint they have filed in this case, the Court should conclude that Title II exceeds Congress' enforcement authority under section 5 of the Fourteenth Amendment for essentially two reasons.

First, because there was no evidence before Congress that the states were involved in a widespread pattern of violations of the Fourteenth Amendment rights of disabled persons when the ADA was enacted in 1990.

And second, because Title II shares all of the incongruent and disproportionate features that proved fatal to Title I of the same statute in the Garrett case and then some.

Title II's lack of congruence and proportionality to any identified constitutional injury inflicted upon disabled persons by the states is apparent, we say, on the face of the statute.

Congress made no effort to tailor its provisions to those contexts which might conceivably pose a threat to the exercise of fundamental constitutional rights by individuals with disabilities.

Instead, Title II applies indiscriminately to every service, program, or activity of the states.

Justice Kennedy: Let's assume that the... that the state... and it's just an assumption... would concede that sovereign immunity could be abrogated insofar as access to courthouses for handicapped people, so that Congress could have drafted a congruent and proportional statute.

The fact that this injury comes within a statute which has a much larger coverage is grounds for striking the statute down, even though this case involves what we will assume to be a... an injury that could be remedied under the Fourteenth Amendment with money damages?

Mr. Moore: Your Honor's question focuses on a debate that we really haven't engaged in.

It's... it's one between the respondents and the United States, because in our view, whether the Court views the statute in its... in overall operation, or as focused narrowly on the courthouse access context, either analysis leads to the same conclusion.

Having said that, I would say that the prohibition of Title II is a single, unitary, very elegant one-sentence prohibition in section 12132 of Title 42.

It doesn't purport to subdivide the statute... the statute's prohibitions into particular subject matter areas.

And as the United States points out in its brief, this Court's prior congruence and proportionality cases in... in the abrogation context suggest that the Court looks usually at the overall operation of the statute.

If the Court chooses that perspective on this problem, we think yes indeed, even if the statute, assuming the statute, a narrowly-tailored statute could have been drafted that would validly abrogate sovereign immunity in the courthouse access context, Title II's flaw is that it is not so targeted.

In fact, of the myriad activities it covers, Your Honor, a very small percentage conceivably implicate the exercise of any constitutional right.

Justice O'Connor: Mr. Moore, does Tennessee provide any cause of action for the alleged violations here, the lack of access to the courthouse?

Mr. Moore: No private right of action under our State Public Buildings Act.

Our State Public Buildings Act, Your Honor, was enacted in 1970.

It applied to all buildings constructed on or after that date.

Justice O'Connor: So you're satisfied that under Tennessee law, there would be no monetary relief available?

Mr. Moore: I think that is... I think that is right.

Justice O'Connor: And would there be any enforcement action at all available to compel under Tennessee law the courthouses to be accessible?

Mr. Moore: No, Your Honor, because under Tennessee law, the... the injunction to build fully accessible buildings applies to buildings constructed after the enactment of the Public Buildings Act in 1970.

There is no provision in the Public Buildings Act requiring retrofitting.

But, of course, in this case, Tennessee does not dispute its obligation to comply with Title II, and we do not dispute that our state officials can be called to account for a failure to comply with the provisions of Title II in an Ex parte Young action.

Justice O'Connor: Well, do you take the position that Title II, even if this Court were to find monetary damages are not available, is there a way to enforce Title II by the Federal Government against the State of Tennessee?

Mr. Moore: Yes, Your Honor, there is, in an enforcement action by the United States, injunctive relief and monetary damages would be available against the state.

In addition--

Justice O'Connor: Under what power?

I guess... I guess you're arguing that there's no section 5 authority--

Mr. Moore: --Yes, Your Honor.

Justice O'Connor: --for enactment of this provision.

And that would leave what, the Commerce Clause?

Mr. Moore: Yes, Your Honor.

Justice O'Connor: And you think it would survive the Commerce Clause challenge, do you, as applied to states?

Mr. Moore: Your... Your Honor, of course, this... this case doesn't present that question.

Justice O'Connor: Right.

Mr. Moore: But--

Justice O'Connor: But I'm asking.

Mr. Moore: --But we have not challenged and do not question Congress'--

Justice O'Connor: Other states have though, have they not?

Mr. Moore: --I... it's my understanding that that claim has been raised in certain lower Federal courts, yes.

Chief Justice Rehnquist: How about an action under Ex parte Young--

Mr. Moore: Absolutely, Your Honor.

Chief Justice Rehnquist: --against a state official, not for money damages, but for compliance?

Mr. Moore: Absolutely, Your Honor.

Justice Souter: Well, I can understand that if the state official was standing at the door saying, no, you cannot bring a wheelchair in here.

But if the building itself simply does not allow for... for... for ready access, how would an Ex parte Young action be a source of remedy?

Mr. Moore: Well, of course, Your Honor, Title II doesn't really apply to buildings.

It applies to services, programs, and activities, and so long as they--

Justice Souter: Well, if the... if the activity... the... the conduct of... of the business of courts is taking place in a courthouse, I think that gets us to focus on the building, doesn't it?

Mr. Moore: --But so long as the... so long as the court in question offers the service in... in a... in another venue, for example, as occurred in this case, Mr.... at every step of Mr. Lane's interaction with the Polk County criminal court, an accommodation was offered to him, albeit it was rejected.

Justice Souter: So they're... they're saying, look, you... you could have an Ex parte order... Young order... saying hold court on the first floor.

That's... that's what you're getting at?

Okay.

Mr. Moore: Yes, Your Honor.

I mean, the... I... I should think a... a court could fashion whatever remedy is... is deemed appropriate to ensure that a... a person in Mr. Lane's circumstance enjoys the full panoply of his... of his constitutional rights in... in--

Justice Souter: But I... I take it your position would be that under Ex parte Young, a court could not say to a state official, build an elevator?

Mr. Moore: --Well, I think courts have wide discretion to fashion injunctive relief in Ex parte Young actions, and if, in a particular circumstance, that were the only reasonable way of delivering the service, I... I think that would be inappropriate.

Justice Souter: So you would as... as a last ditch, you would concede that?

Mr. Moore: Yes.

I think... I think in an Ex parte Young action, courts have enormous discretion to fashion equitable relief that is appropriate to... to whatever the particular facts and circumstances are presented--

Justice Ginsburg: But that would still be Commerce Clause-based, right?

Because you're excluding the Fourteenth Amendment altogether.

Mr. Moore: --That would be true, Your Honor, yes.

Justice Ginsburg: And there is something strange about that, given that it was Congress' purpose to enable people to exercise the rights... the full rights of citizenship.

I mean, it's a kind of a dignity right that Congress was recognizing, and it doesn't fit as comfortably under the Commerce Clause, does it, as it would under the Fourteenth Amendment?

Mr. Moore: I think it fits quite comfortably under... under the Commerce Clause, Your Honor.

But, of course, under this Court's case law, in order to invoke its Section 5 power, Congress had to have evidence before it or some reason to believe that the states were engaged in a widespread pattern of violating the constitutional rights of disabled or... or... of... of whatever group is involved, and here there was no such evidence, certainly not in the courthouse access context.

Justice Breyer: Well, what about the... that's what I want to get to.

I... I mean, to put the whole question to you, I'm assuming we're talking here to use the statute about judicial or courthouse-related services, programs, or activities.

So I was seeing this as a kind of as-applied challenge, and if it's constitutional in this area, maybe we leave the other areas for a later time.

Now, on that assumption, as you well know and I do, the majority criticized my appendix in Garrett--

Unknown Speaker: [Laughter]

Mr. Moore: Yes, Your Honor.

Justice Breyer: --for certain inadequacies.

And among those inadequacies which it highlighted was, one, the inadequacy that it talked about public employment instead of, says the majority, public accommodations and public services.

Here we're talking about public accommodations and public services.

Second, the majority criticized it... I'm, you know, aware of these criticisms, I read them carefully.

Unknown Speaker: [Laughter]

Justice Breyer: The... the... the... criticized it because the Senate reports hadn't said anything.

Well, here the committee report talks... says discrimination still persists in such critical areas as public accommodations and public services.

And third, the... the concurring opinion says there is no record of litigation on this point and the SG has filed a whole brief with loads of... and fourth, the majority made a major point of there being a relaxed, rational basis standard of judicial review, but here we have access to a courthouse, something that would seem to call for more strict scrutiny than that.

All right.

Those are the four things that I could see as distinguishing this case, and I think it's reasonable to ask you, why don't they?

Mr. Moore: They don't, Your Honor.

Let me take each one in turn.

First of all, in the appendix to the Solicitor General's brief, indeed, if the Court will look at all of the hundreds of pages of briefs filed in this case by respondents and their amici, the Court will not find a single case from a single jurisdiction that has held that anytime, anywhere in the United States, a person's fundamental constitutional rights of access to the courts has been denied as the result of architectural barriers at courthouses.

And if there's one context in which one would expect to find case law, it is in the courthouse access context, because after all, the business that takes place there is litigation.

We think that is a particularly telling point.

Similarly, in... we find in the Government's brief, who has... the Government has called from Your Honor's appendix the pertinent entries, and we find eight of them that have sufficient detail that would permit one to actually ask the question, was a constitutional violation involved?

And we say that under the... even the most creative interpretation of any of them, they don't make out a constitutional violation.

All of the other references to courthouses in appendix C to Your Honor's opinion, we've pulled every single of them, and they simply... they simply label courthouse facilities as inaccessible.

But, of course, under the ADA, inaccessible is a term of art.

It doesn't mean there's literally a wall around the building and no one can get in.

It means that they are inaccessible in the sense that the... the amenities required by the ADA are not present, so that there are not... there is no evidence before this Court, and there was no evidence before Congress, that anyone's constitutional rights, rights of access to the courts, were being violated as the result of the existence of these architectural barriers.

And for those reasons, we don't think the... the so-called task force report, which is summarized in the appendix to Your Honor's dissent in Garrett, helps the respondents.

There is no mention in the text of the act itself, of course, of courthouse access, and if one looks at the Senate and House reports on the legislation, one will discover that there is not a single mention of the subject anywhere and no other indication that Congress thought courthouse access was a matter of particular concern.

Justice Scalia: Mr. Moore, I'm sort of concerned about this.

Our prior cases dealing with this issue of... of the scope of Congress'... whether Congress' power under the Fourteenth Amendment has been properly exercised, none of our prior cases parse it out issue by issue.

Boerne, for example, doesn't... doesn't just limit it to, you know, to... to whether, given that there was no... no discrimination in this case, Congress could move.

You're... what you're... the State of Tennessee is entirely happy to have us change course and begin to rule upon congressional legislation of this sort, case by case--

Mr. Moore: No, Your Honor.

Justice Scalia: --whether there was enough evidence on courthouses, whether there was enough evidences... enough evidence on each of the other innumerable state functions that... that were covered by this bill.

But, I mean, that's the argument you're making.

You... you just want us to... to say there's not enough evidence about courthouses, and therefore, in this case, they can't do it.

And we'll hear... we'll hear another case further down the line about, you know, any of the other innumerable state functions that are impinged upon by this law.

Mr. Moore: I would agree with Your Honor that... that the Court's prior abrogation cases, each one of them looks at the overall operation of the statutory scheme and does not look at its application in a context-by-contact... context basis.

And we would agree that if the Court chooses to continue that practice and... and for many of the reasons discussed in the United States brief, we think that is probably the better view of it, this statute clearly falls, because under no circumstances can... can one say that it... it... it is congruent and proportional to a valid, remedial objective.

Justice Breyer: How... how do you do that?

Because if I think of the antitrust laws, for example, or other congressional statutes in olden days when the Court, you know, was worried about the scope of the Commerce Clause, what would happen is they would say, of course the antitrust law is valid, the statute's valid, but it's not valid to apply it to baseball, because baseball's not an interstate commerce, or it's not valid to apply it to insurance.

Well, why wouldn't the Court take the same approach here, that this statute may be valid as applied to X, Y, and Z, where they did have enough evidence, but not A, B, and C, where they didn't?

Mr. Moore: I... because I think the abrogation inquiry is fundamentally different.

The abrogation inquiry focuses on whether Congress invoked its power under Section 5 in a fashion that is congruent and proportional with a valid, remedial objective, that being a... a... an identified pattern of unconstitutional behavior.

Chief Justice Rehnquist: In City of--

Mr. Moore: And in order to... excuse me, Mr. Chief Justice.

Chief Justice Rehnquist: --In City of Boerne, we certainly did not go in and analyze whether the church has a claim under the Constitution or not.

Mr. Moore: That's true.

That's true, and... and the same can be said of the Kimel case.

The Court didn't focus on the peculiar allegations of the complaint in that case.

Justice Scalia: Justice Breyer's question, how can you do that, reminds me of, you know, there's a story about the Baptist minister who was asked whether he believed in total immersion baptism, and he said, believe in it, I've seen it done.

Unknown Speaker: [Laughter]

Justice Scalia: And that... that is surely the situation here.

We've done it before in... in each of the other cases involving this area.

Mr. Moore: Yes, Your Honor.

The statute lacks congruence and proportionality also, not just because of its sheer breadth, which Justice Scalia's question highlights, but also because in the myriad contexts to which it applies, it imposes obligations on the state that go far beyond what the Constitution itself commands.

It really does so in two ways generally.

First, most of the rules under Title II promulgated by the Justice Department to enforce its provisions require states to modify otherwise disability-neutral policies and practices in order to eliminate adverse, disparate effects those policies may have on the interests of disabled persons, whereas, as this Court noted in the Garrett case itself, under the Fourteenth Amendment, disparate... disparate effects of that... those sorts, without more, do not make out any sort of constitutional violation.

Second... yes, Your Honor?

Justice Stevens: I was going to ask you to get out of the courthouse area of the case for a minute.

The Government's brief contains a statement that in 1975, approximately one million disabled students were excluded entirely from the public school system.

If that were true, and if... because of their disability, if that were true, would that constitute a constitutional violation?

Mr. Moore: I don't think we have enough facts to draw any conclusion.

Justice Stevens: And then my next question is, there's nothing in the record... suppose you had several Congressmen who said, I'm going to vote for this statute because I'm convinced that this fact is true, but there's nothing in the hearings, but... but it definitely motivated the voting of people who voted for this statute, could... would it be valid in that fact, that situation?

Or do we have to have evidence in a... in a congressional hearing in order to justify a congressional decision?

Mr. Moore: I think there must be evidence of a pattern of constitutional violations, and merely saying that a particular class of persons is excluded from public schools, for example--

Justice Stevens: Is it... is it--

Mr. Moore: --without more information doesn't permit a conclusion necessarily that a constitutional violation is going on.

Justice Stevens: --Is it true then that in a case like this, we must examine legislative history in order to determine the validity of the statute?

Mr. Moore: Unless... I mean, there are certain contexts where... where the... the history of discrimination is so well known and has been documented in this Court's own opinions, that perhaps that's unnecessary.

Justice Stevens: Well, it hasn't been... I'm assuming it hasn't, but it's just clear that the Congressmen who voted for the statute thought it was true.

They got letters from their constituents and acted on that sort of information, and that... but that can never be sufficient under your understanding of our cases?

It must be something in the congressional record?

Mr. Moore: I think there must be something in the... in the record that establishes a state... state participation in a widespread pattern of unconstitutional behavior, yes, Your Honor.

Justice Scalia: Mr. Moore, you... you don't concede, I assume, that the Constitution is violated by not... not providing educational... public educational facilities that will be accessible to all handicapped persons?

You don't concede that that's a constitutional violation, do you?

Mr. Moore: No, I do not.

No, I do not.

Justice Scalia: I didn't think it was.

Mr. Moore: The... the... and in fact--

Justice Scalia: I mean, you... you need a rational basis.

Mr. Moore: --That's right.

Justice Scalia: And... and if... if the... the additional expense for constructing the buildings in... in a manner that would render them accessible to all handicapped persons is excessive, it's not a constitutional violation.

Now, it may be a very bad idea, but we've never held that that's a constitutional violation.

Mr. Moore: I... I think that's right, Your Honor.

The only--

Justice Scalia: So saying that so many handicapped persons couldn't get into public schools would prove nothing at all, would it?

Mr. Moore: --I think you're absolutely right, Your Honor.

The only context in which this Court has applied heightened scrutiny in... in the education context is where there was a... a... a punitive class-based exclusion, and... and there only in the K through 12 context, and so merely reciting that a certain number of students were being excluded without more information, Your Honor, I think would not make out a constitutional violation.

Justice Breyer: Just out of curiosity, in your view, is the requirement that Congress have a kind of legislative... I've called it an administrative or court record... to document the evidence of unconstitutionality of practices applicable only in Section 5 of the... of the Fourteenth Amendment, or is something... is it a constitutional requirement that applies to all the provisions of Article I, including the Commerce Clause and other provisions?

Mr. Moore: Quite frankly, I focused only on this Court's cases construing Section 5 requirements in this context.

But I... I think... I think Congress... when Congress invokes one of its powers in a way that intrudes upon the sovereignty of the states, it must document that it has an adequate basis in fact for concluding that that power exists.

Justice Breyer: It's like... it's like a mean question, because if you... if you answered the question that they had to be different, I'd said why, and if you answered the question they'd have to be the same, each of us can cast our minds over dozens of pieces of important legislation where, let's say, the underpinning... let's take the Copyright Clause or let's take any one of a dozen where there isn't really much of a legislative record.

I mean, that's... do you want to say anything about that?

I mean, that's the problem I see there.

Mr. Moore: Well, of course, here, this case deals with a specific context, the... the... the invocation of Congress' power to... to abrogate the state's sovereign immunity, and it seems entirely reasonable for the Court to construe section 5 as requiring that before the Congress alters the Federal-state balance in such a grave way, that it document very carefully its basis for doing so.

Justice Scalia: Of course, the... the commerce power exists whether or not other... other facts are... are established.

It is a power that Congress always and everywhere possesses.

Congress does not always and everywhere possess the power to subject the states to... to... to lawsuits.

Justice Stevens: Yes, but--

Justice Scalia: --That power exists only... only when, as... as we... we found was not well-enough established in Boerne, only when there has been a constitutional violation by the states, so why isn't that an adequate reason for the difference?

Justice Stevens: But is that quite correct?

Isn't it true that under section 5 they prohibited the poll tax and literacy tests, even though they'd been held permissible?

They were not unconstitutional, they were prophylactic measures.

Mr. Moore: But that was, Your Honor, only after a... a well-documented history of discrimination and discriminatory application of those--

Justice Stevens: But you would agree that it's not essential that there be a constitutional violation?

Mr. Moore: --I... I think there must be evidence of a pattern of a unconstitutional behavior.

Justice Scalia: The answer is no.

The answer is no.

Unknown Speaker: [Laughter]

Justice Scalia: You don't agree with that.

There has to be a constitutional violation.

Mr. Moore: There has to be--

Justice Scalia: The remedy may go beyond the constitutional violation, but there has to be a constitutional violation, does there not?

Mr. Moore: --I agree with you, Your Honor, 100 percent, and I would like, Mr. Chief Justice, to reserve the rest of my time for rebuttal.

Argument of William J. Brown

Chief Justice Rehnquist: Very well, Mr. Moore.

Mr. Brown, we'll hear from you.

Mr. Brown: Mr. Chief Justice, and may it please the Court:

Unlike Garrett and Kimel, and entirely consistent with this Court's opinion in Hibbs, Title II as applied to the case that is before the Court today presents a constitutional application of the powers of Congress under section 5 of the Fourteenth Amendment.

Chief Justice Rehnquist: When you say, Mr. Brown, as applied to the case that's before the Court, you're suggesting that it can be kind of sliced up and just, say, address courthouses?

Mr. Brown: Your Honor, please, I think the history that this Court has used in the past is to focus on the case and the circumstance and the issue that's before the Court.

The case that's before the Court involves the fundamental right of access to the court.

Chief Justice Rehnquist: Well, but in... in our other cases dealing with Congress' section 5 power, I don't think we've taken that position.

We have said, particularly in the City of Boerne, the Government response must be congruent and proportional, which suggests that there may be constitutional violations, but they're simply not sufficient to justify what Congress did.

That's the meaning of... I understood... of the term, congruence proportionality.

Now, if you... if you simply focus down narrowly enough and say, was there a constitutional violation in denying the church the zoning, the... that really eliminates the idea of proportionality entirely.

Mr. Brown: Respectfully, Chief Justice, the way that I took Boerne was that this Court made a direct statement to Congress that they had overstepped their bounds in interpreting the First Amendment and the Fourteenth Amendment and its applications.

The Court looked directly at Congress and said not that in these particular circumstances, but on this particular constitutional issue, you went too far.

Now, what we're talking about in this case today is not about whether or not Congress dealt with a fundamental right.

That's unquestionable.

Today what we're talking about here is what I would suggest to the Court is the quintessential element of the Fourteenth Amendment, and that is the right of each of us as individuals to due process of law, to life, liberty, and property.

Justice Scalia: The legislation doesn't deal with that constitutional right.

It doesn't... doesn't mention, you know, due process and... and... and courthouses specifically.

It... it embraces innumerable things.

And what you're saying is, because one of the innumerable things that it embraces happens to involve a constitutional right, the legislation is a valid exercise of... of section 5 power as to that particular constitutional right.

And I... that doesn't strike me as... as accurate.

If Congress wants to enact such a sweeping statute, a statute that... that, in effect, as we said in Boerne... what was going on in Boerne was that Congress was rewriting the First Amendment, and here Congress is rewriting the Equal Protection Clause essentially, saying that... that... that there must be constitutionally or by virtue of this... of this supposedly constitutionally remedially statute, there must be equal treatment of... of handicapped people.

And it... it seems to me it's exactly parallel to what was going on in... in Boerne, rewriting the First Amendment versus rewriting the Equal Protection Clause, and we looked at the whole sweep of... of Congress' action, not just at the particular First Amendment claim.

Mr. Brown: Justice Scalia, respectfully, Congress does not have a real good record of writing memorandum opinions.

What it said specifically was, this law deals with the Fourteenth Amendment, and what the statute says is that citizens, qualified citizens for programs and services and activities of the state, have a right to participate in those activities without having the onerous issue of their disability come into play.

Justice Ginsburg: Mr. Brown, are you saying that these... what fits within this statute would independently violate the Constitution, and all that the statute does is provide, in this case, a damage remedy?

Mr. Brown: I think it does.

Justice Ginsburg: So that in... in all the cases that would fit under this legislation, someone could come in, say, and seek injunctive relief--

Mr. Brown: Well, absolutely.

Justice Ginsburg: --for a violation of a constitutional right?

Mr. Brown: Well, the beauty of Title II is that we don't have to chase all those rapids.

I mean, Title II gave me the benefit of a trial lawyer in Tennessee whose sole purpose and interest was, one, to make sure that our courthouses in Tennessee were accessible, and two, that individuals that were harmed, that suffered pain, embarrassment, humiliation, as they individually, on their own, by virtue of their right under the Fourteenth Amendment to represent themselves had to crawl up the stairs of one of our courthouses--

Justice Ginsburg: But let's take, say, it's a... it's a seat in... in a public stadium, which is also covered, or a theater, and it's inaccessible to certain people with disabilities, would that be a violation of the Constitution, for which this statute provides a remedy?

Mr. Brown: --It may not provide or deal with a constitutional violation, but it certainly deals with a prophylaxis issue.

And... and let me give you this example.

Suppose there was a political rally in that stadium, suppose the President came to address a large audience of individuals in that particular stadium, and those individuals who have mobility disabilities decided that they wanted to go and hold up a sign that says, Mr. President, make our buildings accessible.

Is that not really a fundamental First Amendment right, and the fact that they can't get there implicates their right to petition their government?

The concept that we as individuals have a right under the Fourteenth Amendment to be citizens in all of its aspects, not just simply in one context that may or might... may not ever come, surely today in the year 2004, Congress has the power to ensure that we as individuals have all the rights of citizenship without reference to any individual context.

Justice Souter: Then... then would you--

Mr. Brown: That doesn't make any sense.

Justice Souter: --Would you explain to me the difference between your position and the Government's position then?

Because you've... you've gone beyond... at least, as I understand your answer, you've gone beyond a... a kind of a strict, as-applied argument, and... and I'm not sure where you and the... and the Government part company at this point, if you do.

Mr. Brown: Your Honor, I represent six people in Tennessee who are trying to get access to the courts of our state.

If I can win their cause, then I will be satisfied with the results that I initiated in 1998 when I filed this lawsuit.

If I have a responsibility to go broader and to defend all the other aspects of Title II, but lose my clients' case, then I have not done them a service, nor have I done a service to other individuals who are seeking access.

Justice Souter: Is... is your argument still that what you are complaining of would independently be a constitutional violation, so that the virtue of this act, in effect, is to provide a remedy, and that's all we need to consider?

Mr. Brown: Absolutely, Your Honor.

Justice Souter: Okay.

Justice Breyer: You... we don't have to just say this one individual, do we?

I mean, there is a pretty good record here.

I... well, I better not characterize it, because I come from a certain point of view on this, but there's a pretty good record, and I felt the Chief Justice's question was getting to this.

I mean, are you arguing that if this... this statute could constitutionally be written giving you constitutionally this lawsuit as a remedy, in respect to your client that's good enough, that is a harder argument possibly than to say, well, if it's valid in respect to the general problem of providing judicial services, which is a big category, one whole branch of the state.

I mean, that category might be valid.

Mr. Brown: Let me say, Your Honor, respectfully, I think we do have to establish a category.

I don't think that Title II nor this Court would ever suggest that literally every person who comes in with a Title II claim has to state a constitutional violation, because then it takes away from the prophylaxis benefits of Title II.

What is says, what Title II fundamentally says, and literally adopts what I think is the fundamental purpose of the Fourteenth Amendment, is back to what I said before.

We as individuals have a right to be there where our government works and where it operates.

And George Lane is a classic example of that.

George Lane confronted as an individual with a misdemeanor charge, a driving on a revoked license case, the proposition that the only way he could get to the courtroom where his liberty was at stake was by crawling.

The state suggests there were alternatives.

Where were the people offering to carry him up the stairs the first time?

Where were they?

Justice Scalia: There has to be an affirmative offer?

He could not have asked for assistance getting up the stairs?

Mr. Brown: Your Honor--

Justice Scalia: It's a constitutional violation not to offer it as opposed to refuse it when he asks for it?

Mr. Brown: --Your Honor, please.

Justice Scalia: I mean, he appears downstairs and... and he sees one of the constables there and says, you know, I can't make it upstairs in my wheelchair, could I have assistance get... getting upstairs?

Now, is that a... is that a constitutional violation not to have an elevator for him, but to say, you know, we'll... we'll see that you are carried up by... by constables?

Is that a constitutional violation?

Mr. Brown: I think that it is, Your Honor, because the presumption is that somebody would be there to carry him.

Justice Scalia: I... I don't understand that.

It is because the presumption is that somebody--

Mr. Brown: There is no constitutional right... if he doesn't have a constitutional right generally to get there, what gives him the constitutional right to have somebody carry him up there?

You're asking what George Lane to rely on--

Justice Scalia: --He has a constitutional right for the state to provide him the means of being present at his trial.

Now, does the means have to be an elevator or could it be someone assisting up the stairs?

Now, there... it... it may be less dignified in the latter... in the latter situation, and that's a proper subject for statutory activity, but is it a constitutional violation, so long as the state assures that he can... he can be present at his trial?

Mr. Brown: --His safety, Your Honor, is a critical issue.

Ralph Ramsey, who is one of my clients, weighs 350 pounds.

To say that he has a constitutional expectation that one or two or five or the whole battalion of deputy sheriffs in Cocke County would and could carry him up those stairs, I mean, what's he going to do, file a Federal lawsuit to make sure that somebody will carry him up there?

I don't think he has that right.

What he has is the prophylaxis benefit of a law that says we're going to create buildings where people can gain access to their rights as citizens.

That is as important to say as it is to say that we all have a right, no matter what our circumstances, our background, our class, to get to the civic center of life, public life in our communities, and that should be done, Your Honor, and I don't know that you all have ever said that, but that should be done with dignity and respect that the Fourteenth Amendment speaks about all of us as individuals.

And today I think that is what is so important and at stake.

This case is not just about individuals with disabilities.

Justice Breyer: Probably this is universally accepted what you're saying, and what I wonder is, is why, if you could explain it, what your opponent is saying is that to give people a remedy for the violation of that principle, it is adequate to have the Federal Government bring a lawsuit or they bring an Ex parte Young, et cetera, action.

Now, why isn't that sufficient?

Mr. Brown: Your Honor, please, the Federal Government was not there the day George Lane confronted those stairs.

George Lane could not call upon the Federal Government that day to ensure that he didn't go to jail because he refused to crawl those stairs.

Justice Scalia: Neither was a Federal judge who could hear his lawsuit.

Mr. Brown: And that's why the--

Justice Scalia: I mean, the Federal Government brings a lawsuit or he brings a lawsuit.

Mr. Brown: --That's--

Justice Scalia: Neither one of them is there instanter.

Mr. Brown: --Respectfully, Your Honor, that is why Title II is there, to make the State of Tennessee anticipate that problem, solve that problem, so our citizens don't have to confront those obstacles and face pain, suffering, and public humiliation as a condition of citizenship.

Respectfully, Your Honor, please, this deals again, as I have said, not just with the rights of disability individuals, but the rights of all of us to go, to petition our government, to have a right to represent ourselves in a court of law.

Justice Ginsburg: There is a difference, though, if you talk about non-discrimination, say, with respect to race or religion, you... you use the word dignity to say the state has to respect the dignity of every human being, but to respect the dignity of certain people with disability, the state has to do more than not harm them, not discriminate against them.

It has to have a kind of affirmative action that's permanent, isn't that so?

Mr. Brown: Respectfully, Justice Ginsburg, an elevator to an individual with disabilities is no different than stairs are to me as a person without disabilities.

It's the way I get there.

The fact that I happen to have an opportunity to walk upstairs doesn't make those accommodations any different to me than it is with an individual with disabilities.

The point of the matter is, suppose as in Meigs County, where you've got a stairway getting to the second floor that barely one person can climb up, it's creaky, I mean, are we going to say if they shut down those stairs, we can haul people up with a pulley and a rope?

Justice Ginsburg: That's not the point that I'm making.

Mr. Brown: I'm sorry, Your Honor.

Justice Ginsburg: The point is that sometimes to respect the equal dignity of a person, we have to treat them specially, and I think that that's what the elevator is.

It is special for a class.

It isn't the same as everybody else has.

Mr. Brown: Your Honor, I think the word special accommodation is something that is a problem.

I... I hope the Court will understand that--

Chief Justice Rehnquist: Thank you, Mr. Brown.

Mr. Brown: --I'm sorry, Your Honor.

Argument of Paul D. Clement

Chief Justice Rehnquist: Mr. Clement, we'll hear from you.

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

Unlike Title I of the ADA, which regulates states as employers and treats public and private employers alike, Title II of the ADA focuses on states and state governments as governments in their distinct role as providers of public services.

As a result, Congress focused specifically on the conduct of state and local officials rather than simply extrapolating from the experience of private employers.

Equally important, Congress in the statutory findings and legislative reports, the same reports this Court found lacking in the Garrett case because they did not include specific findings of public sector discrimination in employment, those same findings and reports found persistent discrimination in such critical areas as access to public services and voting.

Moreover, as this Court--

Justice Scalia: That... that... that's persuasive or not, depending on what was meant by the term discrimination.

If it simply meant that... that the handicapped were not accommodated by special provisions, such as elevators, that might be quite true, but it would also not be a constitutional violation, would it?

Mr. Clement: --Well, Justice Scalia, I think that brings us to the second important distinction between Title I and Title II, which is because--

Justice Scalia: Well, let... let's stay on your first one.

I'm... I'm... I'm waiting to hear what... what findings Congress made that has anything to do with constitutional violations by the states--

Mr. Clement: --Well, and... and--

Justice Scalia: --which is the premise for this legislation.

Mr. Clement: --And again, Justice Scalia, I think the problem in Garrett, when this Court saw findings of discrimination in an area like employment discrimination, that's governed by rational basis review, then there's very little reason to think that the small "d", if you will, discrimination Congress found resulted in unconstitutional discrimination.

But because Title II focuses on government services, many of which implicate fundamental rights, there's every reason to believe that when government... when... when the Congress found... take voting for example... discrimination in voting, that they were actually finding unconstitutional discrimination in voting, because voting and access to polling places triggers fundamental rights and heightened scrutiny.

And as this Court recognized in--

Chief Justice Rehnquist: Well--

Mr. Clement: --in the Hibbs case, when--

Justice Scalia: --These two sections... these... these two things were debated and... and passed simultaneously, or at very different times?

Mr. Clement: --Title I and Title II?

Justice Scalia: Right.

Mr. Clement: They... they passed at the same time.

Justice Scalia: And... and they're... they're using discrimination to use one thing in... in one half and another thing in the other half?

That's... that's what you want to argue to the Court?

Mr. Clement: I think whatever way they were using discrimination, I think that that finding of discrimination is going to be much more likely to be correlated with actual constitutional violations in an area that implicates fundamental rights.

And I think when there's a specific finding in the text of the legislation itself of discrimination in voting, I think it's very likely, given the heightened scrutiny that applies to voting--

Chief Justice Rehnquist: Okay.

You said... but now what... what does it mean to say discrimination in voting?

Does that mean that a person was actually not allowed to vote?

Mr. Clement: --In... in some cases, Mr. Chief--

Chief Justice Rehnquist: How... how many cases do they... do you have where the person was not actually allowed to vote instead of not being facilitated in the ability to vote?

Mr. Clement: --Well, Mr. Chief Justice, let me say the... the relevant congressional committee heard testimony of individuals that were turned away from the voting place on... on election day, so there is that kind of evidence.

Now, I can't articulate for you how many instances of that there were.

Justice Scalia: What... what do you mean by turned away?

Turned away because there was no elevator?

Mr. Clement: Turned away because there was no elevator, turned away because--

Justice Scalia: Is... is that a constitutional violation?

Mr. Clement: --If... if the voting official tells the individual, we... you can't vote here, because this--

Justice Scalia: He tells them--

Mr. Clement: --this is not accessible--

Justice Scalia: --we... we don't have an... we don't have an elevator.

Mr. Clement: --Right.

If he tells them--

Justice Scalia: So if you want to get up to vote, you have to find assistance to get up there.

It's very bad, and this legislation is directed against it, and can remedy it upon a suit by the United States, but is it a constitutional violation?

Mr. Clement: --With respect, I think maybe you'd need to know more, but if the individual in the polling place is turning people away because of their disability and they're not offering, don't worry, we have a school down the road that is accessible, that's not the facts.

They're saying, you can't vote, I'm sorry, we don't have the facilities.

I think that would state a constitutional violation.

Chief Justice Rehnquist: How... how many of these instances did Congress find of people who were actually refused the right to vote?

Mr. Clement: Well, Mr. Chief Justice, there was testimony of individuals, I don't have the exact number, and--

Chief Justice Rehnquist: What... what order of magnitude?

Mr. Clement: --I... I think it was anecdotal evidence, and I would say... I mean, to give you a feel for the... the... the sort of order of magnitude, in the state task force reports that Congress authorized, there were 35 instances of inaccessible voting places.

Now, I can't tell you the breakdown of how many of those involved people refused at the door and how many of those involved simply physical barriers.

But I do think it shows that there was a significant problem in this area.

Justice Scalia: I don't think it does at all.

Inaccessible voting place proves nothing at all.

It just proves that the state did not go out of its way to make it easy for the handicapped to vote, as it should, but as it is not constitutionally required to do.

To simply say many voting places are inaccessible proves nothing at all.

Mr. Clement: And again, Justice Scalia, I think that when you couple an inaccessible voting place with local officials who are saying, you can't vote today, we don't have any facilities for you, that does violate the Constitution.

Justice Scalia: They're not saying you can't vote, they're saying we don't have facilities for you to get to the voting place.

Mr. Clement: I... I guess I fail to understand the difference in that in a practical way.

Justice Scalia: I do too.

Mr. Clement: And I think this Court has said on a number of occasions, in areas of fundamental rights, it is simply not true that only intentional discrimination of the kind you have in mind would violate the Constitution.

In the access to court context, in particular, this Court's decision in M.L.B. against S.L.J. suggests that in many instances in order to avoid unconstitutional discrimination, the courts have to waive filing fees of indigent defendants or indigent individuals trying to provide their constitutional right.

If that's true in areas of fundamental rights, it's not clear why... why state officials don't have some obligations under the Constitution itself to make accommodations for individuals with disabilities.

Justice Stevens: I'm not under... I really don't understand one... one argument that's going on.

I don't know why one violation wouldn't be enough to justify congressional action.

It often is that one... one incident triggers a legislative response.

Why wouldn't one... one example be enough?

Mr. Clement: Justice Stevens, I think one example might be enough, especially when coupled by other evidence in the record that is reinforcing and suggestive of the problem, especially when coupled with judicial decisions that we provide in appendix A of our brief.

If you put all that evidence together, it's clear that Congress was reacting to a real problem in this context.

Justice Scalia: And solve that problem by requiring access to... to state-owned hockey rinks or any state-owned buildings, whether it's a courthouse or anything else.

I mean, you're... you're talking about it as though all Congress was directing this legislation at was... was the problem of people getting to the voting place or the problem of people getting to... to courthouses.

That's not how the legislation reads.

It's all public facilities run by the state, hockey rinks, whatever.

Mr. Clement: That's true, Justice Scalia.

And let me say two things in response.

First of all, I think Congress was entitled, once it found a problem in areas of fundamental rights, to say that it's permissible prophylaxis to... to provide a remedy for a broader array of government services.

Justice O'Connor: Well, there... do--

Justice Scalia: --Where there are no conceivable constitutional rights involved.

Mr. Clement: Well, if I could respond to that, I don't think it's that there's no conceivable constitutional rights involved.

Even in areas that don't implicate fundamental rights, this Court itself has found a constitutional violation in the disability context in a case like Cleburne.

And I think if Congress finds that states are engaging in unconstitutional discrimination in areas implicating fundamental rights, that may lead to an inference that they're simply not turning off the switch when they get into other areas.

Chief Justice Rehnquist: Well, would it... would it be a violation... a constitutional violation to refuse to afford special access to a hockey rink?

Mr. Clement: I... I don't think standing alone, Mr. Chief Justice, it would, and I think I would defend that in part as part of the permissible prophylaxis of the statute.

If I could say--

Justice O'Connor: This is what I'd like to get at.

I... I have the impression from your brief that you were suggesting that we could just address the fundamental rights aspect of this case and forget about the rest, but you seem to be saying now that we should consider the whole thing and consider it all valid as a prophylaxis proposition.

Which is it--

Mr. Clement: --Well, I guess--

Justice O'Connor: --that you're proposing?

Mr. Clement: --In fairness, Justice O'Connor, it's both.

I mean, I'm here defending the constitutionality of the statute as a whole, but I also think it would be fair for this Court to follow the practice that I think was suggested in a case it decided called United States against Raines, and focus in on the aspect of the statute that is constitutional, that is valid, and that would be fundamental rights.

Justice O'Connor: Well, we haven't really done that in other cases of this type, of the sovereign immunity of the states, have we?

Mr. Clement: You have not, Justice O'Connor.

Justice O'Connor: No.

Mr. Clement: And we pointed that out, and I think there is some tension between the proportionality and congruence test in this as-applied mode of analysis.

But I do think the Raines case points out--

Chief Justice Rehnquist: It was decided maybe 50 years ago, before any of the more recent cases.

Mr. Clement: --I think that's fair, Mr. Chief Justice.

I simply point to Raines because Raines shows that there's nothing inherently inconsistent between analyzing a section 2 of the Fifteenth Amendment or section 5 of the Fourteenth Amendment piece of legislation, an as-applied analysis.

Chief Justice Rehnquist: And I think there's an important relationship between this Court and Raines, because in Raines, this Court in a sense identified a fault line in a statute that was broadly applicable.

Mr. Clement: It applied both to state actors and private individuals.

And in a case in which it applied to state actors, they said, we may have some concerns about whether it can validly apply to private actors, but we're going to uphold the statute as applied to state actors.

And in the same way, I think if this Court thinks that the statute is constitutional as applied to fundamental rights, but has concerns in its applications to non-fundamental rights, that it could, in effect, decide the case along the same lines.

And, of course, the narrowest ground this Court could decide the case on would be to simply focus on access to the courts.

Justice Kennedy: Suppose the state is building a new stadium, a new hockey rink.

Does it have a constitutional obligation to make it accessible to the handicapped?

Mr. Clement: I'm not sure that it does, Justice Kennedy.

I think that if you isolate the example of the non-fundamental right and ask the question of whether or not that standing alone violates the Constitution--

Justice Kennedy: So... so the Government... the Government's position is citizens don't have some rights of access to public facilities as a matter of the Constitution?

Mr. Clement: --I think they have... they might have some access under the Constitution and some right.

I'm not sure though that I'd be able to make an argument that that constitutional right is protected by something more than that rational basis review.

I think that--

Justice Souter: You're... you're saying that if the only public facility without a ramp was a hockey rink, you'd have a tough row to hoe, but if every public facility, courthouses, schools, et cetera, have no ramps, then you've got a broader context and you've got a different argument?

Mr. Clement: --That's exactly right, Justice Souter.

And one other thing I think that's worth bearing in mind is that--

Justice Kennedy: And what is... what is the constitutional right?

Freedom of movement?

Mr. Clement: --In... in... in the hockey ring context?

Justice Kennedy: What is the... what is the basis for the constitutional right that you accepted in your response to your question... in response to Justice Souter's question?

Mr. Clement: Well, I think it would depend on the facility in particular.

I think in the access to the... in... in trying to get access to a court, it would be access to the courts.

In trying to get access to a polling place, it would be the right to vote.

I think one thing I'd like to emphasize though is that the... that Title II--

Justice Kennedy: There's... there's no... there's no greater right to freedom of movement or general... on the part of citizens, freedom of access to all governmental facilities?

Mr. Clement: --I... I'm not sure that... that this Court has said that yet.

If it's interested in--

Justice Kennedy: I'm asking your position whether or not in your view there is such a right.

Mr. Clement: --It's certainly not one that this Court has ever articulated, and... and... what I would say though is that--

Justice Kennedy: So you don't have a position on the point?

Mr. Clement: --I have... it's not... it's not a matter I've really given any thought, Justice Kennedy.

I apologize for that.

I think the one thing I would like to emphasize is that Title II does not just give an access to buildings, it doesn't give an access to hockey rinks.

It gives an access to programs, services, and activities, and in many cases, it's going to be the same municipal building that has the courthouse in it as well as other non-fundamental rights, and that's exactly a good illustration of why Title II is appropriate prophylaxis, because by making the municipal building accessible, even for something like a kiddie concert that might not implicate fundamental rights, you're also making the courtroom in the same building accessible to individuals who have a constitutional right to access to that building.

One other point I'd like to make is with respect to the damages remedy, which is precisely what seems to be the gravamen of the concern of the state here.

As Justice O'Connor pointed out, this is not a situation like other cases, where, if the Court strikes this down as inappropriate section 5 legislation, there's going to be lots of other remedies.

The state provides none and people are raising constitutional challenges to the Commerce Clause legislation.

The damages remedy that's particularly provided in Title II of the ADA is provided by double cross-reference.

Title II incorporates the remedies available under the Rehabilitation Act, which in turn incorporates the remedies available under Title VI.

Those remedies are entirely judge-made, and as the Thornburgh amicus briefs points out, to the extent that those remedies are the gravamen of the constitutional concern, their judge-made origins gives this Court unique flexibility to interpret the compensatory damages remedy in a way that renders the statute as a whole constitutional.

Broadly speaking, Congress, in passing this statute, found a real problem with the individuals and the entities that are responsible for protecting the civil rights of everyone, denying the rights of individuals with disabilities.

One element of its solution was the element of compensatory damages.

Those compensatory damages are an appropriate response, but it would be very sad if that one element of the statute was used to bring down the entirety of Title II, given that it remains vitally necessary to make the promise of the Fourteenth Amendment a reality for individuals with disabilities.

Justice Ginsburg: Is there a reason why there's a damage remedy in Title II and not in Title III?

Mr. Clement: I think there is, Justice Ginsburg.

I think that one thing, I think, is that Congress... the difference in remedies between Title II and Title III reflects two things.

One, it reflects a judgment that... that unconstitutional action by a state is worse than unconstitutional action by a private entity.

Rebuttal of Michael E. Moore

Chief Justice Rehnquist: Thank you, Mr. Clement.

Mr. Moore, you have four minutes remaining.

Mr. Moore: Thank you, Mr. Chief Justice.

Very briefly, the type of discrimination Congress was referring to in the statement of findings of... and purpose of the act itself is made clear if the Court examines the fifth finding, which... which tells us what sort... what... what concept of discrimination was in Congress' mind when they used the term throughout those findings.

And it talks about not just outright intentional exclusion, but it talks about discriminatory effects of architectural, transportation, and communication barriers.

It talks about overprotective rules and policies and their effects.

It talks about failures to make modifications to existing facilities and practices, and exclusionary standards that screen people out, in other words, an another disparate impact sort of conception of discrimination.

And I think for that reason one can reliably conclude that... that... that Congress was not using discrimination in the sense of completely arbitrary and irrational discrimination of the sort that's prohibited by section 1 of the Fourteenth Amendment with respect to disabled persons, but rather, in the findings and purpose, Congress makes clear that it is addressing a very real social problem, one that needs addressing, but one that does not arise to the level of a... a widespread pattern of constitutional violations on the part of the state.

Justice Breyer: But it begins section 5 by saying, individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion.

So it seems to want to deal with it all.

Mr. Moore: Right, but out... of course, outright intentional exclusion is not necessarily unconstitutional either if it is rationally based, with respect to disabled persons.

So one... the use of the term discrimination--

Justice Kennedy: What... what's your authority for that proposition?

Mr. Moore: --The City of Cleburne case, Your Honor.

Action by the state that intentionally and expressly classifies on the basis of disability is subject to minimum rational basis scrutiny, and in the examples discussed during the Solicitor General's argument, for example, the hockey rink example, I mean, one impact of a lack of ramps or... or--

Justice Stevens: May I ask you about the hockey example?

