UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL., PETITIONERS V. PARALYZED VETERANS OF AMERICA, ET AL. No. 85-289 In The Supreme Court Of The United States October Term, 1985 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Reply Memorandum For The Petitioners Virtually the entire thrust of respondents' brief in opposition is that the regulations mandated by the court of appeals' decision would make good policy. See, e.g., Br. in Opp. 7-8, 10-15. But that has never been the issue in this case, and it is in any event a matter more appropriately addressed to Congress than to this Court. Indeed, it is precisely because the court of appeals decided this case on the basis of its own notions of good public policy rather than a careful analysis of the legal constraints imposed by the language of Section 504 and this Court's decisions interpreting the "program specificity" requirement contained in the statute that we have sought review of the decision below. Because respondents have, for the most part, chosen to ignore the legal issues in contention, we make only a few brief points in reply. 1. In an obvious attempt to portray its decision as one of limited impact, the court of appeals "emphasize(d) * * * the extent to which the issue of discrimination against the handicapped, particularly in the complex realm of commercial air transportation, is sui generis" (Pet. App. 30a (footnote omitted)). Respondents seize on this language to argue (Br. in Opp. 16) that the "program or activity" issue in this case is "peculiarly fact-specific" to the airline industry and has no ramifications outside the context of this case. In fact, however, the issue goes to the very heart of this Court's decision in Grove City College v. Bell, No. 82-792 (Feb. 28, 1984). /1/ As we explained in the petition (at 28-29), the clear teaching of Grove City is that the boundaries of a federally assisted program or activity are defined by the underlying grant statute. Thus, the coverage of Section 504 cannot legally extend beyond the program or activity conducted by or under the auspices of the grant recipient. It is the court of appeals' disregard of this statutory requirement, and not the peculiarities of the airline industry, that requires review by this Court. /2/ By misstating the government's position, respondents also argue (Br. in Opp. 18-19) that this case does not present an appropriate vehicle for refining the distinction between a "recipient" of federal financial assistance and a "beneficiary" of that assistance. Contrary to respondents' apparent suggestion, we did not argue in the petition that "beneficiaries" and "recipients" are mutually exclusive. Clearly, an entity that receives federal financial assistance may also, in certain circumstances, benefit from that assistance. In this case, for example, airport operators are both beneficiaries and recipients. But not every beneficiary is automatically a recipient. To hold otherwise would, as the dissenting judges below recognized, "make every commercial enterprise a 'recipient' of federal aid when it merely makes use of a service or facility that receives any federal assistance" (Pet. App. 80a). Clearly, Congress never intended federal regulation to be so all -- encompassing, and thus the ramifications of the court of appeals' contrary ruling sweep far beyond the airline industry. 2. In support of their policy arguments, respondents rely (Br. in Opp. 6-8) on a proposal drafted by the Department of Transportation that would make the regulations mandated by the court of appeals' decision applicable to all commercial air carriers. Respondents fail to acknowledge that the proposal has no legal status whatever; indeed, it does not even have the minimal status of proposed regulations. Instead, the proposal was transmitted to the Department of Justice with a request that it be approved for issurance as a Notice of Proposed Rulemaking. That request was denied on August 2, 1985, because the Department of Justice, acting pursuant to its Section 504 oversight authority under Executive Order No. 12,250, 3 C.F.R. 298 (1981) (see Pet. 13 n.10), concluded, as a legal matter, that the proposal was inconsistent with the program-specificity mandate of Section 504. In these circumstances, the proposal represents nothing more than inter-agency correspondence, and it simply has no relevance to the legal issues before this Court. 3. Respondents also make much of the fact that the CAB initially proposed to issue regulations applicable to all commercial air carriers (Br. in Opp. 3-5). Respondents find the Board's explanation for the narrower scope of the final rules -- the impending "sunset" of the legal authority on which the Board had placed initial reliance -- inadequate. But respondents choose to ignore the passage of time between issuance of the Board's proposed rules in 1979 and promulgation of the final rules in 1982. While it might have seemed reasonable in 1979 to issue regulations grounded in the legal authority of Section 404(b) of the Federal Aviation Act of 1958, 49 U.S.C. (1976 ed.) 1374(b), such a course of action would have been nonsensical in 1982, when Section 404(b) was slated to expire in six months. Moreover, respondents' position would make a mockery of the purpose of notice and comment rulemaking. The Board received a substantial number of comments on the proposed regulations (see Pet. App. 85a), and, after considering those comments, it was forced to reevaluate the jurisdictional basis for its proposal. That the Board's review of the comments received resulted in a final rule different in scope from the proposed rule hardly constitutes grounds for invalidating the final rule. 4. Respondents finally contend (Br. in Opp. 20) that there is no real conflict between the decision below and the Ninth Circuit's decision in Jacobson v. Delta Airlines, Inc., 742 F.2d 1202 (1984). This is so, respondents argue, because compliance by the government with the decision below would establish a nationally uniform regulatory structure. Of course, the same could be said of any of the numerous decisions of the District of Columbia Circuit that have nationwide effect, but that factor has never been deemed sufficient to insulate those decisions from review by this Court. See, e.g., Heckler v. Chaney, No. 83-1878 (Mar. 20, 1985); Cornelius v. NAACP Legal Defense & Educational Fund, Inc., No. 84-312 (July 2, 1985). In any event, the fact remains that a handicapped plaintiff in the Ninth Circuit would almost certainly lose any case alleging a violation by an airline of the regulations mandated by the court below, because Jacobson would require the Ninth Circuit to rule that the regulations are unauthorized by law. Moreover, Jacobson cannot be regarded as the dead letter that respondents would have the Court believe; its validity was expressly reaffirmed by the Ninth Circuit in Hingson v. Pacific Southwest Airlines, 743 F.2d 1408, 1414-1415 & n.8 (1984). /3/ There is no escaping the fact that the two circuits are in conflict over the scope of "federal financial assistance" to airlines, and all interested parties -- the government, the airlines, and handicapped travellers -- are entitled to a definitive resolution from this Court. For the foregoing reasons, as well as those stated in the petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. CHARLES FRIED Acting Solicitor General OCTOBER 1985 /1/ Respondents note (Br. in Opp. 18 n.2) that legislation is pending in Congress that would alter the result reached by this Court in Grove City. The speculative possibility that such legislation might be enacted should not deter the Court from considering the important questions presented by this case. See Bryant v. Yellen, 447 U.S. 352, 380 n.32 (1980). /2/ Undoubtedly, virtually every federally assisted program or activity could be characterized as having unique factual aspects not shared by different programs. Indeed, the Court in Grove City itself characterized the student financial aid program there at issue as sui generis. Grove City, slip op. 16. But the inevitable factual distinctions among the diverse array of programs supported by the federal government cannot serve to insulate particular programs or activities from the "program specificity" mandate imposed by Section 504 and the other civil rights statutes on which it is modeled. /3/ Hingson held that air carriers that do not receive federal subsidies for carrying the mail cannot be deemed recipients of federal financial assistance for purposes of Section 504. Although the forms of "assistance" relied upon by the court below -- the use of federally-aided airports and the air traffic control system -- were not discussed in Hingson, the court reached its decision in reliance on the CAB rules that the court below invalidated (743 F.2d at 1414 n.8). It is therefore clear that the Ninth Circuit would not accept the sweeping view of federal financial assistance espoused by the court below.