No. 98-757
In the Supreme Court of the United States
OCTOBER TERM, 1998
DAYS INNS OF AMERICA, INC., ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney General
JESSICA DUNSAY SILVER
GREGORY B. FRIEL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Section 302 of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
12182, prohibits discrimination on the basis of disability in the enjoyment
of any "place of public accommodation," and requires those who
own, lease, or operate such public accommodations to ensure that they meet
certain non-discrimination requirements. Section 303 of the ADA, 42 U.S.C.
12183, makes unlawful (among other things) the "failure to design and
construct" new public accomodations and commercial facilities that
meet certain accessibility requirements, but does not identify the persons
responsible for compliance. The question presented is:
Whether the obligations imposed by Section 303 of the ADA, 42 U.S.C. 12183,
extend to persons or entities other than those responsible for complying
with Section 302 of the ADA, 42 U.S.C. 12182(a).
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-757
DAYS INNS OF AMERICA, INC., ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. B1-B10) is reported at 151
F.3d 822. The opinion of the district court (Pet. App. C1-C16) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on August 6, 1998. The
petition for a writ of certiorari was filed on November 4, 1998. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. This case involves the interrelationship between two sections of Title
III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12181-12189
(1994 & Supp. II 1996) (Title III). Section 302 of the ADA, 42 U.S.C.
12182, prohibits disability-based discrimination in "public accommodations,"
a term that is defined to include (among other things) any inn, hotel, motel,
restaurant, theater, auditorium, health spa, station, museum, or park affecting
commerce. 42 U.S.C. 12181(7). Section 302(a) provides the general rule against
such discrimination:
No individual shall be discriminated against on the basis of disability
in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any
person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. 12182(a). Section 302(b), in turn, clarifies the scope of Section
302(a), and sets forth types of discrimination that are encompassed within
Section 302(a)'s general prohibition. 42 U.S.C. 12182(b). For example, Section
302(b) clarifies that denying participation to individuals with disabilities,
providing them inferior participation, unnecessarily separating them, or
failing to make certain reasonable accommodations for them are all unlawful.
42 U.S.C. 12182(b)(1)(A)(i)-(iii) and (2)(A)(ii)-(iv). Section 302(b) further
specifies that failure to undertake certain corrective measures for existing
public accommodations is unlawful; the failure to remove "architectural
barriers * * * in existing facilities," for example, is deemed to be
unlawful if "such removal is readily achievable." 42 U.S.C. 12182(b)(2)(A)(iv).
While Section 302 of the ADA applies to all "public accommodations,"
Section 303 of the ADA, 42 U.S.C. 12183, is a special provision that applies
only to newly constructed or newly altered "public accommodations,"
as well as to newly constructed or newly altered "commercial facilities"
(which are not otherwise covered by Section 302). Section 303(a) provides,
in relevant part:
[A]s applied to public accommodations and commercial facilities, discrimination
for purposes of section 12182(a) of this title [Section 302(a) of the ADA]
includes -
(1) a failure to design and construct facilities for first occupancy later
than [January 26, 1993], that are readily accessible to and usable by individuals
with disabilities, except where an entity can demonstrate that it is structurally
impracticable to meet the requirements of such subsection in accordance
with standards set forth or incorporated by reference in regulations issued
under this subchapter.
42 U.S.C. 12183(a). The "standards" Section 303 refers to are
the Standards For Accessible Design (28 C.F.R. Pt. 36, App. A), issued by
the Attorney General pursuant to 42 U.S.C. 12186(b).
The "commercial facilities" covered by Section 303 include a broader
range of facilities than the "public accommodations" covered by
Section 302. In particular, the term "commercial facilities" includes
all facilities (built for first occupancy after January 26, 1993) "that
are intended for nonresidential use" and "whose operations will
affect commerce." 42 U.S.C. 12181(2). Congress understood that many
"commercial facilities" that are covered by Section 303 would
not have qualified as "public accommodations." See H.R. Rep. No.
485, pt. 2, 101st Cong., 2d Sess. 116 (1990); H.R. Rep. No. 485, pt. 3,
101st Cong., 2d Sess. 53 (1990). For example, factories, warehouses, and
many office buildings that qualify as "commercial facilities"
might not qualify as "public accommodations." 28 C.F.R. Pt. 36,
App. B, § 36.104. See H.R. Rep. No. 485, pt. 2, supra, at 117; H.R.
Rep. No. 485, pt. 3, supra, at 53. Unlike Section 302, Section 303 does
not specify the persons or institutions that are responsible for complying
with its mandate.
2. Petitioners are the franchisors of the Days Inn hotel chain. In 1992,
Richard and Karla Hauk entered into a franchise agreement with petitioners
to open a new Days Inn hotel in Wall, South Dakota (the Wall Days Inn).
Pet. App. B1-B3. Because the hotel was designed and constructed for first
occupancy after January 26, 1993, it is subject to the new construction
requirements of Section 303(a) of the ADA. Pet. 3; 42 U.S.C. 12183(a).
The franchise agreement required the Wall Days Inn to comply with petitioners'
detailed design and construction standards. Pet. App. B3. The agreement
also mandated that the hotel be built and maintained in compliance with
the ADA, and authorized petitioners to terminate the franchise if the hotel
failed to meet the requirements of the ADA. Id. at B3, B8. Petitioners had
authority under the franchise agreement to review all architectural plans
for the Wall Days Inn and to deny the hotel entry into the Days Inn system
if it failed to comply with petitioners' design and construction standards.
The franchise agreement also gave petitioners the authority to inspect the
hotel, both during construction and after it opened for business, to ensure
that it met their design and construction standards. Ibid.