Supposing building a new hockey example, the architect said you could do it with equal cost, providing access and not providing access.

Would it be constitutional assuming there's no extra expense to provide no access?

Mr. Moore: --I... I think so, depending upon if there were other reasons for doing it.

If... cost isn't the only factor that dictates the design of a building.

It might be that the site--

Justice Stevens: Well, supposing the general manager of the hockey team doesn't like handicapped people.

Would that be a sufficient reason?

Mr. Moore: --Your... your hypothetical is that the architect expressly designs the building to spite disabled people?

Justice Stevens: No, the... he has two... two plans, one lets them in and one doesn't, and the manager says, oh, we don't want these people, they're too much trouble to handle for the ushers when they get them in their seats and so forth.

Mr. Moore: Your Honor's question posits a rational basis for that decision.

Justice Stevens: And that would be a sufficient rational basis in your view?

Mr. Moore: That... under this Court's minimum rational basis jurisprudence, yes, it would.

Justice Stevens: Do you think the Cleburne case was a minimal rational basis case?

Mr. Moore: I... I know, Your Honor, there... there has been a lot of scholarly debate about that, but as a lawyer for a state, we must take what the Court said at face value.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Moore.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Barnhart v. Thomas - Oral Argument

Fri, 09 Jan 2009 14:49:06 +0000

Case:

Barnhart v. Thomas

Media File:

02-763_20031014-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jeffrey A. Lamken

Chief Justice Rehnquist: We'll hear argument now in No. 02-763, Jo Anne Barnhart v. Pauline Thomas.

Mr. Lamken.

Mr. Lamken: Mr. Chief Justice, and may it please the Court:

As the Commissioner of Social Security has long construed the disability insurance program, there can be no finding of disability unless at least two conditions are met.

First, the claimant's impairment must be of such severity that she cannot... she is unable to do her previous work.

Second, the impairments must be of such severity that the claimant cannot, considering her age, education, and experience, engage in any other kind of substantial, gainful work which exists in the national economy.

Construing and applying those provisions for more than 3 decades, the commissioner has consistently concluded that if a claimant continues to function at a level sufficient to meet the demands of past work, then the claimant is not disabled without the necessity of inquiring into whether that particular past job exists in significant numbers.

That's the most natural reading of the statutory text.

Justice O'Connor: Mr. Lamken, this case, I think, involves provisions of both title II and title XVI of the act, and there are regulations under each.

Mr. Lamken: That is correct.

It is...

Justice O'Connor: Now, are there any relevant differences in the text of the two statutes or the regs on this issue?

Mr. Lamken: No, Your Honor.

We don't believe that there are any relevant differences, that the commissioner's regulations and the statutes themselves are all phrased in parallel if not identical language throughout.

There is one difference in that for a disability insurance, these title II provisions, you have to be someone who has paid into the program in order to be eligible for benefits on the way out; whereas, title XVI is more of a welfare program where whether you've paid in in the past doesn't matter.

But that simply means that one who has paid into the title II program would get considerably more benefits than one who has not.

Justice O'Connor: But on the test.

Mr. Lamken: On the test, it is an identical test.

Justice O'Connor: There's no difference.

Mr. Lamken: There is no test, Justice O'Connor.

Justice O'Connor: Thank you.

Mr. Lamken: That construction preserves the distinction long recognized in the commissioner's regulations, in fact, recognizing the commissioner's regulations from the earliest days of administering this statute.

Between disability insurance, on the one hand, and insurance against other causes of unemployment, such as technological and economic change, on the other, an individual who's doing a job who remains fully capable of doing that job, but then loses the job because of economic change or perhaps the job never existed in significant numbers and the individual chooses to leave, is not unable to engage in that activity by reason of an impairment, which is the test under the statute for being entitled to benefits.

And it made sense for Congress to draw that line because if someone continues to function at a level sufficient to meet the demands of their previous work, it's virtually certain that they're capable of doing some work whether or not that particular past job exists in significant numbers in the national economy.

The point isn't that the person is expected to return to that particular past job.

Rather, it is their continued functioning at a level sufficient to meet the demands of that job provides a highly accurate and administrable test of the fact that they continue to function at a level sufficient to meet the demands of work generally.

In a program that must resolve more than 2 million claims a year, the need for that type of a highly administrable test, that type of highly accurate test is particularly acute.

And this is precisely the type of test one would have expected Congress to provide.

A potentially large number of Americans today do not work in jobs that exist in significant numbers in the national economy.

When those workers leave their jobs, whether they quit, are fired for misconduct, or leave for other reasons which are good and sufficient, the court of appeals would preclude the commissioner from denying them benefits based on their continued capacity to do that past job even if that job is still available to them, even if the employer is on the phone begging them to return to their job.

The commissioner reasonably construed the statute as not compelling that result.

If there are no questions, I will reserve the remainder of my time for rebuttal.

Justice Ginsburg: I have a... a question about the consistency of the argument you're now making with the... with the commissioner's regulation concerning you don't go back more than 15 years.

That seems to be a recognition that even if a person can do the job that he or she did 15 years ago, yet there's a likelihood that maybe that kind of work isn't in abundant supply anymore.

Mr. Lamken: Justice O'Connor, the concern of that 15-year...

Justice Ginsburg: I'm Justice Ginsburg.

Mr. Lamken: Oh, Justice Ginsburg.

The concern of that regulation isn't whether or not that particular past job exists in significant numbers.

It provides an administrable and in fact prophylactic test to make sure that the demands of that job are demands that are ones that are likely to be relevant in the national economy.

It's unlikely that a set of demands of a job would completely disappear from the economy entirely during any one person's lifetime.

But to make assurance doubly sure, to make absolutely certain, the commissioner has set forth an administrable bright line, 15-year rule that says if the job is more than... if you did the job more than 15 years ago, we won't consider it out of that concern.

But it is not a consideration of whether the particular past job exists.

It's a consideration to make sure that your continued ability to the demands of that job is an appropriate and accurate measure of your ability... your level of functioning, and that your level of functioning is consistent with work generally.

If there are no further...

Justice Stevens: May I ask this question just about the facts of this case, Mr. Lamken?

When this applicant suffered her physical impairment... I forget just what it was now... she was able to go out and find a job as a... a... an elevator operator.

Right?

Mr. Lamken: That's correct.

From... if I remember correctly, from 1988 to 1995, she worked as an elevator operator.

Justice Stevens: If the absence of elevator jobs had occurred earlier and she hadn't been able to find this job, she would clearly be disabled, wouldn't she?

Mr. Lamken: No, Justice Stevens, I'm not sure that she would be found disabled.

The commissioner would have gone through the steps and... and determined whether or not she had a severe...

Justice Stevens: She would have made the fifth step.

Mr. Lamken: If you were not to consider the... the previous work of an elevator operator and you only applied the fifth step, which is the other work step, in isolation, that's correct, that she would have been found not able to do other work in the national economy.

But the fifth step is designed to work in conjunction with all the other previous steps and, standing alone, does not necessarily represent an accurate determination.

Congress provided two conditions that must be met, previous work and other work, precisely because the somewhat abstract inquiry into other work that plaintiff has... the claimant has never done may not be a fully accurate or necessarily an easily administered mechanism for determining the level of work that the claimant can do.

Justice Stevens: See, the thought that was running through my mind, just to put it on the table, is that in a sense perhaps the Government's position creates a disincentive to look for other marginal jobs when you're in this position.

You might be better off just not to look.

Mr. Lamken: Justice Stevens, the commissioner's rules actually take into account incentives to look for work through the unsuccessful work attempt regulations.

And so that is something that has been dealt with.

And the same... the same problem existed in the Walton case, for example.

It is unfortunate that sometimes people, by engaging in socially desirable conduct, going out and working, will actually provide the evidence that shows that they're capable of working, but that is just a necessary consequence of a program that...

Justice Stevens: Capable of working in a disappearing species of jobs.

Mr. Lamken: Well, Justice Stevens, the key point about the court of appeals decision is not limited to cases of job obsolescence.

It's any time somebody is working in a job that may never have existed in substantial numbers.

If they leave that job for whatever reason, if they quit or are fired for misconduct, under the court of appeals rule, the commissioner cannot deny them benefits based on their demonstrated ability to do that job.

Justice Kennedy: Suppose in Justice Stevens' hypothetical the employer said, you know, you can operate the elevator but it's just going to be going for 6 months.

We're rehabbing the building and after that... it's just a 6-month job.

Mr. Lamken: Right.

Justice Kennedy: Then... then is she again barred under step four?

Mr. Lamken: Justice Kennedy, that would... it would depend on whether or not that sort of a temporary position would qualify as substantial, gainful work under the commissioner's regulations.

If it is a make-work position or it's a position that does not represent functioning at a level... it's a sheltered position or it is some other... some other reason that it is not evidence of functioning...

Justice Kennedy: No, no.

She can... she can perform the elevator job completely well.

Mr. Lamken: If this is something...

Justice Kennedy: Everybody knows it's a... it's a job that's soon to be obsolete, and she's told that.

Mr. Lamken: Justice Kennedy, I think...

Justice Kennedy: She'd be better off not taking that job.

Mr. Lamken: In terms of getting...

Justice Kennedy: Or suppose... or... or suppose she didn't take that job.

Would she then still be barred?

Mr. Lamken: If the... if she did take the job, Justice Kennedy, and the job represented functioning at a level that's consistent with work generally that is substantial, gainful work, she would be barred.

And she perhaps might be better off not taking the... taking a job like that under the commissioner's regulations.

However, the mere fact that somebody taking a job provides evidence that they function at a level that is consistent with past work doesn't mean that we should come up with less accurate determinations by ignoring their demonstrated capacity to engage in their... in their past work.

If there are no further questions.

Justice Ginsburg: Yes.

Chief Justice Rehnquist: Very well, Mr....

Justice Ginsburg: One... one... just one further question.

In... in this case if she made it to step five, it wouldn't be just a question that the burden would be switched to the Government, she would automatically prevail.

Isn't that the case?

Because of her age?

Mr. Lamken: That's correct, Justice Ginsburg.

The... the way the commissioner's grids are set up, they make various assumptions regarding the effects of age, the exertion levels demanded by particular jobs, and other matters.

And because it is a somewhat hypothetical inquiry to look into the many jobs somebody hasn't done in the past, the step five inquiry sometimes will render... will deem somebody not... will deem somebody disabled even though they actually can work.

It is precisely because of that reason that Congress provided two measures of capacity to work: a highly empirical one, can the person do the jobs they actually have previously done in the past; and second, whether or not the person can engage in the other jobs that they haven't actually done in the past

And because the two steps work more accurately together, that's why we... one of the reasons we believe that Congress provided those two steps.

In addition, it also preserves the line between people who become unemployed because of their impairment, and ones who happen to be fully capable of doing their past jobs but lose those jobs for whatever reason, such as either technological obsolescence or they simply choose to leave those jobs voluntarily.

If there are no further questions.

Argument of Abraham S. Alter

Chief Justice Rehnquist: Very well, Mr. Lamken.

Mr. Alter, we'll hear from you.

Mr. Alter: Mr. Chief Justice, and may it please the Court:

Today the commissioner argues against its own theme of providing a remedy when someone is disabled.

Congress did, indeed, intend to make a difference, to separate step four, previous work, from step five, or other work, but Congress told us what that separation is.

At the fourth step, previous work, age is not a factor, education is not a factor, and prior work experience is not a factor.

This is simply because if a person wasn't too old to do his job or her job in 1995, we assume they weren't too old to do it in 1996.

If a person had the requisite education and skill level to perform the past job in 1995, then they have the same skill level and education level in 1996.

And of course, prior work experience is irrelevant at step four because we're talking about the actual job that she did.

What Congress didn't intend was to pretend that a job that doesn't exist can still be used to deny benefits.

Work has to be substantial.

The commissioner concedes that.

It has to be gainful.

The commissioner concedes that.

And it has to exist.

Justice Scalia: But your... no.

It has to exist in substantial numbers in the national economy.

What you're... you're arguing that a job that does exist and that this particular supposedly disabled person used to perform and which is offered to that supposedly disabled person but which that person turns down can, nonetheless, not count against the person's disability.

Mr. Alter: That is correct, Justice Scalia.

Justice Scalia: So it seems to me it's your position that... that presents a really extraordinary situation.

Let's say I'm a juggler, and I become disabled.

And... and the circus I was a juggler at comes and says, you know, we... we want you back.

We can't find another juggler.

There aren't that many because there are not that many juggler jobs in the national economy.

Okay?

And I turn them down.

I say, I'm tired of juggling.

And you say that I'm handicapped even though my... my prior job is... is right there waiting for me.

That seems to me an extraordinary result.

Mr. Alter: That is exactly what I'm saying, Judge Scalia... Justice Scalia.

I'm sorry.

And the reason I say that is because a person is not disabled or not disabled at any one step of the sequential evaluation.

Your Honor's question focuses on the immediate reason for the disengagement of the person from the workforce.

That's not the commissioner's position.

That hasn't been the commissioner's position.

A person is not disabled or not disabled because of Ringling Brothers calls them on the phone and says, please, come back.

They are disabled by operation of the sequential evaluation.

And the commissioner is the one who promulgated the sequential evaluation.

And the sequential evaluation is a recipe with alternating steps regarding medical and vocational factors.

And...

Justice Ginsburg: The commissioner has explained that it's... using this test, can you perform your most recent job, as a proxy for instead of testing people to see the range of light work that exists in the economy.

They say, we're just using this as a shorthand because it's administratively convenient.

And it's not using it to say, this person can do this job that's obsolescing, therefore she is not disabled.

This particular job is a proxy for other jobs that require the same skill level.

Now, what's wrong with taking that position instead of subjecting people to a whole battery of tests?

Mr. Alter: Justice Ginsburg, your rendition of the commissioner's argument is exactly correct.

If I were permitted to ask a question, I would ask myself a proxy for what.

It is a... the job doesn't exist.

So, therefore, her ability to do the job...

Justice Ginsburg: In substantial numbers in the national economy.

Mr. Alter: National economy.

Justice Ginsburg: The very job may exist and be open for her to take.

Mr. Alter: Correct, but in most cases it wouldn't be open for her to take.

That's the extreme position where... and that's our position that happened in this case.

And that's a very extreme position.

And it would be an unintended consequence of the statute.

But Your Honor is absolutely correct that that is their position, that past work, even if it doesn't exist in substantial numbers, is a proxy for her ability to do other work.

What other work?

At the fifth step, she's disabled because she would not be able to make an adjustment to other work which exists in substantial numbers in the national economy, according to the commissioner's statistics.

Justice Scalia: Well, it's not according to the commissioner.

It's according to the statute.

Can... can we focus on the... on the words of the statute?

It says that the mental impairments... physical or mental impairments are of such severity that he is not only unable to do... not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial, gainful work which exists in the national economy.

Now, you want to take that last phrase, which exists in the national economy, and attribute it to the earlier phrase, previous work.

But if that's what Congress meant, why wouldn't they just have said that he is unable, considering his age, education, and work experience, to engage in any substantial, gainful work which exists in the national economy?

You... you want to effectively read the first phrase, is not only unable to do his previous work, right out of the statute.

They may just as well have dropped it.

We don't read statutes to contain words that are totally superfluous, and you have made them totally superfluous.

Mr. Alter: On the contrary, Your Honor.

The words, any other kind, would be superfluous.

Congress, indeed, intended to make a difference between previous work and any other kind of work, and that difference is, besides age, education, and prior work experience, which are irrelevant at step five... they wanted to have the burden on the claimant for disability to show at the first four steps that she is disabled.

At the fifth step, it is the commissioner who must show that she isn't disabled.

And that's why the words, which exist in the national economy, are in there to begin with because what they wanted to preclude was the commissioner saying, well, you can't do your prior job, but you can be a juggler.

Justice Breyer: Well, you see... can we go back for a second to Justice Ginsburg's question?

Does this... I mean, your reading of it is a possible reading, I... I agree.

But they're saying their reading makes administrative sense.

Now, this is my understanding of it.

A person has a bad back.

Now, there are bad backs and bad backs, but it's not a good thing to have.

So she has a bad back, and we want to know how bad it is.

And they're saying if it's very bad, she automatically is going to get the money because at step three they'll look and see and say, look, this is a pretty bad back.

It meets our criteria.

That's the end of it.

But if it's medium bad, then what they're going to say is, well, first question is can she still do her last job as an elevator operator.

And if the answer to that question is yes, that's the end of it.

And, therefore, if the answer, however, is no, then we've to go and gear up our vocational experts.

Are there dolls' eyes' sewers?

You know, they have a few odd jobs they usually bring in here...

Mr. Alter: I know.

Justice Breyer: to show they exist in the national economy.

And... and we get... we don't want to go through that rigmarole.

So for a medium bad back, if you can still do your previous work as an elevator operator, you're not that handicapped.

That's the end of it.

Go to the unemployment office.

Don't go to the... the health office.

Now, what... that to me makes sense.

Now, what to you doesn't make sense?

Mr. Alter: Oh, it doesn't make sense at all Your Honor, to me, obviously.

[Laughter]

Chief Justice Rehnquist: No, no.

Justice O'Connor: Well, go ahead.

Mr. Alter: Your Honor's question seems to make step four, previous work, a gauge as to how severe the severe impairment is.

Justice Breyer: Exactly, and I think they suggest that might be so.

Mr. Alter: And... but step four, previous work, is a remedy that the commissioner can use for their convenience.

Why look at every job in the national economy?

Let's start here and see if that medium bad back would preclude her from her past job.

But to what end?

So that she can resume that job.

It seems to me, Your Honor, that once...

Justice Breyer: So you're not saying it is to that end because it's the unemployment office that's concerned about people who are out of work because you don't have elevator operators in the economy anymore.

That... it's not the Social Security office, they say, which is concerned about people who are physically hurt or mentally hurt.

Mr. Alter: Number one, Your Honor, Pauline Thomas could never collect unemployment insurance because the first thing they would ask her, are you ready, willing, and able to work?

Do you have any medical problems?

Once she has a severe impairment, at step two the unemployment argument, issue, or... or controversy is over.

Once she shows... because that's the threshold.

When the... when the statute says, by reason of a medically determinable impairment, it doesn't mean exclusively for medical reasons.

But once she shows that medical impairment, to who?

To the satisfaction of the commissioner.

Once the commissioner says, yes, you have a severe impairment, then vocational issues, such as, okay, you can do a job, but does the job exist, become paramount because the... the purpose of the statute, it seems to me, is to provide a remedy.

Now, there are two remedies that are possible after this sequential evaluation process.

Remedy one, there are no jobs existing in significant numbers in the national economy that you can do.

So here's your benefits.

Remedy two, you know what?

There are jobs existing, whether it's your job, whether it's another job.

And therefore, we've done you a favor.

We've told you that the economy can accommodate you after your injury.

Therefore, go get that job.

Justice O'Connor: Mr. Alter, if... if we think the statute may have certain ambiguities in it, why don't we owe deference to the Secretary's regulations and interpretation, which has been pretty consistent through the years?

Mr. Alter: There are three answers to that question, Your Honor.

First of all, I'm... I'm crestfallen that... that the Court would find that there's ambiguity.

But given that... that they would...

Justice O'Connor: If we think there is.

Unidentified Justice: [Laughter]

Justice Kennedy: And we're not crestfallen.

Unidentified Justice: [Laughter]

Justice Scalia: Pick up your crest and go on, Mr. Alter.

Unidentified Justice: [Laughter]

Mr. Alter: If the statute is ambiguous, the commissioner's construction must still be reasonable.

Here, I would say it is not reasonable.

That's the first.

Because it... it begs reality.

The reality is this job doesn't exist in substantial numbers.

Or at least, we want to be able to show that at an administrative hearing.

Justice Ginsburg: Mr. Alter, how do you deal with the fact that a number of circuits and, indeed, three judges on this en banc court thought exactly that, that this was an ambiguous regulation, that it had been applied consistently by the Secretary, and that it was entirely reasonable, the... the notion that your current work is a proxy for can you do light work, that that's a... not a necessary or inevitable one, but a reasonable one?

Mr. Alter: Justice Ginsburg, first, let me take the... the last part of your sentence.

Proxy to do light work.

She wins at light work at step five.

So again, it's a proxy to do light work.

Justice O'Connor: No.

Justice Ginsburg: Step five in her case we've established is an automatic.

It's not that she's shown that she can't do light work.

The commissioner says, look, when you get to be 55 years old, we're not going to mess with that.

If you can't do your prior job, that's it.

Mr. Alter: But it's the reason why, Your Honor, because she can't make an adjustment to any jobs.

If a person can do light work, that proxy issue, she can do her past job which is light, then she can do other light jobs.

But the commissioner tells us that she won't be able to adjust to other light jobs.

And will she be able to adjust to her current job?

There is no adjustment to a current job, unless the job doesn't exist.

But to answer your question about the other circuits, the other circuits... circuits focused on the regulation, focused on the ruling, 82-61.

That says, well, it doesn't make a difference whether the job exists.

It's whether you can do that job.

And most of the other circuits said, well, the regulation says do your past job... a strict reading of do your past job means the capacity rather than a reality standard.

But they didn't focus on the statute.

And if I might answer Judge... Justice O'Connor's question about ambiguity, if I haven't answered your question.

Justice Ginsburg: No, you haven't because there's another piece of it.

For the future, regulation that doesn't apply in your case, the... the commissioner has clarified that what we mean is can you do the physical aspects of this job and we don't look to see whether it's an obsolescing job, a brand new regulation that doesn't apply to your case.

On your argument, I take it... you're going now back to the statute... that new regulation is an impermissible construction of the statute.

Mr. Alter: That is exactly correct, Your Honor.

May I, Justice O'Connor, answer your question?

The deference owed to their... the commissioner's construction of the statute is not much.

It's Skidmore deference.

Justice Kennedy: What?

Mr. Alter: Skidmore deference, Skidmore v. Swift.

Chief Justice Rehnquist: Oh, I thought you said Skinmore.

Unidentified Justice: [Laughter]

Mr. Alter: Chevron, the... the great case, the elephant in this room... Chevron has a two-step policy.

The first one has been precluded by Your Honor's question, whether the statute is ambiguous.

The second part says, well, it owes great deference to the commissioner's position, but not, Your Honor, in a construction of a statute.

It is this Court's role to tell us what the law is and what the law means.

Chief Justice Rehnquist: Now, what does Chevron amount to?

I mean, if... if you're... it struck me always that the... the first step is is the statute ambiguous, and second, if it is, is... is the construction reasonable.

It is by definition a construction of the statute you're talking about in the second step.

Mr. Alter: Yes, Your Honor, but I believe under U.S. v. Mead the Court did make a distinction between a... an administrative policy...

Chief Justice Rehnquist: But Mead was... but Mead was not a Chevron case.

Mr. Alter: Mead was a construction by an agency case, and Mead says, I think... my... my reading is that if a... an administrative policy is at issue, great deference has to be given.

But a construction of a statute... an agency does not have deference, great deference, because of administrative...

Justice O'Connor: I... I rather thought that's what Chevron was all about.

I'm interested that you don't think so.

Mr. Alter: Well, my reading, Your Honor, is that Chevron deference will only apply to an agency's statutory interpretation if it emerged from a formal adjudication.

Justice Breyer: I certainly don't see that in Mead.

I... I mean, I understand that there have been views around taken from the dissent I think, that maybe that's what it says, but when I read it about 17 times now...

Unidentified Justice: [Laughter]

Justice Breyer: it didn't seem to say that.

I mean, it said that... that certainly if they have formal proceedings, that would be a strong ground for thinking that we would apply Chevron.

And if they didn't, it doesn't mean we won't.

Did you get all the double negatives?

Unidentified Justice: [Laughter]

Mr. Alter: I understand.

All I can do is assert that if Chevron means that if we find some sort of ambiguity in a Federal statute, we give pretty much carte blanche to the agency.

That was my reading of Chevron.

That would be a disappointing reading of Chevron because I think...

Justice O'Connor: If it's reasonable.

If the agency has given it a reasonable construction.

And from former questions this morning, the suggestion is that the regulatory approach is kind of an administrative shortcut for finding out whether this employee is basically able to do certain types of light work.

Mr. Alter: I would argue, Your Honor, that it is not reasonable in any... by any stretch of the word because may I remind, Your Honor, that we're talking about a job which may not exist at all, and a finding that a person is not disabled because they're capable of doing a job that doesn't exist can't be reasonable.

If we take... I... I say that...

Justice Scalia: Why is that?

What does... what does disabled have to do with doing a job?

I mean, disabled is a... is a physical condition, and they say if you can do the job you used to do, you're not disabled.

Mr. Alter: Your Honor...

Justice Scalia: The word is disabled, not unemployed.

Unemployment insurance is something different.

It's a different program.

This program is not meant to provide for unemployment.

It's meant to provide for disability.

Mr. Alter: But what I meant...

Justice Scalia: And all the... all the Secretary is saying is if you can do your prior job, you're not disabled.

That seems quite logical to me.

Chief Justice Rehnquist: I...

Mr. Alter: Let me try to highlight the illogical parts of that then, Your Honor.

Unemployment has nothing to do with this litigation.

The person has a severe impairment.

As a matter of fact, let's be precise.

The person has cardiac arrhythmias.

The person had a heart attack and returned to work.

The person had a... a herniated disc and cervical radiculopathy.

According to the commissioner's construction here, the only job in the world that she could adjust to is a job which may not exist.

Once she has a severe impairment, Your Honor can bring up unemployment for the rest of the session, but unemployment is a red herring in this case because once you have a severe impairment, we're not talking about unemployment anymore.

We're talking about...

Justice Ginsburg: Then she should... we should have ended it at step three, but the commissioner makes a distinction.

And her impairment, because it wasn't on the chart, doesn't make it.

She is not at that point disabled.

You have to go on to the next step.

If she were disabled, that would be the end of it and we wouldn't... but she isn't disabled under this formulation because she's not within the conditions that that's the end of the examination.

Mr. Alter: Justice Ginsburg, your question and Justice Scalia's question seem to me to define disability in a vacuum.

She is disabled... she isn't disabled because she can do a job.

Suppose she can be... she be... she can deliver ice.

That job doesn't exist anymore either.

Suppose she could be a court jester.

Disability has...

Justice Scalia: You're the one that... that is tying disability to employment, not... not Justice Ginsburg and I.

Unidentified Justice: And... and yet, you keep saying that... that unemployment insurance is a red herring.

Justice Scalia: You're the one that keeps bringing it in.

You... you say we can't tell whether the person is disabled unless the person can get a job, but that's not the statutory requirement for disability.

Mr. Alter: Your Honor, I am not saying that a person is disabled unless they can go get a job.

What I'm saying is that disability means that a medical impairment prevents you from adjusting to work which exists in the national economy.

Justice Souter: And they are saying, to take your example, if you're a former iceman and you're still strong enough to deliver ice, you're probably able to do other jobs.

What is unreasonable about that, even if there's no ice delivery anymore?

Mr. Alter: Because at step five, when the commissioner says that you cannot adjust to other jobs, I take them at their word.

Statistically, according to the commissioner's sequential evaluation, according to the commissioner's vocational rules, there will not be an ability to adjust to any other job which exists in the national economy.

Justice Souter: And... and at the point at which you get to step five, you've already found that the person can't deliver ice anymore.

So there has already been a finding of some disability to some degree irrespective of the capacity to go to a nonexistent job.

I mean, the... the proxy determination has already been made before you get to step five.

Isn't that right?

Mr. Alter: That is correct, Your Honor.

Justice Souter: That's what step four is there for.

Mr. Alter: That... that is correct, Your Honor, but we keep getting back to that proxy, that word proxy.

Well, even if your job doesn't exist, it's a proxy for your ability to do other jobs.

But what other jobs?

Justice Breyer: Well, if you're an... first of all, I don't know why it doesn't exist.

We have elevator operators in this building.

Mr. Alter: Yes, Your Honor.

I gave her my card.

Justice Breyer: All right.

So... so, I mean...

Unidentified Justice: [Laughter]

Justice Breyer: It points out a certain unrealism.

A person who works in an elevator is a pleasant person, and they sit down for some of the day and they're up... standing up for some of the day.

And they have to see that people get on an off properly.

It requires a degree of intelligence.

It requires a degree of personality.

It requires a certain degree of skill.

And so there... you would have thought there would have been a lot of other jobs like that in the economy.

And, I mean, even if there aren't too many elevator operators, there are some.

I mean, I'm trying to point out the realism that they say exists behind their... their assumption there.

And it's pretty hard.

We're talking about... it's really hard to find an example that fits the category you want to say this is in.

Mr. Alter: Your Honor's question about the elevator operator is a... a serious one because an elevator operator we have in this Court pushes buttons.

Yes, there's personality involved, but I... I don't think that one of these individuals would be denied this job if she didn't have a sterling or... or a wonderful personality.

She pushes buttons.

That's not what my client did.

My client operated an elevator.

The reason we have elevator operators in this building, I'm assuming, is to add to the majesty of the building, for security purposes so I don't wander up and down the halls where I'm not supposed to go.

There are elevator operators in luxury buildings which really act as security or helping people with parcels.

This person pushes a button, and she's here for a reason, which really has nothing to do with what my client was doing.

She was opening a gate and opening a door, et cetera, and pushing the actual buttons, and operating... well, you've... everyone has seen an elevator operator from the old days.

The point is... the point is that all we want to do is show... an opportunity to show what every SSI claimant can show.

I believe it was Justice O'Connor who... who asked is there a difference between the regulations in title II and title XVI, and my colleagues said correctly, no, there aren't.

How about this?

How about Pauline Thomas never worked a day in her life?

She was on welfare her whole life.

She doesn't have a step four.

We treat people under this construction who have worked, as Pauline Thomas does... and I promised her I would say this, so I'm going to say it... for 27-and-a-half years, 110 quarters of coverage.

And she paid in all that time, sweeping and cleaning, and mopping bathrooms in a nursing home, and had a heart attack and went back to work.

We don't treat her, under this construction, as well as we treat a person who never worked a day in her life because then she automatically goes to step five where she's disabled.

That's the first thing.

The second thing... I don't know if the Court has an actual transcript, but how do we treat this person differently?

Pauline Thomas will get... this controversy is about $672 a month in disability benefits after 27-and-a-half years.

If she had not worked a day in her life...

Justice Ginsburg: Mr. Alter, can we go back to one thing that you said I don't think was quite right?

You said all we want is an opportunity to show.

That's not so.

If you get to step five, you win, and the Government has conceded that.

You don't have to show anything.

So you're looking for... you say if... step four, if she prevails on that, that is the end of the inquiry.

You will not... it's not incumbent on you to show anything.

Mr. Alter: In this particular case, if we get to step five, we will win.

But what we want to show is not... obviously, Ms. Thomas wants the benefits and I want to win the case.

But what we would be showing is that past work is not a proxy for another kind of work if the past work doesn't exist because we want to be able to show... it's what we already know... that the commissioner says that there is no ability to adjust to another job.

Here, if her job doesn't exist, she will have to adjust to another job whether we call it her past job or not.

What I want to...

Justice Ginsburg: She did work at this job for... well, 7 years, did she not?

Mr. Alter: Correct.

Justice Ginsburg: Because she... at one point in your brief, you said that she had been an elevator operator.

At page 42, you said for a few months.

That was wrong.

Mr. Alter: A few years, Your Honor.

I'm... my mistake.

As I was saying, if she went and applied for SSI in New Jersey, she would get $583.25 as we sit here right now.

So the difference between the 27 years of work and no work is, number one, she has a better chance, because she doesn't have to go through step four; and number two, she gets another $80.

That construction leads to a disengagement between the worker who's paying the freight so that the commissioner can have their convenience and their construction and the actual program.

The program must reflect reality.

Disability is a word, but it's a concept that comes after the commissioner has put in place a sequential evaluation.

And that sequential evaluation is based on the realities of the workplace.

It has always been.

As a matter of fact, may I point one thing out... two things actually.

Number one, the commissioner doesn't call it past work.

The statute calls it previous work.

The commissioner calls it past relevant work.

What is more irrelevant than a job that doesn't exist?

Number one.

Number two, the commissioner says that there are no vocational considerations at step four.

We don't care about whether the job exists or not.

But that's not the case because the commissioner's own ruling states for a fact that if you can't do your past job as you performed it, we can still deny you benefits at step four by saying that we... you can do your past job as it's performed in the national economy.

That's a vocational consideration.

I never performed that job that way.

My job is much harder.

Yes, but when we look into the dictionary of occupational titles, we find your job and many jobs are done in a lighter version.

You can do that job.

But I never did it before.

Vocational considerations.

SSI claimants have more rights and make the same money as disability claimants.

There's something wrong with that in terms of public policy.

Chief Justice Rehnquist: Thank you, Mr. Alter.

Mr. Alter: Thank you.

Rebuttal of Jeffrey A. Lamken

Chief Justice Rehnquist: Mr. Lamken, you have 19 minutes remaining.

Mr. Lamken: Thank you.

First, I wanted to point out that step four in fact is a measure of severity.

The question is how severe does the impairment have to be, and the statute tells you exactly how far... how severe it has to be.

It has to be so severe that the claimant is unable to do his previous work.

So the step four inquiry of previous work is a measure of severity, and the commissioner has consistently used that measure of severity to determine whether the individual is functioning at a level that is consistent with work generally.

In fact, in terms of the deference to which the commissioner's construction is entitled, this has been the commissioner's current construction from the outset of the program, both from before this... the particular provisions we've been discussing were adopted in 1967 and after.

We believe that they're clearly reflected in the commissioner's regulations from 1978, and any... any ambiguity in those regulations was cleared up in 1982 with respect... by the issuance of SSR 82-40.

The commissioner's current regulations, which became effective September 25th, now make it abundantly clear and explain in absolutely certain terms that the commissioner does not consider whether or not the previous work exists in significant numbers in the national economy.

Because that is the result of a rulemaking, because it is clearly the commissioner's well-considered and longstanding interpretation of the statute, it is entitled to deference.

Justice Ginsburg: Those regulations were subject to notice and comment rulemaking?

Mr. Lamken: Yes.

In fact, there was a very... there was a lengthy comment period, and then they went through the entire process and were issued quite a few years actually after the comment period was completed.

But yes, those were not... notice and comment rulemaking, Justice Ginsburg.

In fact, the clarification came in in response to a public comment that particular issue wasn't... was germane to the rulemaking, but it wasn't one the commissioner had initially planned to address.

But a commenter said, please clarify that in fact you do consider whether previous work exists in the national economy.

And the commissioner said, no, no, you've got it wrong.

We do not consider it.

Our longstanding view has always been we do not consider whether previous work exits in substantial numbers in the national economy.

Justice Scalia: Mr. Lamken...

Mr. Lamken: Yes.

Justice Scalia: could you clarify something?

I asked this of... of Mr. Alter, and I... I didn't quite understand his... his answer.

Do you understand the respondent's position in this case to be anything other than saying that the statute means it could be abbreviated to read this way, that he is unable, considering his age, education, and work experience, to engage in any kind of substantial, gainful work which subsists in the national economy?

Mr. Lamken: I... the respondent's position does have the effect of completing the two separate inquiries.

Justice Scalia: Well, eliminating the first entirely, does it not eliminate the first entirely?

Mr. Lamken: The one thing that... that it wouldn't take into account is that in the first inquiry, the commissioner does not take into... in the previous work inquiry, the commissioner does not take into account age, education, and work experience.

And your formulation would make age, education, and work experience relevant to all work, previous work and past work.

However, we believe that if Congress had intended...

Justice Scalia: Well, but... but if he was doing his previous work, it is impossible to find that considering his age, education, and work experience, he couldn't do it.

Justice Breyer: I mean, it's...

Mr. Lamken: I... I think that's precisely right.

It makes it... as a...

Justice Scalia: It's an impossibility anyway.

Mr. Lamken: Right.

As a structural matter, it would make it relevant, but in fact it would be rarely, if ever, a factor the commissioner would use in terms of denying disability benefits.

So it does definitely have the effect of taking what Congress set out as two separate conditions precedent and merging them to a degree which Congress probably did not intend.

Finally, for 45 years in adjudicating more than 40 million claims... and that includes approximately 200,000 step four, that is, previous work denials a year.

That's 500 denials a day for every day of every year... the commissioner has consistently applied this construction.

That construction has functioned well throughout all these years.

Accordingly, we ask the Court to reverse the judgment of the court of appeals and to reinstate the commissioner's construction.

Chief Justice Rehnquist: Thank you, Mr. Lamken.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Raytheon v. Hernandez - Oral Argument

Fri, 09 Jan 2009 14:49:09 +0000

Case:

Raytheon v. Hernandez

Media File:

02-749_20031008-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Carter G. Phillips

Chief Justice Rehnquist: We'll hear argument next in No. 02-749, the Raytheon Company v. Joel Hernandez.

Mr. Phillips.

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

Petitioner, like thousands of other employers throughout this country, has a policy that if an employee is discharged for violating a workplace rule... usually that involves serious misconduct in the... in the workplace... then he becomes permanently ineligible to be rehired by that particular employer.

The court of appeals in this case correctly held at Fed. App. 12a, note 17, that there is no question that petitioner applied this policy in rejecting respondent's application.

And the court of appeals also held that there's no question that this policy on its face is not unlawful.

Nonetheless, the Ninth Circuit declared that even in a case alleging only disparate treatment, the, quote, policy violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction.

Justice O'Connor: Mr. Phillips, it... the Ninth Circuit in its opinion on about page 8a in the appendix said, Hernandez raises a genuine issue of material fact as to whether he was denied reemployment because of his past record of drug addiction.

And I'm concerned that the court may have said there is a genuine issue of fact here, that it wasn't clear whether there was a no-hire policy that was either adopted or if it was used in this case, that there's something else at stake due to the different responses of the man who wrote the letter versus the woman who actually made the decision, and that there's some issue of fact here.

Now, if that's the case, maybe the rest of the opinion is just dicta.

I don't know.

Mr. Phillips: It's pretty clear that the rest of the opinion is not dicta, Justice O'Connor.

The... that portion of the analysis is... is directed solely at the question of whether or not the plaintiff had made out a prima facie case, and what the court said was, you know, is there any evidence from which anyone could draw the inference that there was discrimination because of a disability.

And it recognized frankly that that was a very close question, that if you read even the... the statement made to the EEOC, you can read that in different ways.

Maybe you should look at Bockmiller.

But the truth is in making the prima facie showing, all that you really needed to look at was the policy statement... or the... the response to the EEOC, and that would be enough, I think, to get you past the prima facie showing.

It... it is at page 10a where the court then turns its complete attention, and it says, you know, so in sum we hold that... that Hernandez's prima facie case of discrimination has been made out, and now we turn to the next stage in the process, which is to look and see whether or not there is a... a non-pretextual justification.

Justice O'Connor: I might agree with you that a no-hire policy, if that's what was used, is certainly not unlawful.

But if there is a genuine issue of fact here, what... what do we do?

Mr. Phillips: Well, if there were a genuine issue of fact, you... you would... you know, you'd remand to allow the case to go forward.

There's clearly not a genuine issue of fact because if you... once you get past just looking at the EEOC statement that was made by the employer and... and you're in the district court and you're looking at summary judgment and the question is whether or not the action of the employer is pretextual, we only have the burden to come forward and say we had a... a perfectly lawful reason for doing what we did.

Chief Justice Rehnquist: Well, aren't the two questions really severable, whether the Ninth Circuit's treatment of the no-rehire policy was correct under ADA law, and second, whether the employer was entitled to summary judgment?

I... I think those are two different questions.

Mr. Phillips: Well, I... yes, they are two different questions, Mr. Chief Justice.

I think the answer is that I think we probably would have been entitled to summary judgment even on the prima facie showing.

The only way the court of appeals got to its analysis... the only way it could have gotten there under Hazen Paper... is to say that the pretextual basis... the pretextual argument that was put forward by the employer... we have to take that off the table because if that... if that policy is in this case, there is not a shred of evidence that that policy was not applied in this particular case.

And that's exactly what the court of appeals said in... in the footnote in its opinion.

It said that's unquestioned.

Justice Ginsburg: Mr. Phillips, I'm having the same problem that Justice O'Connor and the Chief expressed.

One thing is if we take this case, there's a no-hire rule.

Can an employer have such a rule and apply it with even hand?

That's a question of law.

But this case seems to be underneath messier.

For example, this no-hire policy was unwritten.

This is a company that had a lot of written rules.

That's an important rule.

Why was it unwritten?

Why does Medina testify we had a right, not that we'd apply it every case, but we had a right not to rehire someone who was discharged for cause?

The... the record is suspicious on, one, whether there was a policy; two, whether it was applied with an even hand.

That one can't tell.

So why should a judge take this as given that there was indeed such a policy and that it... it was applied with an even hand?

Don't those questions remain in the case?

Even if you prevail on if they had such a policy and if they applied it with an even hand, they would not be offending...

Mr. Phillips: I mean, there's no question that respondent has asserted arguments that the... that... that there's a question as to whether the policy exists.

The Ninth Circuit expressly held that the policy exists and was applied in this particular case...

Justice Ginsburg: Well, they held it in a footnote, and I'm...

Mr. Phillips: I don't take footnotes seriously in all court's opinions, Your Honor.

[Laughter]

Well, but I mean, it could not have been more explicit in terms of dealing with this particular issue.

Was the policy presented and was it... was... did the policy exist and was it applied in this particular case?

There's no question about that.

And there's no testimony that raises any doubt.

It may be that it's an unwritten policy, but the testimony in the joint appendix at 22a, 57a, 59a, 71a, 72a, and 73a, which is the affidavit and deposition testimony of Bockmiller who was the decision maker in this case and Medina who signed the... the statement, is consistent, that... that there is an absolute policy and practice that this employer uniformly uses.

Justice Ginsburg: We don't know from this record, for example, whether someone who had sexually harassed a fellow worker and for that reason was fired, whether such a policy would apply... has, in fact, been applied to such a person, whether someone who assaulted a co-worker would also be barred permanently from re-hire.

If there is the firm policy, then it's unquestionably legal, but... but there isn't in this anything except two employees who gave testimony, no other examples, other than this very case, to show that this has been applied across the board.

Mr. Phillips: But Justice Ginsburg, the respondent had a full opportunity for discovery in this case.

He was an employee for 25 years.

If he had known of any instances in which this rule hadn't been applied, he could presumably have brought that forward.

If he could have discovered any instance in which this rule had not been applied consistently...

Justice Ginsburg: I thought he said that he didn't even know the rule existed.

Mr. Phillips: Actually he's not specific in... in regard to that.

I mean, he's made that argument at this stage in the proceedings, but there's nothing in the record, certainly nothing during the deposition testimony, in which he says... there's nothing in his affidavit.

But... but, Justice O'Connor, it's worth reading the joint appendix... I'm sorry, Justice Ginsburg.

I apologize.

[Laughter]

But, Justice Ginsburg, it's worth reading on joint appendix 70a.

You know, this... his application would have been rejected had he been fired for stealing or fighting or anything like that.

It's unequivocal, absolutely uncontradicted testimony in this record.

There is no question...

Justice Stevens: Mr. Phillips, can I ask you a question that makes the assumption that you want to make for the whole case, that the policy was just applied in this case?

Suppose a person, aware of the policy, write... and has the history of this person, and say you would admit he's qualified.

I know there's some doubt about that in this case.

A qualified applicant, who has a history of drug or alcohol use and was fired for that 10 years ago, writes a letter to the company and says I'm totally aware of your policy of not hiring... rehiring people who were previously discharged for cause, but I want you to know I am a rehabilitated person and therefore I'm handicapped and I come within the statute.

And I think the... the rule against discriminating against handicaps requires you to make a special accommodation for me.

Please do so.

Now, why could you turn him down?

Mr. Phillips: Well, you could... you could continue to assert that the... that our policy is our policy and we're entitled to assert that policy.

Now, you know, there are alternative theories that could be brought forward.

One... one could be that the policy has a disparate impact, which wasn't litigated in this case...

Justice Stevens: And if...

Mr. Phillips: and also...

Justice Stevens: a whole bunch of people.

He says... he admits he's the only person who fits.

So he can't make a disparate impact argument.

He just says you have a duty to accommodate under this statute and your failure to accommodate is discrimination when you know that the reason for the policy doesn't apply...

Mr. Phillips: Well, there are sort of three answers to that in terms of the reasonable accommodation rationale.

First of all, remember that this is not an employee any longer who is in fact disabled.

This is one who's merely regarded as or has a record of.

And the statute specifically talks about accommodating the limitations of the employee.

So there... there are no limitations here.

So I think (b)(5) by its terms doesn't apply.

Justice Stevens: Is it your view there's no duty to accommodate for applicants?

I'm just trying to... is it your view that the statute does not require any accommodation for applicants as opposed to actually employed persons?

Mr. Phillips: No, I don't... I don't know that that doesn't require any... anything with respect to applicants or any accommodation with respect to applicants.

I don't... I... I think what it doesn't do is allow you to look beyond whether there are limitations that need to be accommodated.

And I don't think it... and I don't think it is a reasonable accommodation within the meaning of (b)(5) to say that you're entitled to a second bite of the apple.

If you have violated a misconduct rule and been discharged for that reason, whether it's drug-related or not, it seems to me clear under the statute... certainly it's clear under... under 114(c)(4)... that that is precisely the situation in which the employer is allowed to discharge you and to impose a...

Justice Stevens: Well, the discharge isn't in question.

The question is whether a person who is now handicapped within the meaning of the statute and who was previously discharged for a reason that clearly does not justify rehiring now, other than the fact you want to have a rule with no exceptions to it.

I don't really... I'm a little unclear as to if you don't say the duty to accommodate has no application to applicants as opposed to employees, I'm a little unclear as to why this isn't like a rule in the gender discrimination cases, you can't lift over 100 pounds or something like that.

Mr. Phillips: Well, because I think the reason is is that in order to allow this employee to come back under these circumstances, you have to... you have to discriminate in his favor because if... if this were a person who...

Justice Stevens: That's right, and that's always the case of... of accommodation.

Mr. Phillips: Right.

Justice Stevens: It's always a discrimination in favor of the applicant.

Mr. Phillips: Right, but that's why you have to look at 114(c)(4), which says specifically that you are entitled to treat former drug addicts precisely the way you would treat any other employee.

So then the question I think is if this employee had been discharged originally because he was a sex offender or a sexual harasser and... and had a psychological reason for it, and he came back in and he said, I'm... I'm cured, I'm fixed, I want to come back to work now, the answer there might be one thing.

I don't know the... you know, there may be a reasonable accommodation issue there.

But with respect to 114(c)(4), which very specifically says that you're allowed to impose qualification standards that are the same where you're not going to allow that other employee to come in... that's the way your policy operates... applying that rule fairly to this situation means that this employee is not entitled to come in.

I don't think it's a flat rule against applicants versus non-applicants.

I think it's a (c)(4)... 114(c)(4) rule that says that you are always entitled to treat the rehabilitated drug addict exactly the same way you would treat anyone else who engaged in misconduct.

Justice O'Connor: Mr. Phillips, I guess the Ninth Circuit did not address at all the reasonable accommodation question, did it?

Mr. Phillips: I don't think it did address the reasonable accommodation issue.

Chief Justice Rehnquist: No.

Justice O'Connor: So I guess we'd have a hard time in getting into it, but it...

Mr. Phillips: Any more than it...

Justice O'Connor: may be a serious question.

Mr. Phillips: Well, it might be and... and I don't think it would be in this case.

As I say, I think 114(c)(4) is a complete answer to the reasonable accommodation argument, and I think frankly 114(c)(4) is a complete answer to the disparate impact argument, which the court of appeals also not only didn't get into, but found had been expressly waived.

That's why I think, Justice O'Connor, at the end of the day, what this case is about is Hazen Paper.

We have a rule here that was unquestionably applied.

There is not a shred of evidence that it wasn't applied.

Justice Ginsburg: Well, Mr. Phillips, one of the things is... doesn't quite fit is in the case of this very employee.

He was given a test despite this firm no-hire... no-rehire rule.

They did give him a test in 1999, and it turned out he flunked it badly.

But everyone recognizes that flunking in 1999, when you're a little rusty, doesn't mean you would have flunked in 1994, which is the critical time here.

But why did the company, if it has this firm... firm, no-exception policy, no rehires, why did it give him the test to see if he was qualified?

Mr. Phillips: Well, because any employers who's in the middle of litigation would be irrational not to try to find some kind of a non-litigated solution to the problem.

And so we were looking for a non-litigated solution to the problem.

Since he wasn't qualified in 1999, it wasn't available to us to bring him back or to try to come up with some other kind of a settlement.

I think it completely inappropriate to hold it against us to try to come up with a solution to this case that wouldn't have required us to take the time of the court at that point.

Justice Stevens: Mr. Phillips, looking at 114(c)(4), I think that speaks to the... what the company may do to employees, not... it doesn't speak to former employees...

Mr. Phillips: Right.

Justice Stevens: or applicants for employment.

Mr. Phillips: But... but, of course, Mr. Hernandez was an employee in 1991.

Justice Scalia: Right.

Mr. Phillips: And we discharged him and then we imposed on him the same qualification standards that we would impose to anyone that we discharged under those exact same circumstances.

He is dismissed.

Justice Scalia: I understand.

Mr. Phillips: And he is permanently barred on... on a going-forward basis.

Justice Scalia: But I don't think (c)...

Mr. Phillips: That language clearly covers this.

Justice Stevens: I don't think (c)(4) explains why you didn't have a duty to accommodate him when he... when he sought re-employment.

Mr. Phillips: Well, I think the answer to that is (c)(4) would... would trump the reasonable accommodation argument, if... if it had been properly raised and it were before the court.

I think at the end of the day, we'd win that, but Justice O'Connor... I got the name right there... is clearly right that that issue wasn't resolved by the Ninth Circuit, and therefore remains open.

I mean, it is not an issue for this Court at this point.

I just want to make it absolutely clear that the rule was applied... I don't think there is any way that you can question that there is an issue of fact to be resolved as to how this rule was applied in this circumstance.

In order to discount the applicability of the rule as the basis for Mr. Hernandez's rejection, you have to declare that Ms. Bockmiller flat-out lied, and she didn't.

Everything in the record in this case is consistent with the idea that she looked at the summary separation, she concluded that there was no basis to go forward with this case, and she acted accordingly.

An employee... obviously, employers are allowed to use their own employee's testimony.

It cannot be that that's an interested witness whose testimony is not entitled to credit when it is absolutely uncontradicted.

So we are not only entitled to have this rule set aside, we're also entitled to judgment at the end of the day.

Thank you, Your Honors.

I'd reserve the balance of my time.

Argument of Paul D. Clement

Chief Justice Rehnquist: Thank you, Mr. Phillips.

Mr. Clement, we'll hear from you.

Mr. Clement: Mr. Chief Justice, and may it please the Court:

A policy... a mutual policy of refusing to rehire individuals previously terminated for serious misconduct does not constitute disparate treatment for purposes of the Americans with Disabilities Act even as applied to an individual previously discharged for drug-related misconduct.

The policy does not single out people who are addicted or those who test positive for drugs for disfavorable treatment.

The policy treats all serious misconduct, whether drug-related or not, the same.

As a result, an individual who is refused re-employment pursuant to that policy is simply not subject to disparate treatment because of their disability.

Justice O'Connor: Mr. Clement, does the Government take a position on whether there's an issue of fact hidden in this case about whether there is a neutral no-hire policy?

Mr. Clement: Justice O'Connor, in our brief we suggested that it would be possible to grant summary judgment for the employer here on this record.

I have to confess, though, that that issue is of considerable less importance to the Government than the broader validity of this rule.

One thing I... I'll address why we think summary judgment might be appropriate, but I want to emphasize, though, that even if the Court thinks that summary judgment is not appropriate here, the proper disposition would be to vacate and remand.

But it's very important to vacate the opinion because the theory of the Ninth Circuit, if you can divine one here, is that, all right, there's a pretextual case for discrimination and the employer comes in and says, we didn't discriminate on the basis of disability.

We applied a neutral, across-the-board rule.

And as I read the Ninth Circuit opinion, what they say is that neutral rule is not a legitimate, nondiscriminatory basis for your employment action.

And they... they do that as a matter of law, and that is a profoundly wrong decision as a matter of law, especially in a disparate treatment case because Justice Stevens suggested that maybe you could have a reasonable accommodation theory but that's not in this case.

It is possible that the language of 42 U.S.C. 12112(b)(6), which embodies the Americans with Disabilities Act disparate impact principles, could be used to challenge the neutral policy.

But whatever else is true, when an employer applies a neutral policy, it has not engaged in disparate treatment on the basis of disability.

Now, if I can get back to the summary judgment question.

I think there's two reasons why we thought summary judgment was... would be appropriate for the employer.

One is as suggested by Mr. Phillips.

In footnote 17, after the court of appeals finishes with its pretext analysis, it seems to suggest that there's really no dispute that both sides agree that this policy was invoked.

And I think in... in looking through the lower court record, it doesn't seem like the gravamen of the respondent's case was that the policy doesn't exist.

It was more a... a suggestion that whether or not you have a policy, as to me in particular that's not the reason for the discharge, and the best evidence of that, of course, is the letter that George Medina sent to the EEOC.

Chief Justice Rehnquist: You mean the best evidence supporting the plaintiff.

Mr. Clement: Yes, the best evidence that the plaintiff has is that letter to the EEOC from Mr. Medina.

And, of course, that letter suggests that it was more complicated than simply application of a neutral policy, and it's for that reason that the EEOC issued a... a cause to sue letter.

Unfortunately, though, Mr.... Mr. Medina was not the ultimate decision maker in this case.

That was Joanne Bockmiller.

And the record is clear... and this is at joint appendix 51a and then 64a.

It's clear that Ms. Bockmiller did not participate in the preparation of that Medina letter.

Justice O'Connor: Then why did the company...

Chief Justice Rehnquist: I don't know that... I don't know that that's enough, though, to defeat summary judgment.

A jury is entitled to disbelieve any witness I believe, even though perhaps the... you don't show any bias on the part of the witness.

Mr. Clement: Well, Mr. Chief Justice, that's not the way I read this Court's decision in Anderson against Liberty Lobby, which seems to suggest that simply the possibility that the jury will not disbelieve testimony even if there's no other evidence that draws that testimony into question...

Chief Justice Rehnquist: But there is.

Mr. Clement: it's not enough.

Justice Ginsburg: You mentioned Medina, Medina's letter, which says, look, we... we refused to hire this person because he didn't show... he didn't show that he was no longer an addict.

Mr. Clement: And I think that if the Medina... certainly if Medina were the decision maker or even one of the decision makers in this case...

Justice Ginsburg: But didn't the company designate him to put in the response to EEOC?

Mr. Clement: They certainly did, but the... the facts of this case are that Bockmiller was the ultimate decision maker.

And in Hazen Paper, this Court suggested that in these kind of disparate treatment cases, what you're looking for is if...

Justice Ginsburg: What is the relative position in the company?

I had the impression that Medina was a higher level employee than Bockmiller.

Mr. Clement: I think that's correct, Justice Ginsburg, but at the end of the day, he just wasn't the decision maker.

I think, though, I... I've made our position clear, which is when you have a case where there's an ultimate decision maker who suggests a neutral policy was involved, our position would be a... a straight statement by somebody who was not involved in... directly in the decision making process shouldn't preclude summary judgment.

I do want to be clear, though, that that really is the less important issue for the... from the Government's perspective because the Ninth Circuit's decision in this case does embody the position that this kind of neutral policy, assuming it exists for a moment, is somehow per se unlawful as applied to drug addicts.

And I think, again as Justice Stevens suggested, there may be ways that a plaintiff could try to go after such a neutral policy.

They could suggest that it... that under a reasonable accommodation theory, a reasonable accommodation must be given.

But if that were brought forward, I think an employer would have an opportunity to say, no, that reasonable accommodation imposes an undue hardship.

In similar fashion... and I would say this.

I think if you look at the statute as a whole, the provision of the statute that most specifically speaks to a neutral qualification criteria that is alleged to have a disparate impact on individuals with a disability is... is 42 U.S.C. 12112(b)(6).

Justice O'Connor: Well, there's no disparate impact case here.

That was not raised, was it?

Mr. Clement: No, that was not raised.

Justice O'Connor: I don't know what about the reasonable accommodation theory.

The Ninth Circuit didn't address that.

Mr. Clement: They...

Justice O'Connor: Was that a claim?

Mr. Clement: No, that was never addressed in the lower courts.

Justice Scalia: No.

Justice O'Connor: That's what I thought.

So we don't have to get into that.

Mr. Clement: You don't have to get in, and we would suggest that you not definitively resolve the reasonable accommodation issue or the disparate impact theory.

But that doesn't mean that it's sort of harmless error if the Ninth Circuit opinion stays on the book because the Ninth Circuit assumes that the answer to the question on reasonable accommodation is that you could never justify such a policy.

You'd always have to grant a reasonable accommodation.

The Ninth Circuit opinion assumes that there would be a disparate impact even when there's not or even if the employer could justify the policy as job-related and consistent with business necessity.

I wanted to be responsive to Justice Stevens' question, though, even though I think this Court should ultimately not reach it.

With respect to reasonable accommodation, there's no question that reasonable accommodation applies in the application process.

And so if you have... for example, if you're going... an employer wants to give a application test for the job, and puts it in a facility that's not wheelchair accessible, that reasonable accommodation would have to be given, and that would be a reasonable accommodation in the hiring process.

I do think, though, that subsection (b)(6) addresses very directly a neutral qualification standard that's alleged to screen out an individual with a disability or to tend to screen out an individual with a disability.

And with respect to that claim, that would trigger the employer's burden to come forward and show that the requirement was job-related and consistent with business necessity.

One of the real sort of ironies, if you will, of the Ninth Circuit's opinion is on the same page of the opinion and in consecutive footnotes, after they... they clearly hold that the disparate impact theory is not in this case, they also fault the employer for not justifying the neutral rule as consistent with business necessity.

But the business necessity defense, as its status as a defense, suggests is not some sort of free-floating obligation on the employer, especially in a disparate treatment case where the employer has already pointed to a neutral and legitimate, nondiscriminatory reason for their actions.

The business necessity defense comes into a case when a plaintiff has properly preserved a claim under subsection (b)(6) and triggers the obligation of the employer to come through.

I would like to also point out, though, that we largely agree with Mr. Phillips that there is... there is much in 42 U.S.C. 12114(c)(4) that suggests that there may be a basis for an employer to maintain this kind of neutral policy, and I think an employer may be able to use that section as a defense.

I would agree with Justice Stevens that it doesn't speak directly to this situation because all it does is allow... with respect to current drug users who aren't entitled to any protection under the act, it clarifies that an employer can apply a neutral qualification standard, and it doesn't matter whether the underlying misconduct has its roots in... in drug us or drug addiction.

And I think it doesn't directly say it, but implicit in that provision is the idea that an employer can use uniform and neutral sanctions for violations of those uniform conduct rules.

The difficult question becomes whether or not there's something special about a bar on re-employment, when you say that if you violate our conduct rules not only are you terminated, but you need never darken our door again.

And I think with respect to that kind of policy, there are two... the act, in a sense, points in two different directions.

On the one hand, the act draws a clear distinction between current drug users who are... who are not protected by the act and draws a distinction between recovered addicts who are protected by the act.

In... in any event, the Court can reconcile those competing policies in a subsequent case.

Argument of Stephen G. Montoya

Chief Justice Rehnquist: Thank you very much, Mr. Clement.

Mr. Montoya, we'll hear from you.

Mr. Montoya: Mr. Chief Justice, and may it please the Court:

In the Ninth Circuit's opinion, the court made it emphatically clear that there were two predicates for its decision.

One was a traditional discriminatory impact analysis, what Raytheon's intent was upon dismissal.

And this is all very clear, reprinted at page 12a and 13a of the appendix.

The court says that Mr. Hernandez has, quote, presented sufficient evidence from which a jury can conclude... could conclude that he was qualified for the position he sought in 1994 and that is application was rejected because of his record of drug... drug addiction.

Period.

Additionally... and then it goes to the question of whether or not this alleged uniform practice is, in fact, valid under the Americans with Disability Act.

So there are two grounds for the decision.

And moreover, because this could be a mixed motive case, even if this Court concludes that the alleged oral practice is valid, the case would still have to be remanded because you... even if the employer had a valid reason to terminate Mr. Hernandez, if it also had a mixed motive and the other motive was invalid, it was... he was also terminated and based upon his history of drug and alcohol addiction, the case has to be resolved by a jury.

And the question...

Justice Ginsburg: Mr. Montoya, I'd like to go back to the opening statement you made because you... you said this was a legitimate disparate impact case, but looking on that same page in the footnote, the Ninth Circuit is agreeing with the district court that because Hernandez failed to timely raise disparate impact, this has got to be a disparate treatment case.

Mr. Montoya: Your Honor, I misspoke.

If I said disparate impact, I meant to say discriminatory intent.

The question of Raytheon's intent.

Did it apply this alleged uniform practice or did it discriminatorily intend to terminate Mr. Hernandez because he has this record of drug and alcohol addiction?

They're distinct bases.

Justice Stevens: You don't mean terminate.

You mean refuse to hire.

Mr. Montoya: Refuse to hire, yes.

I... I... and... and both...

Justice Scalia: I mean, that makes good sense, but how do you reconcile that with footnote... footnote 17?

It says, there is no question, the court says, that Hughes applied its automatic policy, this policy, in rejecting Hernandez's application.

Justice Breyer: I mean, I... it boggles the mind.

Mr. Montoya: Your Honor, that is a... I... I can't resolve that.

Justice Scalia: You want us to give text more weight than footnotes.

Mr. Montoya: I do, Your Honor...

Justice Scalia: That's not unreasonable.

Mr. Montoya: because that footnote is directly contrary to the record.

In fact, in the district...

Justice Scalia: Maybe the law clerks wrote the footnotes and the judges wrote the text.

Mr. Phillips: [Laughter]

Mr. Montoya: I won't speculate on that, Your Honor.

But I... I will say that I disagree with my learned friends representing Raytheon that we admitted that this oral practice was applied to Mr. Hernandez in this case because we don't even think that the practice exists.

The reason why we don't think the practice exists is because in Raytheon's first official written statement in this very case, Raytheon doesn't mention it.

It doesn't mention a practice.

It doesn't mention a rule.

It doesn't represent... or it doesn't indicate that there's a policy.

It just says there's a right, which is very different.

Chief Justice Rehnquist: But the Ninth... the Ninth Circuit again, Mr. Montoya, in footnote 17 simply says there's no question that Hughes applied this policy in rejecting Hernandez's application.

Mr. Montoya: I know it says that Justice... Chief Justice Rehnquist.

I think what the Ninth Circuit meant in that footnote is that there's no question that Raytheon claims that it applied that.

And I think what the Ninth Circuit was trying to get at was that even if Raytheon's story is true, Raytheon still doesn't necessarily win because Raytheon's alleged practice could be violative of the ADA as applied to Mr. Hernandez in this particular case.

But the question of discriminatory intent remains.

Moreover and just as importantly, the question of whether or not this alleged practice exists remains.

This is an oral... this is a right that Raytheon alleged.

There's no... no evidence that this rule was ever applied to anyone else.

Justice Scalia: We... we didn't take the case to... to determine whether... you know, to determine that.

I mean, I... the court of appeals proceeded on the assumption that it did exist, and... and the reason we have the case is that it is a very important proposition of law, which the Ninth Circuit adopted, that where you have such a policy, it will not be applicable to someone who's a rehabilitated drug addict.

Mr. Montoya: Yes, that's...

Justice Scalia: That's the reason we took the case, and you're telling us we can't get to it because... because in fact the Ninth Circuit was just wrong that there was the policy at all.

Mr. Montoya: That is correct, Your Honor, and I believe that that is a question of disputed material fact.

Chief Justice Rehnquist: Did... did you raise this in your... in your brief in opposition to certiorari?

Mr. Montoya: Yes, we did, Your Honor.

Chief Justice Rehnquist: That particular question?

Mr. Montoya: Yes, we did.

We believe that the question presented in the petitioner's cert petition is hypothetical because it's contingent upon at least two dispositive material factual disputes, the question of discriminatory intent and the question of whether or not this uniform practice actually exists.

Justice Kennedy: Well, but the Ninth Circuit, I take it, was entitled to proceed on the assumption that the factual determination might turn out as... as Hughes says it is, and it then went on and gave instructions as to how the case ought to be resolved.

And we certainly can reach that if we think it's in error.

Mr. Montoya: Yes, you can.

However, I think that in order to reach that, you have to make a factual assumption that might be incorrect, and I think that it would be premature for the Court to render that assumption or to make that assumption at this juncture because it could be that if this case were remanded to the trial court, jury instructions would render that aspect of this Court's opinion moot.

For example, a jury could answer affirmatively whether or not...

Justice Kennedy: Did the court of appeals exceed its authority under Article III in making the statements it... it did with respect to the lawfulness of the termination policy?

Mr. Montoya: Your Honor, I think that it... it certainly reached the borders of Article III.

Maybe a declaratory judgment action could have been filed...

Justice Kennedy: So you think that in some later case the Ninth Circuit would... would say that this is not binding on other panels?

Mr. Montoya: Well, it would depend upon the facts.

If the assumed facts were identical, then perhaps it would be binding.

However, those facts are clearly assumptions in this particular case.

Justice Kennedy: Well, if... if facts might be proven from the record, courts of appeals routinely give directions to the trial courts as to how the law is to be applied, don't they?

Mr. Montoya: That's true, Your Honor.

However, that makes this case much less worthy of this Court's consideration at this juncture because even though the Ninth Circuit is perhaps closer to the district court and has more judicial resources to resolve those types of declaratory questions, those questions might, once again, be rendered moot in this particular case if the jury concludes that there was no oral practice and that in fact it was made up, or if the jury concludes that notwithstanding any oral practice...

Justice Scalia: Well, that's all right, but we would still have achieved what we set out to achieve, and that is to determine whether the statement of law that the Ninth Circuit opinion sets forth is correct or not...

Mr. Montoya: That... that...

Justice Scalia: that if there... if there is a firing solely by reason of policy, it is nonetheless invalid as applied to a rehabilitated drug addict.

That's an important proposition.

We would resolve that one way or other, even though your case might continue on.

So what?

We don't care whether your case continues on.

Mr. Montoya: Well, in... in that... in that event, Justice Scalia, the answer...

Justice Scalia: I mean, you care a lot.

I know that, but that's... that's not what's important to us.

Mr. Montoya: I understand.

And... and the answer to Raytheon's petition in that event would be a resounding yes.

The ADA does grant preferential rehiring rights to an employee who was terminated for misconduct if four conditions are met.

The misconduct was related to a disability as defined by the ADA.

The disabled individual in question is rehabilitated from the disabling addiction that this case concerns.

And Raytheon is unable to establish undue hardship as an affirmative defense.

Raytheon is unable to establish business necessity as an... as a affirmative defense.

Chief Justice Rehnquist: Undue hardship being under the accommodation requirement?

Mr. Montoya: Yes.

Chief Justice Rehnquist: But now, the... the court of appeals never got to that.

Mr. Montoya: Well, they... they didn't get to it using that terminology.

However, they did get to it in saying that this uniform rule violated the ADA as applied to Mr. Hernandez in this particular case.

Chief Justice Rehnquist: Well, but surely, if they had meant the... the part of the... the part of the act that requires accommodation, they would have said so.

Mr. Montoya: Well...

Chief Justice Rehnquist: I mean, you're really kind of rewriting the court of appeals' opinion, it seems to me.

Mr. Montoya: Well, Your Honor, I don't know whether you'd call it a reasonable accommodation or a relaxation of the qualification requirement because the... the ADA, under 12112(b)(6), does apply to qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals.

And that's what the Ninth Circuit, by any other words, was talking about in this case.

There's a... an alleged, a highly disputed qualification standard that screens out this particular individual, Mr. Joel Hernandez.

Justice Scalia: What disability would you be accommodating?

Mr. Montoya: You would be accommodating the disability of disabling addiction to drugs and alcohol.

Justice Scalia: He doesn't have that disability.

Mr. Montoya: Well, but the ADA...

Justice Scalia: He used to have it but he doesn't have it...

Mr. Montoya: But the ADA... under the definition of disability set forth by the ADA, Justice Scalia, someone with a record of a disability is in fact disabled under the statute.

Justice Scalia: He is in fact disabled, but... but what... what disability of his are you accommodating?

Mr. Montoya: His former... you're relaxing a qualification standard that would... that would hinder the entrance of a reformed alcoholic who was disabled under the statute into the job market, which is the purpose of the ADA, not to segregate disabled individuals who can work from the job market.

Justice O'Connor: But when he comes back years later, he's not disabled.

I mean, I just don't see how it fits.

Mr. Montoya: Well, it... it... Justice O'Connor...

Justice Scalia: It doesn't fit.

Mr. Montoya: it doesn't fit in...

Justice Scalia: No.

Mr. Montoya: to the traditional reasonable accommodation analysis.

Justice Kennedy: No.

Mr. Montoya: However, it does fit into the statute, to the language of the statute, 12(b)(6), those qualification standards that screen out.

Under the ADA, those have to be relaxed.

Whether you call the relaxation of those standards reasonable accommodation or whether you call it something else, substantively it's the same thing.

It is an accommodation of a qualification standard or a relaxation of a qualification standard based upon a particularized inquiry regarding an individual applicant.

That's what the ADA expressly demands in the language of the statute itself, and that's what the Ninth Circuit was talking about in this case when it said Raytheon's alleged uniform practice violated the ADA.

Justice Stevens: And that's what the Solicitor General says is not really presented in this case, though.

Mr. Montoya: Well, it's hard to say that it's not presented in this case, Justice Stevens, because the Ninth Circuit addressed that very issue.

Justice Stevens: Well, they didn't address section 112, though.

Mr. Montoya: Well, it didn't cite 112, but it... it...

Justice Stevens: They didn't cite it, and they said it's not a disparate impact case, too.

Mr. Montoya: And I... I think what the Ninth Circuit meant by that, Justice Stevens, is that we're not talking about a class of individuals treated disparately.

We're talking about one individual who was treated discriminatorily.

And the ADA also...

Justice Stevens: He's only discriminatorily treated because he's a member of a... of a specially defined class, namely, reformed alcoholics and... and drug-addicted persons.

That for that record makes him a disabled person.

He's kind of in a unique class.

The... the court of appeals really did not focus on this part of the case.

Mr. Montoya: Well, Your Honor, even though there's that language regarding disparate impact, it nevertheless ruled the way it did and said that this... and... and in fact, the... the Ninth Circuit...

Justice Stevens: But the ruling that it adopted, as I understand the statute, really deprived the employer of an opportunity to... to set forth any of the affirmative defenses that would be available, business necessity, and so forth.

Mr. Montoya: Well, Your Honor, the employer had the ability to assert those affirmative defenses in its complaint in the district court, which is part of the record in this case, and it did not.

Undue hardship, business necessity, direct threat, all of those...

Justice Scalia: They don't need to assert those defenses if someone was claiming a failure to accommodate, and if that was not what was before the house, they'd have no incentive to do that.

Mr. Montoya: Well, clearly, Justice Scalia, Mr. Hernandez was challenging this rule that screened him out, and if in fact...

Justice Ginsburg: But why do we even get to that?

This is... this case is so puzzling on... for many reasons, but one thing is Medina or Medina said he didn't come up with one shred of proof that he's no longer an addict, and we are permitted... being an addict is not a disability within the ADA, being an addict.

Being a reformed addict is.

So said this employer, look, he sent a letter... he sent a letter from his church pastor.

He sent a letter from Alcohol Anonymous.

Maybe that shows that he's no longer an alcoholic, but there's not one thing here that says he's no longer addicted to cocaine.

And there... and I don't... I didn't find anything either that said that.

Mr. Montoya: Well... well, Your Honor, I think that if you construe the facts and the inferences in Mr. Hernandez's favor, as you must, Mr. John Lyman's letter, who is the AA sponsor, says that he is in recovery from addiction.

And if you construe the inferences in Mr. Hernandez's favor on a motion for summary judgment, I think that that would also include his addiction from other substances as well.

Justice Ginsburg: Even though this is... this is solely from someone who knows him from the alcohol program.

Isn't the most logical assumption if he's got a letter from an AA counselor, that what they're talking about is alcohol addiction?

Mr. Montoya: Yes, Your Honor.

However, because AA offers a rehabilitation program for any type of alcohol or substance abuse, I don't think it would really matter in this case if you construe the facts and the inferences in favor of Mr. Hernandez, as you must, because he was the non-moving party in the context of a motion for summary judgment.

Justice Scalia: The inference you want us to construe in his favor is that alcohol means things other than alcohol.

Chief Justice Rehnquist: Is that...

Mr. Montoya: Well... well...

Justice Scalia: Is that a favorable inference, or is it a wild leap into the... into the dark?

Mr. Montoya: I... I don't think it's a wild leap into the dark, and I think it's supported by the text of Mr. John Lyman's letter.

Justice Scalia: Where is that letter so we can look...

Mr. Montoya: It is appendix 14a, Justice Ginsburg, and it says, Joel attends AA regularly, participates in discussion when appropriate, and is maintaining his sobriety, and is in all a good and active member.

Mr. Hernandez is maintaining his sobriety.

Justice Scalia: Sobriety.

Mr. Montoya: That is a general statement.

And there are many...

Justice Scalia: Really?

I... I... you... you refer to somebody who's a recovered drug addict as he's now sober?

Mr. Montoya: Yes, clean and sober.

Justice Scalia: Gee, I don't think so.

I think sober is... refers to drunkenness.

Mr. Montoya: I... I think it can refer to any...

Chief Justice Rehnquist: You say a drug addict is stoned.

You don't say he's...

Mr. Phillips: [Laughter]

Mr. Montoya: Well, I... I think... I think that if someone is not on drugs, someone can be described as clean and sober.

Sober means...

Justice Ginsburg: But in the next paragraph, it says, Alcohol Anonymous has been demonstrated the best recovery tool for alcoholics.

Mr. Montoya: That is true, Justice Ginsburg.

Justice Ginsburg: And it says he's... he's committed to this program, demonstrates his willingness to accept responsibility for his recovery.

Mr. Montoya: But this letter... this letter is unequivocal that he was in recovery.

This letter is unequivocal that he was maintaining his sobriety, and I... and I contend that it is reasonable to believe that there's more than... alcohol is just one form of drug, and alcohol is a drug that impacts sobriety.

There are other drugs that impact sobriety, and cocaine impacts sobriety.

I think that the clear import of this letter is that he is clean and sober in all respects and is taking responsibility for his recovery in all respects.

And the point that Justice Ginsburg brings up is not a point that the trial court gave any credence to.

It's not a point that the court of appeals gave any credence to.

And that is really the type of argument that I would contend should be presented to the jury.

And... and that's especially true in this case because Raytheon claims...

Chief Justice Rehnquist: Whether or not summary judgment should be granted is a question of law, not... not a question of fact.

And so the same arguments can be made in... in every court that's considering it I think.

Mr. Montoya: That is... that is correct.

However, depending upon the weight of the evidence, some...

Chief Justice Rehnquist: The weight of the evidence has nothing to do with summary judgment.

Mr. Montoya: Well... well, if... if there's a factual dispute, Justice Rehnquist, then the summary judgment is no longer... then summary judgment is no longer appropriate.

What I perhaps should have stated is that this... this letter renders summary judgment inappropriate in reference to the question of whether or not Mr. Hernandez is maintaining his recovery.

Justice Ginsburg: I thought you were going to say that the... what the plaintiff claimed is a witness.

The plaintiff says, I've had this whatever the... the moment was.

I reached rock bottom or whatever you called it, and I woke up one day and said no more and ever since then I've been clean.

So the... so the... the plaintiff did... that was the only proof.

That might not be very convincing, but it was a statement...

Mr. Montoya: That... that is true.

That is part of the record.

And moreover and more importantly, that is unrebutted below.

At no time in this proceedings did Raytheon ever question Mr. Hernandez's rehabilitation.

On July 4th of 1992 in his affidavit, Mr. Hernandez said that he embraced Jesus Christ as his Lord and Savior and foreswear drugs and alcohol.

That is in his affidavit.

That is unrefuted.

And more important... and just as importantly, Raytheon didn't subject him to an IME.

Under rule 35, hey, you say you're... you're rehabilitated?

Prove it.

Let's send you to a physician to let him ascertain that.

The question of rehabilitation is in fact a question of fact that was not contested in the proceedings below, and in fact...

Justice O'Connor: Well, all that adds up to the fact that he was not disabled when he reapplied.

Justice Breyer: He wasn't.

Mr. Montoya: That is correct.

Justice O'Connor: And... and nobody is arguing that he was.

He wasn't disabled.

So he doesn't fit under the statute...

Mr. Montoya: Well...

Justice O'Connor: as a disabled person.

He wasn't regarded as because he wasn't asked to take a test or anything.

I mean, he just doesn't fit under the definition of disability in the statute.

So...

Justice Stevens: But he had a record of disability, which makes him disabled within the meaning of the statute.

Mr. Montoya: Yes, that is true, Justice Stevens.

And Justice O'Connor, in fact, in George Medina's letter, he says that there's a complete lack of evidence indicating successful drug rehabilitation, indicating that Raytheon believed that he was still addicted.

And not only does Raytheon say that once in a footnote in its position statement, it also says it again.

Mr....

Justice Ginsburg: Of course, if he's still addicted, then he's not protected by the act.

Mr. Montoya: Well, they... it's a false belief that they believe he's addicted.

And... and if he's regarded as taking drugs and alcohol and is... and is disabled as a result of that addiction, then he is regarded as disabled under the act, which is exactly what Raytheon said in writing in its first official statement regarding this case.

Justice Ginsburg: Mr. Montoya, in your... you say now that you question the existence of such a rule, and yet you've had an opportunity for discovery in the district court and you didn't try to pursue any kind of disparate impact.

I... I don't see that you ever asked any questions about, well, let's look at this rule.

Do you apply it to people who were let go for stealing or whatever other reasons?

You never, never tested the rule.

Mr. Montoya: Your Honor, the rule was tested in the context of the deposition examination of the only two witnesses that Raytheon produced who testified about the rule: Bockmiller and Medina

And, first of all, no one knew the genesis of the rule where... or... or not... they didn't even describe it as a rule.

In the depositions, they described it as a practice, and they didn't know the origin of the practice.

They didn't know how often it had been applied.

They didn't know why it hadn't been written down.

And moreover and... and very importantly, this oral practice contradicted Raytheon's written practices.

For example, under Raytheon's written rules, a temporary employee who tests positive for drugs and alcohol, quote, will have their assignment terminated and will not be eligible for assignment or for regular employment for the succeeding 12 months.

So Raytheon has a written rule that is actually contrary to its alleged oral practice, which impeaches the testimony regarding the existence of the written rule.

If a temporary employee tests positive for drugs and alcohol, the temporary employee is terminated, but can reapply even for permanent employment... temporary or permanent employment within 12 months.

That impeaches the very existence of the alleged oral practice.

In fact...

Justice Ginsburg: I still don't understand why you didn't follow up those two depositions with interrogatories, saying what is the origin of this practice.

How long have you had it?

To whom have you applied it?

The company certainly would have records of the people that they've discharged for cause, how many of them had applied to be re-hired.

Mr. Montoya: That's true, Justice Ginsburg.

However, that's a two-edged sword.

Raytheon also didn't adduce any evidence of its application to any other individual and that would actually be Raytheon's burden.

If we, as the Ninth Circuit concluded, established a prima facie case, then it's Raytheon's duty to rebut that prima facie case with some form of evidence.

The only evidence that Raytheon produced in reference to this oral practice was the testimony of Bockmiller and Medina, and they didn't adduce any applications of this rule either.

So if you look at the totality of evidence, actually that deficit in the record cuts against Raytheon and in favor of Mr. Hernandez.

Justice Scalia: Mr. Montoya, I... I hope... you don't have much time left.

I hope you will... just give me an answer to the only question in this case that I care about.

And I don't care about all these factual controversies.

They can be sorted out later.

What is your response to the question of whether... assuming that this company fired your client... or refused to rehire your client because he had been fired for misconduct.

Justice Stevens: Okay?

Justice Scalia: It has a right to do that, and... and it is not a... an instance of disparate treatment.

What is your response?

Mr. Montoya: Your...

Justice Scalia: Is it anything other than the... the need for accommodating a disability?

Is... is that the only reason why it is unlawful?

Mr. Montoya: No, that's not the only reason.

If... if I understand your question, Justice Scalia, it's not only a question of reasonable accommodation, it's also a question of whether or not he's the most qualified.

It's also a question of whether or not he constitutes a direct threat or his rehiring would give rise to an undue hardship or was justified by a business necessity.

Justice Scalia: But that's... that's all... those are all categories under the need to accommodate.

Justice Stevens: Right?

Mr. Montoya: Yes, Justice Scalia.

Justice Scalia: Apart... apart... assuming that... assuming that I don't think that issue was raised in the case, is there any other reason why it would have been unlawful, assuming that they were simply implementing a policy?

Mr. Montoya: Yes, Your Honor.

Based upon 12(b)(6), the screen out or tend to screen out, this screened out this particular individual, and in that respect, Justice Scalia, I believe that this case is very analogous to the Court's opinion in PGA v. Martin where you have a uniform rule that someone claims is not subject to any exception.

I think that this rule violates the ADA, as the Ninth Circuit concluded because this rule is the antithesis of a particularized inquiry that the case law demands a disabled applicant or a disabled employee receive under the Americans with Disability Act.

If Your Honors have no further questions, I'll thank you.

Rebuttal of Carter G. Phillips

Chief Justice Rehnquist: Thank you, Mr. Montoya.

Mr. Phillips, you have 4 minutes remaining.

Mr. Phillips: Thank you, Mr. Chief Justice.

It seems to me that there are two ways to look at this case.

One is you can simply take the court of appeals at its word, which is to say we think there's a question for... that... that defeats summary judgment on a prima facie case, but when we get to the question of what the policy is of the... of the employer in this case, there's no dispute about that, the employer's policy was applied, and then address the question of whether or not that policy is valid under the ADA.

I have not heard Mr. Montoya yet attempt to defend that... that holding in the face of a disparate treatment theory in this case.

He puts in disparate impact under 12(b)(6).

He puts in reasonable accommodation, 112(b)(6) and 112(b)(5).

Those are not issues that were decided below.

They were not the theory of the court of appeals.

This is a decision that has extraordinary implications because thousands of employers have precisely this rule.

It is important for this Court to declare that that rule is valid.

On the secondary question... and that is, can the Court get to that question?

I think there's no doubt that the Court ought to just follow the court of appeals' logic on that.

But if the Court wanted to look at whether or not there is a question of fact as to whether or not this person was discriminated against because of his disability, I submit to you that the record does not permit a jury to make that finding under this Court's decision in Reeves.

Bockmiller was the decision maker.

She testified, without contradiction, that she never looked past the summary sheet that said he was discharged because of conduct, and that was it.

And she didn't have to look beyond that.

Medina testified, without contradiction, that that is the policy that applies.

She applied it in the right way.

We do it consistently.

It would have made no difference whether he was a thief or whether he was somebody who used drugs.

We applied it that way.

Mr. Montoya and his client had 2 years to discover whether that policy existed, whether it had exceptions, whether it was applied in any other particular way, and there is not one shred of evidence... he didn't even ask those witnesses if there were flaws in the way they applied it.

That is absolutely across the board.

The only... and... and then, you know, this is a policy that exists.

Thousands of employers use precisely this policy, which is why frankly it probably isn't written down.

And so at the end of the day, there is nothing on the other side of this except the one statement that was sufficient to justify getting beyond the prima facie stage of this case, but that is not sufficient to justify taking this to a conclusion or to raise an issue of fact as to whether or not he was discriminated against because of his disability.

He was acted against because he violated the company policy.

That policy is valid under the ADA, at least as it's been litigated at this point, and for that reason the Court should reverse and enter judgment in our favor.

If there are no other questions, thank you, Your Honors.

Chief Justice Rehnquist: Thank you, Mr. Phillips.

The case is submitted.

Justice Ginsburg: The honorable court is now adjourned until Tuesday the fourteenth of October at 10 o'clock.

Attribution:

The Oyez Project

Featured:

Chevron U.S.A., Inc. v. Echazabal - Oral Argument

Fri, 09 Jan 2009 14:50:24 +0000

Case:

Chevron U.S.A., Inc. v. Echazabal

Media File:

00-1406_20020227-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Stephen M. Shapiro

Chief Justice Rehnquist: Mr. Shapiro.

Mr. Shapiro: Thank you, Mr. Chief Justice, and may it please the Court: According to the National Institutes of Health, hepatitis C kills 8,000 to 10,000 people in this country every year, and it's the largest cause of liver transplants.

This is a progressive disease, which in many cases goes without any symptoms for a period of time, but in a large percentage of cases, it results in cirrhosis and liver failure.

The disease in this instance was chronic, active, and severe, according to the standards of the NIH.

Now, NIOSH's Occupational Health Guidelines also confirm that the chemicals in this factory were liver toxins.

The ordinary worker can withstand that exposure, which is consistent with OSHA standards.

But the Government's guidelines say again and again that employees should receive medical tests before beginning work to look out for special vulnerability.

NIOSH's statement about phenol, one of the 12 chemicals here, is typical, and I quote from the guideline.

Liver damage may occur.

Persons with a history of abnormalities of the liver would be expected to be at increased risk from exposure.

Now, none of this matters according to the Ninth Circuit because injury to self is beyond the employer's legitimate concern.

But we believe that the plain language of the statute and its structure tell a completely different story.

The defense provision in the statute, which is section 12113(a), first speaks in general terms.

Chief Justice Rehnquist: Where do we find that, Mr. Shapiro?

Mr. Shapiro: That is found on page 59a of the petition appendix.

Justice O'Connor: 59a?

Mr. Shapiro: 59a, Your Honor, yes.

Justice Stevens: Actually it's 58a, 1211(a), at the bottom--

Mr. Shapiro: It begins on 58a, but the pertinent provision, 12113(a), is right there on 59a.

Justice Stevens: --You first referred to the general rule.

That's what I thought.

Mr. Shapiro: And the general provision says it is permissible to use qualification standards and tests that are job-related and consistent with business necessity.

This is generic language and it does not exclude injury to self.

After this general provision, the statute--

Chief Justice Rehnquist: Which one is the general provision?

Mr. Shapiro: --The... the first part is 12113(a), which states: in general.

That's the general defense provision.

And right after it comes a particular example in subpart (b), which refers to risks to other individuals.

And that, of course, is just an example that fits within the general rule here, and we know it's just an example because Congress said that permissible standards may include such a test.

This is obviously not an exhaustive description.

Justice Ginsburg: And why isn't it an exhaustive description at least of that category, of the category of direct threat to health or safety?

I can see that the words, may include, may include this and it may include that, but when the... when the Congress is describing direct threat and it has only the health of other individuals, why for that part isn't it self-contained?

I mean, you say it has a plain meaning.

It would have been much plainer if Congress had said: of the individual or others, if that's what it meant.

Mr. Shapiro: We think the... the phrase, may include, is illustrative of matters that might fit into the general description that comes just before and that injury to... to other persons and injury to self are... are both matters that fit within the general description of business necessity, public safety--

Justice O'Connor: Well, there's some legislative history that suggests that indeed it wasn't intended to allow review of danger or risk to the employee himself.

Mr. Shapiro: --We found several instances that we cite in our brief where Congress was talking about injury to... to the individual himself.

So, again, it's not an exclusive reference.

And I think if you look at the structure of the statute, Justice O'Connor, it again helps to answer this question.

Justice Scalia: It's... surely it's exclusive to some extent.

I mean, Mr. Shapiro, you certainly wouldn't argue that a qualification could include a requirement that the... that the individual not pose an indirect threat to the health or safety of other individuals.

Mr. Shapiro: That might be an inference from that language--

Justice Scalia: Right.

So--

Mr. Shapiro: --that that would be inconsistent with the express language.

Justice Scalia: --Right.

So, I guess the question is how strong is the exclusionary inference--

Mr. Shapiro: We think it's... it's particularly weak because the... the provision that comes right before this provision that deals with discrimination makes it clear that the employer may use medical examinations and may make an offer of employment contingent on the results of those medical examinations.

That's in the discrimination section.

Justice Scalia: --Where... where is that now?

What are you--

Mr. Shapiro: That is in section 12112(d), which is quoted in our reply brief at page 7.

Justice O'Connor: --Where do we find that?

Reply brief?

Mr. Shapiro: At reply brief page 7.

It says the employer may require a medical examination and may condition an offer of employment on the results of that examination.

Again, the focus is perfectly general in scope.

The exam is lawful if it is job-related and consistent with business need.

Now, we don't think it's necessary to resort to legislative history in this case, but there is a conference report here that stated that this act does not intend to override any... any... legitimate medical standards or requirements established by employers for safety-sensitive positions.

Justice Kennedy: Well, Mr. Shapiro, as I go through this statute, under your theory of the case, beginning on page 58a, 12118, do you concede, for purposes of the statutory analysis, that the employee here was a qualified individual?

Mr. Shapiro: We... we deny that he was a qualified individual.

We make two arguments: one, that... that we have a business necessity not to hire somebody who would be killed in this particular job, but also that he's not qualified.

Justice Kennedy: So, as... as you see the case, could we dispose of the case by reading just 1211... 121118 and end it right there--

Mr. Shapiro: Absolutely.

Justice Kennedy: --and find what we're talking about in defenses just does not bear on our determination one way or the other?

Obviously, you look at the whole context of the statute to make sure that what you're doing is consistent... consistent with it.

Mr. Shapiro: I... I would agree with that, and we--

Justice O'Connor: It's hard to say he's not qualified when he worked there for the other contractor in the same circumstances for 20 years or so.

Mr. Shapiro: --The qualification standard focuses on whether he can perform the job on an ongoing basis in the near term.

And... and if the person would become seriously ill or die in the near term, that person can't carry out the job functions.

Justice Scalia: But 12113 specifically deals with qualification standards.

I mean, don't you think that the qualification standards portion has to be read in pari materia with the... with the... with the provision defining a qualified individual?

I mean, it seems to me the two are addressing exactly the same thing.

Mr. Shapiro: There is linguistic overlap and there is practical overlap.

A person who is not qualified is a person--

Justice Scalia: I mean, you wouldn't... you wouldn't say that... that a person is not a qualified individual if he would pose an indirect threat to the health or safety of others, would you?

Because that's clearly excluded.

You cannot use that as a qualification standard.

I... I just don't think it's an easy way out.

I just... it is in another section, but I think that other section has to be read to... to be corresponding to the qualification standards.

Mr. Shapiro: --Our view is that there's overlap between qualification and business necessity.

Justice Kennedy: Are we ultimately--

Mr. Shapiro: But they're not coextensive.

Justice Kennedy: --Are we ultimately asking the question, is he qualified?

Mr. Shapiro: That's the first question.

The second question is, if he is qualified, because, as Justice O'Connor said, he can do the job in the short run, which we don't think he can, then the question is whether we have a business need to retain him.

Justice Kennedy: Well, but let me... when we go through the whole statute, including 121113, do you ultimately say we come to the conclusion that after reading the whole statute, he is not qualified, as that term is used in 8?

Mr. Shapiro: That's our principal submission.

Our backup--

Justice O'Connor: Now, you don't even rely on the EEOC regulation?

At least you're not arguing from that.

Mr. Shapiro: --We... we... it's one of our... we have several arguments in the alternative, yes.

Justice O'Connor: The regulation specifically says the individual... the threat to the individual can be considered.

Mr. Shapiro: We believe we... we can win the case on that ground.

Justice O'Connor: But the Ninth Circuit thought that went beyond the clear terms of the statute.

Mr. Shapiro: Yes, and we think that that regulation is perfectly consistent with... with the general defense provision, and we believe we can win the case under that regulation and, indeed, that it's entitled to Chevron deference because this agency had legislative rulemaking power to issue that standard.

Justice Ginsburg: But then you give the... then you give the agency no deference at all when the agency says, yes, of course, he's a qualified individual.

He can do the job.

He's done it and he hasn't dropped dead for those 20 years.

But so you say don't give the EEOC any respect on... on the qualified individual, but give them Chevron deference on the 12113.

Mr. Shapiro: We--

Justice Ginsburg: So, it's kind of when you like what the agency says, you respect it, and when you don't like it, you don't respect it.

Mr. Shapiro: --Well, I would note that the... the agency in its cert stage amicus brief said that the qualification issue is whether the individual can perform the job in the near term.

And we agree with that.

But we say this person cannot do that because--

Justice Ginsburg: Well, if you agree with what they said... they have spelled it out what their position is in their brief, and they said, in no uncertain terms, this is a qualified individual.

Mr. Shapiro: --But you'll... you'll note--

Justice Scalia: That's just in the brief, though.

They didn't issue a rule to that effect, did they?

Mr. Shapiro: --Absolutely.

That's just a brief--

Justice Scalia: And we're... we're not paying any attention to what they say in briefs, are we?

[Laughter]

Mr. Shapiro: --Well, they say... they say helpful things in the brief too.

They note that firemen and... and airline pilots and others that would succumb to an illness while they're conducting their jobs in the near term are disqualified.

They're not qualified to do the job.

And the reason is that safety considerations are paramount there, they say.

Well, they're paramount in this refinery too.

There were five physicians here who said this individual was at imminent risk of death--

Justice Breyer: Just out of curiosity, why does he want to kill himself?

Mr. Shapiro: --It's an old story, Your Honor.

Some people do not listen to their doctors.

I won't speculate on--

Justice Breyer: All right.

You say... I mean... the reason I ask that question is I suspect in any real case, since people don't really want to kill themselves, there's an argument about how risky it is.

Mr. Shapiro: --Well, if you read the cases that we've cited, it's amazing how frequently people with--

Justice Breyer: In all those other cases, it seemed to me... in all the cases that you cited--

Mr. Shapiro: --Yes.

Justice Breyer: --there was a different issue at stake, and that in part was whether he could do the job.

And here, perhaps unrealistically we are assuming, for the sake of this case, that he can do the job perfectly well.

Mr. Shapiro: We... we don't assume that.

Justice Breyer: All right.

You don't.

But suppose... I don't know.

I thought the issue is presented in the context where we're forced to make that assumption.

I don't think anyone denies that if he can't do the job with reasonable accommodation, you have the right not to hire him.

I don't know that anyone denies that one.

Mr. Shapiro: We say he... he is like the steel worker with vertigo who can fall--

Justice Breyer: Fine.

Mr. Shapiro: --off the beam at any moment--

Justice Breyer: Fine.

If that's correct... does anyone doubt that proposition of law?

Mr. Shapiro: --I hope not.

Justice Breyer: No, all right.

So, this becomes serious as a matter of law only if we assume that he can do the job.

And I just wonder under those circumstances whether in any real case the issue isn't an argument about how risky it is, and if that's so, my question would be, why doesn't this statute try to leave that matter up to him?

If he does the job for you okay, that's your business.

And if he wants to run greater risks than you think he should, that's his business.

Mr. Shapiro: This statute rejects that thesis in the medical examination provisions, recognizing that the employer has a stake in this issue.

There are many legitimate interests that the employer has.

Justice O'Connor: Is it the case that it would violate the Occupational Safety and Health Act for Chevron to hire this person under those circumstances?

Do we know that?

Mr. Shapiro: Arguably it would, Your Honor, because this is a known hazard.

Justice O'Connor: Does that have to be considered then in the balance of qualification?

And the court below, I guess, didn't resolve that.

Mr. Shapiro: It should... it should factor into the business necessity evaluation because we do have a business necessity to avoid violating State law and Federal law.

And here there--

Justice O'Connor: What section of the OSHA would you point to on that?

Mr. Shapiro: --I would point to the general duty--

Justice O'Connor: And is it... is it in the material before us?

Mr. Shapiro: --Oh, I... I see we... we didn't put it in our appendix, but it's the general duty provision of the OSHA statute cited in our opening brief and our reply brief.

And what it says is that if you've recognized a hazard, you cannot send the employee into the jaws of that hazard.

Justice Ginsburg: Where... where is the text of that that you're reading now?

Mr. Shapiro: It's the general duty clause--

Justice O'Connor: Maybe you can supply it later rather than take your time now--

Mr. Shapiro: --Yes.

We'll supply it for you.

Justice O'Connor: --because we would be interested.

Justice Scalia: You were... you were about to say why the... the employer has an interest other than the mere charitable one in not letting an employee kill himself.

Mr. Shapiro: Yes.

Justice Scalia: What... what is... what are the interests?

Mr. Shapiro: There are several--

Justice Scalia: Other than not violating OSHA.

Mr. Shapiro: --several interests.

There... there is Federal law compliance.

There is State law compliance.

There is State tort law liability that we're concerned about.

Justice O'Connor: Does Workman's Comp go up if... if he suffers?

Mr. Shapiro: It... it could.

It certainly could.

Justice Kennedy: Suppose the Federal statute said this is... this preempts any inconsistent duty, that the employer is not liable for compliance with this statute.

Mr. Shapiro: Well, we would hope that preemption would work that way, but preemption issues in the States court often do not.

Justice Kennedy: Let's assume... let's assume it does.

Is there still a business necessity?

Mr. Shapiro: Oh, yes, there still is.

Justice Kennedy: And what is that?

Mr. Shapiro: That's... that's preservation of employment relations, avoidance of adverse publicity, and... and fear of criminal responsibility.

There have been many criminal prosecutions, and courts never... never hold that... that general criminal laws are... are preempted by Federal safety legislation.

So, I don't think that's... that's any defense in that situation.

There are... in all well-run businesses today, the model of the business is safety is our business.

For 100 years in this country, the industrial policy has been safety comes first.

So, this is per se a legitimate business interest in this context.

Now, our... our friend's argument to the contrary, interestingly, is an exact replay of the argument that was made to the EEOC back in 1991 when the agency adopted its rules.

The argument was made then that if you refer to risk to self, it's going to encourage paternalism and encourage negative stereotypes.

But the agency rejected that argument, explaining it was inconsistent with the purpose of the statute and was inconsistent with a long line of cases under the Rehabilitation Act.

And the agency's judgment here, we believe, is entitled to Chevron deference.

Justice Ginsburg: Wasn't that the argument that was made in Johnson's Control that this is unsafe the... the... allowing a woman of child-bearing capacity to work... was it... what was the toxic substance--

Mr. Shapiro: Yes.

Justice Ginsburg: --that... that the same kind of evidence that you have about how dangerous it was, it's as dangerous to the woman, dangerous to the fetus?

Mr. Shapiro: That was evaluated under a different legal standard, the BOFQ standard, which is much more stringent.

This Court has said the business necessity standard is more flexible and... and permissive.

And that was a case where the Government said there was no serious risk, and all you had to do is take a simple precaution and the lead would not injure the... the fetuses of... of the woman.

And there was discrimination between the sexes, which was the real thrust of the Court's decision, and there's nothing like that here.

Justice Ginsburg: But I thought the BFOQ goes together with an explicit sex--

Mr. Shapiro: Yes.

Justice Ginsburg: --what do they call it?

Disparate treatment.

Mr. Shapiro: Exactly.

Justice Ginsburg: And that here... and the business necessity goes with neutral rule disparate effect.

Are you saying that's what we have here?

Mr. Shapiro: Business necessity applies to any screening test or medical examination or qualification standard that the employer uses.

And this was something that the business community fought hard for in Congress to get this flexible test.

It's repeated three or four times in... in title I of the statute, and... and to disregard it here we think defeats the very basis of this legislation.

I see I've used a great deal of my time.

I wonder if I might reserve the balance of the time for rebuttal.

Argument of Lisa Schiavo Blatt

Chief Justice Rehnquist: Very well, Mr. Shapiro.

Ms. Blatt, we'll hear from you.

Ms Blatt: Thank you, Mr. Chief Justice, and may it please the Court: If I could first address just how the statute works with respect to whether an individual is qualified.

It proceeds in two basic steps.

The plaintiff has the burden of proof to show that he can perform the essential fundamental job tasks of the job and that he satisfies the employer's other qualification standards.

Now, if a particular qualification standard screens out someone because he is disabled, then the burden shifts to the employer to justify that standard as job-related and consistent with business necessity.

And what... the EEOC's regulatory threat to self regulation is one example of a subset of a valid standard that is job-related and consistent with business necessity.

The statute recognizes that a valid qualification standard may include a safety requirement that an individual not pose a safety threat to others in the work place.

The EEOC has reasonably concluded that a parallel defense is available if the individual would pose a significant safety threat to himself.

Justice Scalia: I... I have one question.

I guess it's a... maybe a soft variety of the expressio/exclusio argument.

But the theory of Chevron deference is that the... that the Congress basically left a blank place to be filled in in whatever way the agency think is best.

Why would Congress have wanted to leave, as it were, a hiatus on the question of individual safety when it specifically attended to safety of others?

It just seems like an odd thing to leave up to the agency when it was that close to the subject in... in what it did require.

Ms Blatt: Well, the context is very important here.

What the direct threat to others... the statutory threat to others defense... is is a codification of this Court's decision in Arline, and that arose in the context of a teacher with a contagious disease that posed a direct threat to others.

But Congress expressly anticipated that other types of safety threats would be addressed by the more general business necessity.

Congress simply didn't address safety threats to self or safety threats to others in the public and not necessarily the work place.

Justice Scalia: Perhaps Congress thought like Justice Breyer, that it's quite implausible that anybody would want to kill himself.

Right?

I mean, it... it is not something that leaps to mind, that you... you have to stop somebody from taking a job that's going to kill him, whereas stop somebody from taking a job in which he's going to hurt somebody else, that's something you would worry about.

Ms Blatt: The threat to self context can come up where an employee wants to either, A, assume the risk or, B, there's a disagreement about whether that risk in fact exists.

Now, the question is, is when an employer can prove, meet a burden of showing a documented and scientific basis for finding a significant risk of substantial harm, the employer has legitimate interests in refraining from injuring or killing its workers.

The mere fact that the employee consents to that risk cannot trump the employer's interests, no more than it could if the employees agreed to assume the risk of working in an environment with a person with tuberculosis.

In both cases, the employer has legitimate interests.

Now, at the same time, the legislative history shows that Congress was concerned about employment decisions based on stereotype or group-based predictions and unfounded fears about disabled people posing safety threats.

And what the regulations do is carefully balance the employer's legitimate interest with the rights of disabled persons to be free of these prejudicial decisions by requiring an individualized determination that looks at the person's actual medical condition and recognizes that disabilities pose varying levels of side effects and limitations or safety threats and requires an objective determination based on--

Justice O'Connor: Well, they have a physician's exam and report.

Is that enough?

Ms Blatt: --The regulations require it to be based on objective or other medical examination.

Justice O'Connor: Well, so this--

Ms Blatt: And that may... well may be.

Justice O'Connor: --So, is that enough in... in the view of the Government?

Ms Blatt: In the view of the Government, if the medical opinion is reasonable, then that's enough.

Now, in... in this case--

Justice O'Connor: But you take the position in the brief that perhaps it isn't.

I was curious about that.

Ms Blatt: --The position that the EEOC argued to the Ninth Circuit, which the Ninth Circuit did not address and would be available on remand, was that there was a factual dispute that summary judgment should not be entered on whether there was a reasonable determination.

But employers are entitled to rely on the reasonable medical judgments that reflect available current... current medical knowledge.

Justice Breyer: Can I ask you a question about the reg?

Because normally you should, of course, defer to the agency's regs.

I understand that.

But this particular reg is surprising the way it's written; that is, it doesn't say there are a lot of qualification standards.

One of them is a direct threat to individuals, contagious disease problem.

Another one is the suicidal employee.

Rather it has the definition of the word, direct threat, and that's where it sticks the word self.

And it appears then to be talking about a definition in the statute, direct threat to others.

And it defines direct threat to others as direct threat to self and others.

Now, if what it's doing is explaining the words, direct threat to others, I don't see how you can define the words, direct threat to others, to deal with a completely different kind of problem involving direct threat to self.

Ms Blatt: With all due respect, Justice Breyer, what the... what the agency did... and it's on page 60a of the petition... is said that a valid qualification standard includes a requirement that there not be a direct threat to the individual.

And then it separately defined direct threat in terms of the way direct threat was defined by Congress.

Justice Breyer: And you left out three things.

It says, direct threat to the health and safety of the individual or others.

See 1630.2(r) defining direct threat, which refers you back to the reg in which what they seem to be doing is defining the words, direct threat.

Ms Blatt: But what... what the agency did, as a matter of administrative convenience in protecting the rights of disabled persons, is that in... in crafting a regulatory threat to self defense, it wanted to ensure that the same protections would be given to workers and that there had to be a showing of a significant risk of substantial harm.

At the same time, this was beneficial to employers.

So they wouldn't be confused by two different standards, it would be the same standard.

The agency could have accomplished the same result had it said, well, we want this direct threat to others that follows the statute and as far as threats to self were concerned, it could have just avoided using the word, direct threat, and said, don't adopt a qualification standard unless it screens out significant safety risks that cause substantial harm.

So, the mere fact... it was administrative convenience to... to have a parallel defense and using the terminology of direct threat.

Justice Stevens: May I ask you, Ms. Blatt?

Do you think... does the Government think that it was proper for the district court to enter summary judgment in the case?

Ms Blatt: Yes, on the... the EEOC argued that the summary judgment on... on direct threat with respect to petitioner's argument.

And that would be available for the Ninth Circuit to consider on remand if this Court upheld the... the regulation.

Justice Ginsburg: Is the district court saying that those two other doctors don't count because they weren't before... I thought you had just said, in response to an earlier question, that that would be open if the... on remand, the question of whether this person was in fact a risk to himself because, as I understand it, there were two witnesses that said he... he was not.

Ms Blatt: Petitioner is arguing that its medical... physicians advised that there was... that there was a direct threat here.

And what respondent argued in response to that on summary judgment is that those decisions weren't reasonable.

And we just think the parties have a genuine fact dispute about--

Justice Ginsburg: But the district judge said they didn't.

The district judge said, I reject those two witnesses.

They come too late.

Goodbye.

Summary judgment.

So--

Ms Blatt: --It's... but what's relevant is not that the opinions were submitted late, it's whether at the time... the... the relevant inquiries at the time the employment decision is made, but you can still ignore what the medical literature says and make an unreasonable decision.

Justice Ginsburg: --So, you think... you're saying the district court erred as to that extent in saying summary judgment, no trial.

This person is a danger to himself.

Ms Blatt: The United States hasn't independently briefed it, but that is what the EEOC argued to the Ninth Circuit.

And it does turn on complicated medical questions that would be appropriately addressed by the Ninth Circuit on remand.

What... what we think this Court should do is hold that respondent was a qualified individual, but the employer is entitled to show that he's not qualified because it has a valid qualification standard that--

Justice Stevens: But do you have a position on the question whether, as a matter of law, the defendant has sustained the burden of proof that it was a reasonable medical decision?

Ms Blatt: --The EEOC argued below no.

Justice Stevens: I'm not asking what the EEO argued below.

I'm asking what is the Government's position on that issue.

Ms Blatt: I don't know what the United States' position on that is, but we don't have any reason to disagree with the EEOC.

We just haven't independently looked at it.

But the EEOC certainly makes a reasonable argument that there was a factual dispute on it and summary judgment was inappropriate.

Justice Stevens: Was inappropriate.

Ms Blatt: Inappropriate, right, that there was a genuine fact dispute about whether the direct threat test was met here, and we think the Ninth Circuit should be able to... to address that in the first instance.

Justice Scalia: Address whether... whether that argument is true or not.

Ms Blatt: Right, that because there is a valid regulation that the EEOC promulgated and it's entitled to deference, it should be upheld, and there's just a question about whether it was met in this particular case.

Justice Scalia: Ms. Blatt, I... I find it peculiar to say he was a qualified individual but he didn't meet the employer's qualification standards.

I mean, what is a qualified individual except one who can do what the employer's standard says has to be done?

Ms Blatt: May I answer, Mr. Chief Justice?

Chief Justice Rehnquist: Yes.

Ms Blatt: It's just... if I could give you the example of the airline pilot with a contagious disease.

He's qualified to fly the plane, but he may, nonetheless, pose an unacceptable safety risk, and that's a valid qualification standard to... to not hire him.

It's just a question of burden of proof basically, Justice--

Argument of Samuel R. Bagenstos

Chief Justice Rehnquist: Thank you, Ms. Blatt.

Mr. Bagenstos, we'll hear from you.

Am I pronouncing your name correctly?

Mr. Bagenstos: Yes, Your Honor.

Thank you, Mr. Chief Justice, and may it please the Court: The exclusion of individuals with disabilities from jobs for their own protection was a principal target of the Americans with Disabilities Act, but the threat to self defense proposed by Chevron here would provide affirmative legal authorization for precisely that sort of conduct.

For three principal reasons, we think it clear that Congress did not authorize such a threat to self defense, the first simply being the statutory text and particularly the change from the EEOC's prior regulations under the Rehabilitation Act which specifically included a threat to self disqualification to the ADA's direct threat provision which is limited to threats to others.

The second being the consistent jurisprudence under Title VII of the Civil Rights Act of 1964, a statute that provided a significant model for Title I of the ADA, that also responds in significant measure to a problem of paternalistic discrimination and--

Justice O'Connor: Just tell us, if you would, why the employee would want to take a job where the doctor says it's going to kill you?

Mr. Bagenstos: --Well, I... I think that--

Justice O'Connor: These toxins will cause your early death.

Now, why does the employee want that job?

Mr. Bagenstos: --Well, I think there aren't really employees who want to do that.

I think Justice Breyer and Justice Scalia's points made in the first half of the argument are well taken.

When Congress was looking at this issue, it wasn't thinking about the largely fanciful case where the employee... where the employee wants to... wants to go into a suicidal situation, but was thinking about the run of cases where, you know, there... there's a small risk, there's an overstatement of the risk, there's some dispute about the risk.

The... and then the question is who decides.

Justice O'Connor: And what is it here?

Mr. Bagenstos: And... and here I think it's clear there's a dispute about the nature of the risk.

I think it's also clear if you look to what... even the... even the testimony of Chevron's doctors is here.

It's a small risk.

Right?

So... so, when the... when the doctors are asked what is the probability that this is going to happen, they can't put a number on it.

Dr. Tang closest he... who is the... who is the most credentialed doctor for Chevron's side of the case, the closest he can come is he says, well, something like 1 percent.

This is at page 88 of the joint appendix.

So, what we're really saying here is that, you know, people get injured in this work place from time to time.

Maybe there's a 1 percent incremental risk.

Even if you accept Chevron's argument--

Justice Stevens: May I interrupt you just for a moment?

Perhaps you're right on the facts of this case, but the legal rule that you're contending for seems it would apply even if the risk was 99 percent and 2 weeks from today.

Mr. Bagenstos: --I think that... I think that is correct, Your Honor.

And... and my response to Justice O'Connor was I think it's appropriate in crafting a rule for Congress to think that the 99 percent death 2 weeks from today cases aren't really going to arise, that the run of cases are going to be like this.

Justice Stevens: How sure can you be about that?

There are people who smoke when they know the risk is very clear.

There are people who will take serious risks because they need to earn money to support a family, and they often will do things their doctors tell them not to do.

But you say they have an absolute right to take whatever the risk is.

Mr. Bagenstos: Well, I... I think they have... they have the same right as people who don't have disabilities.

A very important point is that the question is... the question here is... I'm sorry, Your Honor.

Would you like to--

Justice Stevens: Well, I... I want to also get your view on that because there's another aspect of the case that I'm puzzled by.

Mr. Shapiro at the beginning said that everybody else in the plant is safe under the OSHA standards and so that only this person is at risk.

Is... do you agree with that, or is there also risk to everybody else in the plant?

Mr. Bagenstos: --Well, I... I think that the testimony of... of the two experts on our side of the case... this is why I say it's disputed.

The testimony of the two experts on our side of the case is to the effect that if there is a risk for Mr. Echazabal, there is a risk for everyone else in the plant.

But the real issue is not whether the employer can take steps to make its work place safe.

The real issue is whether the employer or the employee gets to make the decision whether--

Chief Justice Rehnquist: Is it conceivable that someone would not be disabled but still be in a position where the... he would propose a risk to himself similar to this?

Mr. Bagenstos: --I... I... of course, it's possible.

That's absolutely right.

And we don't have any--

Chief Justice Rehnquist: Surely the employer can say no in that situation.

Mr. Bagenstos: --Well, I think... I think what the employer can do... the employer can certainly do whatever it wants with respect to people who don't have disabilities as defined in the statute, at least as far as the ADA is concerned.

But again, the... the question here is we have an individual who is excluded precisely because the employer believed that his disability rendered him unsafe.

And the question is who gets to decide whether this job is too unsafe.

Is it the employer?

Is it the employee?

We believe that... that Congress firmly left that decision in the hands of the employee.

Justice Souter: But the reason you make... I think the reason you make that argument is essentially the... the paternalism theory.

Congress rejected paternalism.

But isn't what Congress rejected a combination of paternalism and stereotype?

It rejected the kind of Johnson Controls situation which would say all women are at risk.

Here you can call it paternalism if you want to, but at least the... the medical claim is that there is a determination of risk specific to this individual.

And can we say that Congress rejected the employer's authority to take that into consideration?

No stereotype.

Specific.

Mr. Bagenstos: I think... I think we can say that.

I think we can... we can say that because of the reference to over-protective rules and the statutory findings.

We can say that because of Congress' lopping off of the threat to self disqualification that had previously appeared in the EEOC regs.

Justice Souter: Well, as I understand... I want to come back to that, but go ahead.

I don't want to--

Mr. Bagenstos: Well, I... I was done with that point.

Justice Souter: --I was just going to say with respect to... when you get to the regulation itself, one answer from the Government was that the... the reason the regulation mentioned threats to others is that there was... there was case law on the point, and there's... there really isn't comparable case law on threats to individuals.

So that one way to read what Congress did was to say it wanted to preserve the law... the case law that there was and leave the rest open.

What do you... what do you say to that argument?

Mr. Bagenstos: Well, I think... I think that... that I may misconstrue their argument, but... but certainly... certainly as to the state of the Rehabilitation Act law at the time the ADA was adopted, there was a specific regulation by the EEOC.

It's quoted in the petition's... petition appendix at page 61, right, that specifically said a person is qualified only if he can perform the essential functions of the position in question without endangering the health or... and safety of the individual and others.

Congress in 42 U.S.C. 12201(a) adopted by reference the Rehabilitation Act regulations, at least as a floor for protection under the ADA.

This is one instance where Congress actually departed from what the prior Rehabilitation Act regulations did.

We think that... that has particular significance, particularly in light of the consistent drum beat not just in the statutory findings, not just in the legislative history at the hearing stage, at the committee report stage, at the floor stage, but also consistently in Title VII law, this... this distinction between... between excluding people based on risk they pose to others and excluding people based on risk they pose to themselves.

Justice O'Connor: Well, isn't there some room, though, for the argument that it... there may be a business necessity not to hire somebody who's going to be killed as a result?

You do have OSHA standards.

You do have workmen's comp premiums that get jacked up if some employee is injured on the job or made ill because of the job.

You have probably labor relations problems as a result of having somebody put at risk on the job.

There... there are arguments there for a business necessity defense.

Mr. Bagenstos: Well, I think... I think there may be arguments there.

I think that they... I think that they're misplaced as a justification across the board for a threat to self defense as the EEOC has adopted.

Worker's compensation premiums--

Justice O'Connor: Maybe but notwithstanding the regulation, just looking at the provisions of the act as applied in this case, how do we deal with that business necessity argument?

Mr. Bagenstos: --Well, I think I'd say two things about that.

First, I think that... I think that the decision that Congress made in 12113(b), the direct threat provision, to say specifically this is... this is a defense that is limited to significant risks, because that's how it defines direct threat, and risks to others, I think that... that in and of itself suggests that Congress has foreclosed a business necessity defense for anything... anything relating to safety risk that falls outside the terms of it, just as Congress couldn't... just as an employer could not say, as Justice Scalia suggested, well, we're excluding this person because of an indirect threat, but there's a business necessity for it.

Justice Kennedy: Well, I thought Justice O'Connor's question was somewhat broader.

Obviously, we understand your statutory position.

But the... the point of her question at least, as... as I began to consider it, was whether or not in this society, it's... it's wrong to say that an employer should care about its employees.

Mr. Bagenstos: Certainly--

Justice Kennedy: It seems to me that that's a very, very important policy to further, and your position wants an employer to take a position that could be completely barbarous.

You have an employee who has severe mobility problems near dangerous machines where he could be maimed, and you say that that's just irrelevant.

I think that's a... an argument that's very demeaning to a society that wants to encourage good conduct on... on the part of its employers.

Mr. Bagenstos: --Well, I think that this Court confronted basically the same argument in the Johnson Controls case, that the employer said... the employer said, look, we have a moral interest in the safety of our employees.

Justice O'Connor: But wasn't that a case involving a broad category of all women of child-bearing age whether or not you were dealing with a specific individual who had been told by the doctor you better not do this.

That was a broad categorical rule.

Here we're dealing with an individual and individual circumstances.

Does that make a difference, do you think?

I mean, I would think Johnson is a... a very sound concept as applied to broad categories, but I'm not sure it covers this case.

Mr. Bagenstos: Well, I... I mean, two points with respect to that.

One is I think that it's clear that as... as the employment discrimination law moves from Title VII which deals with large groups to... to disability, which as... as this Court's definition of disability decisions indicate, is a very individualized kind of a concept.

Right?

I mean, two people who have the same medical diagnosis, one may have a disability, one may not, this Court has repeatedly emphasized.

Necessarily the kind of intentional discrimination we're talking about is going to be intentional discrimination against a person because of his particular disability as opposed to because of some broader group membership.

I... I would suggest that there... there is exclusion on the basis of some kind of group membership even in a case like this.

Anyone with chronic hepatitis C would be excluded by... by what Chevron--

Justice Scalia: But once... once you eliminate the stereotyping as, you know, Justice Souter was... was inquiring about, I don't see why Congress would be so adamant about paternalism for the handicapped but not adamant about paternalism for everybody else.

I mean, if... if I don't have a handicap, I have some disability that... that does not qualify as a handicap, and I want to... I want to work in... in a particular job, and it's dangerous, and under OSHA rules I don't have any right to say, paternalistic State, get out of here.

I'm willing to accept the risk.

You can't do it.

Why... why is Congress only worried about paternalism for the handicapped?

Once you eliminate the stereotyping, you have individual determination that this person is... is going to be harmed.

Why does Congress say, if it's a disabled person, he can kill himself, but if it's not a disabled person, oh, no, you can let him kill yourself?

Why would Congress want to make that distinction?

Mr. Bagenstos: --Well, I think two... two points.

One is if it's a disabled person, he still has to be subject to the same OSHA rules as everyone else.

But two, why is Congress concerned about paternalistic discrimination?

I mean, I... I think a significant part of it is the concern that over the run of cases, there's... when an employer looks at an individual with a disability and the risk posed by that individual to himself, history has shown... and there's ample evidence of this in the... in the legislative record... history has shown that... that there is likely to be an over-emphasis, an over-determination that there is in fact a risk.

The--

Justice Scalia: By doctors?

I mean, this requires medical... medical evidence.

Mr. Bagenstos: --By doctor... by doctors, company doctors, as occurs... as occurred--

Justice Breyer: You're against even the most extreme case, which this may not be.

I mean, that's hard to see that.

I... I... but I'm particularly curious.

What about the reg?

I mean, there it is.

I take it your clients in this instance don't like the reg, but more often than not, the EEOC regs are quite favorable to disabled people.

So... so, how can we say, well in this case we're paying no attention to the reg, but in some other case you'll be back here arguing we ought to pay a lot of attention to the reg.

So, what's your response to that?

Mr. Bagenstos: --Well, I don't think it's a question of... of whose ox is gored.

Right?

I mean, I think why this reg--

Justice Breyer: Well, explain why it isn't.

Mr. Bagenstos: --Right.

And why this reg doesn't... ought not to get deference, it seems to me, is because what the EEOC is basically doing is sneaking back into its regulation a piece of the Rehabilitation Act regulation that was cut out by Congress.

Justice Breyer: You tell me how I write this sentence in the paragraph that says the reg doesn't matter?

I say, oh, they were sneaking this one in?

I don't think I can write that.

[Laughter]

What is it I'm supposed to say about that?

Mr. Bagenstos: Well, I... I think that deference doesn't apply when Congress has explicitly--

Justice Breyer: If it's clear, that's right, but I find it pretty hard to say it's clear when you start talking about extreme cases.

I mean, maybe this isn't one of them, but you have the carpenter who's... you know.

I mean, you know, we can make them up.

I think they're very hypothetical.

I doubt very much they really exist, but you're asking for a rule that encompasses those hypothetical, far-out cases, and there I see the reg.

What am I supposed to do?

Mr. Bagenstos: --So, two... two points about the extreme cases, I mean, if that's what we're focusing on.

The first point, as... as Your Honor acknowledges, far-out probably don't exist.

When Congress writes a rule, it doesn't write a rule for the extreme cases.

It writes a rule for the run of cases.

So, it wouldn't be crazy to... to read Congress... what Congress said as not--

Justice Breyer: No.

I find it difficult because I think the subject matter of the potentially suicidal worker has nothing whatsoever to do with the problem of contagious diseases.

And so, I find it very hard to say that in writing about contagious diseases, they were saying anything whatsoever about suicides.

Mr. Bagenstos: --Well, I think that... I think that one of the... one of the changes that the ADA makes in the direct threat provision is broadening that from contagious diseases to all other kinds of risks, number one.

Justice Breyer: You tell me about the reg.

Mr. Bagenstos: Right, right.

So, number two, about... about the reg, it seems to me that in some of the extreme cases, a lot of them, maybe all of them, the person will fail on the qualified individual standard.

A person who's going to die by... simply by walking on the job, simply is unable to perform essential functions--

Justice Breyer: You're not telling me about the reg.

I want to know how to avoid... from your point of view, you want me to avoid the fact that I owe deference to a reg of the agency.

So, I want to know.

I know the normal rule is I owe that deference.

So, what's special about this in respect to that?

Mr. Bagenstos: --Well, I... I think that the question... the question is, as I said, whether Congress has spoken to the matter with respect to whether an employer can exclude an individual based on risk to self, and we say that Congress has spoken to that matter in 12113(b), the direct threat provision.

Justice Souter: Sure, but the... the question is how plainly.

And... and here's the problem that I have, just as a technical matter, without even getting to the suicidal patient.

You make a very good argument about the contrast between what Congress wrote in the old EEOC regs.

As against the force of that argument, you've got the text of the statute that refers to the qualifications, including threats to others.

So, in the... you know, the very breath that they're giving your... an example, they're saying, and there can be all kinds of other things too.

It may very well be... I don't know.

It may very well be that, as Justice Ginsburg suggested earlier, they were talking about other kinds of examples on other subjects.

But I don't know.

It's not clear to me, and that's the point at which Chevron deference becomes crucial.

How can I say it is so plain that Congress was excluding a... a Chevron treatment?

Mr. Bagenstos: Okay.

Two points, one textual, one contextual.

The textual point, directly on... on this provision, I think goes back to what Justice Scalia said in the first half of the argument which is just because it begins with may include, doesn't mean that everything that follows it... everything that follows it doesn't place any limitations on everything that precedes may include.

Congress said, you know, qualification standards may include a direct threat to others--

Justice Souter: Absolutely, but I don't know how to draw the line.

That's my problem.

Mr. Bagenstos: --And... and I think the contextual point helps answer that with the... the consistent statements both in the statutory findings and in this provision, the change from the... from the Rehabilitation Act regs, and consistently in the legislative history, including that specifically referring to this particular provision saying the reason why we cut this language out basically is in order to say that paternalistic determinations, determinations by employers for the safety of employees, for the safety of the particular excluded employees, should not be permitted to justify--

Justice Souter: Okay.

But that gets back to the point that several have raised and that is paternalism combined with stereotype, yes, I understand.

That's out.

Johnson Controls is out.

But paternalism alone?

Particularly where, as Justice Scalia has said, paternalism for the... for the non-disabled is... is alive and well in OSHA.

That's... that's not so easy for... for me to follow.

Mr. Bagenstos: --Paternalism for everybody, the non-disabled, as well as the disabled--

Justice Souter: Yes.

Mr. Bagenstos: --taken as a whole... I... I agree is taken kind of as part of the OSHA.

I... I think that it's certainly, as... as I meant to say in response to Justice Scalia's question, there certainly is a concern for stereotyping here.

The question is whether Congress meant to permit... or meant to require employees to have to prove stereotyping in each case.

That is... that is, Congress could have made a class-based decision that most of the time when we have an exclusion of an individual with a disability because of a conclusion that his disability makes him unsafe, that... that is likely to be informed by some degree of stereotyping or the... the incentives that... that employers' doctors have to exclude people rather than hire them and take the steps necessary to protect them as the American Public Health Association makes clear in its brief.

So, stereotyping is--

Justice Souter: So, that may... that may simply get us down to a very important point but not a point here, and that is, the... a sufficiency of evidence point or a... or a sufficient specificity of evidence point.

And that's... that's not what we've got.

Mr. Bagenstos: --Well, the problem... right.

I think that's right.

I think Congress then has two choices.

Do you require plaintiffs to prove in every case that there is stereotyping in addition to paternalism?

Or do you presume essentially paternalism entails stereotyping when it's paternalistic discrimination?

It's not paternalism at large, not paternalism visited on all employees.

And I think that Congress, given the history recounted over and over in... in the hearings, was entitled to say that we're just going to make a... a broad class of--

Chief Justice Rehnquist: Did it say that?

That's the question we're all interested in.

It certainly was entitled to say, but I don't believe you can point to any particular place where it specifically says that.

Mr. Bagenstos: --Well, I think that... I think that the closest is that just as the direct threat provision excludes an indirect threat as a basis for... for excluding someone, so too does the threat to others language there exclude threats to self.

Chief Justice Rehnquist: Yes, but you... you have to push beyond the analogy from direct threat to indirect threat to... to get that far out.

Mr. Bagenstos: Well, I... I don't... I don't know that you have to push beyond the analogy.

I mean, it's... I would... I would say, with respect, it seemed... it seems like it's precisely parallel statutory language.

There are two limitations in the 12113(b) direct threat provision.

One is direct threat defined as significant risk, and the other is risk to others.

It seems like if you're going to override either of those limitations under the guise of the general 12113(a) qualification standards defense, then any purpose Congress had for including those limitations in that direct threat provision is... is going to be rendered meaningless.

And so... so, I think that's the concern there.

And this is not... this is not a concern that's... that's unique to the ADA.

It's a concern that this Court approached under Title VII.

I think the important answer that... I'd like to get back to Justice Kennedy's point before... is that this is not a statute, even under our reading, that prevents employers from taking steps, taking lots of steps, to protect their employees.

It just eliminates one thing they might do, and that is simply exclude an employee who, because of a disability, is determined to... to pose an undue risk.

Justice Stevens: May I ask you to comment on a hypothetical that I... I can't... haven't quite been able to think through?

Assume that the... that an employee has to be able to lift at least 200 pounds in order to be safe in a particular assignment.

And one employee can't lift 200 pounds because he's just not any stronger than a lot of other people, and another employee can't do it because he's disabled.

Could they fire... could they deny the employment of the disabled person in that hypo?

Mr. Bagenstos: I think that that would be a neutral qualification standard.

That's the paradigm case of a neutral qualification standard.

That is what 12113(a) is about.

Asking everybody--

Justice Stevens: So, if the... if Standard Oil had a... had a qualification that anyone with hepatitis beyond a certain degree is ineligible for employment, that would be okay?

Mr. Bagenstos: --Well, I think the point... the point of its neutrality in the lifting hypothetical--

Justice Stevens: Some... some neutral standard that whatever... they phrase it in medical terms, and if you cross the threshold, you're at too much of a risk and we'll... we won't employ you.

Mr. Bagenstos: --Well, I think if they have to ask themselves what is your medical condition, do you have hepatitis C, which hepatitis C is a disability in this case, then it's no longer neutral.

Then what they're doing is engaging in intentional discrimination against that person because of his condition.

If, on the other hand, what they say is we require everybody to lift 200 pounds, we don't care if the reason you can't lift 200 pounds is because--

Chief Justice Rehnquist: Well, then you're discriminating against people with hernias probably.

Mr. Bagenstos: [Laughter]

Well, it... it would certainly screen out people with hernias, and... and therefore would prima facie violate the screening out provision of... of the statute unless there were a business necessity justification.

This is precisely the context in which there would be a business necessity justification under the statute where... where an employer says we require everybody to satisfy the standard.

We don't care.

We don't even ask what's the reason why you can't lift.

We give you 200 pounds and say, lift if for us, and if you can't do it--

Chief Justice Rehnquist: --What if the employer says, we require everybody to have a prognosis of living for at least 2 years on the job?

Mr. Bagenstos: [Laughter]

--Right.

If the employer did that, I mean, I think... I think that that would be something... that would be something that goes a lot closer to a qualification standard that is neutral.

Now, the concern in that case is, number one, is it really neutral?

That is, is it the case that they say only to people with disabilities, people with medical conditions that constitute disabilities, we think that you fail this test.

Chief Justice Rehnquist: No, but I'm talking about just across the board.

One of the things that we require, regardless of what you're condition is, is we want... we want your life expectancy to be at least 2 years.

Mr. Bagenstos: I think that they could do that if they could justify it as job-related and consistent with business necessity, which might be very difficult.

The business justification I suppose would be we don't want turnover in employment, but there's a lot of turnover for a lot--

Justice Scalia: No age discrimination problem here?

Mr. Bagenstos: [Laughter]

--There might well be an age discrimination problem there.

Disparate effects, you know, depending on whether disparate effect is recognized under that statute.

But... but under... as far as the ADA is concerned, certainly it's the case that they would be able to assert a business justification, but I think it would be difficult in that case to actually prove the business justification because it's only... if it's only people who are going to die in 2 years, however we predict that, who are excluded from employment and not people who are going to take a better job, not people who are going to leave because they fall in love and move to a different city or leave to take care of a sick parent... I mean, there are thousands of reasons why job turnover occurs.

If they single out something that screens out people with disabilities, that's obviously very different.

But the crucial point, it seems... it seems to me, is that in this case what we have and in the class of cases on which the legal question presented addresses... what we have is a choice effectively of who's going to decide whether a job is too risky for a particular individual in a context where there are general rules like OSHA that are complied with.

Justice O'Connor: Well, let the doctor decide.

Mr. Bagenstos: Well, I think that the individual will certainly... will certainly follow the dictates of his own doctor in most cases.

And when the individual doesn't, I mean, there are obviously cases where people--

Justice Stevens: I'm afraid you haven't thought about the Christian Scientists in this... in this community.

Mr. Bagenstos: --Right.

Well, I mean, I think... I think that raises obviously distinct issues.

But... but yes, I think that... people will obviously consult with their doctors.

I mean, what's... what's notable here is that Chevron purported to consult with Echazabal's doctor, didn't really give him all the information, didn't get it, didn't ask him whether there was a significant risk, but never put the doctor in contact with Echazabal, just purported to have--

Justice O'Connor: Well, that goes to the issue on remand if there is one.

Mr. Bagenstos: --Right, no--

Justice O'Connor: It's not the legal--

Mr. Bagenstos: --I... I agree with that.

I... I agree with that really does go--

Justice Breyer: --But if we're focusing on our concern about extreme cases, of which this may not be one, have you thought of a form of words that might cabin those off if they ever occur, which would give some meaning to the reg?

Mr. Bagenstos: --I--

Justice Breyer: And what's the form of words?

Mr. Bagenstos: --I don't know that I can give any meaning to the reg that's--

Justice Breyer: If you can... if you apply it, you could think of an extreme case where the person is... you know, the suicidal worker, I'm going to die with my boots on and I hope tomorrow.

I mean, there may be such people, and... and okay.

So, that's what maybe this reg is about.

I don't know.

It doesn't say it isn't.

And... and what's the form of words that would cabin off those cases?

Mr. Bagenstos: --Well, I think that the cabining would have to be external to the regulation.

I think it's... I think it's... to... to say--

Justice Breyer: Well, give me the form of words, however you want to do it.

Mr. Bagenstos: --Okay.

And I think that the cabining is threefold.

Number one, an employer can exclude someone who is not a qualified individual with a disability, which many people who pose such an extreme present risk themselves will be.

Number two, an employer can apply neutral qualification standards that are job-related and consistent with business necessity.

And number three, if we have someone who really is bent on committing suicide by employment, there are State law commitment remedies available for such people, people who can't-- [Laughter] And no--

Justice Breyer: I mean, that's... that's extreme.

I mean, people may want to die with their boots on.

There are a lot of things that move people.

Some don't believe it, et cetera.

So, is there a serious form of words that you could say, well, if it's really one of those cases, it might be a... a situation that falls within the reg?

And you're telling me the answer to that question is no.

There is no form of words.

Mr. Bagenstos: --I... I think outside of the situation... the first two situations that I spoke of where the person isn't qualified or where the person is excluded under a neutral job-related and consistent with business necessity qualification standard, that I would suspect excludes everybody except what we've now described as the really extreme cases.

Justice Kennedy: In order to avoid paternalism, we're going to tell employers they can just commit their employees.

Unknown Speaker: [Laughter]

Mr. Bagenstos: Well, I think the crucial point is that, I mean, there are due process limitations on commitment which there are not for employers.

And that's the crucial point, Justice Kennedy.

If... if we say that employers get to decide willy-nilly this is too unsafe, that's... that's a very different kind of a process.

Of course, commitment is only in a very extreme circumstance, and we have procedures to make sure that independent decision makers make those decisions with full knowledge of the facts not employers here and then forcing... forcing employees to come to court and fight for 6 years to prove that they really weren't a risk to themselves.

And... and that we think is the reason why Congress excluded the... excluded the notion that an employer could make the decision instead of the employee as to what is too unsafe.

And we would then submit that the court of appeals judgment should be affirmed.

Rebuttal of Stephen M. Shapiro

Chief Justice Rehnquist: Thank you, Mr. Bagenstos.

Mr. Shapiro, you have 2 minutes remaining.

Mr. Shapiro: Thank you, Mr. Chief Justice.

Justice Stewart's opinion for the Court in the Dothard case contained an excellent rebuttal to the argument we've just heard.

He stated that safety is not romantic paternalism.

Safety is a basic business necessity in this country.

That's the culmination of 100 years of industrial policy.

Justice Ginsburg: Mr. Shapiro, I thought that was safety of others because didn't Dothard make the distinction between the... the risk to the individual woman, which was up to her?

What Dothard said is, this prison is a jungle.

By her presence, she is endangering everyone else in the place.

There are going to be riots.

So, I think Dothard doesn't work for you at all.

Mr. Shapiro: Oh, we think it does.

The Court discussed both kinds of danger, danger to the individual and danger to other people.

And this Court twice has said in Dothard... in Beezer... the Beezer case later... that safety is a paradigm business necessity.

And indeed, it... it is the paradigm, safe and efficient operations of business.

And this is not a statute that cut out risks to self.

This is a statute that included risks to self in the business necessity defense.

That's generic language that encompasses it.

And there was a long line of cases that Congress meant to adopt under the Rehab Act.

They didn't disapprove those cases.

In fact, business necessity is repeated four different times in the statute, and it's applied specifically to medical examinations of the individual employee.

Congress wasn't talking about general tests.

It was talking about examinations like the one given to Mr. Echazabal.

Now, this Court has held that under the business necessity defense, it will not substitute its judgment for the employer's judgment.

All that is needed is a reasonable relationship to a legitimate business objective.

There certainly is a legitimate business objective here in saving this individual's life and promoting safety in the plant.

Was the judgment a reasonable one?

We had four opinions from experienced physicians.

We spoke with Mr. Echazabal's own physician.

We told him, did you realize this man would be exposed to liver toxins, and he said, no, that should not be done.

Someone with hepatitis C can't even have a drink of alcohol, much less liver toxins.

Chief Justice Rehnquist: Thank you, Mr. Shapiro.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Barnhart v. Walton - Oral Argument

Fri, 09 Jan 2009 14:50:26 +0000

Case:

Barnhart v. Walton

Media File:

00-1937_20020116-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF JEFFREY A. LAMKEN ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument next in No. 00-1937, Jo Anne Barnhart v. Cleveland Walton.

Mr. Lamken.

Mr. Lamken: Mr. Chief Justice, and may it please the Court:

Congress... Congress designed the Social Security disability program to provide benefits to workers who suffered from long-term disabilities, individuals who were, in effect, forced into premature retirement by a severe impairment.

Consistent with the program's origin--

Unidentified Justice: Just a moment, Mr. Lamken.

Spectators are admonished.

Do not talk until you get out of the courtroom.

The Court remains in session.

Go ahead.

Mr. Lamken: --Consistent with the program's origin, purpose, and text, the Commissioner has for 45 years from the program's inception, in adjudicating tens of millions of claims, and throughout repeated amendments, adhered to a single and consistent, reasonable construction of the definition of disability.

To be disabled, a claimant must have an impairment that has lasted or can be expected to last at 12... at least 12 months at a disabling level of severity; that is, the impairment must preclude substantial gainful activity for the 12 months during which it must last.

Unidentified Justice: Well, now, presumably though, as I understand it, the Commissioner could evaluate a claim and start benefits in less than 12 months.

Mr. Lamken: Correct, Your Honor.

That's... that's because the statute allows the Commissioner to award benefits if the... if the disabling impairment can be expected to last 12 months.

So, for purposes--

Unidentified Justice: And can disregard possibly periods of work during that period if the commission is satisfied that this is going to be a permanent impairment.

Mr. Lamken: --Yes.

If the work does not evidence an ability to engage in substantial gainful activity.

For example, the Commissioner has what are called unsuccessful work attempt regulations.

If they do not evidence an ability to engage in substantial gainful activity, they may be disregarded and treated as not evidence of the individual's ability to engage in substantial gainful activity.

Under the court of appeals' view, however--

Unidentified Justice: That seems sort of inconsistent with your view on the second question that trial work periods shouldn't begin until the end of the 12 months.

Mr. Lamken: --Your Honor, no.

Our view is not that the trial work period does not begin until the end of 12 months.

Our view is that the trial work period only begins if the... if the claimant actually becomes entitled to benefits at some point, and that's true because the trial work period begins when the claimant becomes entitled to benefits.

If the claimant never becomes entitled to benefits, he never receives a trial work period.

Unidentified Justice: What... what provision in the language of the statute says that you can't start a trial work period until the end of 12 months?

Mr. Lamken: Again, it's not our position that you can't start a work period... a trial work period until the end of 12 months.

Unidentified Justice: Well, you say unless the benefits have started.

Mr. Lamken: Right, unless they are entitled to benefits.

And we would be relying on 422(c)(3), which appears on page 63a of the appendix to the petition for writ of certiorari.

And it says that a period of trial work for any individual shall begin--

Unidentified Justice: Just a moment, Mr. Lamken.

Exactly where on 63a are you reading?

Mr. Lamken: --I'm sorry.

It's at the bottom where it's numbered 3.

Unidentified Justice: Yes.

Mr. Lamken: And it says, a period of trial work for any individual shall begin with the month in which he becomes entitled to disability insurance benefits.

If the individual never becomes entitled to insurance disability benefits, the individual also cannot, as a matter of logic, become entitled to a trial work period.

And that is also consistent with the... with what the trial work period does.

The trial work period precludes the Commissioner from considering... from treating work as evidence that the disability has ceased.

The statute in the preceding paragraph number 2 uses the word ceased.

That means that if the individual isn't actually already entitled to benefits, there can be no trial... there is no purpose in the trial work period.

It's only there for determining whether or not the disability has ceased.

Unidentified Justice: Of course, the difference is the other side says that he becomes entitled not when he is adjudicated to be entitled, but he becomes entitled when, in fact, all of the conditions exist for which the... the benefits are payable.

Mr. Lamken: Yes, Your Honor.

Unidentified Justice: Why aren't they right about that?

Mr. Lamken: Because the statute provides that the individual is entitled to benefits if he has a disability which can be expected to last 12 months or has lasted 12 months.

That's most naturally read as referring to the time of the adjudication.

In other words, when statutes say if the following conditions are met, you're entitled to something and they use the present tense, as this statute does, they're normally understood as requiring those conditions to be met at the time of the adjudication.

Unidentified Justice: Yes, but the... the trial work statute itself says that any services rendered by an individual during a period of trial work shall be deemed not to have been rendered in determining whether his disability has ceased.

Mr. Lamken: Right, in determining whether his disability has ceased.

That means that for a person to have a... to be entitled to a trial work period, he must have what is called a disability, and whether or not an individual has a disability is determined from the perspective of the adjudicator at the time of the adjudication.

Unidentified Justice: But I thought you took the position in... I thought you did not take the position in your brief that as a matter of law there had to be an adjudication.

I thought you said that ordinarily that's the way it... it works in practice, but that the real point you were making was that if the individual went back to work prior to the adjudication and therefore showed that in fact the disability or the incapacity and hence the... the disability, as you see it, is not going to last, that that's the end of the matter.

That would cut it off.

I didn't think you took as a theoretical matter a position that there had to be an adjudication, merely that there ordinarily would be one.

Mr. Lamken: I... I think you've precisely described our position, Justice Souter.

The answer is that if the individual produces evidence, such as by returning to work successfully for the period of 2 years, for example, in this case, and shows that he, in fact, was not incapacitated, he was able to work, the adjudicator can take that into account and decide that no, you're not entitled to disability benefits, and if you were never entitled to disability benefits, you also do not get a trial work period.

Unidentified Justice: But... but you would not allow him to come in and say long before I came in for an adjudication, I was in fact disabled and entitled to benefits.

You wouldn't allow him to say that.

Mr. Lamken: No.

We would not allow him to come back and say... and say, in effect, that I was thought to be disabled for a period of 12 months reasonably but mistakenly because the statute requires that you can be expected... present tense.

Now, that is consistent with the way courts--

Unidentified Justice: You're hanging an awful lot on that... on that can be expected I... I must say.

Mr. Lamken: --Yes, Your Honor.

But actually the contrary view would make... creates a rather difficult type of adjudication--

Unidentified Justice: A difficult--

Mr. Lamken: --to make and one that's entirely foreign to the law.

Unidentified Justice: --You got to look back 6 months and figure out whether 6 months ago he... he could be expected to--

Mr. Lamken: Not merely that.

You would have to look back for the entire period covered by the application and decide if any moment during that period it could have been possible, reasonably but mistakenly thought, that his disability would last 6 months.

That type of determination is entirely foreign to the law.

And it's also inconsistent with the purpose of the can be expected to last prong.

That exists precisely because, as Justice O'Connor pointed out, the Commissioner needs to be able to adjudicate claims before 12 months goes by.

And therefore when the adjudicator... when the Commissioner decides claims before 12 months have gone by, you look at the can be expected to last prong.

Unidentified Justice: --So, the real significance of the present tense is that it kind of gives an opportunity for the application of a kind of best evidence rule.

Mr. Lamken: Yes, yes, exactly.

And that is consistent with the... the... excuse me... the statute, which says that when you're deciding these claims, you look at all of the evidence in the file and you try and come up with all of the available evidence.

You don't disregard evidence that is recently arriving merely because at some earlier time you would have made a mistake.

And that is also... I'm sorry.

Turning back to the question of disability, the Commissioner's construction of the term disability in our view is supported by the text of the act.

The act imposes--

Unidentified Justice: What kind of deference do we give here?

At the time this claim was evaluated, the regulations hadn't been adopted.

Mr. Lamken: --That's correct, Your Honor.

Unidentified Justice: So, we're into Skidmore rather than Chevron?

Mr. Lamken: No, Your Honor.

Unidentified Justice: No?

Mr. Lamken: We believe that the Commissioner is entitled to Chevron deference regardless of when the claim was adjudicated.

The purpose... the reason this Court gives Chevron deference is when the... the decision has the formality and uses the procedures that Congress meant the administrator to use when filling in gaps or when explaining the meaning of the statute.

It does not matter that, in fact, that the administrator, or in this case the Commissioner, used those procedures after the claim was adjudicated because we know that after the thoroughness consideration and using the notice and comment procedures, the Commissioner came to the same conclusion, that in fact the best reading of the statute is the one that the Commissioner has adhered to for 45 years and through repeated amendments to the statute.

Unidentified Justice: The... the court of appeals here said that that simply wasn't consistent with the statute and it struck me that they had a very good argument just looking at the statute that you are kind of... reduced to some fairly odd statutory construction to justify your position.

Mr. Lamken: No, Your Honor.

Actually we believe that we have the far more reasonable understanding of the statute and certainly the one that's more consistent with Congress' intent.

The statute--

Unidentified Justice: Well, supposing we just say that we look to the statute itself for what Congress' intent was?

Mr. Lamken: --Focusing on the language of the statute.

Unidentified Justice: Right.

Mr. Lamken: The statute imposes two requirements.

First, there must be an impairment.

Unidentified Justice: Where do we find the statute in... in the--

Mr. Lamken: It's 423(d)(2)(A) and (d)(1)(A) which appear on pages 69... just the heading of (d)(1) appears on 69a... and 70a of the appendix to the petition for a writ of certiorari.

Unidentified Justice: --Thank you.

Mr. Lamken: Turning at page 70, it establishes two requirements that are interrelated.

The first is that there must be an impairment, which has lasted or can be expected to last 12 months or result in death.

Second, the impairment must be one that precludes substantial gainful activity, that is, it must be so severe that the individual cannot engage in any work in the national economy.

Given Congress' repeated intent not to provide benefits for short-term disabilities, it is most natural to read those two requirements together so that the impairment, which must last 12 months, is also an impairment which must preclude substantial gainful activity--

Unidentified Justice: Well, maybe.

You know, once you posit that... that Congress didn't want to provide compensation for short-term disability.

But if... if you had to determine what Congress' intent was purely from that language, I just don't think you get there.

Disability means an inability to gain... to engage in any substantial... substantial gainful activity.

It doesn't say how long that disability has to... it could be, you know, a week-long inability.

And then it goes on, by reason of any mentally... medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for 12 months.

All it requires is that the impairment be a long-term impairment and if that produces even a week-long inability to work, you're... you're technically within the language of that... of that provision.

Mr. Lamken: --Justice Scalia, that might be one way of reading the statute, but it's not--

Unidentified Justice: I think it's the only way to read the statute.

I don't see how else you can read it.

Mr. Lamken: --We disagree, Your Honor.

We believe that you read the two requirements together sensibly so that they overlap.

And in fact--

Unidentified Justice: It is my understanding of your position is you're saying that impairment, given the context of the statute, means a constantly, continuously disabling impairment, and disabling means that you are not equipped to engage in substantial... whatever SGA stands... substantial gainful activity.

So that the word impairment means a disabling impairment.

Mr. Lamken: --In effect, we're arguing, yes, that the type of impairment that Congress was referring to is an impairment that prevents substantial gainful activity because that's the type of impairment that is referenced in the statute.

Unidentified Justice: And if it isn't... if it doesn't prevent substantial gainful activity, then it isn't an impairment within the meaning of the section.

Mr. Lamken: It is not the type of impairment that you must have for 12 months.

That's correct, Your Honor.

That is a correct characterization of our... our position.

I think if--

Unidentified Justice: So, if you look just at the word impairment and what it means, you get back to the inability to do substantial gainful employment for that interval of time.

Mr. Lamken: --Your Honor, one way you could... you could put your emphasis on the word impairment.

The Commissioner has traditionally placed the emphasis on the word severe in 423(d)(2)(A) or inability to engage in substantial gainful activity in (d)(1)(A), but that would be one way of achieving the same result that the Commissioner has.

And that is actually supported by the text of the definition of impairment which makes it clear that--

Unidentified Justice: I don't know why you don't emphasize the word which.

Mr. Lamken: --Pardon?

Unidentified Justice: I don't know why you don't focus on the word which.

Does which refer to both inability and impairment or just one of them?

Mr. Lamken: I think as a grammatical matter, Justice Stevens, we have to confess that the word which refers to the impairment because one would not ordinarily expect the substantial gainful activity to result in death or the inability... better still, the inability to engage in substantial gainful activity to result in death.

But focusing back--

Unidentified Justice: One would not expect the inability to be expected to last... to result in death where it lasted for a continuous period of 12 months?

I don't know why.

Mr. Lamken: --Well, Justice Stevens, we'd be perfectly willing to accept that if that were your view, but for purposes of this case, we... we have... for grammatical purposes, we believe that the phrase, which can be expected to result in death, modifies the impairment not the inability to engage in substantial gainful activity.

Unidentified Justice: So, you don't think it means both of which can be expected.

It just means one of which can be expected.

You're willing to accept that anyway.

Where is the definition of impairment?

I'm trying to find--

Mr. Lamken: It's on page 71a, Justice Scalia, after the numeral 3 of the joint... of the appendix to the petition for writ of certiorari.

It says: for purposes of this subsection, a physical or mental impairment is an impairment... it's somewhat circular, we confess... that results from an anatomical, physiological, or psychological abnormality that is medically demonstrable.

That makes it clear that the impairment isn't necessarily just the underlying medical condition, but it says that it's the... an impairment that results from the anatomical, physiological, or psychological abnormality.

So, in a sense the impairment can be viewed not merely as the medical condition but the result of that condition such as in the case of a mental impairment, inability to focus.

Unidentified Justice: --I'm not sure that's necessarily a very precise reading of that section.

It says, impairment results from anatomical, physiological, or psychological abnormalities.

In other words, the results from is the abnormalities.

Mr. Lamken: The impairment is what results from the abnormalities.

The impairment is what the abnormalities produce.

Unidentified Justice: Right.

Mr. Lamken: So, if the condition is, in this case schizophrenia, the impairment would be the inability to focus, the inability to think clearly, the impairment of the cognitive functions is another way of putting it.

Your Honor, what... I believe that the problem with the court of appeals' approach of severing the two requirements of an impairment... the fact that the impairment must last 12 months and that the impairment must be one that is of disabling severity... is that it does not... it does not eliminate an ambiguity but creates one.

Even if we were to severe those two entirely and to say that the only the... that only the impairment must last 12 months, it's clear that the impairment must be of disabling severity for some period of time because it would be absurd to suggest you're entitled to benefits for a minute or a second or actually, Justice Scalia, with all due respect, in my view for the week that you suggest.

Given that there is an implied duration of some time for the severity, that it must be severe enough to preclude substantial gainful activity for some period of time, it is up to the Commissioner to choose the period which makes the most sense, is most consistent with the statutory structure and Congress' intent.

There are other indicia of... of the structure of the statute that make it clear that Congress was not contemplating short-term disabilities such as a week.

For example, the statute does not terminate benefits just at the moment when you are able to return to work.

Benefits, instead, continue for an additional 2 months following that.

If the statute is, as the Commissioner supposes, a long-term disability statute, that makes sense because those 2 months of additional payments give you a time to transition back to work, to get ready to work to find a job.

If in fact the statute is, as the court of appeals has construed it, a short-term disability statute where benefits are payable when you're out only for a week, as Justice Scalia suggested, that would mean that an individual who is out of work for a week, because of a chronic condition like asthma, anxiety, arthritis, and numerous ones that last a year or more, would be entitled to 2 months of benefits plus the one week for which they are briefly out.

It's hard to believe that that was the type of statute that Congress had envisioned.

In addition, that... that view is supported by the repeated amendments to the statute that Congress... repeated amendments to the definition of disability against the backdrop of the Commissioner's now 45-year-old settled construction.

Years after the Commissioner first adopted her construction of the statute in 1957, in 1965 Congress amended the statute, and when Congress did so, it did not merely leave in place the Commissioner's settled construction, instead Congress reiterated that construction in the committee reports that were accompanying it... accompanying the amendments and described the act in precisely the same terms that the Commissioner had through the regulations.

Congress, in fact, rejected a proposal... actually a bill... from the House of Representatives that would have shortened the duration requirement instead of to 12 months to 6 months, and the stated reason for rejecting that 6-month period was a disability... it would not be sufficient to preclude the payment of benefits for short-term disabilities.

Instead, as the committee reports stated, it was necessary to require that the individual be under a disability for a period of more... of longer than 6 months.

Instead, Congress meant to require that the individual be completely and totally disabled throughout a continuous period of 12 months.

Under the court of appeals--

Unidentified Justice: Well, but actually not because you can have these... not the trial work to be unsuccessful work episodes.

So, you're able to--

Mr. Lamken: --That... that is part of the definition of substantial gainful activity.

It's... I'm being somewhat imprecise when I say you're unable to work.

What you have to be able to do is engage in substantial gainful activity, and if you return to work for a brief period of time, for less than 6 months generally under the Commissioner's regulations, and then your impairment comes back and prevents you continuing that, the Commissioner will not treat that as evidence to obtain... evidence of your ability to engage in substantial gainful activity.

In fact, it's evidence of the opposite because you tried to go back heroically, but your impairment prevented you from successfully doing that.

So, it's clear that you're not able to engage in substantial gainful activity.

Unidentified Justice: --So, the term substantial modifies... is directed to the length of the activity not the daily intensity of the activity.

Mr. Lamken: It... it... the substantiality does modify the intensity of the activity, but in terms of determining what kind of evidence shows that you're able to engage in that activity, the Commissioner has legislative authority to determine whether work... whether certain types of work attempts evidence your ability to engage in substantial gainful activity.

And using that, the Commissioner said there were just certain things that should not count, such as unsuccessful work attempts, work attempts generally that are terminated within 6 months of... within 6 months' employment again.

Unidentified Justice: Mr. Lamken, this case is unusual on the facts because he came very close to making the 1-year limit, and there is the anomaly that they... the person is approved for receiving disability benefits in month 8 and then will be able to go on for 2 months past the time the disability ceases.

And yet, this person, through no fault of his own... it's kind of haphazard, by chance the one who will make it and... because it's based on a prediction, and the one who maybe... maybe the Social Security office is backlogged.

What is the reason for the disparity in time of adjudication?

Mr. Lamken: In fact, Your Honor, there were two adjudications in this case in a very short period of time within the filing of benefits.

The benefit claim was filed in March and April and in the... there was an initial adjudication on May 18th, basically just over 30 days after the April application was filed.

In that adjudication, a licensed psychiatrist determined that Mr. Walton was, in fact, able to engage in substantial gainful activity and that his impairment was not severe enough.

He sought reconsiderations in June, and there... a decision was issued in August.

These are very short time frames, and they are not atypical.

Typically these types of claims are processed in less than 90 days for the initial adjudication.

Now, regrettably there will be occasions, as in all areas of law, where the outcome is affected by the timing of the decision.

And that is true because sometimes evidence develops in the interim which would allow one person to prevail where, if the adjudication had happened earlier, they would not have known about that evidence and the result would have been different.

But the fact that some individuals may get a windfall and become entitled to benefits based on an erroneous prediction of expectation does not mean that the Commissioner is required to reach an erroneous result when adjudicating a claim where he has actual evidence that the individual is able to engage in substantial gainful activity, as occurred here.

In this case there is evidence that the individual was able to engage successfully in working for 2 solid years, and the Commissioner is not required to ignore that probative, indeed dispositive evidence simply because the Commissioner might have made a mistake had the claim been adjudicated earlier.

Unidentified Justice: Mr. Lamken, you said... one of the things you said is if the Fourth Circuit view prevailed, there would be a large increase in the number of people who qualified for disability benefits.

This Fourth Circuit decision has been in effect now what?

Over a year?

Mr. Lamken: Yes, Your Honor.

Unidentified Justice: Is there any report of any swell in the approved applications in the Fourth Circuit?

Mr. Lamken: Your Honor, I have... do not have any information regarding that.

But the... one of the major concerns about this is it substantially increases the number of people who have disabilities because no longer do you have to have an impairment which precludes you from working for a substantial period of time, but merely an... a medical condition that last 12 months.

When one considers the number of medical conditions that persist for 12 months that are capable of disabling somebody for a short period of time, it clearly would have the effect of establishing a short-term benefits program that Congress did not intend to create.

In fact, we are advised that approximately 38 percent of all Americans have an impairment... a medical condition which is chronic in the sense that it will last 12 months that is capable of preventing them from working for short periods of time.

And... when construing the definition of disability, it is less plausible to believe that Congress intended to pull in so many Americans and to make all of their periods of absence of work on account of conditions like asthma, angina, arthritis, bad backs, and the like which... and turn them into disabilities.

Unidentified Justice: If we want to say... and I take it you want us to say... that if the agency has followed a consistent and well-settled interpretation policy over a long course of time, it's entitled to special deference, is that just Chevron, or is there some other case that tells us this?

What's the best case authority is what I'm--

Mr. Lamken: Your Honor, we believe this is a... a classic case of Chevron deference.

Unidentified Justice: --Is there another case other than Chevron that... that talks about the length of time that the administration has--

Mr. Lamken: Oh, well, that would be classically... if you're... if what you're referring to is Mead or Skidmore deference, yes.

But even--

Unidentified Justice: --So, it's Skidmore or Chevron, and nothing--

Mr. Lamken: --Well--

Unidentified Justice: --nothing else.

Mr. Lamken: --Those are the two standards of deference with which I'm familiar, and in fact we believe that we'd win under either one.

Unidentified Justice: Of course, you claim congressional approval too.

Mr. Lamken: Yes.

Unidentified Justice: I don't know whether that falls in, technically, a deference category, but it gets you to the same point.

Mr. Lamken: Well, it... it certainly adds weight to the agency's view and it may make it so that there is only one reasonable construction of a statute that's ambiguous.

If there are no further questions, I'd like to reserve the remainder of my time for rebuttal.

Unidentified Justice: Mr.... Ms. Pryor.

ORAL ARGUMENT OF KATHRYN L. PRYOR ON BEHALF OF THE RESPONDENT

Mr. Pryor: Mr. Chief Justice, and may it please the Court:

This case is governed by the plain language of the statutes, the language of the disability definition, which is the primary focus of the first issue presented, and the language of the trial work period and entitlement statutes, which are the primary focus of the second issue presented.

The plain language of the statutes and the early legislative history demonstrate that from the inception of the disability program, Congress has balanced its desire to restrict payment of benefits to only those with long-term severe impairments with its intention to encourage disabled persons to try to work.

The Commissioner's policy, in sharp contrast, ignores the work incentive prong of Congress' careful balancing act, focusing only on the desire to restrict payment of benefits even to those who suffer with clearly disabling impairments if they manage to attempt to work with great courage and determination and, despite continuing severe impairment, within 12 months of the onset of their disability.

Unidentified Justice: Ms. Pryor, what... what time limit do you pick?

I mean, suppose the person has a disability that indeed is expected to last more than 12 months but it only has caused him to black out and be incapable of working for 1 minute.

Mr. Pryor: Your Honor, I believe that--

Unidentified Justice: Does that 1-minute blackout entitle him to come under the program?

Mr. Pryor: --No, Your Honor.

Unidentified Justice: All right.

What about a week?

Mr. Pryor: The entitlement statute I believe shows that a person must be under a disability during the 5-month waiting period.

So, they must have a condition which is severe enough to prevent substantial gainful activity.

Unidentified Justice: Excuse me.

I just didn't hear you.

During the time of--

Mr. Pryor: During the 5-month waiting period.

Unidentified Justice: --During the 5-month.

During the entire 5 months--

Mr. Pryor: Yes, Your Honor.

Unidentified Justice: --the disability must... must continue.

Mr. Pryor: Yes, Your Honor.

And if... and if it continues beyond that, then they would then be entitled to benefits.

Unidentified Justice: What establishes that?

What establishes the 5 months as... as--

Mr. Pryor: The entitlement statute, Your Honor, which is set out at 423(a)--

Unidentified Justice: --What... what's the section?

423(a).

Mr. Pryor: --423(a), which is found at... on page 64a and 65a.

And that entitlement statute says that you're entitled for each month, beginning with the first month--

Unidentified Justice: Where are you reading from on 64a?

Mr. Pryor: --I'm sorry.

I'm reading at page 65a after it says that every individual who is insured and meets these criteria shall be entitled to a disability insurance benefit--

Unidentified Justice: What part of the page?

What part of the page 65a?

Mr. Pryor: --I'm sorry.

The beginning, right after D.

Unidentified Justice: Thank you.

Mr. Pryor: Shall be entitled to a disability insurance benefit for each month beginning with the first month after his waiting period.

So... and the... and the waiting period is defined on page 69a at 2 as the waiting period means the earliest period of 5 consecutive calendar months throughout which an individual has been under a disability.

So, I believe that the entitlement statute does require that the person be under a disability, be... have both the impairment and an impairment at such level of severity throughout those 5 months.

Beyond the 5 months, they are entitled to a benefit for each month beginning with the first month they satisfy all criteria of entitlement.

Unidentified Justice: So, that would be the sixth month every time.

If that's--

Mr. Pryor: Yes, Your Honor.

Unidentified Justice: --And if you started in... in month 6... let's take this case.

The man did engage in substantial gainful activity for 2 years.

Is that right?

Mr. Pryor: Yes, ma'am.

Unidentified Justice: So, it starts 6 months after he has been disabled and it continues until when?

Mr. Pryor: Your Honor, because the trial work period statute dictates that a person is entitled to a trial work period beginning in the first month he's entitled to benefits, he would be entitled to benefits beginning in April 1995, which is when he met all criteria of entitlement, and he would be entitled to a trial work period beginning that month.

Unidentified Justice: That's 9 months.

Mr. Pryor: And... yes, Your Honor.

It would continue for 9 months once he started working and would continue... then he would get the... once they determined at the end of the trial work period, if they've concluded that his work was continuing and showed he was now able to engage in substantial gainful activity, he could be cut off after those 2... 2 additional months.

He would be subject to a 36-month re-entitlement period for benefits during any of those months.

Unidentified Justice: But in this... in this case, when he... if he... he starts at month 6, how many months actually would he be getting disability benefits?

Mr. Pryor: He returned to substantial... well, he returned to any work in May of 1995, and he would be entitled to a 9-month trial work period plus the additional 3 months, and then for any months during that 36-month entitlement... re-entitlement period during which he could not work.

Unidentified Justice: But just... just... if you could just give me the... the time frame.

We know the starting... the start is... is it April?

Mr. Pryor: Yes, Your Honor.

Unidentified Justice: And the end... the minimum end would be when?

Mr. Pryor: It would be... his actual work started end of May/June, then 9 months, plus additional 3 months, so approximately 14 months I believe.

Unidentified Justice: So, some considerable time after he has been restored to substantial gainful activity.

Mr. Pryor: Yes, Your Honor.

After he... because that gainful activity is covered by a trial work period.

There is no evidence in this case that Mr. Walton's condition ever medically improved.

Therefore, his... his return to work is protected by the trial work period and that work itself cannot be considered as evidence that his disability--

Unidentified Justice: But once the period is over, making substantial gainful activity, even though, as you say, his impairment continued, he would not be disabled.

Mr. Pryor: --That's correct.

Once his trial work period had ended, he would... he could be cut off subject to the re-entitlement period.

Unidentified Justice: So... so the basic statutory problem... I think... I see where... you're debating whether you become entitled after 5 months or 12 months, and that seems to turn on the language in 70a.

And the Government is reading that... basically there are many ways of doing it, but they're reading it to say a disability is an inability by reason to... to engage in any substantial gainful activity by reason of an impairment, which can be expected to result in death or has lasted, you know, for a... which can be expected to result in death or which has lasted or can be expected to last.

And at this point, they read into it the words: at that level of severity.

Mr. Pryor: Yes, Your Honor.

Unidentified Justice: And my problem is, to be absolutely frank, I think you could read it at that level of severity or you don't have to read it at that level of severity.

And the Government... the Social Security Administration has read it the Government's way for 40 years, and nobody has done a thing about it.

And indeed, Congress has passed some laws that seem to think that's right.

And it would be a major change to jump from 12 months to 5 months.

So, there we are.

Now, what is your response to that?

Mr. Pryor: Well, Your Honor, my response is that that requires this Court to read language into the... into the definition.

Unidentified Justice: We do that all the time.

[Laughter]

Language... of course, you can't read... you can't... if a statute refers to a bear, you can't call it a fish, but if a statute refers to an animal, you certainly can read in that it doesn't mean fleas.

I mean, that's common.

The statute... it doesn't say which level of severity.

It doesn't say it, and so you have to make some assumption.

Mr. Pryor: Your Honor, I believe that the... reading the plain language of the statute... and the Commissioner has conceded this point that the phrase, which can be expected to result in death and which has lasted or can be expected to last for at least 12 months, refers to the impairment, not to the inability to engage in substantial gainful activity.

And I think that's the only logical reading of that, which is what the Fourth Circuit found because otherwise you're saying that the inability to engage in substantial gainful activity can... can result in death, and that really doesn't make any sense.

To read... read it as the Commissioner would have you do is... it seems to me is contrary to the most fundamental rule of statutory construction, that Congress must be assumed to mean what it says in the statute and that when the language of the statute is clear and unambiguous, it should be enforced according to its terms.

Unidentified Justice: Ms. Pryor, I think you heard... Ms. Pryor?

Mr. Pryor: I'm sorry.

Unidentified Justice: The... I asked Mr. Lamken are you saying, in effect, that the word impairment means a disabling impairment.

Because I think you would agree too that if you had a condition that severely disabled you for 1 week, excruciating back pain... you couldn't do anything... but that impairment continued at a less severe level well beyond a year... it didn't impede you from substantial gainful activity... you would not be disabled.

And yet, if you read the statute literally, you would be.

Mr. Pryor: Your Honor, I believe the entitlement provisions answer that question.

The impairment is defined at page 71a as only being... resulting from anatomical, physiological, or psychological abnormalities.

It does not contain an element of inability to engage in substantial gainful activity.

The severity requirement, on the other hand, does, and that... but that has no durational requirement.

Unidentified Justice: The case I gave you it says a condition that can be disabling.

It was severe for a short period of time.

Mr. Pryor: I believe that the entitlement statute requires that it be disabling for at least 5 months, the... the waiting period.

If it is disabling beyond the 5 months, then the person should be entitled to benefits for those months while it remains severe.

At the point that it no longer remains severe, as defined by the act, then that person could be cut off, or if they return to... to work and their condition has not improved, they would be entitled to a trial work period and to benefits during that, at the end of which they could be cut off.

But I believe the entitlement statute answers that question by saying you must... you must have a... an impairment which is at the disabling level for those 5 months.

If it continues at the disabling level beyond the 5 months, you're entitled to benefits for those months.

Unidentified Justice: So, for the 12 months, it doesn't matter what the level of severity is, but for the 5 months, you must be unable to engage in substantial gainful--

Mr. Pryor: That's correct.

Unidentified Justice: --That's--

Mr. Pryor: Yes.

Unidentified Justice: --What about... what about (f)(3)... what am I talking about?

I'm talking about section 423(f)(3) which says that a--

--What page?

Where are you reading from?

I'm reading from my own copy of--

[Laughter]

Page 76a.

It says that a person who has been getting benefits may be determined not to be entitled to benefits on the basis of a finding that the physical or mental impairment, on the basis of which such benefits are provided, has ceased, does not exist, or is not disabling only if such finding is supported by.

And then you go down to (3).

Substantial evidence which demonstrates that as determined on the basis of new or improved diagnostic techniques, the individual's impairment or combination of impairments is not as disabling as it was considered to be at the time of the most recent prior decision the he or she was under a disability, and that therefore the individual is able to engage in substantial gainful activity.

That seems to imply that the disability consists of a continuous inability to engage in substantial gainful activity, not just a sporadic one.

Mr. Pryor: I believe what this was referring to you, Your Honor, is that the medical improvement must... or in this case the new or improved diagnostic techniques, must result in that person's then... their condition no longer being of such severity as to prevent substantial gainful activity.

Unidentified Justice: Yes, but all... all it requires... and that therefore the individual is able to engage in substantial gainful activity.

That implies that so long as he can engage in some substantial gainful activity, it's... it wouldn't matter if he were disabled sporadically for a day here or a day there.

So, it implies that it has to be a continuous inability to engage in substantial gainful activity.

Mr. Pryor: Your Honor, I believe that this whole section refers to termination of disability benefits--

Unidentified Justice: I understand.

Mr. Pryor: --for somebody who's already--

Unidentified Justice: I understand.

It refers to termination.

But... but what would apply to termination gives you some indication of... of what... what the initial condition is... is expected to be.

Mr. Pryor: --Well, the impairment--

Unidentified Justice: Namely, a condition of continuous inability to... to work.

Mr. Pryor: --There is a severity requirement which is part of the... the definition, yes.

And I... I would not disagree with that.

Unidentified Justice: But... yes, but... but you say that that severity requirement has nothing to do with duration, and this termination provision suggests that it does have something to do with duration--

Mr. Pryor: I don't--

Unidentified Justice: --because if you can engage in any substantial gainful activity, you're terminated, assuming that there's been the improvement in the condition.

Mr. Pryor: --Your Honor, once there is improvement and... and you are now able to engage in substantial gainful activity, I would agree that you could be terminated.

It's just that from the outset you do not have to have an impairment that... that is known to be at that level of severity for 12 months.

A person could have an impairment at that level of severity for 6 months, and in the sixth month, after the waiting period has expired, they become entitled to benefits.

And they... they continue to be entitled to benefits as long as they have an impairment which is at that level of severity.

Once it's improved, they could be terminated.

Unidentified Justice: I think you're right.

I guess it doesn't get you--

--What if 1 week after the 5 month period a person goes back to work?

Would that mean they just got benefits for a week?

Mr. Pryor: No, Your Honor.

If they went back to work and unless their condition had medically improved... if their condition had medically improved, then yes, I think they could be terminated at that point.

If their condition had not medically--

Unidentified Justice: And the test of medical improvement would be the ability to go back to work which they could not do before.

Mr. Pryor: --Their ability to go back... the fact that they had gone back to work would then be protected by a trial work period, and... and would be... that... the fact that they were working would not be able to be considered as evidence that they were no longer disabled.

However, if they had, in fact, medically improved, they could be terminated during that trial work period.

Unidentified Justice: May I also ask you?

I know you think it not legally significant, but do you disagree with the Government's position that they have consistently interpreted the statute in this way for 40 years?

Mr. Pryor: I would agree that they have consistently interpreted the statute in this way.

Unidentified Justice: And... and would you agree that they correctly describe the legislative deliberations in 1956 I think it was?

But you just say they're totally irrelevant.

Mr. Pryor: Well, Your Honor, I would... I have referred to the legislative history in 1954, which is when that definition of disability was first defined, and in that instance, the 1954 Senate report delineated two aspects of disability evaluation, a medically determinable impairment of serious proportions which is expected to be of long continued and indefinite duration and a present inability to engage in substantial gainful activity by reason of that impairment.

And they went on to say that they wanted to be assured... assured that only long-lasting impairments were covered and that that provision was not inconsistent with efforts towards rehabilitation because it, quote, refers only to the duration of the impairment and does not require prediction of continued inability to work.

End quote.

Those... that's the first time Congress defined what disability is.

And it seems to me from the very beginning, they make clear that they wanted to encourage people to work, and... and they did that by requiring that the impairment be expected to last 12 months, but not requiring that the inability to engage in substantial gainful activity lasts 12 months.

I believe Congress' judgment is expressed unambiguously in the statutory language and is... and that's confirmed by the legislative history and that it must not be disturbed simply because the Commissioner's longstanding policy is at variance with... with that purpose.

I would acknowledge that legislative history can be read both ways, but it seems to me that the contemporaneous legislative history, when Congress first considered the definition of disability, should be given more weight and more weight even than that is the express language of the statute.

Unidentified Justice: One other thing I just wonder about in a case like this.

Has this point been raised before by litigants such as your client?

Mr. Pryor: Yes, Your Honor.

Well, the... the issue of entitlement to a trial work period and entitlement to benefits has been decided by five courts of appeals.

Unidentified Justice: The trial work period, but... but I mean the 12 months versus 5 months as the--

Mr. Pryor: The 12--

Unidentified Justice: --Has anyone argued this before this case?

Mr. Pryor: --Well, yes, Your Honor.

The... the Massachusetts case of White v. Finch considered this issue.

The Alexander case, I will acknowledge, the Tenth Circuit case in 1971, went the other direction, and... and they did find that... that the 12 months applies to the impairment at that level of severity.

But that... the Tenth Circuit case of Walker v.... the Walker case in the Tenth Circuit has essentially... it does not explicitly refer to Alexander, but it clearly finds that a person is entitled to... to benefits and to a trial work period even though they do return to substantial gainful activity within... after the 5-month waiting period but within 12 months of onset.

So--

Unidentified Justice: That refers to question 2.

Right?

Mr. Pryor: --Yes, Your Honor.

Unidentified Justice: And on question 2, if I understand you correctly, there is substantial agreement in the courts of appeals that you're correct?

Mr. Pryor: Yes, Your Honor.

The five courts of appeals have... or four others, other than... and the Walton case have... have gone consistent--

Unidentified Justice: But that's not the case with question 1.

Mr. Pryor: --Question 1 has been ruled on differently by different courts.

Unidentified Justice: Well, question 2 hinges on question... if you lose on question 1, you lose on question 2, don't you?

Mr. Pryor: No, Your Honor, I don't believe we do.

It's a tougher call.

There's no question, but even if you find that the inability to engage in substantial gainful activity must last 12 months, the language of the entitlement statute and the... the prospective standard required by the entitlement statute, together with the expectancy language of the disability definition, I believe together require that benefits be paid and that a trial work period be available in this case.

Unidentified Justice: Do you agree with the Government's estimate that... that if... if you win in this case, the difference in... in payouts under this program is going to be something like $8 billion a year?

Is it... is it that excessive?

Mr. Pryor: No, Your Honor, I don't agree with that.

I believe those are completely unsubstantiated figures and that, one, this isn't probably the proper forum for that.

I believe that should properly be addressed to Congress.

But secondly, I think that that... those figures are based on a number of flawed assumptions.

Number one, Mr. Walton has never suggested that he is entitled to indefinite payment of benefits while engaged in substantial gainful activity.

Once his trial work period ends, that work can then be considered and his benefits would be cut off.

In addition, someone whose condition has medically improved, unlike Mr. Walton, could be terminated from benefits prior to that, even before... even during the trial work period.

Secondly, the Government seems to assume that all those cases which have been denied on durational grounds in the past would be approved under the Fourth Circuit's ruling.

That is far from the case.

A person must still have an impairment which is expected to last 12 months and that impairment must still meet the severity requirement.

Third, there have been acquiescence rulings in effect for several years, applying the McDonald case in the Seventh Circuit since 1988, the Walker case in the Tenth Circuit since 1992, the Newton case in the Eighth Circuit since 1998, and the Salamalekis case in the Sixth Circuit since late 2000.

Unidentified Justice: Can I ask you before... can I just ask you quickly if you're... simply repeating these, which I... is that on question 2, am I right in thinking we don't reach question 2 if you lose on question 1?

That's what I asked.

Mr. Pryor: No, Your Honor, I don't believe that is the case.

Unidentified Justice: And that's what I didn't understand.

That's what I thought maybe you answered.

But why would we reach it because how... if you're not entitled... if you lose question 1, the person never became entitled to Social Security, and the statute says a period of trial work shall begin with the month in which he becomes entitled to Social Security.

So, what is exactly... maybe... I don't mean to have you repeat yourself if I just missed it.

Mr. Pryor: No, that's okay.

Unidentified Justice: But what's the response to that?

Mr. Pryor: No, sir.

I would... I would... you must be entitled to benefits to be entitled to a trial work period.

However, I don't think that finding that the 12-month duration requirement applies to the inability to engage in... in substantial gainful activity means that we lose on entitlement.

The entitlement--

Unidentified Justice: That's what... but what I didn't understand is if you lose on question 1 and your client therefore is not entitled to Social Security, isn't that the end of the case?

We don't have to reach question 2.

Mr. Pryor: --That's what I disagree on.

Unidentified Justice: Yes, because--

Mr. Pryor: But the definition of disability isn't the final part of that because the person can... if the entitlement statute requires a prospective consideration of the criteria of entitlement, every person who's insured, has not attained retirement age, has filed an application, is under a disability shall be entitled to disability insurance benefits for each month beginning with the first month after his waiting period.

At that time if you look at the requirements of entitlement at the time of his application in April 1995, he was entitled beginning that month because he met all other requirements--

Unidentified Justice: --That... that's--

Mr. Pryor: --and he had a disability even if you look at disability as an expectation--

Unidentified Justice: --Well, but if you lose on question 1, he didn't have a disability.

Mr. Pryor: --If he... even if there was at that time an expectation that his inability to engage in substantial gainful activity must last 12 months.

Unidentified Justice: I'm going have to... you're going to have to write... somebody is going to have to write this.

So... so suppose the first conclusion is your client never became entitled to Social Security.

Never.

You have a lot of different reasons why he did, but suppose every one of them is rejected, which maybe they wouldn't be, but assume that.

Then do we reach question 2?

Mr. Pryor: If he's never entitled--

Unidentified Justice: Yes, never entitled.

Mr. Pryor: --then I agree he is not entitled to a trial work period.

Unidentified Justice: All right.

So, we have to decide, for whatever theories you may have, whether he is or is not entitled.

Mr. Pryor: My only difference with what you're saying, Your Honor, is that he can be entitled even if you find the duration applies to the inability to engage in substantial gainful activity.

Unidentified Justice: That that is because?

Mr. Pryor: And that is because the entitlement statute is a prospective standard from the point of application, and the--

Unidentified Justice: Oh, yes, of course.

It could turn out that your client, even though he hasn't been disabled at a level of severity for 12 months, nonetheless is a person that when they decided it I guess, the person... it could have been after 8 months, and the decider could have said, oh, but it can be... it will be expected to last at this level of severity.

Well, I guess you take the position that it doesn't have to be decided, that the statute itself says--

Mr. Pryor: --Thank you.

Unidentified Justice: --the person is entitled at the end of the 5 months.

Mr. Pryor: Yes, Your Honor.

Unidentified Justice: That's your position.

Mr. Pryor: That is my position.

Unidentified Justice: It doesn't require a decision maker.

Mr. Pryor: Thank you.

Unidentified Justice: But if... but if... if we determine that in fact the disability level must be as the Government claims, then in a case in which the determination is made before the 12-month period and at that time the person is back working at a substantial level so that the determination is properly made that the person never qualified, then there would be no reason, in a case like that, ever to proceed to the second question.

Isn't that correct?

Mr. Pryor: Yes, Your Honor.

Unidentified Justice: Okay.

May I ask this one question?

I just want to be sure I haven't missed something in the argument.

You agree, as I understand it, there is a severity requirement in the impairment.

And what is the severity requirement?

Mr. Pryor: Your Honor, that is set out in (d)(2) of 423, which is... it's found at page 70a.

And that provides that an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he's not only able... unable to do his past work but can't do other work.

The equivalent of that or even a higher standard of that is meeting a listing of impairments, which my client did, and he... he met the listing--

Unidentified Justice: If I understand you, you're saying that the... that the severity requirement is an inability to engage in substantial work.

Mr. Pryor: --Well, but... yes.

And considering you can't do your past work or other work considering age, education, and work experience.

But another part of that is meeting a listing, which is a higher level, and the listings are defined as those impairments which are presumed to be... prevent someone from being able to engage in any gainful activity, not just substantial gainful activity.

My client was found twice by the administrative law judge as being... having a listing-level impairment.

So, by definition, he met the severity requirement and he met that at the time of both hearings, the second of which was more than 2 and a half years after its onset date.

Unidentified Justice: It seems to me that I... I really have trouble understanding if there's a severity requirement measured by inability to work for a period of time, why that severity requirement wouldn't continue for the entire period under the statutory definition of impairment.

That's what I'm having trouble understanding.

Mr. Pryor: Well, first of all, Your Honor, the severity requirement does not have a durational element to it.

There's nothing in that--

Unidentified Justice: It doesn't say so, but the... but the disability has a durational requirement and it's not a disability unless it's severe enough.

Mr. Pryor: --Well, the impairment has a durational--

Unidentified Justice: Impairment I should say.

Mr. Pryor: --And... and there is a separate severity requirement, but I don't believe that the statute says that... that it must last at that level of severity for 12 months.

Once you no longer have a severe impairment, I would agree that you can... your benefits can be terminated.

But it does not require that... that at the outset there must be an expectation that it will persist at that level of severity for the entire 12 months.

And I believe that the legislative history gives the reason for that.

Congress wanted to balance its desire to restrict payment of benefits with its desire to encourage people to try to go back to work.

The Commissioner's policy has the opposite effect.

It tells people stay home for 12 months or at least until your case is adjudicated, before you try to work.

I believe that's a clear disincentive for people like my client who are... who are attempting to work despite the fact that their impairment remains severe.

Unidentified Justice: Does the record tell us what's happened to the respondent in the interim?

Mr. Pryor: Your Honor, he... this is not in the record, but he subsequently reapplied and is on disability benefits based on the subsequent application.

There is no question in this case that Cleveland Walton would have been paid disability benefits long ago had he merely stayed home until after his hearing and not tried to work.

Instead, he has been penalized for his courage and his motivation in trying to work despite his continuing listing-level impairment.

The Commissioner's policy violates the express language of the statute.

It is contrary to the legislative history of the disability program and to longstanding agency regulations.

And it has been repeatedly rejected by courts of appeals and district courts throughout the Nation.

The Commissioner's policy is also contrary to sound public policy concerns which are a rebut to both in the legislative history and in the case law.

Accordingly, the Commissioner's unlawful and ill-advised policy should be rejected so that other highly motivated disabled persons like Cleveland Walton will not be penalized in the future for their good faith efforts to work.

I'd be happy to address any other questions you might have.

Unidentified Justice: Thank you, Ms. Pryor.

Mr. Lamken, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF JEFFREY A. LAMKEN ON BEHALF OF THE PETITIONER

Mr. Lamken: I would like to begin by addressing the 5-month trial work... excuse me... the 5-month waiting period.

And it's important to emphasize that for a very large and important component of the Social Security program, the SSI program, the Supplemental Security Income disability program, there is no 5-month waiting period.

So, for anyone who's applying for SSI disability income, they... that person, under respondent's and the court of appeals' interpretation, would be entitled to benefits for a very brief period of inability to work so long as the underlying medical condition, such as asthma or arthritis, can be expected to last or has lasted 12 months.

It is in view of the structure of the act, including the continuation of the payments for 2 months after the disability ceases, hard to believe that that was what Congress had in mind.

Second, I should emphasize that the 5-month waiting period isn't part of the definition of disability.

What it is is it operates like a deductible.

It provides a period of time during which the individual bears the burden of their disability themselves and saves the Government the... saves the Government money that would have to be paid for that individual.

But it does not determine what is a disability.

It only determines what period of disability will be paid for and compensated by the Government.

I'd like to also turn... mention for a moment the legislative history.

The legislative history upon which respondent relies is for a separate program enacted 2 years before the disability program at issue here.

The disability program issued in 1956.

When Congress enacted it, it clearly understood that the inability to engage in substantial gainful activity, the disability itself, was going to have to last the requisite duration and not merely the medical... not merely the medical condition.

And when Congress changed the duration from long, continued, and indefinite, which was the original term, to 12 months, it specifically understood that the 12-month period applied to the impairment at a disabling level of severity.

And the... the Senate report, which is quoted on page 36 of our brief, makes that lucid.

It states that the act, as amended, would provide for disability benefits for an insured worker who has been or can be expected to be totally disabled throughout a continuous period of 12 calendar months, and a 6-month period was rejected specifically because it would provide benefits for short-term disabilities.

Finally, in terms of incentives, the incentive to return to work before there is an actual disability is properly addressed by the Commissioner's unsuccessful work attempt regulations.

In addition, the court of appeals' construction is an overbroad response that actually deters returning to work because it would provide benefits not merely to those like Mr. Walton who have a long-term impairment that briefly disables them and then heroically return to work, but also those who have a long-term impairment that briefly disables them and do not actually return to work.

The vast majority of applicants who seek benefits do not return to work, and those... and those individuals would receive benefits despite an ability to return to work and their failure to do so.

If there are no further questions.

Chief Justice Rehnquist: Thank you, Mr. Lamken.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

US Airways v. Barnett - Oral Argument

Fri, 09 Jan 2009 14:50:24 +0000

Case:

US Airways v. Barnett

Media File:

00-1250_20011204-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF WALTER E. DELLINGER, III ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument next in Number 00-1250, U.S. Airways, Inc. v. Robert Barnett.

Mr. Dellinger.

Mr. Dellinger: Mr. Chief Justice, and may it please the Court:

Title I of the Americans With Disabilities Act does more than merely prohibit hostile discrimination against individuals with disabilities.

Congress recognized that an additional kind of discrimination is the failure of employers through indifference or whatever to undertake reasonable accommodations to the physical or mental limitations of otherwise qualified individuals.

As a result, this act does affirmatively require businesses to lift barriers that inhibit employment opportunities for those with disabilities.

The question here, though, is whether, in one particular respect, the act goes beyond a requirement that obstacles be cleared away.

The issue is this.

Where an employee is unable, because of a disability, to continue in his job, is that employee entitled to be placed in another position instead of a more senior fellow employee who would be entitled to the job under the normal operation of a bona fide seniority system?

Now, this is not an easy question, but we believe that in the end a clear answer necessarily emerges from the act, and that is this, that the act simply does not require an employer to override neutral selection criteria wholly unrelated to disability in choosing among applicants for a position, and in particular it does not require the employer to set aside the normal operation of a bona fide seniority system.

Mr. Dellinger: Mr. Dellinger, are you suggesting by that argument that the express exception for bona fide seniority systems in title VII was surplusage, that it wasn't needed, because there would have been... it would have been counted as a neutral rule?

Mr. Dellinger: That is correct.

In fact, I think the presence of that provision in title VII is part of a background assumption in which neither title VII nor any other Civil Rights Act has ever taken what would be a fairly substantial step of requiring an employer to prefer someone for a position over an employee who is entitled to it under a seniority system or, indeed, to prefer any applicant over a more qualified employee.

Mr. Dellinger: But your answer is that it wasn't necessary to put that in title VII, title VII would apply just the same way without it?

Mr. Dellinger: That is correct.

I do not believe that--

Mr. Dellinger: Is there any indication that that's what Congress thought when it didn't... I mean, it does seem a rather conspicuous absence, that the model statute, the basic one has an express exception for bona fide seniority systems, and this one doesn't.

Mr. Dellinger: --Title VII took especial care to do that, but if you look at the more relevant statute, the Rehabilitation Act, it also does not contain any express exception and, moreover, it was interpreted not to require that, but most importantly under title VII, is this Court's decision in TWA v. Hardison, where the Court said it would reach the same result as the principle we argue for here, even without, even before you get to the portion of the act about bona fide seniority systems.

The Court in Hardison held that the reasonable accommodation language of that act for religious adherence, the same reasonable accommodation undue hardship language does not require displacing the rights of more senior employees under a seniority system in order to accommodate a religious adherence need to avoid working on a Saturday shift.

Mr. Dellinger: But are there any instances in which the seniority clause has to be ignored in favor of a reasonable accommodation?

Suppose there are two positions and they pay the same thing, but a senior employee wants position A, and that's the only one that the disabled person can fulfill?

The seniority provision trumps there?

Mr. Dellinger: Yes, it does, Justice Kennedy, and let me acknowledge that, of course, whenever you have a clear rule like the rule here that an employee, that an employer may apply a neutral standard unrelated to disability, such as a merit standard or a seniority standard, any time you have a clear rule, and that's the way seniority systems operate, you're going to have individual cases where, if you had a different kind of system involving individual assessment, you might reach a different conclusion in the very particular instances, but that... that notion that you look and see whether in one particular case favoring the interest of the less-senior employee would in some social sense be better, that system is fundamentally incompatible with the nature of how a seniority system operates.

This is a system that, for US Airways, there are 14,000 customer service employees.

Seniority is a system that gets rid of the potential of favoritism--

Mr. Dellinger: Would you talk about what the system is here, because I found it a little hard to understand.

Is it that a policy of the employer, the airline, that every so often all positions in the category in which this person worked are declared vacant?

Mr. Dellinger: --I think that terminology is not used, Justice O'Connor.

The effect may be the same.

What happens under US Airways' system is that periodically, basically once a quarter, all positions are put up for rebidding.

Mr. Dellinger: All positions throughout the company, or in certain categories of jobs?

Mr. Dellinger: All through the entire category of customer service employees, which would be 14,000.

I don't think they rebuild the--

Mr. Dellinger: Customer service jobs, once a quarter, are all declared open?

Mr. Dellinger: --That's right.

Each different division would... well, they're not so much declared open, as simply put up for rebidding.

That is, the way the system operates is that there is a... it's a very simple system.

There's a list kept in order of seniority.

Everybody can rely upon where they are in the pecking order of that list.

When there are positions eliminated, the people who are in those positions are not necessarily the ones who lose their job.

If two positions are eliminated in the freight area, the two juniormost employees have to leave, and the--

Mr. Dellinger: Well, we're not talking about job elimination.

I thought we were talking about an existing job that continues but it's declared open.

Mr. Dellinger: --No.

There is no... there's no... if you gained the impression from respondent's brief that Mr. Barnett's position was somehow singled out to be declared vacant--

Mr. Dellinger: No.

No, all customer service jobs, every quarter, are essentially declared open.

Is that the policy?

Mr. Dellinger: --That is correct.

That is correct.

Mr. Dellinger: And at that... is it also true, as I think you allege, that the seniority policy does not create legally enforceable rights in any employee?

No employee wanting to come in would be able to sue to get that enforced.

Mr. Dellinger: That is correct.

The company's--

Mr. Dellinger: So what kind of a seniority plan is that?

I mean, on the one hand you say, we have to apply our seniority plan, but on the other hand, it isn't enforceable.

Mr. Dellinger: --Yes, and I'm glad you asked that.

Of course, the company's consistent position in court, whenever someone wants to have a court review how a seniority plan is applied, is it relies upon the fact that it does not create legal rights enforceable in court, but no one has challenged the fact that it is a bona fide program.

It's not a--

Mr. Dellinger: I know, but what would be the situation if there were truly a vacant position at US Airways in customer service?

Would you think the ADA would say that it would be a reasonable accommodation to consider a disabled employee for placement in one of those slots?

Mr. Dellinger: --Yes, absolutely.

We believe that the reassignment aspect of reasonable accommodation does have considerable bite and does considerable work.

It requires you not only to consider, but actively consider whether there are any other vacant places in which you could place an employee.

Mr. Dellinger: I mean, there is a provision in the act itself, is there not, that speaks to a vacancy and that can be a reasonable accommodation?

Mr. Dellinger: That is correct, and we believe that what that means, Justice O'Connor, is that an employer must, unlike the situation under the Rehabilitation Act, where you could simply say you can't do the job--

Mr. Dellinger: Yes.

Mr. Dellinger: --we're letting you go, we can't accommodate that job, they have no obligation to consider other places in the company.

Here, they have to actively consider.

You have to actually go out, you're obligated to go out and try to find a vacant position.

Mr. Dellinger: Okay, so why isn't the sort of thing that US Airways does here, declaring all these jobs open once a quarter, create the kind of thing that US Airways has to consider a vacant position?

Mr. Dellinger: Well, you are exactly right that when the quarterly rebidding process comes up, yes, they have to consider, and they did, indeed, consider Mr. Barnett's request to be transferred into that position.

Moreover, if they needed to make adjustment or accommodations on how that second position functioned, they would be obligated to do that as well.

What they were not obligated to do at this point, after they've identified available positions, overridden any arbitrary rules that say, you know, some people can't have that position, altered the position, they then consider whether there's any good reason not to place Mr. Barnett in that position and, in the absence of a good reason, they are required by this provision to do so.

At this point, we believe that the better reading of the act does not require the employer to override neutral selection criteria wholly unrelated to disability in choosing among applicants--

Mr. Dellinger: May I ask, do you mean any neutral... any neutral selection criteria would trump the statute?

Say they had a criteria that they used brand new employees for certain ticket-selling jobs as a training mechanism, and they always took people who hadn't worked for the company for more than 90 days or something, that that was their regular practice, would that practice always trump the interest of the disability... disabled person?

Mr. Dellinger: --Yes.

I believe that an employer is entitled, under the statute... you've got to have a good, neutral reason unrelated to disability, but the bright line--

Mr. Dellinger: Now you've added the word good.

I thought it only had to be neutral.

Mr. Dellinger: --I mean good in the sense that it has to be legitimate, bona fide business reason.

Mr. Dellinger: Something they always do.

Mr. Dellinger: Yes.

You've got to, because the act requires you to make this appointment, but where we--

Mr. Dellinger: Suppose you have a seniority system that's riddled with exceptions.

Mr. Dellinger: --Where you have a seniority system that's riddled with exceptions, it is perfectly open to someone who challenges that to say, you don't really have a neutral policy unrelated to disability.

Mr. Dellinger: No, no, you do.

I mean, here you happen to have just one exception.

Well, suppose there were five or six, and so the argument would be, well, if you can make an exception for the hardship, the catastrophic illness, for this special situation in that one, what we want you to do is also make an exception for the handicapped person.

Now, nobody's doubting the employer's good faith.

The question is, well, why not make na exception for us.

You have a lot of others.

Let's have a trial on it to see how open to you that is.

Mr. Dellinger: The answer to your question is, no, you are not required to do the reassignment merely because your seniority policy is one that applies seniority in some circumstances and not others.

Mr. Dellinger: All right, then at that point I'd become uncertain what exactly... why we should hold what you want, from my point of view.

That is, I can easily see this act simply requires the employer to act reasonably, and now you could say, where there's a longstanding seniority system, and there's nothing special about it, and there are zero or very few exceptions, it's automatically a reasonable thing to not stir up enormous trouble in the workplace by saying, we're going to start making exceptions.

I could see that.

I'm not saying I agree, but I understand it.

But now, why is it, if there are, however, quite a few exceptions, that it isn't even open to the handicapped person to argue, make another, it's not unreasonable to make another?

Mr. Dellinger: Let me preface my answer by saying that for decades US Airways has had an established seniority policy that covers all of these positions, which has been regularly followed, with one exception for catastrophic illnesses and one revision of how you calculate the time of seniority, so that that issue is not, you know, raised or put before the Court as to whether you would think that not a good reason.

But it seems to me that under... if you look at the sequence from the title VII through the Rehabilitation Act, through Hardison, the background principle that our civil rights laws have simply not restricted the ability of an employer to make a good faith determination about how to fill positions, and that nothing in the ADA itself seems to question that bedrock assumption.

That is to say, no one suggests, though it would be a perfectly... not unduly costly that you need to add positions.

Everyone seems to concede and agree that you don't need to transfer an employee to a position that would constitute a, quote, promotion, unquote, even though that might... the employee might be qualified to do that position.

No one suggests that you have to bump an employee who was actually sitting in a position.

Here, what you have is the defeated expectations under a seniority system, and if that system is bona fide, the way it works is to allow each employee to determine what his or her most important desires are, and that is what you gain through seniority.

If you lose to--

Mr. Dellinger: Mr. Dellinger--

Mr. Dellinger: --Yes.

Mr. Dellinger: --one of the reasons that I find this particular statute puzzling is that it's not like title VII.

Title VII says, thou shalt not discriminate.

It says, you don't prefer... you don't just redress imbalances.

It's a straight nondiscrimination statute.

This one isn't.

This one is driven by a concept called, reasonable accommodation.

It makes reasonable accommodation... if you don't reasonably accommodate, you're discriminating, and so it seems to me that this statute has reasonable accommodation, if it's undue hardship, then it would be unreasonable, but there's nothing like that in title VII.

This disabilities act gives a starring role to reasonable accommodation, which it truly doesn't have in title VII, so to give that effect, couldn't you look at this and say, well, this man was already in the job, and no body is going to be out of work, so the accommodation is reasonable.

If he were seeking to bump somebody else, it wouldn't be reasonable.

Why isn't that an appropriate way to look at this act that's driven by the idea, reasonable accommodation?

Mr. Dellinger: Let me acknowledge that what makes this an interesting case is the fact that the ADA does go beyond merely prohibiting hostile discrimination, so you're right that there are things that an employer affirmatively has to do that it doesn't have to do for other employees under this act.

The general language of the act, though, in my view is not sufficient to change the landscape that existed under the Rehabilitation Act, where the Courts had uniformly held that reassignment was never required.

It's now a possibility, but you're never required.

Mr. Dellinger: But did the statute have the word, reassignment in it, as this one does?

Mr. Dellinger: It did not have in it the word, reassignment, but we don't think that that word is intended to change... in the Hardison case under title VII it was a reasonable accommodation case, and yet the Court said, no, there's a bright line.

We're never... even though the religious part of title VII requires a reasonable accommodation, we're never going to require another employee to sacrifice his or her standing under the seniority policy.

Now, the other part of your question, I think the question asked by Justice Breyer was, but what if it's really reasonable in a particular instance, and here's where I need to suggest why that approach is fundamentally inconsistent with how a seniority system operates.

You are introducing an element of judgment and discretion which will unsettle settled expectations in a way that is completely unpredictable.

What happens is, you simply can't know what the domino effect will be of substituting for a seniority system.

This is a system that is now operated by lower level managers who need to keep a posted list where every employee knows what the position is.

If someone... it would be a fundamental alteration of the system to require the employer no longer to utilize this neutral basis.

For example--

Mr. Dellinger: I notice that one of the amicus briefs suggests... on behalf of labor unions suggests that that might well be true if it were the subject of collective bargaining and an agreement, but not for an ordinary employer plan.

Is that how you read the brief?

Mr. Dellinger: --That is how you read that brief, and I see that is not a distinction which Congress made in title VII when it chose there to protect seniority plans, and it is not one that seems to make a great deal of sense here.

That is, in many States, in spite of the language put in by US Airways, in many States the provisions of a company plan are legally enforceable in court.

Moreover, I don't think there's any intent on Congress to weigh in on the question of whether the workforce should be unionized or not unionized by giving the disabled lesser rights--

Mr. Dellinger: Then if that's true, then what meaning do we give to reasonable accommodation in the ADA?

Mr. Dellinger: --I think what reasonable accommodation--

Mr. Dellinger: It has to be something different, I assume, than undue hardship, because that's a separate defense.

Mr. Dellinger: --Undue hardship, that's right, really goes to cost on an employer.

I think the reasonable accommodation language here requires an employer to take affirmative steps to try to enable a person with a disability to continue in the workplace, and in particular with respect to reassignments, to look for vacant places to make second job accommodatable, for example, but not to cross a very major line--

Mr. Dellinger: But in a situation where the employer's policy is just to create open positions every quarter, that aren't enforceable anyway on behalf of any employee, is it unreasonable to say the employer has to accommodate this disabled worker?

Mr. Dellinger: --Yes, it is unreasonable for the following reason.

The reassignment, the sort of quarterly declaration of vacancy to which you refer is simply how a system operates where every employee accumulates seniority and then gets to choose the position and the shift, so that if you gain seniority, you get enough, you say thank goodness I can now get off the graveyard shift, I can go on the swing shift or the day shift position, I've gained all of this, and that is rebid every quarter.

People rebid on positions, and that seems like a perfectly reasonable thing to do.

It is a... there's nothing... what is the bright line, I think, here is that Congress has... would have fought long and debated hard before it took the major step of saying an employer could not, at the end of the day, once all accommodations had been made, choose a person for a position based on who was the best-qualified or who was the most senior.

Now, let me say again what--

Mr. Dellinger: Your argument for that, as I understand it, is the argument that you've repeated in a couple, or your claim that you've repeated in a couple of instances that there would be something fundamentally unhinging to the seniority system to allow a disabilities exception, and that seems to me in part sort of an empirical question.

I mean, if a company like yours was going to have 100 disability exceptions a month at every terminal, yes, I can see it, but is there any reason to believe that the magnitude of the possible disabilities exceptions under reasonable accommodation would be so great as to have that kind of cataclysmic effect on the general reliance that employees can place on seniority?

Mr. Dellinger: --Justice Souter, that is a good question that I think would go to whether it was an undue hardship.

Mr. Dellinger: Well, it would go to that, but wouldn't it... you know, it would go to--

Mr. Dellinger: But here, on the question of unreasonableness, I think we're looking at a question of principle.

As Judge Posner said in the Seventh Circuit decision, it is a difference not just of cost but of principle, and here the principle at stake is the interest of other employees, so--

Mr. Dellinger: --There's no question, to the extent of the exceptions, their interest is going to be discounted in some way.

Mr. Dellinger: --And even... even though we don't know the numbers, because we don't know ultimately how broadly the court will interpret the phrase, disability, which you have sub judice in other cases, and even them would take some working out.

We don't know the numbers, but we do know how it would disrupt the expectations of employees.

Here, for example, even though we have a bright line rule... we have a bright line rule with promotions.

Even though promotions are a reassignment to a vacant position, you never have to promote, and that's because there's a good reason, it is thought, that promotions are not a reasonable accommodation.

There's an even better reason, in my view, not to trump the rights and interests of other employees who have earned a right to a position, and to try to look, as several of you have in questions, as to whether it might be reasonable in a particular instance, I don't know how you place this burden on managers in a system that is a seniority system to make those complex social judgments not knowing what the domino effect is.

You could have--

Mr. Dellinger: Well, one thing is easy to see is that if you bump somebody, it's no good.

That's not reasonable.

If somebody, as in this case, is already in the job, you let that person remain in the job, so it's not as though every exercise of seniority rights is of equal magnitude.

If somebody is trying to bid for that job and some senior person otherwise would be laid off, then you say it's unreasonable, but here there isn't such a situation.

Mr. Dellinger: --That could well be.

We don't know what the effect is, because someone will be bumped if they don't get their desired position.

For example--

Mr. Dellinger: I thought we know on the facts of this case that it's only a question of, that nobody is going to be bumped.

The question is whether he stays in that job.

There were jobs he could have done in cargo, if he weren't disabled.

Mr. Dellinger: --We don't know what the consequences will be, because what Mr. Barnett is asking... and this is from his declaration, which is not in the joint appendix, but is at page 3 of his declaration of February 28, he says, the intent and potential effect of my request was to have the employee who is going to displace me in the mailroom go around me and bump the next less senior position.

You could have the following situation.

You could have the person who's claiming the job in the mailroom could be an older single parent who's finally worked out child care arrangements and is entitled by seniority to the mailroom position, but who finds out, when, though she is senior in position, or he is senior in position, that Mr. Barnett is insulated from the normal operations system, would have to bump the next position down, which might well be a graveyard shift position, or a position in cargo, which the person was too old to handle the effects of, so you simply--

Mr. Dellinger: What it boils down to, though, is, I think as Justice Ginsburg is suggesting, it means that no one can bump up, but it doesn't mean that anybody gets bumped down, and that, there's a... I mean, she suggests there's a qualitative difference between those two.

Mr. Dellinger: --And I think we don't know that, Justice--

Mr. Dellinger: Well, why don't we know that as a matter of logic?

Mr. Dellinger: --Because it could well be that the more senior employee who needs to be in the mailroom, she needs... her position is being eliminated.

She needs to be in the mailroom, which has a day shift.

She's senior and entitled to it.

She can't get it.

The next senior position, which she has to take, could be a graveyard shift, or a graveyard shift in cargo.

She might not be able to work--

Mr. Dellinger: That's true, but it's still the fact that we know that the effect of following Justice Ginsburg's suggestion is that no extra person gets bumped down.

It's merely that one person doesn't bump up and bump the disabled employee down.

That we can say with certainty, can't we?

Mr. Dellinger: --It may well be in many instances the bottom-most person will lose their job, and it could be that the more senior person would get a job that they... that doesn't work out for them.

Mr. Dellinger: But that's going to be a wash no matter how it works.

Mr. Dellinger: Not necessarily.

Mr. Dellinger: If you have zero-sum... I mean, if you have a finite number of employees and you're laying somebody off, that's--

Mr. Dellinger: Under our plan, it won't be that more people will lose jobs, or get their less desired accommodation.

It will be that the more senior employees do not get the position to which they are entitled, which for complex reasons may be very important to them.

I'll reserve the remainder of my time.

Mr. Dellinger: --Very well, Mr. Dellinger.

Ms. Center, we'll hear from you.

ORAL ARGUMENT OF CLAUDIA CENTER ON BEHALF OF THE RESPONDENT

Mr. Center: Mr. Chief Justice, and may it please the Court:

There are four points that must be made in this case.

First of all, the petitioner's proposed definition of the term, reasonable accommodation, as meaning fair, proper, fit, appropriate, not extreme, not excessive, et cetera, et cetera, must be rejected, because that construction eviscerates all of the statutory defenses, is contrary to all of the regulations, and it is contrary to the listed reasonable accommodations, including reassignment.

Second, the term reasonable accommodation in the ADA means a modification that enables the disabled employee to participate that is reasonable to the disabled employee.

Third, even if you--

Mr. Dellinger: You're... stopping you at the second point, there, so from your point of view, reasonable relates only to its effect on the employee, not on anybody else?

Mr. Center: --That's correct.

Third, even if you disagree with my proposal for the definition of reasonable accommodation, the term must include the listed reasonable accommodations.

Where it says reasonable accommodations may include, those accommodations listed, which include reassignment to a vacant position, are reasonable accommodations by definition.

Mr. Dellinger: But the statute says may include.

It doesn't say must include.

Your definition says must include?

Mr. Center: The may include relates to the case-by-case individualized analysis that must take place.

All of the accommodations won't be necessary in every cases.

The may include relates to the specific needs of the specific individual employee.

And finally, reassignment to a vacant position means an actual reassignment to a job that is not currently occupied or that has not already been filled.

Mr. Dellinger: Would you... Ms. Center, why is it... it has been conceded, I gather... you didn't contest this anyway, in your brief, that reasonable accommodation would never include appointment to a promotion to a more... a position that pays slightly more, even though the amount it pays more is negligible, so it's not... you know, it's not a hardship on the employer.

Why is that?

Mr. Center: Well, I think there are several reasons that the agency, the EEOC has come to that conclusion, which I agree with.

First of all, the listed accommodation is reassignment to a vacant position.

Congress did not say promotion, and reassignment describes a lateral transfer, ordinarily.

Mr. Dellinger: Well, but this is a vacant higher position.

They didn't exclude that.

This is a vacant position at a higher level.

Why wouldn't that be included?

Mr. Center: Further, the EEOC regulations explain that the purpose of the reasonable accommodation is to enable the disabled employee to enjoy the privileges of employment along with similarly situated disable... nondisabled employees, to enjoy equal benefits, and if there's a promotion it's sort of... it's contrary to that principle.

Mr. Dellinger: Oh, but so is what you're urging here, this... you're ending up giving the person here seniority rights, which exceed those of other employees who have been there a certain amount of time.

Mr. Center: Well, in this case the job that Mr. Barnett ended up with was equal in terms of, a) he would have been employed, and b) at the same pay and, et cetera, the same level--

Mr. Dellinger: I understand, but--

Mr. Center: --as he would have gotten but for his disability.

Mr. Dellinger: --But you can't urge that your system assures that the disabled not be given any benefits that other employees would not get.

You're giving him a benefit that they wouldn't get.

They wouldn't be allowed to stay in that job, so why can't you do the same thing for a promotion?

I mean, the other side has a criterion.

Their criterion is, it is... reasonable accommodation is limited to accommodation to the disability, so you provide him with a working space that will accommodate the fact that he can't stand up for too long, or you put him in another job at the same level that's vacant which doesn't require him to stand up.

All of this accommodates the disability, they say.

Whereas the accommodation you're urging here has nothing to do with accommodating the disability.

It has to do with, I don't know, giving him a different job.

Mr. Center: Right, the accommodation is--

Mr. Dellinger: They have a criterion.

I don't understand what your criterion is, except, you know, do what is reasonable.

Why isn't it reasonable to promote the disabled person if it... it just costs a few more bucks.

That's the only vacant job left.

It's not hardship to the employer, so promote him.

Why isn't that reasonable?

Mr. Center: --Well, it's... in addition to the reasons I already gave you, the agency has construed reassignment to a vacant position to not include promotion, and--

Mr. Dellinger: Well, never mind the agency.

Maybe the agency was unreasonable.

[Laughter]

Mr. Center: --In this case, though, the accommodation that Mr. Barnett sought was not more seniority.

The accommodation was reassignment to a vacant position and not--

Mr. Dellinger: I'm not talking about him, though.

I'm asking for your theory of the case.

What is it that makes an assignment not reasonable, or an accommodation not reasonable?

Mr. Center: --An accommodation--

Mr. Dellinger: Once you cut it loose from accommodating the disability, which is what the other side wants to do, once you cut it loose from that, why isn't everything up for grabs, including a promotion?

Mr. Center: --It's not cut loose from the disability.

The reasonable accommodation has to be made, by the clear a statutory language has to be made to the physical or mental limitations of the disabled employee.

Here, the reassignment enabled Mr. Barnett to retain... would have enabled Mr. Barnett to retain his employment.

It was because of his disability that he was unable to perform the job that he was relegated to when the positions were put up for bid, so it was through his disability--

Mr. Dellinger: Well, it can... it can be a reasonable accommodation.

The question is, is he entitled to it in the face of an employer's seniority plan that would put somebody else there instead?

Mr. Center: --Well, I think that he--

Mr. Dellinger: I think that's the question.

Mr. Center: --Well, there are... I think he is entitled to that reasonable accommodation if all other possibilities are exhausted.

If all of the prerequisites are met for reassignment, such as there is a vacancy, the disabled employee is qualified, and no statutory defense such as undue hardship applies, I think he is entitled to the reassignment.

Mr. Dellinger: Even though some other employee on the basis of greater seniority than the respondents under the plan could take that slot?

Mr. Center: Yes.

I think he's entitled to that slot at that point.

Mr. Dellinger: And you don't equate that with the situation of a promotion?

Mr. Center: No, it's not a promotion.

It's a lateral transfer.

Mr. Dellinger: Let me be sure of one thing.

The case arises on a summary judgment, and I thought the court of appeals held that you were entitled to a trial, not that you were entitled to summary judgment.

Are you claiming you are entitled to summary judgment?

Mr. Center: No, I'm... I think that the employer is free to try and present a defense to our claim of failure to accommodate.

Their defense would be undue hardship, or one of the other statutory defenses.

Mr. Dellinger: Does reasonableness go the jury, or is there a jury, do you think?

Mr. Center: There would be a jury.

I think in this case because reasonable accommodation... because reassignment is one of the listed reasonable accommodations, the judge could state that reassignment is a reasonable accommodation, but if you disagree with my, you know, construction of reasonable accommodation, then it could go to the jury, I suppose.

Mr. Dellinger: In your summary judgment proceeding, did you challenge, at all, the employer's description of the seniority system?

Mr. Center: Yes, there was a challenge to that description.

Mr. Dellinger: I didn't see it.

That is, as far as I could see there's an affidavit on the employer's side, and Rule 56(e) requires you to point to specific, you know, record evidence or affidavits, et cetera.

I didn't see any.

Mr. Center: Well, there wasn't... I... maybe I misunderstood the question, but there was in the record an effort to point out that they had made exceptions to the seniority system, that they had amended it--

Mr. Dellinger: As far as I could tell, what I have to assume about the system is that it's widespread, it's longstanding, it governs 14,000 employees, the only exception is an exception for catastrophic medical transfer, and the... they say, I guess we have to take it as given, that it would require your view would require US Air to weigh and balance conflicting claims and personal desires of all US Air agents, and it would interfere with, I guess, the alternative child care arrangements, educational endeavors, and the ability of other, the other employees to continue working for the company.

Now, those seem to me the facts.

I didn't see any refutation of them--

Mr. Center: --There are additional facts--

Mr. Dellinger: --and therefore I assume, for summary judgment purposes, I take those as a given, and if I'm not supposed to, I'd like to know right now.

Mr. Center: --There are additional facts, in addition to the catastrophic illness exception there is a significant modification to how to calculate furlough seniority.

There is a change from department seniority to company seniority.

In addition, as the petitioner has conceded, the personnel policy guide containing the seniority policy states on its face that it's not a contract, it's merely a--

Mr. Dellinger: No, that's given.

I assume it's not.

Mr. Center: --And the grievance procedure, where by employees would bring these seniority matters to the company's attention, that grievance procedure says, you're not allowed to grieve something that's required by Federal law, and we get to decide what's required, so in that circumstance it seems to me not reasonable for an employee to believe that the job assignment policy is going to trump a legitimate need for reasonable accommodation under a Federal law.

Mr. Dellinger: Given that statement, to get to this... what I think of anyway as the heart of this matter, assuming I don't accept your view of reasonable accommodation, assuming that I accept the view that reasonableness includes the interest of other workers and perhaps the interest of management as well, all right, given that view of it, when you come up with the characteristics that I've mentioned and that you added to, why isn't it reasonable for the employer to say, look, if I give this person the job, there's an alternative chain I have to bump that really causes disruption in the company.

It throws everything up for grabs.

I can't enforce a seniority system under that kind of regime, but even if I could, all these other workers here are going to be disrupted, too, and that's what makes my seniority system reasonable in the circumstance.

Now, your reply to that is precisely what?

Mr. Center: The sort of domino effect has been vastly overstated by this case by the petitioner.

The actual impact of this sort of accommodation in this case and in other cases is to permit the disabled individual to have one assignment, and then replacing, on the list of possible jobs for people to bid on, replacing that assignment would be the job that the person left, so each reassignment leaves a vacancy to be put on the list of jobs--

Mr. Dellinger: I don't understand that part of your answer, though I want to hear the rest, because if there are 7,000 jobs missing, then it will be 7,000 people at the end of the day without a job, and either you go down one chain and bump, bump, bump, bump, bump, or you go down a different chain and bump, bump, bump, bump, bump.

The harm is precisely the same.

It's a question of which people suffer it, so I don't see why there isn't a domino effect.

It's this chain, or that chain.

Mr. Center: --Right, but in terms of the particular chain, there's a list of jobs upon which the nondisabled employees can bid, and those would include all of the jobs that remain vacant after the reassignment, as well as the job that the disabled individual left, so the actual impact is modest.

It's removing one job on the list and adding a different job on the list.

Mr. Dellinger: Well, isn't it like musical chairs in a way?

I mean, someone is going to lose out to the disabled person.

Mr. Center: Someone may get a bob that they would... a job where they would have preferred another job.

Mr. Dellinger: Yes.

Mr. Center: That's correct, but no one would lose their job because of the reassignment.

Mr. Dellinger: Well, it may be a job... I mean, it depends.

It may be a job that the person can't take, such as the person who had arranged from child care, and simply, the only other job available is one that the person cannot do.

I mean, that's possible.

Why isn't it... as I read this statute, I don't see anything in it which says that if... there's plenty in it that says we're going to sacrifice some of the convenience of the employers to the needs of the handicapped, but I don't see anything in it that says we're going to sacrifice the expectations of coworkers to the handicapped.

Why isn't it a perfectly feasible reading of reasonable accommodation to mean an accommodation that, among other things, does not defeat the reasonable expectation of fellow employees?

Mr. Center: Well, you could conclude that, but I think it's... if you look at the statutory structure, if you looked at the list of reasonable accommodations, if you look at the governing regulations, all of these provisions explain how the equities are weighed in the statutory--

Mr. Dellinger: What is there in any of them that shows that Congress envisioned not just putting some burden on the employer, but putting some burden on fellow employees?

Mr. Center: --Well, the--

Mr. Dellinger: I mean, it mentions vacancy only.

I mean, it mentions vacancy because nobody's hurt if there's a vacancy, but somebody is hurt if there's a vacancy to which somebody has seniority entitlement.

Mr. Center: --Well, the plain language of the statute requires that the employer provide reasonable accommodation, and the defense is undue hardship, and so that's how the statute works.

If there's no other possible accommodation--

Mr. Dellinger: Yes, but if I reject that view of the statute on the one I was taking, I'd still like to know what the response is to what I think is the main point, which is not the domino effect.

If I paraphrase it, life is very difficult in a big company when you lay off 7,000 people.

It's terrible, and the one think that the 7, the 14,000 who remain have to be certain about is that there's a fair system in place, and once we open it to this kind of argument, well, it's over.

Your client has a very bad back.

I might think that's somebody that this act should protect, but when we get to the reasonable accommodation stage, at that point, if all those people are in the act, I can't run my system, says the employer, because the claims for special exemption in the bumping will be endless.

Now, your response to that is what?

Mr. Center: --Well, if you disagree with our reading of the term, reasonable accommodation, the term still would require a case-by-case individualized analysis of whether it was reasonable in this situation, and what the petitioner wants is a per se rule for bona fide seniority policies, and that's completely contrary to the way that the statute works, which is case-by-case analysis.

Mr. Dellinger: --say that your client could be bumped by someone who's more severely handicapped if he were in that position?

Mr. Center: I think that each of the handicapped employees would be entitled to reassignment to a vacant position.

If my client was in that position already, it would not be a vacancy, so it wouldn't be available.

Mr. Dellinger: Well, but I... it's my understanding that these positions are deemed open at some point.

Mr. Center: Well I think, then, that the client would be... the more disabled individual would be entitled to reassignment.

They both would be entitled to reassignment.

Mr. Dellinger: Well, that's... I think you've missed my point.

Why wouldn't that person be as entitled to the position that your client occupies temporarily, when as a part of his or her reassignment or accommodation, reasonable accommodation?

Mr. Center: There could be conflicting requests for accommodation, that's correct.

Mr. Dellinger: Would that person be entitled to that position--

Mr. Center: There would be a number of ways to--

Mr. Dellinger: --using your argument?

Mr. Center: --I don't believe that the more disabled employee would be entitled to bump the less-disabled employee.

I think that--

Mr. Dellinger: Why?

Mr. Center: --Why?

Because the employee that needs the accommodation continues to need the accommodation.

The other employee also needs the accommodation.

Mr. Dellinger: But you could say that about the people who have the job in the first instance, couldn't you?

Mr. Center: Excuse me.

Mr. Dellinger: The person who had that position and had his or her life worked out, day care, et cetera, et cetera, also needed that position.

Mr. Center: That's correct.

Mr. Dellinger: So the argument's the same.

Mr. Center: But the argument is that there's a Federal law in this case that requires reasonable accommodation, including reassignment.

Mr. Dellinger: Let me ask you this.

What is your client's disability?

Mr. Center: He has a back impairment.

Mr. Dellinger: What does that mean?

Mr. Center: He has an orthopedic disability.

He has pain, he has problems in his disks.

Mr. Dellinger: Has it been established that he in fact qualifies as disabled, or is that something we're just assuming arguendo at this stage of the case?

Mr. Center: It's disputed.

A summary judgment motion was denied on that issue, and so at this point I imagine we're assuming arguendo.

Mr. Dellinger: May I ask about a hypothetical that's running through my mind.

Under your opponent's view, as I understand it, it would be at least theoretically possible that the job your client has occupied up to now, and he wants to move because of his disability, would be the job most people on the seniority list would want if it were available, but they could nevertheless say they don't have to accommodate.

Am I right on that?

Mr. Center: Could you ask it one more time?

I'm sorry.

Mr. Dellinger: It seems to me theoretically possible that he is... because of his disability, he's leaving a job that is a very attractive job for a nondisabled person, and that everybody on the seniority list, if given the choice of jobs, would pick his job, that under your opponent's view it would nevertheless... they could nevertheless refuse to accommodate him.

Mr. Center: That's correct, and my client, Mr. Barnett's goal is not to get the plum job.

Mr. Barnett's goal is to get a job that he can do despite his disability, so the purpose is not to prefer the disabled employee.

The purpose is to enabled the disabled employee to retain employment and to accommodate their limitations.

Mr. Dellinger: But it does have the effect of giving a preference.

That whole list of reasonable accommodations... let's forget a seniority system.

One of the accommodations is part-time.

Suppose somebody who has an exhaustion problem, can't work a full day, and then there's somebody else who says, but I'm a single mom, and I've got children at home, and they don't have to accommodate to me, I don't understand it.

Your answer is, well, there's a Federal law and it doesn't protect you, but that would create the same kind of friction in the workforce.

People feel that they have been disadvantaged for no just reason, so... but all those, what the statute lists as reasonable accommodations, every one of those could adversely affect someone who has in that person's view an equally good reason to get the break.

It is a preference system.

Mr. Center: That's correct.

The petitioner concedes that the reasonable accommodation mandate requires employers to do certain things for disabled employees that they may choose not to do for nondisabled employees.

Mr. Dellinger: Sure, but preferring one... I mean, giving someone a benefit that someone else doesn't get, such as allowing them to do a certain job sitting down when everybody else has to do it standing up, or what-not, that doesn't disadvantage the others.

That doesn't destroy any of their expectations when they took the job, and the same thing with allowing somebody to work part-time.

It doesn't help me any that somebody can work part-time now.

Sure, I'm not allowed to do it, just as I'm not allowed to do the job sitting down, but it doesn't hurt me, whereas what happens here is that the person who had an expectation of seniority entitlement to a certain job has been frustrated in that expectation.

It seems to me that's quite different.

I mean, we're not talking about whether one employee can be preferred over another.

Certainly, the disabled employee can be.

But the question is whether it's a reasonable accommodation when it requires you to harm another employee in that employee's job or in that employee's legitimate expectations, and I think that's really what's at issue here, whether it's just the employer that's going to be inconvenienced by this statute, or other employees as well.

Why isn't it reasonable to say you cannot destroy the expectations of other employees?

What in the statute shows that you can?

Mr. Center: Well, it's true that in certain cases providing the reassignment to a vacant position ends up giving a priority to the employee over a nondisabled employee.

That can happen, but that's not the purpose of the accommodation.

The purpose of the accommodation is to enable the disabled employee to retain their employment, which directly serves the vocational and the equality goals of the act, and the reverse--

Mr. Dellinger: Yes, but to the extent that you think reasonable, the word reasonable and reasonable accommodation requires what happens to other employees as well as a result of the accommodation, then you have a different question.

If you approach it the way you do, that it refers only to what's reasonable for the disabled person, that's different, so we have to decide what reasonable accommodation really means, don't we?

Mr. Center: --And if you do decide that reasonable takes into account other employees, in this case the equities really favor Mr. Barnett, because Mr. Barnett is the one that faced job loss.

The person who came in and bid on Mr. Barnett's job had no compelling need for the job.

He was perfectly able to continue doing his existing job, and Mr. Barnett, by contrast, because the accommodation was denied, became inevitably unemployed, so the equities will frequently favor the disabled employee who faces job loss, even if you pull out reasonable separately like that.

Mr. Dellinger: I hate to belabor the point, Ms. Center, but the more disabled employee, someone who's severely disabled, if that person has to be accommodated and we only have to look at that person's needs in making our reasonableness determination, I don't understand why your client can't be bumped if he were in that position.

Mr. Center: If you pulled out reasonable?

Mr. Dellinger: And only... and you limited that determination to the disabled person who has to be accommodated.

Mr. Center: Well, if you pulled out reasonable in that way, I think there'd be a difficulty arguing it would be reasonable to disrupt another effective accommodation that's already in place.

It might be reasonable to do some other things--

Mr. Dellinger: But that's... then your argument is only different in... slightly from the argument that you have to take into consideration the disruption that's caused in others' lives when you disrupt the seniority system.

Mr. Center: --Well, I think that the disruption, as we state in our brief, can be considered in the undue hardship defense.

It's a detailed defense that's drafted to consider all of these factors.

Mr. Dellinger: Well, could we consider the disruption to your client in the undue hardship category?

Mr. Center: No.

I think the disruption to my client in the job loss is the harm that results from the failure to accommodate.

Mr. Dellinger: But aren't you saying that in the case that Justice Thomas poses you do consider the disruption to your client as well as the interest of the more--

Mr. Center: Correct.

I misunderstood.

Mr. Dellinger: --Okay.

Then why don't you do that across the board?

In other words, why doesn't... why shouldn't... why don't you have to concede that reasonableness always takes into consideration the interest of other employees?

Mr. Center: Because I think that's contrary to the structure of the statute.

I think it's contrary to the description of reasonable accommodations.

It's contrary to the regulations.

Mr. Dellinger: Yes, but can you find any textual basis in the statute that says when you're dealing with comparative interests of two disabled people you consider the interests of both in determining what is reasonable, but when you're considering the comparative interests of a disabled person and others, you don't consider both?

Mr. Center: I was--

Mr. Dellinger: Is there any textual basis for that?

Mr. Center: --Perhaps I'm still misunderstanding, but I was answering the question assuming that my reading of the statute was rejected and that we were looking at equities in the word reasonable.

Mr. Dellinger: I see.

You weren't conceding... all right, just for argument.

Mr. Center: Yes.

Mr. Dellinger: Do I misunderstand?

I thought you had agreed earlier that it would never be reasonable to bump another employee.

Mr. Center: That's correct.

Mr. Dellinger: Okay.

So you're always talking about transfer to a vacant position.

I don't understand the competition between two disabled persons.

Each of them has to be given a vacant job.

If the job's already filled, it doesn't matter whether it's filled by another disabled person or by a perfectly healthy person.

Mr. Center: That's correct.

It will often, I think, just be the chronology, who requests accommodation first, who gets reassigned, and then you go on to the next disabled employee if there is one and deal with their accommodation.

Mr. Dellinger: And the reason you can't bump another employee is that that's unreasonable, is that--

Mr. Center: No.

The reason is that the accommodation listed is reassignment to a vacant position, and that vacant language was put in there to prevent bumping an occupied position, bumping an individual.

Mr. Dellinger: --Well, if you... what you've said, you're making of this statute in this respect something different from, in title VII, where you have past proven discrimination, so the employer may have to give a remedy, that remedy may adversely affect other people, and the calculus that the Court has to make is, yes, they can be hurt, but not too much, and isn't that exactly what is going on here?

If we reject your client-centered interpretation of reasonable, it's just the same thing.

Nondiscrimination, this statute goes beyond nondiscrimination.

It requires reasonable accommodation.

What's reasonable?

Of course, you always have to take into account the interests of other people.

Mr. Center: That's correct.

If we... if the Court rejects my view of the term, reasonable accommodation, you'd have to take into account all of those considerations, but you could not adopt, I don't believe, the per se rule suggested by the petitioner that neutral, you know, selection criteria are always going to trump the ADA.

For example, your part-time working scenario, that could be eliminated by a neutral rule that no one can work less than full-time, so that can't be the rule.

If it's reasonable, pulled out and looked at in the different criteria, then it has to be case-by-case.

It can't simply be deference to a neutral selection criteria.

Mr. Dellinger: When I got the case by case, I look at the record here, and it doesn't seem to me as if your client wants to prove anything.

They'll accept what the other side says about it as we discussed, and then we just have to decide in this case, is that enough or not.

Is that right?

Mr. Center: Well, I think there are a number of items in the record that show that the actual disruption to the employer, as well as the impact on other employees, would have been extremely modest, and that retaining Mr. Barnett in the job he'd been successfully performing for years was... would have been an entirely reasonable accommodation, if you want to pull out reasonable.

Mr. Dellinger: It's not a matter of proof.

We're at the pretrial stage.

Mr. Center: Well, that's true, and there's certainly sufficient evidence under Reeves for our client to have a trial on that issue, should--

Mr. Dellinger: Thank you.

Thank you, Ms. Center.

Mr. Center: --Thank you.

Mr. Dellinger: Mr. Dellinger, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF WALTER E. DELLINGER, III ON BEHALF OF THE PETITIONER

Mr. Dellinger: Mr. Chief Justice, when it comes to filling positions, which is fundamentally different, I think, than adding other elements, there's nothing anomalous about a per se rule, nor is that inconsistent with giving individualized considerations.

The rehab act and title VII both said that you don't displace seniority systems.

In Hardison v. TWA, this Court did not say you have to ask whether the more senior employee's reason for needing the Saturday off was either trivial or serious.

When it comes to positions, there is a good reason for letting the more senior employee choose the more desirable position.

I don't think either the line managers or the Ninth Circuit engaging in an individual case-by-case assessment could possibly make that a workable system.

The notion that there's no one who's going to be hurt reduces to this, that when the more senior employee claims the position under the regular operation of the statute, their response is to say, well, that more senior employee can always go and be a cargo handler on the night shift.

We don't know that.

We don't know if that would work.

In effect what you're doing when you promote somebody to a greater seniority priority is that you are promoting, and we do know that however reasonable it might be in a particular case, if you did an intensive case-by-case thing to say, why don't we promote this person to the secretarial supervisor, that itself is never required, because we think that in a sense you're really going to lose your way in trying to manage a company if you move away from bedrock proposition that an employer is never required to choose the less-qualified or the less-senior person once they've made all the other accommodations.

That would be a major social change.

There is an argument that someone who loses one position because of a disability ought to have a priority claim for another position even over someone who is more qualified or more senior for it.

That would be a major policy change that we... for which there are arguments for and against.

The Congress--

Chief Justice Rehnquist: Thank you, Mr. Dellinger.

Mr. Dellinger: --Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

Toyota Motor Mfg v. Williams - Oral Argument

Fri, 09 Jan 2009 14:50:26 +0000

Case:

Toyota Motor Mfg v. Williams

Media File:

00-1089_20011107-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in No. 00-1089, Toyota Motor Manufacturing v. Ella Williams.

Mr. Roberts.

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

The Sixth Circuit below held that the respondent, Ms. Williams, was substantially limited in performing manual tasks and therefore disabled under the Americans with Disabilities Act because she could not perform the manual tasks associated with her assembly line job, specifically gripping a sponge and repetitively wiping down cars with her arms at shoulder level for an extended period of time.

That test for disability status was wrong.

It was wrong because it is inconsistent with the statute which requires a substantial limitation on a major life activity.

Repetitively wiping down cars with arms at shoulder level for an extended period of time is not a major life activity, and being limited in that activity does not constitute being substantially limited in the major life activity of performing manual tasks in general.

A plaintiff must show a substantial limitation in a broad range of manual tasks to meet the statutory standard.

The most that the court of appeals could extrapolate was that Ms. Williams was substantially limited in the tasks associated with jobs that required gripping tools and repetitive activity with arms at shoulder level for an extended period of time.

That is a specialized and idiosyncratic limitation.

It is not a substantial limitation--

Mr. Roberts: Mr. Roberts, can I just ask you at the outset, since you have plenty of time comment, there's expert testimony, as I read the briefs, that... on your opponent's side that she suffers a lack of access to the labor market of from 50 to 55 percent of the jobs, both nationwide and in Kentucky.

Mr. Roberts: --A number of things about that.

First, that was not pertinent on the manual tasks inquiry.

That was submitted under the major life activity of working in an effort to show a substantial limitation as to working.

The district court rejected that limitation.

The court of appeals did not reach it.

The district court rejected it for a number of reasons.

First, the 50 to 55 percent was based largely on the assumption that she... she could not do medium duty work, but as the evidence showed... and I would point particularly to page 24 of Dr. Weikel's deposition... she never established that she could do medium duty work in the first place and had never done medium duty work.

And what Dr. Weikel said is, if you take out that loss... in other words, the loss of eliminating medium duty work... her loss of jobs goes down to 10 to 15 percent, which would not be sufficient to show a substantial limitation in working.

The district court also said that that evidence was not geographically specific enough.

It was based on national figures and it was not narrowed down to the particular job market, so that the... the evidence was properly rejected by the district court and never reached by the court of appeals because it was submitted on the working life activity and not the manual tasks.

Mr. Roberts: When you say it was rejected by the district court, you don't mean it was inadmissible.

You mean it was given no weight by the district court.

Mr. Roberts: The district court considered it and said it was not probative of what it purported to show, a loss of access to the job market.

She failed to... to meet the test for working because she didn't show an exclusion from a class of jobs.

All she showed was that some assembly line jobs were closed to her.

That was the main reason.

The other reason was because the evidence that she showed wasn't probative of what it purported to show, again an issue that the court of appeals did not reach.

What the court of appeals erred in doing was artificially narrowing the manual tasks inquiry.

It said quite clearly it was adopting a class-based analysis.

We're only going to look at the manual tasks associated with your job.

Mr. Roberts: Mr. Roberts, in the same vein as Justice Stevens' question, how does the worker's compensation notion of disability fit in?

As I understand it, she was assessed as having a 20 percent... what was it... partial disability for worker's compensation purposes.

So, that's another statutory scheme... uses the same concept, disability.

Mr. Roberts: But... but pursuant to very different standards.

And there are two worker's compensation proceedings.

The first one, before she was rotated into this new job, was the 20 percent that Your Honor referred to.

The second one, she sought worker's compensation also after this one, and that was denied in... in a denial affirmed by the Kentucky Supreme Court.

But there are different standards.

Worker's compensation is looking to very different things than... than the Americans with Disabilities Act.

And under the Americans with Disabilities Act, you have to show a substantial limitation on a major life activity.

That's not the standard--

Mr. Roberts: Well, why wouldn't 20 percent limitation... 20 percent occupational impairment be a substantial limitation?

Mr. Roberts: --Well, first of all, it may be pertinent if the standards were the same, but only under the working category.

The worker's compensation system is looking to impact on work.

The court of appeals analysis was under the performing manual tasks category.

But again--

Mr. Roberts: Why did the court of appeals avoid addressing the work approach?

Was it because it thought this Court had rejected that?

Mr. Roberts: --Well, a couple of reasons.

My brother, the respondent's counsel, represented to the Sixth Circuit that the strongest claim was under performing manual tasks and not under working, and a recent Sixth Circuit precedent, the McKay case, I think made it quite clear that she would not qualify as substantially limited in the major life activity of working.

Mr. Roberts: Should we address that, or because it was not addressed below, leave that alone?

Mr. Roberts: Well, I think the more typical approach would be not to address the major life activity of working since it was not addressed below, except to this extent.

The major problem with what the Sixth Circuit did in looking only at the manual tasks associated with working replicates, under that category, all of the problems that this Court has noted or the concerns, rather, that this Court has noted with respect to the major life activity of working.

The test is circular.

Mr. Roberts: In... in looking at a substantial limitation, do we focus on the things that the person cannot do or the things they still can do or both?

What do we do?

Mr. Roberts: Certainly with respect to manual tasks, you have to look at both because it's not enough, obviously, to say there's one particular manual task that I can't do.

That wouldn't show a substantial limitation, and that particular manual task is probably not going to be a major life activity.

So, you have to look at the broad range.

And that is what the courts of appeals have done.

They've taken a list of everyday manual tasks that we all perform and said, well, where does the plaintiff fall in this... in this... against this list of everyday tasks?

The Sixth Circuit did not do that.

They looked just at the work-related activities.

When you do that, the record is quite clear that Ms. Williams can do a broad range of manual tasks.

With respect to personal hygiene, she can brush her teeth, wash her face, bathe.

With respect to everyday activities around the house, the record shows she makes breakfast, can cook, laundry, pick up and organize around the house.

And, of course, what the district court, in particular, found most compelling, she can do assembly line work at the Toyota plant.

Mr. Roberts: Mr. Roberts, may I just stop you on something you just said?

I thought the Sixth Circuit said in its opinion that it had considered recreation, household chores, living generally, as well as the work-related impairments.

Mr. Roberts: A very important sentence that I think has to be read carefully.

In the first place, it doesn't say that we've looked at the record and considered those.

It was a generic assumption.

The assumption is, well, if she can't do this assembly line work, that must affect other areas, recreation and household chores.

A generic assumption like that is wrong, first, because the ADA specifies you have to look at the individual impacts; second, because the impairments we're talking about, myotendinitis and that sort of thing, affect different people in widely different ways.

You can't assume, just because someone cannot do the repetitive work for an extended period of time, that that's going to have an effect.

Of course--

Mr. Roberts: You can assume that, though, in some cases, couldn't you?

I mean, you're not... if... suppose a person says I cannot be a watchmaker and the reason he can't is he's blind.

That would be the end of the case, wouldn't it?

I mean, it would be clear he's disabled.

Mr. Roberts: --Certainly.

Mr. Roberts: Even though he only mentioned watchmaking.

Mr. Roberts: Certainly.

Mr. Roberts: All right.

So, why can't this woman here say I cannot lift more than 20 pounds ever, I cannot lift more than 10 pounds frequently?

I cannot perform repetitive motions with both hands over an extended period of time, and I cannot work with my hands above my head.

Now, that's the problem.

Now, in addition, that... I'll tell you that makes me too... it makes it hard for me to find a job.

Mr. Roberts: Well--

Mr. Roberts: But it's... it's really the disability that we're focusing on, and in the circumstances someone like that would be able not only not to perform the job but also not to do the things that the judge said below, a reasonable inference from the nature of the disability.

Mr. Roberts: --First, because that type of an inference is contradicted by the record.

She says I can do other assembly line work, including work that involves manual tasks.

The record shows she can take care of personal hygiene.

She can do chores around the house.

The inference would be... it's contradicted by the record.

Second, the type of manual task that you're looking at... the problem is no one suggests that she can't use a sponge and wipe down the side of a car.

The problem is with the repetitive aspect of it, doing it for an extended period of time.

The only setting in which someone would have to do that is in an assembly line job, and therefore, if anything, the... the disability should be analyzed under the major life activity of working, if that is a major life activity.

Mr. Roberts: Why... that's what I... my... until you said the last part, my thought was, well, we need a trial on this.

Mr. Roberts: Oh, no.

Mr. Roberts: How serious is this disability?

What does it disqualify her from doing?

But do we have to go on to categorize between whether it's working, gardening, what is a major life activity?

I mean, isn't it just is this person hurt badly enough that there are an awful lot of things that she can't do?

Mr. Roberts: No, no.

The statute sets forth a standard, substantial limitation on a major life activity.

Therefore, the way the cases have been tried, you identify a major life activity.

Mr. Roberts: That's the part that's bothering me.

You're absolutely right.

And what I wonder is whether this statute intends the courts to be so rigid as to say, well, you've got to get into an argument about whether it's working, gardening, this or that or the other thing, or to use a more broad, general judgment, is this person incapable of doing a lot of things that people do in life.

Mr. Roberts: Well, first of all, with respect to working, it is important I think to identify what major life activity you're talking about because as the EEOC has recognized in its regulations, as this Court has indicated, there are all sorts of problems when you say working is a major life activity.

The problems are, first, that it's completely circular.

The... the need for an accommodation establishes the entitlement to it if your life activity is working.

That's not how the statute should work.

It should work by identifying a disability and then seeing if it can be accommodated.

Working is also unusual in the sense that it is not the individual's physical characteristics or condition that are primarily significant in deciding whether there's a disability, but the demands of the job.

That's unlike the other major life activities that Congress was talking about, seeing, hearing, breathing, walking.

Working... it suddenly becomes not only circular, but it looks like you're talking more about the job than the individual.

That's why I do think it is important to... to draw a distinction, and what the court of appeals did, of course, was look at manual tasks but then say only the manual tasks associated with work.

And with respect again to the record, the record shows that Ms. Williams can do a broad range of manual tasks.

When you compare the approach here to the approach of the other courts of appeals, the Eleventh Circuit in cases that we've discussed in our brief, Chanda and Hillburn, or the Fifth Circuit in Dutcher.

This doesn't come close.

She can do a broad range of manual activities.

Yes--

Mr. Roberts: Well, Mr. Roberts, can I just interrupt again?

I... you've explained by the 50 percent figure is... is wrong.

But assume for the moment that there were... she was disabled from performing 50 percent of the job opportunities available in the State, and in addition, there were a random number of additional things like playing tennis and playing the piano and so forth that she could not do.

Would it still not be... would it be impermissible to analyze this as the disability being inability to use the hands like most people can and the major part of the evidence relates to work, but then there are these other things she also cannot do?

Does she have to have the other things... you have to separate them.

Can't you look at the two together?

Mr. Roberts: --Yes, you can, and... and certainly in a manual tasks case, you can submit evidence and say, here's an example of manual tasks that I can't perform, the ones that are required at work.

There's nothing wrong with that.

The problem is in artificially limiting it to it and looking only at the manual tasks associated with work.

That's not enough.

But yes, it certainly could be part of her case that I can't do this job at work.

But there has to be more because otherwise she hasn't shown a substantial limitation on the major life activity of performing manual tasks.

Mr. Roberts: Is it... is it your view that by including the non-work impairment that she has, you sort of increase the universe of things she has to... you compare it to, and therefore, there's a smaller percentage of an impairment, and therefore, it's not substantial?

Mr. Roberts: If the claim is I'm limited in manual tasks, you do have to look, and this is what all the other courts of appeals have done, the broad range of manual tasks.

It's not enough, obviously, at one extreme if there's a peculiar task that you can't do, but you can do everything else.

Mr. Roberts: What you're objecting to particularly I suppose is the sentence of the court's opinion which says the fact that Ms. Williams can perform a range of isolated, non-repetitive manual tasks performed over a short period of time, such as tending to her personal hygiene or carrying out personal or household chores, does not affect a determination that her impairment substantially limits her ability to perform the range of manual tasks associated with an assembly line job.

Mr. Roberts: That's right.

Mr. Roberts: In other words, it made that criterion of whether she's... she's substantially limited.

Mr. Roberts: That's wrong.

In that sentence, the court of appeals said, okay, you can do a lot of things, but you can't do the assembly line job, and not being able to do the assembly line job is enough for us.

And that was what was wrong with the court of appeals--

Mr. Roberts: So, the nub of it is the... the limitation to considering one job; i.e., an assembly line job.

Mr. Roberts: --With respect to working--

Mr. Roberts: That if... if there was one overriding sin, that was it, wasn't it?

Instead of considering a range of jobs... I'm sorry... a class of jobs--

Mr. Roberts: --If... if they're going to look at it under manual tasks, you've got to look at all manual tasks.

Mr. Roberts: --Yes.

Mr. Roberts: If you're going to look at it under working, you've got to look at either a class or a broad range of jobs.

Mr. Roberts: I was going to say if you're doing it under... under the major life activity of manual tasks, you wouldn't just look at jobs.

Mr. Roberts: Not just jobs.

It has to be the broad range.

And typically what the courts have done--

Mr. Roberts: Yes, but it... I didn't mean to interrupt you.

I was going to say, but if... assume they start out, our category is going to be manual tasks, and they had come up with 100 jobs in which she could not perform manual tasks, would that not have satisfied the... the required inquiry under... under manual tasks?

Mr. Roberts: --I would still need to know what about everyday activities.

Maybe the jobs involved specialized, idiosyncratic manual tasks.

Can she--

Mr. Roberts: Yes, but at this point, aren't we getting sort of academic about it?

If somebody... let's assume the category is manual tasks, but they identify 100 jobs which she... I mean, a great range of things that she can't do.

Isn't it a little unrealistic to say, well, she might be able to vacuum the floor at home?

I mean, at that point, you've made a pretty good prima facie case, haven't you?

Mr. Roberts: --The... the evidence then would probably not be that she can take care of herself generally.

She can cook.

She can do laundry.

She can... as the evidence is in this case.

Mr. Roberts: No.

But the question that he's... what if the evidence did show she could do all these things?

Mr. Roberts: Then it would seem to me to be properly analyzed as a working case.

That's where her problem is, according to the... this unusual record we've hypothesized, only a problem at work.

Then look at it as a working case.

If it's a manual task case, you have to look at the broad range of manual tasks.

I'd like to reserve the remainder of my time.

Mr. Roberts: Very well, Mr. Roberts.

Ms. McDowell, we'll hear from you.

ORAL ARGUMENT OF BARBARA B. McDOWELL ON BEHALF OF THE UNITED STATES

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

We agree that the Sixth Circuit applied an incorrect test in determining whether a person is substantially limited in the major life activity of performing manual tasks.

The correct test asks whether a person is significantly restricted relative to the average person in performing those basic manual tasks that are central to everyday life, tasks such as grasping objects, manipulating objects, holding objects.

That inquiry is indicated by the statutory focus on substantial limits and major life activities.

The Sixth Circuit's approach, which focuses only on a plaintiff's ability to perform particular manual tasks required by a specific job, seems to us both over-inclusive and under-inclusive.

First, the Sixth Circuit's approach would extend the protections of the act to persons who are substantially limited only in performing a particular job, not in everyday life and not in performing a range of jobs or a class of jobs.

That approach would undermine the established test for establishing a substantial limitation based on the major life activity of working.

That test, as the Court recognized in Sutton, requires the plaintiff to show that she's substantially limited in a class or a range of jobs.

Mr. Roberts: Ms. McDowell, I didn't think that the Sixth Circuit had said we're looking only at one job.

I thought they were looking at assembly line work as a broad category of jobs.

Mr. McDowell: No, we don't think so, Your Honor.

And I would refer you to page 4a of the petition appendix where the court is engaging its analysis.

It refers to certain types of manual assembly line jobs that require the gripping of tools and repetitive work with hands and arms extended out or above shoulder level for extended periods of time.

So, it appears that the Sixth Circuit was focusing on a particular category of assembly line jobs and not assembly line jobs generally.

Mr. Roberts: Types.

It uses the plural.

So, it wasn't just talking about a particular job, which is what I thought you reduced this to, and I think that is not quite a fair characterization of what the court said.

Mr. McDowell: That may be correct, Justice Ginsburg.

It may be that the Sixth Circuit was thinking about categories of jobs that would require these particular limits.

There is no indication in the record, though, of how many other assembly line jobs there are that would... the plaintiff would be disqualified from performing.

Mr. Roberts: It refers to painting, plumbing, and roofing, et cetera.

Mr. McDowell: That's correct.

And that appears to be an assumption by the court of appeals.

There does not appear, at least from our examination of what record has been presented to this Court, any specific discussion of building trades, plumbing, roofing, et cetera in the record.

Mr. Roberts: I suppose it's perfectly obvious a person who can't raise their hands above heart level couldn't paint the ceiling at least.

Mr. McDowell: That may well be correct, Your Honor.

The analysis, if one--

Mr. Roberts: She'd have to paint floors presumably.

Right?

[Laughter]

And most painters are not limited to just painting floors, I don't think.

Mr. McDowell: --That's correct.

And if one is focusing on limitations in work, the correct analysis is whether a plaintiff is disqualified from a class of jobs, jobs that require similar training, abilities, skills, et cetera, or a range of jobs, jobs that do not necessarily require the same skills and training, but jobs that the plaintiff could perform.

We have no position at this point whether the plaintiff in this case could or couldn't demonstrate that she is substantially disabled under the working test the court--

Mr. Roberts: Under the working test, do you just look at the whole scope of jobs, or isn't it just limited to jobs that this person is... has some demonstrated capacity for or interest in?

I mean, you know, what if I can't be a... you know, a jet pilot?

You know, I'm disabled from being a jet pilot.

I have no interest in being a jet pilot.

My other abilities would not... would not enable me to be a jet pilot anyway.

Is... is that irrelevant to the... to working inquiry?

Mr. McDowell: --No, it's not irrelevant, Justice Scalia.

The analysis focuses on those jobs that the plaintiff, without her impairment, would have the skills and ability to perform.

Mr. Roberts: Right.

And had she been a roofer before?

Mr. McDowell: No, Your Honor.

Mr. Roberts: I didn't think so.

Under the Longshore Harbor Workers and Compensation Act, the courts routinely look at what jobs are in the community that this person is eligible for after they've suffered an injury.

Is that about the same approach that we should use in this case... in these kinds of cases--

Mr. McDowell: I'm not entirely familiar with the statutory--

Mr. Roberts: --when we're looking at the... when we're looking at the employment aspect?

Mr. McDowell: --Yes.

I'm not entirely familiar with the specific statutory scheme you're referring to, but it may be similar to that under the Social Security Act which looks at whether somebody can perform any gainful activity in the national economy, and the Disabilities Act doesn't require that broad a standard.

It looks at... in a more limited way at whether a plaintiff is substantially limited in performing jobs.

There still may be jobs that she can perform.

The question is whether there is a substantial limitation that would disqualify her from a--

Mr. Roberts: Ms. McDowell, in looking at the manual task approach, how... how is the fact finder supposed to decide which manual tasks are sufficiently important to constitute a substantial limitation?

How do you weigh that?

How do we decide it?

Is there any guidance on that?

Mr. McDowell: --The courts of appeals thus far have looked at... aside from the Sixth Circuit, of course, have looked to those manual tasks that are basic to everyday life.

We would say, perhaps in some disagreement with Toyota, that it's not necessary to be substantially impaired in a broad range of manual tasks.

There may be certain manual tasks that are particularly important to everyday life, such as the ability to grasp a pen or pencil and write, that in themselves may be sufficient to constitute a... a substantial limitation on the major life activity.

Mr. Roberts: On... on a question like substantial, certainly you would get to a jury question at some point, wouldn't you?

Mr. McDowell: Oh, certainly it would become a jury question in many cases.

Mr. Roberts: Conceptually it seems to work better your... your way.

You say life activity is just like lifting or breathing, and the issue turns on what's substantial.

What do we do about the EEOC regs that seem to embody what you would call a conceptual confusion?

They talk about working being a substantial life activity, that working shouldn't be there.

It should be evidentiary of whether the... of whether the impairment of being able to lift your hands is substantial, and if you can't hold half the jobs, that's fairly good evidence.

And if you... you know, whether it's enough or not, I don't know.

But what do we do about the EEOC regs that don't seem to take the simple conceptual way you're advocating?

Mr. McDowell: The EEOC regs that you're referring to discuss the major life activity of working.

Mr. Roberts: Yes, that wrecks it.

Mr. McDowell: The regs also recognize that performing manual tasks is a separate major life activity.

Mr. Roberts: I know.

I know, but they're taking the wrong... they're taking the wrong approach in your view.

So, whereas I find your view much simpler... and I agree with you, it isn't any harsher or more lenient, just simpler.

What do we do about the fact that the agency in charge seems not to have taken that route?

Mr. McDowell: I believe this route is consistent with what the agency has said, specifically that one should consider working as a major life activity only if a plaintiff cannot satisfy any of the other major life activities, including performing manual tasks.

Mr. Roberts: May I ask you one question?

Is it relevant that she may not be able to perform a lot of jobs she never performed?

For example, is it relevant that she couldn't be a roofer, for example?

Mr. McDowell: It may or may not, and I'm not sure that we have a position on that at this point, Justice Stevens.

It may, in fact, be the defendant's burden to come forward with evidence that a plaintiff couldn't perform, for example, in this case medium duty work.

The mere fact that she hadn't done it--

Mr. Roberts: But you don't... you don't suggest we just look at her employment history and that's the only possible thing we look at in determining whether her working ability has been impaired.

Mr. McDowell: --No, I don't think you look only at the plaintiff's working history.

Mr. Roberts: It would be relevant then that she couldn't be a roofer, electrician, or a painter or a lot of other things.

Mr. McDowell: It may well be relevant.

There may also be countervailing evidence that she had other lack of skills and so on that would prevent her from performing those particular jobs.

I'd also like to note that the Sixth Circuit's approach not only is over-inclusive in some respects, but it's also under-inclusive in some respects.

It would seem to preclude a plaintiff from establishing a disability in the performance of manual tasks based on manual tasks performed outside the work place.

In many cases, a plaintiff may be capable of performing manual tasks in the work place, when the work place does not impose particularly demanding obligations in that regard, but still may be limited outside the work place.

Mr. Roberts: To what extent do we take account of the particular individual?

For example, for someone who is making a high income as a corporate executive, it wouldn't matter that she couldn't vacuum the rug because she has paid someone else to do that for many years.

So, to what extent do we... are we thinking of a generalized person to what extent the particular individual who is claiming to be disabled?

Mr. McDowell: May I answer, Your Honor?

Mr. Roberts: Yes.

Mr. McDowell: In focusing on a major life activity of manual tasks, we would suggest looking at the generalized person.

With respect to working, it's a somewhat more tailored analysis.

Mr. Roberts: Thank you.

Thank you, Ms. McDowell.

Mr. Rosenbaum, we'll hear from you.

ORAL ARGUMENT OF ROBERT L. ROSENBAUM ON BEHALF OF THE RESPONDENT

Mr. Rosenbaum: Mr. Chief Justice, and may it please the Court:

This case is not about the inability to perform a single job.

The Sixth Circuit did not rest its opinion upon a finding that Ms. Williams was only unable to perform one solitary job.

While I believe that there are inconsistencies in the Sixth Circuit opinion which cannot be reconciled and while I disagree with part of the legal analysis for reasons other than the reasons advanced by petitioner, it's not a single job case.

The Sixth Circuit stated at 6a of the opinion of the appendix to the petition, here the impairments of limbs are sufficiently severe to be like deformed limbs, and such activities affect manual tasks associated with working, as well as manual tasks associated with recreation, household chores, and living generally.

Mr. Roberts: Mr. Rosenbaum, so far as the question presented here is, you would defend the Sixth Circuit's opinion?

Mr. Rosenbaum: I defend the result, Mr. Chief Justice.

Mr. Roberts: But not the reasoning?

Mr. Rosenbaum: Not in its entirety, but part of it I do.

Mr. Roberts: Well, where do you disagree?

Mr. Rosenbaum: I disagree when the Sixth Circuit says that after you determine an individual is substantially limited, you must go farther and that individual must show that their limitation affects their work.

And I think that that is the additional requirement that the Sixth Circuit would place on defining substantial limitation.

I think it's, at best, superfluous and, at worst, makes every disability a working disability.

But the Sixth Circuit... I must defend them to some extent.

They quoted the correct statute.

Mr. Roberts: Well, they ruled for your client.

Yes.

[Laughter]

Mr. Rosenbaum: Well, then I... yes, sir, and I appreciated that.

[Laughter]

At... at 3a of the appendix, they cite the correct statutory language.

They emphasize that the impairment must substantially limit.

They know what the law is.

They specifically refer to this Court's opinion in Sutton and says you can't prove a disability based upon a failure to do one particular job.

Mr. Roberts: Well, do you think a... a fair reading of the opinion in the... at the end of the carryover paragraph at 4a, it says, it would appear, nevertheless, from the language of the act, the EEOC's interpretation of the Supreme Court analysis in Sutton, that in order to be disabled, the plaintiff must show that her manual disability involves a class of manual activities affecting the ability to perform tasks at work.

You want us to read that as saying to perform tasks at a class of work activities, at a broad range of work activities.

Mr. Rosenbaum: Your Honor--

Mr. Roberts: I... I think--

Mr. Rosenbaum: --I'm sorry.

Mr. Roberts: --you want us to interpret it that way and that we have to interpret it that way in order to save it, don't we?

Mr. Rosenbaum: Your Honor, I would say that that sentence--

Mr. Roberts: --come close to saving it.

Mr. Rosenbaum: --that sentence has no place in the analysis at all.

That's what's superfluous about the Sixth Circuit analysis.

Mr. Roberts: Okay.

So, I'll x that out of the opinion then.

Mr. Rosenbaum: That's correct.

[Laughter]

Mr. Roberts: I though that was the heart of the opinion.

Mr. Rosenbaum: Well, it is not, Your Honor.

Mr. Roberts: It's x'ed out now.

[Laughter]

Mr. Rosenbaum: The... the Sixth Circuit found that she has the impairment, myotendinitis, myofacial pain, carpal tunnel syndrome.

They found that she identified the major life activity of working... excuse me... of manual tasks.

And then they found that she was substantially limited in performing the major life activity of manual tasks because of the uncontroverted, uncontradicted evidence as to how this affected her life.

And they should have stopped there.

It was when they went on, apparently out of some kind of concern about Sutton, that I think they lost their way, and I think that this concept of class probably only fits into an analysis of the major life activity of working.

If you look at the regulations involving this, which are in the petitioner's brief on the merits at 19a, subparagraph number 2, it says with respect to the major life activity of working, substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs.

I would suggest to you this only has to do with working.

It doesn't have to do with manual tasks.

Manual tasks is at the top of page 19a.

And really, in formulating what the correct analysis of substantial limitation under the ADA is, I think the question is obvious.

It is spelled out in the regulation.

No party to this proceeding challenges the regulations, says that the Equal Employment Opportunity Commission didn't have authority to promulgate the regulations.

Everyone agrees that the regulations are valid, and in past cases in... in that circumstance, this Court has been willing to accept those regulations as valid.

And the regulations say what substantially limited means.

It means that they are significantly restricted as to the condition, manner, or duration... or... that is disjunctive, not conjunctive... under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform--

Mr. Roberts: Yes, a particular major life activity, not a single major... not a single manual task and not a limited number of manual tasks.

But it is disjunctive, either the duration or the... the severity, whatever.

But of the major life activity.

So, you're talking about a person who cannot perform for a long duration substantial... substantially can't perform manual tasks.

And... and the evidence here didn't support that except for... except for certain manual tasks done for a long period above shoulder level.

Mr. Rosenbaum: --Your Honor, I would respectfully differ with you.

I think the record is to the contrary.

I would point out to you the restrictions found in the joint appendix at, I think, page 45.

These restrictions were permanent in nature.

They existed since May of 1992.

Justice Breyer referred to them a moment ago.

I don't want to be unduly repetitive about this, but it said that she cannot repetitively flex or extend her wrists, flex or extend her elbows.

She can't use her arms.

She can't use her shoulders repetitively.

She can't pick up more than 20 pounds ever.

She can only regularly pick up 10 pounds, and she can't use vibratory or pneumatic type tools.

And a vibratory... or appliance, I presume... a vibratory appliance would be a vacuum cleaner, a hair drier, a hand mixer.

It's not that she wants to maintain that on each individual thing such as gardening, getting dressed, playing with her children, picking up a grandchild who weighs... weighs more than 20... 20 pounds, that she has got to prove she's substantially limited as to all of that, it's that she has the generic overall limitation which manifests itself in these specific examples.

And when--

Mr. Roberts: So, that's... that's what I'd like to know how to deal with exactly.

My impression, which may be yours, is that the simplest thing to say is the words, major life activity, refer really to the nature of the disability.

For example, use of hands.

A person who has torticollis, for example, would be restricted in moving his neck, and that interferes with lots of things.

But you don't necessarily have to pin down one.

You say it interferes with dealing with other people.

It interferes with working around the house.

It interferes with holding a job.

It interferes with all of them.

Then the issue becomes whether it's substantial.

And all of these work-related things that you're talking to are evidentiary in respect to the question of substantiality.

Is that the right framework?

And if so, how do we get there?

Mr. Rosenbaum: --I think we are there.

Mr. Roberts: We are there.

Good.

Well, what about... so, then I saw the EEOC reg, which talks about the major... the major life activity of working, and that would be a category mistake because it isn't... there isn't a major life activity of working.

What happens at work is evidentiary of whether the restriction on moving your hands is a substantial restriction.

Mr. Rosenbaum: I would submit it's a question of substantiality always, that you're correct in stating that the degree of impairment and the definition of the major life activity are inevitably linked together in the analysis.

But what this Court I hope will do is to give guidance and clarification as to how substantial the limitation has to be before it is a substantial limitation under the Americans with Disabilities Act, that this Court will view the regulations, which are uncontroverted, uncontradicted, not questioned, and will say that this, at least in this case certainly, is the standard of how substantial it is.

Mr. Roberts: Do you think we should say that working is a major life activity?

Mr. Rosenbaum: It is my opinion that working is a major life activity.

It is a major life activity which is separate from performing manual tasks, and we are in agreement in this case that, as regards the separate life activity... major life activity of performing manual tasks, we can consider how that affects work.

Mr. Roberts: It's a little hard to think of a disability that affects a broad range of employment tasks that doesn't affect other areas of life.

Mr. Rosenbaum: Well, of course.

Mr. Roberts: I... I can't... and as Justice Breyer said, these are evidentiary matters that go to a larger point.

Mr. Rosenbaum: Well, that's why Ms. Williams--

Mr. Roberts: But the statute does talk about major life activity.

Mr. Rosenbaum: --That's why this... Ms. Williams' case is a strong case.

Mr. Roberts: But the Sixth Circuit did not rely on working being a major life activity.

Mr. Rosenbaum: They never got there because they had already found Ms. Williams to be disabled as a matter of law and hence it was unnecessary to find her disabled.

Mr. Roberts: As a... as a matter of law, Mr. Rosenbaum, no, they did not say simply that summary judgment should not have been granted for Toyota, but that summary judgment should be granted for Ms. Williams?

Mr. Rosenbaum: It is my belief that that's what the opinion says, and I--

Mr. Roberts: Well, but... but now surely we shouldn't have to talk about beliefs as to what an opinion said.

Mr. Rosenbaum: --I... I have to give a caveat about my remarks, which is that there are inconsistencies in this opinion.

I know that on the first page of the opinion the court enunciates the summary judgment standard and says, we're here to determine whether or not the summary judgment against Ms. Williams was appropriate, giving Ms. Williams the benefit of the inferences.

But at the end of the opinion, they say, because we have found her ADA disabled as a matter of law, we remand solely to determine whether the requested accommodation was reasonable or whether the employer had some other defense.

I can't reconcile it.

Mr. Roberts: That's one... that's one of the inconsistencies.

Mr. Rosenbaum: Yes, Your Honor, that is one of the inconsistencies.

And there's... and I also disagree with the legal analysis.

They didn't make the mistake that the petitioner says they made.

The mistake they met... they made was by going that extra step, after finding her substantially disabled, and said you've got to relate that particularly to her work, and I don't think that that's the law, nor do I think it should be the law.

Mr. Roberts: The trouble, of course, is... is defining what substantially disabled means.

Unlike employment compensation laws, this statute was not intended to require accommodation for everybody who is in fact disabled in... in one way or another.

I mean, lost a thumb, you know, lost... lost an arm, whatever.

You know, in our earlier opinions in this area, we have... we have referred to the fact that... that Congress clearly did not think that half of the population would be covered by... by this.

It was addressing what it thought was a limited class of people, the handicapped, a limited class of people against whom there had been traditional... what should I say... feelings of... of disfavor.

And now, do you think that... that given that limited notion of the handicapped and what it meant by substantial limitation of a major life activity, it's sufficient to... to refer to simply what you referred to in the appendix, the statement of Dr. Kleinert, which says she cannot lift 20 pounds... she can only lift 20 pounds maximum and no frequent lifting or carrying of objects weighing up to 10 pounds?

She cannot make constant, repetitive use of flexion/extension of wrist/elbow.

Constant.

She can do it, but not constantly.

No overhead work and no use of vibratory or pneumatic tools.

Those are the only things that he... now, do you think that's enough to bring her within the... the category of the handicapped that this piece of legislation was addressing?

And that's really the question here.

Mr. Rosenbaum: It was several questions, Your Honor.

[Laughter]

The... first of all, the evidence in this case that you recited I think is sufficient to bring her within the coverage of the act.

Secondly, there is more evidence in the record that supports Ms. Williams' position than what you referred to, and I can go into it in detail if you would care for me to.

Mr. Roberts: I only used that because that's what you referred to.

Mr. Rosenbaum: I can't... I have limited time, and... and I can tell you that this is not simply a sore wrist case.

Ms. Williams was diagnosed by a board certified orthopedic surgeon.

She had muscular spasms and knotting which were palpable.

Those were injected with medications, with trigger point injections.

There was an MRI of her shoulder showing inflammation and peritendinitis.

There is uncontradicted testimony that she has trouble dressing.

She has... does do housework.

She has pain when she vacuums.

Gardening has been pretty much abandoned.

Mr. Roberts: Well, now she did get workman's compensation benefits presumably.

Mr. Rosenbaum: As a result of the initial event where she initially--

Mr. Roberts: Does... does the existence of workman's compensation schemes help us in giving meaning to substantial limitation language under the Disabilities Act?

I mean, it wasn't intended to replace workman's comp schemes, and somebody who gets a bad back or a tendinitis or a carpal tunnel syndrome presumably can resort to workman's comp to get some compensation and some relief.

But do you think that the Disabilities Act had a broader scope and maybe was focused more on discrimination against people who are wheelchair-bound or something like that where employers tended to say, gosh, I'm not going to consider hiring anybody like that?

Mr. Rosenbaum: --The worker's compensation award is probative as to the issue of whether or not she is ADA disabled.

It is not preclusive one way or the other, but it... but it's a good piece of evidence because the worker's compensation award says that this is a lady who, because of her injuries, has suffered a decrease in the earning capacity in the area of where she lives of 20 percent of what was available to her, and that's substantial.

I also want to go back, if I might, to Justice Scalia's comment on the limited number.

When the ADA was passed in 1990, Congress specifically noted there were 43 million Americans who would come within the protection of the act.

The National Employment Lawyers amicus brief refers to census data of 1989, the year before, which indicates that at the time Congress passed this legislation, 17.3 percent of the population were going to be considered ADA disabled, and it was anticipated that the number of individuals meeting that disability would increase as time went by.

And so, I think it's fair to say that, yes, it's a limited and discrete group of people, but it's close to 20 percent of the American population.

One out of five Americans is going to qualify.

Mr. Roberts: Well, you're exaggerating it now.

It's... it's under 20 percent, and... and I wonder whether... you know, when you count just... just the wheelchair-bound or, you know, the homebound, those who really cannot... cannot walk, cannot walk outside the house, it brings you... it brings you pretty high up towards that figure.

And... and when you start adding people who have, you know, relatively minor manual disabilities... let's take carpal tunnel syndrome, for example.

Is that a disability?

Does it disable you from certain manual things?

Certainly it does.

Would you consider that a... a disability that qualifies as a... an impairment of a major life activity?

Mr. Rosenbaum: We know that the inquiry as to whether or not an individual is disabled is an individualized inquiry.

That's per Sutton.

You can't have a per se finding of disability based upon the nomenclature of a medical diagnosis.

I understand and I think the AFL-CIO brief talks about what carpal tunnel and tendinitis and all of this in a medical sense.

But there are varying degrees of severity, and so to tell me that an individual has carpal tunnel syndrome doesn't answer the question of whether that individual is ADA disabled.

We've got to go on and look.

Mr. Roberts: So... so, you think that the most severe case of carpal tunnel syndrome would qualify.

Mr. Rosenbaum: If it--

Mr. Roberts: Otherwise you could have answered my question no.

You... you think--

Mr. Rosenbaum: --I... I certainly--

Mr. Roberts: --there has to be an individualized determination because the most severe case of carpal tunnel syndrome could qualify as rendering that person a disabled person within the meaning of this... this specialized legislation.

Mr. Rosenbaum: --That's right because the regulations say is that if they're significantly restricted concerning the condition, the manner, or the duration of the activity, then they are substantially disabled.

And in this situation, no one would say that the average person in the American society can't flex and extend repetitively, can't do repetitive motion, is limited in lifting, has trouble--

Mr. Roberts: Mr. Rosenbaum, do you have any notion of what percentage of the population would be taken in if we use the standard... the class that she was put in for worker's compensation purposes, a 20 percent occupational impairment... how many people?

Mr. Rosenbaum: --I have no figures that would relate that to the population as a whole.

Mr. Roberts: Is there anything that suggests that those people, the people who are in a sense not the most disabled, but the people who are not quite in that category are the ones who are really discriminated against?

Because the ones who can't work at all, obviously, are not discriminated against.

The ones who would be discriminated against would be the ones who... who might work, but... which is something bothering me about using the major life activity of working.

How is that... how does that play out?

Mr. Rosenbaum: Well, I'm not sure that I can explain all of its ramifications, but I can say that there was certainly a concern that people who were labeled disabled would be stereotyped and that employers would be hesitant to give them the same vocational opportunities as non-disabled people would be, even though the disability had no effect on the job.

They would perhaps be afraid of having more worker's compensation claims.

They would perhaps be afraid of excess absenteeism, all of this type of thing.

But--

Mr. Roberts: One... one of the problems with this is we're looking at the entry classification, disability, but on the facts of this case, she was able to do a job if the employer sliced it a certain way.

And then the employer says, well, for the good of my work force and company, I don't want people to do just that narrow thing.

I want them to be able to do four different jobs and rotate.

That's a common business practice.

And the... the concern is does it mean if she is able to do, as she was able to do for 3 years, a simple job, she uniquely and all the people who work there has to be able to have this special job when the others all have to rotate into four different positions.

Mr. Rosenbaum: --That issue is not reached in this case.

That is an issue of whether or not, with or without accommodation, Ms. Williams can perform all of the essential tasks of the employment.

And--

Mr. Roberts: I... I know that we... we don't get to what is the... how much accommodation would be required, but it's a little hard to keep that from view because if the employer doesn't have... would not have to make the accommodation that she's seeking, then this case is not very significant.

It's just a question at what stage she loses.

Mr. Rosenbaum: --Well, let me... let me say a couple of things.

It wasn't an essential task of Ms. Williams' job that she performed the wiping in the shell body for 3 years.

She could perform a full job for 3 years without having to do that, and so, we would say that--

Mr. Roberts: But the employer decided to change what the workers do, and as I understand assembly lines, that's not uncommon to take people from doing the same thing every day, day in and day out, train them for several jobs, and then they rotate.

Mr. Rosenbaum: --In the Sixth Circuit, there's the case of Kiphart v. Saturn where that issue was put to the jury where the employer said, you've got to be able to rotate through all of the tasks in your group, and since you, the allegedly disabled person, were not able to, we're entitled to fire you.

The jury did not accept the employer's statement because the jury determined that the employer did not, in fact, require all employees to do every job.

And in this particular case, the evidence is that the area that Ms. Williams went back into, the inspection job, was a job where medically placed people would be put, people who were known to have problems with their hands and arms and shoulders.

That's the quote from Kendall Hall.

And so, this entire group was made up of physically limited people and were put there as a matter of accommodation by Toyota.

And in those circumstances, if Toyota on remand, if... if we go there, wants to argue to the jury that it was essential, then this is a... a matter the jury will have to determine, but we say it wasn't.

Mr. Roberts: Essential is not the standard of accommodation, is it?

Mr. Rosenbaum: Excuse me?

Mr. Roberts: Isn't... essential isn't the standard, is it, that the employer has to show that it's essential--

Mr. Rosenbaum: No.

Mr. Roberts: --that their work be arranged--

Mr. Rosenbaum: No, no.

There are reasonableness considerations to accommodation.

It is... the definition of the individual who is eligible to ADA protection is that that individual is a qualified individual with a disability, meaning that although they are significantly and substantially limited in a major life activity, they can do all of the essential tasks of the employment either with or without accommodation.

And there was a... if I might go on, there was a refrain in the... in the question that you asked about, well, if they can do all of these things, how can they be disabled.

The ADA looks at what a person can't do.

It doesn't help or further the inquiry to say what they do, if they can do all these things.

Mr. Roberts: --Well, doesn't... don't you have to look at both in... in trying to assess the extent of somebody's incapacity to do a major life activity?

Mr. Rosenbaum: You... you inevitably--

Mr. Roberts: What they can do and what they can't?

Mr. Rosenbaum: --In fact, inevitably by considering one, you consider the other, obviously.

But it's not a defense to the ADA claim to say, look, they can do a lot of stuff.

You've got to look at what they can't do.

That's what the Southeastern Community College case is about.

That's what Bragdon means when it says, you don't have to be utterly unable.

You have to have a lot of capacity to do ADA... to be an ADA disabled person.

The ADA is about working.

It's about a lawsuit to try to keep a job.

This is a basic, fundamental American value.

Why shouldn't it be promoted?

Mr. Roberts: Mr. Rosenbaum, could... could you tell us what you want us to do?

Assuming we agree with you, you want us to take the Sixth Circuit opinion as... as affirming a summary judgment for you on the disability portion.

Correct?

Mr. Rosenbaum: Correct.

Mr. Roberts: Now, let's assume we don't agree with you on... on the point.

As I understand it, the petitioner wants us to reverse the Sixth Circuit and reinstate the district court's summary judgment against you.

Isn't that correct?

Mr. Rosenbaum: Not in total.

They--

Mr. Roberts: I thought that's... that's what they say, and I'm wondering--

Mr. Rosenbaum: --They want--

Mr. Roberts: --wondering why we can do that when the Sixth Circuit hasn't addressed the... you know, the other areas of disability.

Mr. Rosenbaum: --The case is before the Court in the procedural posture of proceedings for a summary judgment.

The outcomes in the case can be, as a matter of law, she's insubstantially, insignificantly disabled and she loses, or as a matter of law, she is substantially and is significantly impaired and she wins, or she's someplace in the middle, and there's a--

Mr. Roberts: It goes to a jury.

Mr. Rosenbaum: --It goes to the jury.

This Court, I think, can probably reach that as concerns manual tasks, but certainly this Court can clarify, say what the correct standards are, send the case back and let the lower courts apply the standard to the record before it.

And... and so, if... if we are not going to prevail on our contention that Ms. Williams is disabled as a matter of law, then we want to go back for the jury trial, is what we want to do.

And I know I'm almost out.

I've got to say on the 50 percent, Justice Stevens, the 50 to 55 percent vocational testimony, that was related to Ms. Williams' geographical area.

It is in the record.

It is appropriate evidence, and it is not mentioned at all by petitioner in any of petitioner's filings.

And I think as concerns working, it is extremely strong evidence.

I also want to say we have never conceded that Ms. Williams is incapable of prevailing on working.

Mr. Roberts: Thank you, Mr. Rosenbaum.

Mr. Rosenbaum: Thank you.

Mr. Roberts: Mr. Roberts, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE PETITIONER

Mr. Roberts: Thank you, Your Honor.

Justice Kennedy, it will not be enough to x out that one sentence on page 4a.

You would also have to x out the sentence on page 5a saying that an individual is disabled if their impairment, quote, seriously reduces her ability to perform the manual tasks that are job-related.

You would also have to x out the other sentence on page 4a that says a plaintiff is disabled if they're limited in performing, quote, manual tasks associated with an assembly line job, end quote.

And you would have to x out the sentence on page 2a that says the key issue is whether the plaintiff in this case can use her arms, hands, and shoulders, quote, as required by her new job, end quote.

I respectfully submit that by the time you get through x-ing out all those sentences, you should go one step further and x out the opinion as a whole by holding that it is reversed.

Thank you, Your Honor.

Mr. Roberts: What about the other... the other two issues?

I mean, the... the court of appeals did not purport to reach the working as a substantial life activity and what else?

Lifting as a substantial life activity.

How can we reverse it without addressing those issues also, which I don't think we have the tools to do here?

Mr. Roberts: You can certainly reverse with respect to the summary judgment on performing manual tasks.

The issues with respect to lifting and working were not addressed by the court of appeals.

Mr. Roberts: So, you acknowledge we would have to remand for... for its consideration of those.

Mr. Roberts: Unless the Court felt, given the fact that the issues with respect to working were insinuated into the case by the Sixth Circuit's approach, that it was appropriate to address that major life activity as well.

Mr. Roberts: Even as to manual tasks, are you asking for a ruling in your favor on summary judgment on that, or are you saying it shouldn't have been effectively summary judgment for the plaintiff and then we go to the next stage, that... that it could be a jury question on manual tasks?

Mr. Roberts: No, no.

Summary judgment should be granted in favor of Toyota because you have, with respect to manual tasks, an undisputed factual record, and the question is whether that meets the legal standard of substantially limited with respect to a major life activity.

A jury can decide things like whether can she lift 20 pounds or not, if there's a dispute, can she do this or that.

But those facts are all undisputed with respect to manual tasks.

It is a purely legal question whether she meets the statutory standard.

Chief Justice Rehnquist: Thank you, Mr. Roberts.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

PGA Tour v. Martin - Oral Argument

Fri, 09 Jan 2009 14:50:29 +0000

Case:

PGA Tour v. Martin

Media File:

00-24_20010117-argument.mp3

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transcript.xml

Transcript:

Argument of H. Bartow Farr, III

Chief Justice Rehnquist: We'll hear argument on Number 00-24, PGA Tour, Inc. vs. Casey Martin.

Mr. Farr?

Mr. Farr: Mr. Chief Justice and may it please the Court, The Ninth Circuit in our view made two critical mistakes in applying the Disabilities Act to this type of claim by a professional athlete.

First it failed to recognize that Title 3 of the act, the public accommodations provision, apply only to claims by persons seeking to obtain inputs of a place of public accommodation, that is seeking to enjoy its goods or services, not to claims by persons seeking to supply inputs as employees or independent contractors.

Second, the Ninth Circuit never took account of just what a top level professional sport really is, nothing more or less than a competition that tests excellence in performing what its rules require.

Any attempt to adjust the rules to compensate for an individual player's physical condition fundamentally alters the nature of that competition.

Now in turning to the first issue, our position is simply this.

That Title 3 of the act would not apply if Respondent were playing in tour events as an employee of the Tour, and the results should be no different just because he is playing in the events--

Justice O'Connor: Mr. Farr, the language of Part 3 of the act literally could cover the player.

It says, it refers to any individual, and it refers to any kind of advantage or privilege on a golf course.

So you have to construe it some way, it seems to me, to avoid that language.

Mr. Farr: --That's correct, Justice O'Connor.

I mean, the argument--

Justice O'Connor: To reach your conclusion.

Mr. Farr: --That's correct.

The argument made by Respondent is essentially that Title 3 covers any person who is present at a place of public accommodation, whatever he or she is doing there, whether they are a customer, an employee or an independent contractor.

I think that's wrong for several reasons.

First of all, just looking at the specific language that you point to, the notion of full and equal enjoyment of goods and services, it seems to me, is quite different from the notion of being allowed to provide the goods and services.

Justice Souter: Well, Mr. Farr, you keep talking about goods and services, but the statute is not limited to goods and services, as Justice O'Connor's question indicated.

It covers the enjoyment of, among other things, privileges, and I, it seems to me the straightforward argument is that the person who is making a claim here is somebody who says, like any other member of the public, I paid my $3,000 and I got my two references and I want to enjoy the privilege of competing at this, at this place of public accommodation.

Why doesn't it literally fall within that quite easily?

Mr. Farr: Well, if I may separate this into two things, because the $3,000 applies only to a very small piece, which is the qualifying tournament.

There is no requirement playing on the Tour itself or on the Nike Tour.

Justice Souter: Right.

But that's, that's where you start.

That's where you start.

Mr. Farr: But that's where one starts.

But in terms of privilege, I'm using the term goods and services not to skip over the others, but simply as a shorthand reference to all of that.

Justice Souter: Well, except that it makes a difference because I think in a common sense kind of way we can say well, he is not getting any goods and services, but he is trying to exercise a privilege of playing.

Mr. Farr: Well, except for, it seems to me that in fact the word privilege, if it means the privilege to work for a place of public accommodation, to provide the input of labor to a place of public accommodation, then naturally following that logic, Title 3 would apply to anybody, an employee, an independent contractor or anyone.

Justice Souter: But once again, when you phrase it the way you do, it makes it easier for your case.

You say a person supplying labor at a place of public accommodation.

Another way of looking at it, and I frankly would have thought in this circumstance an easier way of looking at it would be not that he's supplying labor, but that he wants to play a game and if he plays the game well enough to win a prize.

That's, that doesn't fall within the sort of aura of employment that Title 1 covers.

Mr. Farr: Well, I think it does, to be honest with you, Justice Souter.

For example, this happens to be a game of golf.

But if one thinks of the game of football, for example, professional football is a game that is played by employees.

They are, they are hired I think, basically by the teams.

They compete against each other.

Justice Souter: Yeah.

And they get... and each one of them gets paid by his employer win, lose or draw.

In this case, maybe, maybe you'll have to help me out here.

I thought whether one got paid depended on whether one won the prize.

Mr. Farr: Well, it depends on performance but in a very specific sense of course, the performance by any professional athlete determines ultimately what he or she gets paid.

So if in fact one can say it is a privilege of a place of public accommodation to be able to compete in a professional sport, then it seems to me that would apply to any professional sport.

Justice Souter: Well, except that the statement is too broad.

The football industry, I suppose, does not say we will give anybody who wants to come in and compete for a place on our team a spot.

They are not going to invite me to try out.

Unknown Speaker: [Laughter]

Justice Souter: But as I understand it, that, that is what is at stake here.

Anybody who can start at the first qualifying level with his money and his references and keep on playing well enough is in a position the way the PGA is run to get to this top echelon of athletes and compete for a prize.

Mr. Farr: I'm not sure what difference that makes, Justice Souter, because in a sense, anybody can compete to play on a professional football team.

I mean, professional football teams are drawn from the public at large--

Justice Kennedy: Well, Mr. Farr--

Mr. Farr: --if they are good enough to qualify.

Justice Kennedy: --We don't have to decide the football case here, but I'm wondering if you take too narrow a view of what the PGA's business it is.

You think of it as just two dimensional, the PGA wants spectators, both public and on the television, and that's the service involved.

But the other thing, as Justice Souter's privilege question indicated, it also offers to a subset of the public, a very talented subset from all over the world, the opportunity to win a prize.

And that's also part of its business.

It is offering an opportunity to win a prize.

Mr. Farr: Well, the... the thing that I think makes it more confusing, it seems, is that normally, our position would be that the opportunity to earn something, to start with, without using the words win a prize from it, but the opportunity to earn something would not be the kind of privilege or good or service that is being offered by a place of public accommodation.

Indeed, people who want to provide the inputs would be the kinds of people who wanted to provide services and earn what they would get in return.

I think what makes this case seem different is because what Respondent in fact does for a living is something that other people do for recreational purposes or part of educational purposes.

But again, to take an example, if the Tour constructed its operation just slightly differently, instead of saying we will have everybody just compete for the prizes as independent contractors, if they said what we will do is we will hire a group of approximately 200 professional golfers, we'll make them employees, we'll pay them a modest salary, just enough to kind of cover their expenses as they play and then whatever they win over and above that, that will be their earnings.

Now, our argument would be that in that arrangement, the Tour would clearly not be subject to suits by those golfers under Title 3.

Justice Stevens: But they would be subject to suit--

Mr. Farr: They might be subject to suit--

Justice Stevens: --under Title 1.

Mr. Farr: --Because Title 1 is the title of this Act that deals with that kind of issue, the question of relationships between people who are providing labor and the people who are paying for it.

Justice Breyer: Well all that... I mean, this... that's true, that's it's a very, it's an unusual situation here, and we could go on forever about the pros and cons and who they are really like.

But people go to race courses for entertainment, but a few go to earn a living.

They're touts.

Some people go to casinos for fun and an occasional person goes there to earn a living.

So, given the purpose of the statute, and the language of the statute, why does that make any difference?

Mr. Farr: I think it makes a--

Justice Breyer: You're not going to say a person who goes to a race course, happens to make a living out of it, therefore, he couldn't sue if it's otherwise a public accommodation, and I think you'd say the same about all the unusual cases we can think of.

Why should this make a difference?

Mr. Farr: --I think the difference between the examples you are using, Justice Breyer, and this example, is those, the people who go to the race tracks, some of whom may go to make a living, are essentially doing the same thing, receiving the same outputs, if you will, from the race track, as the people who are there simply for recreational purposes.

Justice Breyer: So are these people because after all, the golf course is leased by the PGA to use to play golf for that day.

Mr. Farr: But, but I think the difference, Justice Breyer, is that at the time the tournament is going on, in fact, there are no people there playing for recreational purposes.

During the time of the tournament, which is the time when the PGA is operating the place of public accommodation, that's what's bringing the PGA within Title 3 with respect to the spectators, for example, is because it's operating a particular tournament at a place of public accommodation.

It seems to me--

Justice Ginsburg: Mr. Farr, I understand you are behind the ropes, you say those are the spectators, it's a public accommodation with respect to them.

Mr. Farr: --That's correct.

Justice Ginsburg: But I'm, I'm sure that you must have an answer to, the public accommodations provision is not new with the American disabilities.

It comes up in the Civil Rights Act of 1964 where the concern is race.

Now, with respect to race, could the PGA say that we don't want any African Americans to play in our game?

Mr. Farr: Well, Title 2 does not apply, we believe, in the same circumstances as we don't think Title 3 of the ADA applies, to situations in which somebody is simply seeking to provide, seeking to obtain employment or trying to obtain work as an independent contractor, so Title 2 of the Civil Rights Act would not apply in that case.

Justice Ginsburg: So your answer is the same for both?

That neither public accommodation--

Mr. Farr: For both those situations.

Now of course, the... the disabilities act itself and of course the Civil Rights Acts that apply to race, and sex and age have provisions that deal specifically with the question of who is working at different places and claims about discrimination, saying the terms and conditions that you have set for a particular job are discriminating against me.

Justice Ginsburg: --But you're saying they don't come under the employment provisions because they're not employees, not coming under the employment provisions, they are not covered at all?

Mr. Farr: Under the disabilities act, and not under Title 2.

Whether there are other provisions like Section 1981, for example, in the case of race, might extend protection in that situation.

Justice Ginsburg: Yes.

But as far as the public accommodation is concerned, you are being consistent.

Mr. Farr: The public accommodations provisions in our view are intended again to deal with essentially people who are consumers, clients and customers.

Justice Stevens: Mr. Farr, can I just identify your theory a little better?

Are you contending that when the golf course is being used for a PGA tournament, it is not a place of public accommodation because of the limited number of people that can play on that day or are you contending that even though it's a place of public accommodation, the contestants are not individuals within the meaning of the Act?

Mr. Farr: It is a modified version of the second, Justice Stevens.

It is that they are not individuals seeking full and equal enjoyment of goods, services, privilege and accommodations, as those terms are properly interpreted.

Justice Stevens: But you are assuming that the golf course, even though for a specific purpose, continues to be a place of public accommodation?

Mr. Farr: That the area generally.

There is a difficulty.

I mean, one of the questions that one has is, is every piece of the property a place of public accommodation or is the... are the ropes, for example, dividing a place of public accommodation from a place that isn't?

That is one way to look at it.

In our view, the simpler way to look at it is the second way that you have which is to say, you have to be asking in this question, is the person an individual receiving the kind of goods, services and privileges that are covered?

Justice Stevens: I see.

I think you conceivably could have taken the position that when it's rented out for a particular purpose it loses its character as a place of public accommodation because only certain people can use it.

You rent a hotel, say, to have a wedding.

Is it then still a place of public accommodation?

But you are not questioning that it is a place of public accommodation?

Mr. Farr: But that's because, that's because they clearly are.

The Tour doesn't deny.

It's putting on an entertainment.

It is putting on an entertainment to which spectators are allowed, so if one asks, is the golf course at this moment a place of exercise or recreation, as that's typically thought of under Title 3, our answer would be, I think the better view is no.

And the Ninth Circuit actually interestingly didn't say that it was a place of exercise or recreation and noted that we made the argument it wasn't and basically said be that as it may, it is a place of entertainment, and we... and what we are saying is yes, it is a place of entertainment and there are people present at the tournaments who in fact are enjoying goods and service and enjoying the entertainment that we are providing.

Justice Kennedy: But it seems to me--

Mr. Farr: But the golfers are part of the entertainment.

Excuse me.

Justice Kennedy: --We are talking about not something that's just a place, we are talking about the Tour, the circuit, the season, whatever it's called.

That's what he wants to participate in.

Mr. Farr: That's correct.

Justice Kennedy: And that it seems to me is a public accommodation in that it's open to golfers from all over the world.

Mr. Farr: Well, Justice Kennedy, I'm not sure I agree with that.

I mean, if, if... the thing that makes the Tour have the obligations to the spectators is the fact that they are operating a place of public accommodation during the tournaments.

You have to be operating a place of public accommodation before you become subject to Title 3.

Justice Kennedy: Well, I assume you could have a place of public accommodation on a cybernet or something that doesn't exist at any one place, and that's what, that's what this other dimension of this case is.

They are offering to everyone the opportunity to compete in the abstraction we call a tour, a circuit.

Mr. Farr: But Justice Kennedy, the Tour isn't an abstraction.

The Tour literally is, are a series of events put on by a 501(c)(6) organization, a non stock membership organization, and they are put on for the purposes of providing entertainment to the public.

That entertainment, it seems to me, is a product that they offer at a place of public accommodation.

Justice O'Connor: Mr. Farr, there is another important question you haven't addressed.

If we assume for purposes of resolving this case that it is a place of public accommodation, then there is a second question about what kind of accommodation is required.

Are you going to talk about that before your time is up?

Mr. Farr: Yes, Justice O'Connor.

Let me talk about that now, if I may.

The... if one assumes for a moment, and for example, the Seventh Circuit in the Olinger case just assumed that Title 3 did apply to the type of claim that the professional golfer there made.

If one assumes that, then the question is whether the modification that's requested here would fundamentally alter the nature of Tour events, and I think that where the Ninth Circuit went wrong on that particular question is that it never really came to grips with what professional athletics are.

The professional athletics are as I said in the beginning, simply tests of excellence.

They are questions of who can perform the best a particular set of physical tasks, and those tasks are defined by the rules of the sport.

Chief Justice Rehnquist: But, but the PGA has let down its requirements in a couple of cases.

One golfer had been injured and he was allowed to go in a cart, was he not?

Mr. Farr: Not... never in a high level Tour event, Your Honor.

There has never been a situation in the events we are talking about, which is the events on the highest level PGA tours where they have allowed different people--

Justice Stevens: Mr. Farr, that's not true as to qualifying schools.

Mr. Farr: --Oh, qualifying tours--

Justice Stevens: And the thing that puzzles me is how it can be a fundamental rule that applies that does not apply in the qualifying events.

Mr. Farr: --Well, because the, the principal events that they put on are, of course, the events of the Tour themselves, the two highest level events.

Qualifying involves simply questions of logistics to be honest.

There are, there are many more people who are playing.

Justice Stevens: No.

If logistics are sufficient to justify use of a cart, why isn't this handicap sufficient?

Mr. Farr: Well, first of all, let me make--

Justice Stevens: Because they are both trying to determine the quality of the golfer and it's not fundamental in qualifying schools but it is fundamental in the Tour event itself.

Mr. Farr: --Well, let me make one point.

That when carts are allowed, they are allowed for all players, and that is essentially because there are choices that the Tour has to make at any particular time about whether or not there are enough caddies available, whether there is enough time on the golf course to get however many people there are through the event in order to produce whatever result they are looking for.

With respect to the events we are talking about, the actual competitions on the PGA Tour, on the [buyDOTcom] Tour, which is the second level tour, the Tour has always required that all competitors observe all the same rules, including the walking rule.

There have been no exceptions to that whatsoever.

Justice Souter: Mr. Farr--

Justice Ginsburg: --Mr. Farr, is your position then, clear position that there is no accommodation required in a professional sport competition, that the rules are whatever they are, and there is no requirement to adjust to any disability?

Mr. Farr: I want to make clear two points.

First of all, that when I talk about rules, I am talking about what we have called in the case substantive rules.

And that is rules that are intended to and do have the potential to affect performance and the outcome of the tournament.

So first of all, when I'm using the term rules, I am.

Secondly, though, the question is if, if you are saying do we mean that for any rule, or any accommodation, I think the correct answer is yes, although one sort of instinctively would think that there should be some process by which people can separate the performance affecting rules that really count from the performance affecting rules that don't really count.

I actually don't think there is such a process.

Justice Ginsburg: Well, you're familiar with both the law in the area and the game in your preparation for this, for this argument, so you could not think of any concrete example of where there would be any requirement to accommodate to a disability, that the game is the game?

Mr. Farr: In a professional sport, I think that's true, that the purpose of a professional sport is one thing and one thing only.

It's to determine who is the best at doing a certain set of defined tasks.

If you change what the tasks are, if you change the rules that people have to comply with so that you have different rules for different players, you are not going to get an answer to the question of who is the best at that particular thing.

Justice Scalia: Mr. Farr.

Justice Souter: Your argument is--

--Please, go ahead.

Justice Scalia: Am I correct that, assuming we have these two different grounds, if we go on your first ground, and agree with you on that, namely, that this is not an individual who is seeking to enjoy the place of public accommodation, the PGA Tour would nonetheless, if it wishes, be able to grant an exception in the future to Casey Martin.

It could say well, we don't have to under Title 3, but we are going to do it voluntarily.

Whereas, if we go on your second ground, mainly that it is a fundamental part of a sport, the Tour wouldn't be able to make such an exception, would it?

It would in effect be admitting that it is not a fundamental feature of the sport.

Mr. Farr: I think our second argument is slightly different, Justice Scalia.

I agree with the first part to start with.

Yes.

I think if the Court would agree on the first issue that the Tour could, and I think the Tour could under the second, simply by changing what the rules of the sport are.

Our position is not that there is such a thing--

Justice Scalia: Well, no, make an exception just for one, for one member.

Mr. Farr: --But then you--

Justice Scalia: Of course you could change it for everybody.

Anybody that wants to ride can ride.

But could you just say only Mr. Martin can ride?

Could they do that if we, if we, if the basis for their exemption is the fact that walking is fundamental to the sport?

Mr. Farr: --I think it's... again, our argument, just to make sure I'm being clear, is not that we are contesting, contending that there is a difference, that there are fundamental rules and nonfundamental rules.

We can tell which one is which, and walking is a fundamental rule.

If there were such a way to tell, we think walking would be a fundamental rule.

But our position in fact is that all the substantive rules are fundamental rules.

Justice Scalia: Rules are rules, and therefore--

Mr. Farr: Rules are rules.

Justice Scalia: --And therefore, you can't make an exception for one individual.

Right?

Mr. Farr: You cannot because you absolutely--

Justice Scalia: Right.

And as soon as you do that, then--

Mr. Farr: --You have to have the uniformity in order to be able to measure what you do.

Justice Stevens: --You're only saying walking is fundamental if there is a rule against riding?

Mr. Farr: I'm sorry, Justice Stevens?

Justice Stevens: You're only saying walking is fundamental if there is and always has been a rule against riding in a cart.

Mr. Farr: That what is fundamental--

Justice Stevens: Am I right about that?

Mr. Farr: --I... yes.

Except, again, I want, I want to be clear that what in fact is fundamental to any particular game is the rules of the sport.

That is what defines what the sport is.

Therefore, if there is not a rule against it, by definition it's not something that potentially affects the outcome of the sport as played under its rules.

Justice Souter: This would be true of--

Justice Scalia: --Why would we say that--

Mr. Farr: Pardon me?

Justice Souter: --This would be true of amateur sports, as well as the--

Mr. Farr: I think the difference in amateur sports and the thing that makes, makes the, when you apply the fundamental alteration language is that the fundamental, when you talk about fundamentally altering the nature of a particular good or service, that requires looking at what the nature of the particular good or service is.

The nature of a professional sport is very different, I think, from the nature of most amateur sports.

Probably not all.

Justice Souter: --Because it's trying to winnow the wheat from the chaff in a way that amateur sports don't.

Mr. Farr: Not only that.

I mean, amateur sports do that to some extent as well, but amateur sports by definition, and particularly high school, college, grade school sports, things like that, have as part of their very nature, part of their very reason for being, an educational or recreational side.

And therefore, when one comes to apply any fundamentally altered language to the nature of that, essentially amateur sports, most amateur sports have a dual nature.

They have a nature that involves sort of sorting winners from losers, but they also have a nature that says we are trying to get as many kids in the high school or whatever to play.

Professional sports are not--

Justice Breyer: Why couldn't we make that same argument.

Why couldn't that same argument be made by anyone who provides an important public service?

You know, we have a bunch of rules, characteristics, qualifications.

We don't want courts in there weighing the importance of this good or service or privilege.

Therefore, if it affects the nature of the good, service or privilege, it's fundamental, which is the argument you are making.

Mr. Farr: --Well, if it's actually changing what the good or service is--

Justice Breyer: They always do, to some tiny degree.

Mr. Farr: --Well, if it changes the nature then though, I think one therefore, one has to look at the regulations for some guidance.

And the regulations... I'd like to take just a minute before I reserve my time, if I may, but the regulations are something that because the United States hasn't cited them, I think maybe get lost a little bit here.

But under the regulations in Title 3, there is a specific provision that says a public accommodation does not have to change its inventory to accommodate disabled people.

And the reason given for that in the preamble of the regulations is that Title 3 requirements are intended to assure access to the goods and services being provided, not to alter the mix in nature of the services typically provided.

Now, typically provided in this context we would say are the tournaments with uniform rules, including the walking rule, at the very highest level.

That is one that has been typically provided.

And the reason I think for that, and I think this goes to your question, Justice Breyer, is that in a sense, any store or commercial entity is just whatever its goods are, a bookstore.

An example is a bookstore does not have to stock braille, braille books.

And there isn't an inquiry every time as to how much trouble it would be to stock braille books, whether there's shelf space, whether they could get them or not.

There's a categorical rule in the regulations that says that's not what we're talking about, that would be a fundamental alteration, and that's exactly the same point we are making here.

If I may, I'd like to reserve the balance of my time.

Argument of Roy L. Reardon

Chief Justice Rehnquist: Thank you, Mr. Farr.

We reserve your time.

We'll hear from you now, Mr. Reardon.

Mr. Reardon: Mr. Chief Justice, and may it please the Court, I would like to take the liberty of beginning with Petitioner's second point, because I think it's something we have recently heard discussed here, and it's I think quite important.

From 1965 until 1997, the PGA ran a Q School to determine--

Justice Scalia: A what school?

Mr. Reardon: --It's a Q, they call it the Q School.

It's a qualifying school, Your Honor.

And the purpose of that Q School is to determine, it's a test of excellence, as Petitioner said, to determine who is the best and who can go on the Tour the following year.

It's a very intense course.

There are 14 sessions, 252 holes played on courses just like the PGA's regular courses that they play their tournaments on.

The hard card, which is described in the briefs as the rules which impact tennis tournaments, golf tournaments under the PGA, the hard card applies to those events, but the walking provision of the hard card is eliminated for purposes of the Q School, and what happens is there is a winnowing down process.

In 1997, when Casey tried out, there was something like 1,200 people, golfers from the public, who wanted to play on the PGA Tour.

And they came in, paid their money, had their references, and started to play, and they winnow it down to 168 players by the third stage.

Every one of those 168 players is going to either go on the PGA Tour the next year or on the Nike Tour at the time, and none of those players need ever have walked a single hole, not only in the qualifying, but in their lives.

Justice Scalia: Mr. Reardon, all that proves, all that proves is that you could play golf under different rules, just as you can play baseball under different rules.

Is the... is the designated hitter rule, is it essential to the game of baseball that the pitcher bat?

Mr. Reardon: There are two leagues.

One league has it.

One league doesn't.

Justice Scalia: They play under different rules.

But every team in each league has to play under, under the same rule.

Now, could a pitcher in, in the, in the National League, which follows the traditional rule, could he say I have some blood deficiency that means I get tired sooner than other pitchers, and therefore I shouldn't have to go up to bat.

I'd like to, I'd like to sit in the dugout, because after all, the, the rule that the pitcher has to bat is not fundamental to baseball.

The American League doesn't have that rule.

Mr. Reardon: Well, for the National League, it is fundamental.

And it would not be permissible because you would be changing--

Justice Scalia: Why.

Simply because that--

Mr. Reardon: --You're changing--

Justice Scalia: --Simply because that's what they do.

That's the rule of the game.

Mr. Reardon: --But Your Honor, but Your Honor... I cite, I cite what happens in the Q School to demonstrate the fact that walking is not indeed fundamental because they don't require it.

Justice Scalia: All that it demonstrates... all that it demonstrates is that you can play the game under a different rule.

I mean, what... I don't understand the whole meaning of fundamentalness with regard to a sport.

Is it fundamental to baseball that, that the strike zone be from the chest to the knees?

It could be from the eyes to the hips, couldn't it?

Mr. Reardon: It could.

Justice Scalia: Would that make any difference?

Mr. Reardon: Rules could be changed.

Justice Scalia: And could a player who has a disability, which means he has, which causes him to have an excessively long torso, could he demand that the umpire call strikes on him from, you know, from his eyes to his hips?

Mr. Reardon: No, he could not, Your Honor.

Because a fundamental--

Justice Scalia: Of course he couldn't.

Mr. Reardon: --It's fundamental.

Justice Scalia: It's a silly rule.

Mr. Reardon: It's fundamental to the game.

Justice Scalia: All sports rules are silly rules, aren't they?

Mr. Reardon: I don't think it's a silly rule.

I think it gauges how well the pitcher can control the ball and get it within the strike zone.

Here we are dealing with something that isn't fundamental.

Not only in the Q School.

Any Monday, a golfer with a two handicap and two letters of reference can go out to a PGA tournament that's about to be run that week and they show up and they present their handicap and their letters of reference.

Justice O'Connor: Mr. Reardon, the Seventh Circuit Court of Appeals in a strikingly similar case to this one determined at the end of the day that the walking rule was fundamental because it put additional physical stress on each competitor after a tournament lasting several days and perhaps in hotter inclement weather, and on hilly conditions, it could impose quite an additional stress on the players in the final rounds.

Mr. Reardon: That's correct, Your Honor.

Justice O'Connor: And therefore, that it was an aspect of the physical challenge involved.

Mr. Reardon: That case is in this Court.

That case was decided on a different record from this record.

That case I don't think went into a very material aspect of the proof in our case, which was the nature of the disability, this tragic disability that he has, and what it did in terms of whether or not a, a rule which would require him to walk should be altered.

Chief Justice Rehnquist: Should the nature of the disability make a difference?

Mr. Reardon: Basically because if it doesn't, then you are not really gauging the second part, which is to consider whether or not an alteration is going to do something fundamentally.

If it's a superficial disability, giving a player an advantage may indeed result in an alteration in that circumstance.

Chief Justice Rehnquist: Well, what would be your example of a superficial disability?

Mr. Reardon: Ingrown toenail, Your Honor.

Chief Justice Rehnquist: Well, I think if you have an ingrown toenail, it doesn't seem superficial.

Unknown Speaker: [Laughter]

Mr. Reardon: I agree with that, but, but the Act, the Act--

Justice Scalia: I think it's quite internal, actually.

Unknown Speaker: [Laughter]

Mr. Reardon: --The Act does not accommodate that kind of a disability.

Casey Martin's disability is indeed accommodated.

Justice Ginsburg: Mr. Owens, are... Mr. Reardon, you said Mr. Olinger's case was different because it was on a different record, and that's somewhat worrisome because let's say you're right, that they do have to make accommodations.

Who is the judge of whether a person is sufficiently disabled to get a dispensation from the nonfundamental walking requirement?

Is it up to the lawyers and the quality of the record they make?

Mr. Reardon: I think it's initially up to the public accommodation, in this case the PGA, to look at it and decide.

Justice Ginsburg: But you said the difference between this case and the Olinger case is the record, and that's made in court by advocates for a side.

Mr. Reardon: Yes, it is.

But I'm talking about in advance of it getting to the courthouse.

If the PGA had done what I respectfully suggest the law demands of it, which was to take a look at the nature of the disability, the individual disability of Casey Martin, rather than returning his medical records without looking at them, and returning the tape demonstrating the gravity of his problem, they would have seen the disability and in those circumstances--

Justice Ginsburg: But did they do it on a case by case basis or did they say we're troubled by this notion because we think there are a lot of people who will say it's a lot harder for us to walk, and we don't... we won't know where to draw the line?

Mr. Reardon: --Respectfully, Justice Ginsburg, I don't believe there will be a lot of cases, a lot of people.

Because just taking our 1997 case, the PGA has not had another lawsuit by a disabled person.

The USGA, which is here, has had two lawsuits, basically similar facts.

Now, there has not been a huge wave of litigation and the reason is, a person like Casey Martin is very unique.

He never asked for any modification of any rule affecting where he hits the ball, how big the hole is or anything else.

He plays every single rule of the game.

The only thing is his disability and the whole purpose of the Act is to get people like Casey Martin a chance to get to the game.

Justice Breyer: What, what is the rule?

Didn't organized baseball waive a rule in the case of Jim Abbott, who had, I think, a hand... what was the rule they waived?

Do you remember?

Mr. Reardon: As I understand the rule, Your Honor, basically in baseball the pitcher is not supposed to move the ball in his hand prior to delivery.

Justice Breyer: And they waived that rule.

Right?

Mr. Reardon: Regular pitchers take the ball, as you see, they take it into their chest, hold the ball behind the glove and then make the delivery.

Justice Breyer: Now, how are we supposed to find out whether this rule is more like that rule of looking at the ball in baseball, or whether it's more like the rule that Justice Scalia mentioned, namely the rule of having a designated hitter?

How is the... how are we supposed to decide whether the rule is the one or the other?

Mr. Reardon: Okay.

I think what's very important is to understand what the game is, what is the competition?

Now, when you look at the rules of golf, promulgated by the U.S. Golf Association and St. Andrews, this is the bible of golf.

If you want to play golf virtually in the world, you play by these rules.

What do these rules say?

Rule one of the game of golf, hitting the ball from the teeing ground into the hole by a stroke or successive strokes.

That's the game.

There is no rule in the rules of golf--

Justice Breyer: I know.

But you realize I'm not the one who will know that.

I'm not very good at golf.

Unknown Speaker: [Laughter]

Justice Breyer: The... the... the real question is some rules are like the designated hitter and they are part of the game.

Other rules are like whether you look at the baseball before you throw it or hold it to your chest, which isn't part of the game, at least not an essential part.

Now, how did we find out which is which because the question was raised and I want to be clear what the answer to that is, and how do we find out?

Not we, me personally.

What's the system for finding out?

Mr. Reardon: --I would respectfully suggest the system is to look at the nature of the rule.

Justice Breyer: Who?

Mr. Reardon: Initially it would be the public accommodation.

If they don't agree that there should be a waiver of the rule, then it has to go on up the line, including to courts, if that's required.

Justice Breyer: So courts look at that like they look at any other rule of any other employer, public accommodation, et cetera?

Mr. Reardon: Yes.

I don't see anything quite frankly respectfully, extraordinary about that.

Justice Stevens: Well, we get into a lot of unexpected areas around here.

But, Mr. Reardon, at the least, don't we have to give substantial deference to the sporting authority?

Mr. Reardon: Actually, Justice Kennedy, if you wind up giving substantial deference, in other words, if you roll over and let them make a rule and say it's substantive, and that's the end of the game, then you are basically giving them a free pass out of the Americans with Disabilities Act, which would be improper.

Justice Kennedy: Well, what... we give deference to agencies all the time.

It's not rolling over.

It's just an acknowledgment of who has the best expertise, who knows the most about it, who is best equipped to make the decision.

That's all it is.

Mr. Reardon: But it's, it's not just a decision by the sport.

There is an implication, and a very significant implication in the statute, which requires the analysis.

This is not something where Congress said sports can have--

Justice Stevens: Mr. Reardon, can I ask you a question to be sure I understand your theory about fundamentally alter the nature of the game.

Are you contending that the walking rule is never a fundamental... abandoning the walking rule, it would never be a fundamental rule, or are you contending that with respect to Casey Martin, it's not fundamental because his disability has the same impact on his ability to play as walking has on other people?

Which is your theory?

Mr. Reardon: --I would... I'm trying to live with both theories, if Your Honor please.

But I do believe--

Justice Stevens: Quite different.

Mr. Reardon: --that looking at, at his disability is very important.

Because it enables the one making the judgment to determine whether or not this modification, taking into account his circumstances, is really significant.

Justice Scalia: Mr. Reardon, lest we seem as ignorant of the rules of baseball as we may well be of the rules of golf, and the former would be a much greater sin, I--

Unknown Speaker: [Laughter]

Justice Scalia: I want to point--

Justice O'Connor: --Wait a minute.

Justice Stevens: In dissent again.

Justice Scalia: I want to point out that your, your colleague does not agree that a special exception was made for Jim Abbott, that they believe that the rules of baseball did not prohibit what he was doing.

The only thing that was prohibiting was deceiving the base runner, and spinning the ball; so long as it didn't deceive the base runner, it was okay.

We don't have to resolve that here.

Justice Stevens: I saw his--

--But I just want to be on the record that we're aware of that problem.

Unknown Speaker: [Laughter]

Mr. Reardon: I don't know if I've answered your question, Justice Stevens, but I think it largely turns initially at least on the condition of the disabled person, and you look at that.

Justice Stevens: Well then you're not contending that the, if it, if it weren't for the particular nature of his disability, that it would fundamentally alter the game?

Mr. Reardon: No.

Your Honor, I think if you examine the way the PGA has handled the whole walking rule, it's replete with exceptions, that you can't have all of those exceptions and then argue it's essential because that's what the... you get to the definition--

Justice Stevens: Well, it seems to me you can have a different rule for qualifying and then have, than you have for the final events.

And if the final events are all run consistently with the general rule, I'm not sure the, the fact that it isn't fundamental in the sense you don't really have to have it makes the difference.

Mr. Reardon: --But if you're testing the same skills, that's very important to my argument, that what are you testing.

And when you look at the way they handled the exceptions throughout, this is the over 50s, just last week in Hawaii, and this is not in the brief, but examples like this are in the brief.

There are a couple of holes out in Hawaii on the Mercedes championship that were difficult for the players to negotiate because they were hilly.

They took them by cars.

Justice Souter: Yeah, but they took them by cars, I take it, for everybody.

Mr. Reardon: Everybody.

Justice Souter: And... and therefore, the fact that they took them by cars does not affect the assessment of the relative abilities of the players, because they all got the same dispensation.

Your brother's argument is that a professional sport is entitled to define anything as fundamental which could affect the relative, the measurement or the indication of the relative ability of the players.

And he says walking or not walking does make that kind of a difference.

What is wrong... and we've got to come on with some kind of a standard if, no matter how we decide this case, why isn't that a reasonable standard that should be respected under the Act?

Mr. Reardon: Because walking is not the game.

The game is hitting the ball and--

Justice Souter: No, but... the game can... we're not talking about the game in the abstract.

We're talking about the PGA Tour, and if the people who make the rules for the PGA Tour say we want to make this particular game tougher than regular golf games, we are going to separate another subset of people by making them walk, or at least making them walk on most holes.

Everybody has to play by this rule.

Why, if that could be outcome determinative, is that not a, number one, a reasonable way for them to draw the line, and why shouldn't we respect it?

Mr. Reardon: --I think it... you still have to look at the rule to see whether that rule as imposed, or as modified, giving an exception, would fundamentally alter that game.

Justice Souter: I know it.

But their argument is, that's... but you're avoiding my question.

Mr. Reardon: I'm sorry.

Justice Souter: I think.

Their argument is that if it can affect the results, then we are entitled to define it as fundamental in this kind of a game.

You may argue that it doesn't affect the results and therefore even on their own theory, it shouldn't apply, and you have so argued, and I understand that.

But if you're not right about that, is there something wrong with the legal criterion that they are arguing for?

Mr. Reardon: Your Honor, what I think is wrong with it is that you would basically be giving the PGA and organized sports a free pass out from under the--

Justice Souter: I understand your argument, but their response to that I think would be no, it's not a free pass because if you can in fact show that this doesn't affect the relative measurement of the players, that this is just kind of a sham, then we couldn't enforce it.

It wouldn't be fundamental within the meaning.

Mr. Reardon: --And we haven't proposed the rule as a sham, but we have, and rely upon the record, which reflects the trial judge's conclusion after a six day trial, that walking was not a significant matter.

Justice Ginsburg: Under normal circumstances.

Mr. Reardon: Under normal circumstances.

Justice Ginsburg: And that's an ambiguity in the lower court's finding.

What is... isn't a tournament at the height of the competition abnormal circumstance with the description of the, of the, what would it be, the extra hole and the humidity and the rough terrain.

That doesn't sound to me like normal circumstances.

What, what was, what was the lower court intending to cover with that qualifying language?

Mr. Reardon: I, I can only suggest, and there was testimony with respect to the U.S. Open, which was held here in Washington in 1964, testimony by the player who won it, Mr. Venturi.

And his testimony was that he literally did get exhausted.

There was counter testimony that said the exhaustion came from dehydration, not from walking, and there was spectators at that event who were passing out.

They weren't doing any walking.

Justice Ginsburg: What are abnormal... what is a normal circumstance and what is an abnormal circumstance?

Mr. Reardon: I, I think the abnormal circumstance would probably be a circumstance that may, may have some relationship to performance, but may not.

Argument of Barbara D. Underwood

Chief Justice Rehnquist: Thank you, Mr. Reardon.

Ms. Underwood, we'll hear from you.

Ms Underwood: Thank you, Mr. Chief Justice, and may it please the Court, This case presents an important question of the coverage of the Disabilities Act, as well as an issue of its application.

When an organization arranges a golf tournament and invites the public to compete for the opportunity to participate, it provides golfers with services, privileges, and advantages of the golf course.

Justice Stevens: Miss Underwood, may I just ask a question right there?

Putting the qualifying schools to one side for a moment, at the time they have entries to the golf tournament itself, the public can't just... anybody just can't come in and say I want to play, only those people who have graduated from the qualifying school.

Ms Underwood: Well, that's rather like the fact that a university that, that offers, to which the public can apply doesn't then admit the whole public.

It has a selection process, and so what only, only the admitted people can attend, but the university is a public accommodation.

Justice Scalia: The students are not performing.

The professors are performing and the students, the students are enjoying the performance of the professors.

Unknown Speaker: [Laughter]

Ms Underwood: Yes.

That's a different point.

All I meant was that the fact that there is a selection process does not deprive an entity of its status as a public accommodation.

If it's open to the public to compete, to attend, then that whole process is, is something that's open, to which the public is invited.

On the separate point, what are the circumstances--

Justice Scalia: Why is that any different with respect to employees?

Couldn't you say that awful your employees are enjoying the opportunity to work for you in the place of public accommodation in which you employ them?

That seems to me perfectly parallel to saying that these professional golfers who are making money by, by putting on this entertainment are enjoying the opportunity to do that.

Ms Underwood: --You might be able to say that.

There are two... the words would allow you to say that.

There are two reasons why you wouldn't.

One is that Congress made very clear that it was covering employees in Title 1 and that it didn't intend to provide redundant coverage in Title 3 so whatever one might say ab initio, that possibility is excluded.

Justice Scalia: Independent contractors would be covered then.

The independent contractors who, who provide services to the owner of the public accommodation are enjoying the opportunity to provide him services.

Ms Underwood: Well, I'd like to take, to answer that in two steps because I take issue with the proposition that these are employee like independent contractors.

I do say that even if they were, they would be covered, but this is a much stronger case because in fact, there is no independent contracting relationship here.

The golfer does not, does not undertake any obligation to perform, even in the way that an independent contractor does.

He is simply--

Justice Scalia: Doesn't he... doesn't he have to appear in a certain number of tournaments per year?

I thought that was part of the commitment.

Ms Underwood: --He doesn't make a commitment to... it's my understanding of the record that he doesn't make a commitment.

It is true that if he doesn't appear, he won't be in the Tour anymore, but he, by qualifying and being eligible to be in the Tour does not make a commitment to participate.

Justice Scalia: Well, that's just like saying an independent contractor doesn't have to comply with his contract there.

The only thing is if he doesn't, he gets fired.

I mean, it's the same thing.

Ms Underwood: It's not quite the same thing because there is no contract, there is no contractual commitment here at all.

Justice Souter: But you're saying, I take it you're saying that they can't sue, the Tour can't sue the guy that doesn't play enough games, they just drop him.

Whereas, they can sue the plumber who doesn't come if you have to hire a more expensive plumber.

Ms Underwood: That's correct.

In fact, PGA Tour explained in the district court when they were attempting to defeat the claim that this was an employee, that it doesn't hire golfers, that it's a membership organization, a professional association that arranges playing opportunities for its members and promotes their interests.

It compared itself to the ABA in that regard.

It provides opportunity for them.

It provides services for them.

Justice O'Connor: May I... may I ask you, Ms. Underwood, if whether to decide in your favor, we have to determine the general applicability of Title 3 of the ADA to independent contractors?

Ms Underwood: No, you do not.

In the... that is, the, the particular sort of entity or status of Respondent here is, as I said, a much clearer case that he is a consumer of the services or the privileges or advantages of a public accommodation.

Justice O'Connor: Wait.

It was determined in this case, as I understood it, that he was an independent contractor; at least the district court thought so.

Ms Underwood: Well, the district court said so in the context of deciding that he wasn't an employee, as if the only two options were that he was an employee or an independent contractor.

That is, in deciding that he couldn't take advantage of Title 1 for employees, the court said he is not an employee, and looked to the body of law that said people who aren't employees are independent contractors.

But I don't think that resolves the question whether he maybe was something else entirely, a member or a potential member who was neither an employee nor an independent contractor as that term is commonly used in the working context.

He simply wasn't a worker here at all.

Petitioner argues that players can't be consumers of services because they are providers of entertainment to the spectators, but that is simply a false dichotomy.

PGA offers services to these two different groups.

It arranges playing opportunities for golfers and viewing opportunities for the spectators.

As a result, players both consume and provide services at the same time, just like the little league players who have uniformly been treated by the lower courts as protected users of a public accommodation.

Unknown Speaker: Well, I suppose any business which is a successful business in the community holds out the privilege of independent contracting as repairmen come in and so forth, they are all independent contractors, and I'm not quite sure how you distinguish that from, from the golfers here.

Ms Underwood: Well the difference is, as I said, I think there is an argument that even those independent contractors could be covered, that the Disability Act meant to open economic and social life to people with disabilities and that--

Justice Kennedy: Let's... let's assume I disagree with that.

Ms Underwood: --Yes.

I think the simple answer here is that the privilege of working for, for money in an employee like role is simply quite different from what is happening when somebody participates in a competition.

The public accommodations laws, as we said earlier, protect gamblers at a casino, or exhibitors at a craft fair, or participants in a dance contest, whether there are money prizes or not, whether the people who are engaging in those competitions.

I mean, I think the... are doing it to make their living or are doing it as an avocation.

It wouldn't work to distinguish the motivations of the different users of the services of that accommodation.

They wouldn't be protected if they were employees.

It's perfectly true that if golf arranged itself differently, and had employees here, they wouldn't be protected under Title 3.

Justice Kennedy: But the independent contractor repairman has to do it for a living, and let's, let's assume that we think that that's what these golfers are doing.

What's the difference?

Ms Underwood: The difference is that the participation in a contest is a different sort of, that is open to the public, is a different sort of thing from the cut from the arrangement by contract, by employment contract or by some other contract to provide services.

And I'd like to point out, of course, that covering people like independent contractors or like contest participants, which is what we have here under Title 3 is not as has been suggested some sort of end run around the limitations of Title 1.

Justice Ginsburg: Are you then distinguishing the stage... one analogy that was made is the spectators are in the theater, but what's going on in the stage, those people are not relating to the space as a public accommodation.

Ms Underwood: Well, you're making a comparison to the theater, you mean?

Justice Ginsburg: Yes.

Ms Underwood: Well, in a theater, of course, ordinarily there are employees so this issue, they ordinarily are employees so this issue doesn't come up.

I would suppose though, that if, if a, if a performer sought to rent a performance space, he would be a consumer of the, of that facility and could claim that he was being discriminated against as a consumer of that facility.

That's not usually the way performers relate to performance space.

Justice Breyer: In your opinion, does it make a difference if, if there is no easy classification, that is, if a professional golfer is somehow unique, not this, not some other thing, not an employee, not a contractor, not a client, not exactly a customer, not a this, not a that.

Does it matter?

Ms Underwood: Well, I think that the purpose of the Disabilities Act was to, was to be inclusive.

I think that's clear both from the statute and from the legislative history so that I would suggest that if there's, that doubts should be resolved here in favor of coverage.

But I don't think it's unclear.

I think that, that the, that the public accommodations title was meant to cover golf courses and participation in events at golf courses so long as they are open to the public.

And it seems to me this is right in the heart of what the statute was meant to reach.

Rebuttal of H. Bartow Farr, III

Chief Justice Rehnquist: Thank you, Ms. Underwood.

Mr. Farr, have you three minutes remaining.

Mr. Farr: Thank you, Mr. Chief Justice.

Excuse me.

Just a few brief points.

Responding in reverse order to the United States' argument, first of all, they say that the reason that employers, employees are not covered by Title 3 is because that covers Title 1, but Title 1 doesn't cover all employees.

It only covers employees of a covered employer.

You have to have at least 15 employees to be covered and if you are not an employee of a covered employer, you are not covered either.

Yet, the United States' position is that no employees are covered by Title 3, but really independent contractors or people similar to that are in the same position essentially with respect to Title 3 as noncovered employees under Title 1.

Secondly, the district court specifically said that Respondent was an independent contractor, not just in talking about Title 1, but on page 53 of the joint appendix, it says, the district court says, I focus only on the issue of whether he is entitled to his requested accommodation, the use of a golf cart, as an independent contractor playing in defendant's tournaments which are held at places of public accommodation.

Now... but I should point out, I mean, while he is an independent contractor as defined by the district court, our point is not exactly it turns on whether he is an employee or an independent contractor.

Our point is he is not a consumer of goods and services, and there are a number of people who are not consumers.

Employees are in the group.

Independent contractors are in the group.

Partners in a law firm, which is a type of public accommodation, are not in the group.

Insurance agents are not in the group.

The issue is what they are not.

They are not people obtaining, seeking to obtain or gain access to goods and services.

They are all in the category of people who are providing goods and services to the public accommodation so it in turn can provide its goods and services to other people.

Secondly, just to make the contrast between the people who are also playing golf and who are covered, Title 3, we concede, it covers commercial opportunities, recreational opportunities, educational opportunities.

Those are all things specifically mentioned in Title 3 in terms of defining who's a public accommodation.

What it doesn't cover is professional opportunities, the people who are trying to get, to make their living essentially working for the place, the operator, the public accommodation.

So they are not like the tout at the race track who is there in common with the other people enjoying it for recreation.

They are people actually working like somebody who is behind the betting counter at the race track who is working for the operator.

Now, just quickly on the points that Respondent raises, Rule 1.1 doesn't say golf is a sport of hitting the ball from the tee to the putting hole.

It says it's a game of hitting it from the tee to the putting hole in accordance with the rules.

That is Rule 1.1.

And the rules for this particular competition include, as there are permitted to be, optional rules, and that in turn includes the requirement that competitors walk the course.

So if you, if you are saying that you cannot, that you have to make waivers in that situation for someone who can't comply, then you are changing the game.

Chief Justice Rehnquist: Thank you, Mr. Farr.

The case is submitted.

Attribution:

The Oyez Project

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