The Wall Days Inn hotel, as both designed and built, violated ADA accessibility
standards and petitioners' own design and construction standards. Petitioners,
however, did nothing during the design or the construction phase to cause
the building to be brought into compliance with the ADA, and they allowed
it to open as part of the Days Inn system despite its failure to meet the
ADA's requirements. Pet. App. B4, C4.
3. The United States filed suit under Section 303(a) of the ADA against
petitioners, as well as against the Hauks, the architectural firm that helped
design the hotel, and the general contractor for the facility. Pet. App.
B1-B2, C1-C2. The complaint alleged that the defendants violated Section
303 by "fail[ing] to design and construct" the new hotel to be
readily accessible to and usable by persons with disabilities, 42 U.S.C.
12183(a). See Pet. App. B2. The district court entered consent decrees resolving
the United States' claims against all defendants except petitioners. Pet.
App. C2.
With respect to petitioners, the district court granted summary judgment
against the United States. Petitioners, the court concluded, did not design
or construct the Wall Days Inn for purposes of Section 303(a); nor were
they the operators of the hotel. Pet. App. C8-C16. The court declined to
decide whether Section 303's coverage is, like Section 302's, limited to
owners, lessors, lessees and operators. See id. at C8-C10.
4. The court of appeals reversed the grant of summary judgment and remanded
the case for further proceedings. Pet. App. B1-B10.
a. The court of appeals first rejected petitioners' construction of Section
303(a). Relying on Section 302(a) of the ADA, which prohibits discrimination
on account of disability "by any person who owns, leases (or leases
to), or operates a place of public accommodation," 42 U.S.C. 12182(a)
(emphasis added), petitioners argued that liability for violations of Section
303(a) also should be limited to owners, lessors, lessees and operators.
Pet. App. B4-B6. That interpretation, the court explained, is inconsistent
with the fact that the limitation to owners, lessors, lessees and operators
does not appear in Section 303(a); it appears only in Section 302(a). Pet.
App. B5. Moreover, since Section 302(a) by its terms applies only to owners,
lessors, lessees and operators of "public accommodations," that
reading "renders meaningless section 303's inclusion of commercial
facilities," thus creating "an inexplicable gap in coverage of
buildings that Congress clearly intended to include." Id. at B6. For
commercial facilities that do not qualify as public accommodations, the
court explained, there is no party who meets this description and thus "no
entity liable for violations of the new construction accessibility standards
for buildings which are commercial facilities only." Id. at B5-B6.
The court of appeals also rejected petitioners' proposed solution to this
gap in coverage. The court noted that petitioners had advocated limiting
the permissible defendants under Section 303 to owners, lessors, lessees
and operators of public accommodations or commercial facilities. Pet. App.
B6. But the court emphasized that such a reading does not comport with the
plain language of Section 302(a), which expressly covers only a party "who
owns, leases (or leases to), or operates a place of public accommodation,"
42 U.S.C. 12182(a). See Pet. App. B6.
b. Having rejected petitioners' construction of the statute, the court of
appeals concluded that, because Section 303 makes "failure to design
and construct" properly accessible facilities unlawful, it is most
natural to read Section 303 as applicable to anyone who, with requisite
control and knowledge, violates the ADA by failing to "design and construct"
facilities that meet the ADA's accessibility requirements, whether or not
they are the owner, operator, lessor, or lessee. A franchisor with significant
authority to control the design and construction of a new facility, the
court of appeals continued, might (depending on the facts) be held liable
for failure to "design and construct" a properly accessible facility.
Pet. App. B7-B8. In particular, the court of appeals held that a franchisor
with significant control and authority over design and construction (but
that did not exercise that control or authority) could be liable for violating
the ADA, but only if it had actual knowledge of the violation. Id. at B9.
In this case, the record was sufficient to show that petitioners had substantial
control and authority over the design and construction of the Wall Days
Inn. It did not, however, reveal whether petitioners had actual knowledge
of the accessibility problems at the hotel. Accordingly, the court of appeals
remanded the matter to the district court for further proceedings. Id. at
B8-B10.
ARGUMENT
Petitioners argue that the court of appeals erred in holding that the parties
responsible for complying with Section 303 of the ADA are not limited to
the owners, operators, lessees and lessors covered by Section 302 of the
ADA. Review of this issue by the Court would be premature at the present
time, and in any event the decision of the court of appeals is correct.
1. As an initial matter, the Eighth Circuit is the only court of appeals
that has addressed whether Section 303's coverage is limited to owners,
operators, lessors or lessees of new facilities.1 Petitioners acknowledge
that this case does not present an inter-circuit conflict (Pet. 8), and
they do not contend that the court of appeals' holding conflicts with any
decision of this Court. Given the relative novelty of the question petitioners
raise, and the absence of any other court of appeals decision addressing
it, review by this Court would be premature.
2. Moreover, the interlocutory nature of the court of appeals' decision
also counsels against further review at this time. See Brotherhood of Locomotive
Firemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per curiam)
(denying petition for certiorari because court of appeals had remanded the
case and it was thus not ripe for review); Hamilton-Brown Shoe Co. v. Wolf
Bros. & Co., 240 U.S. 251, 258 (1916) ("except in extraordinary
cases," review on certiorari is reserved for final judgments); see
also Virginia Military Inst. v. United States, 508 U.S. 946 (1993) (opinion
of Scalia, J., respecting denial of certiorari). The court of appeals did
not hold that petitioners were liable under Section 303 of the ADA. Instead,
it remanded to the district court for further proceedings, specifying that
petitioners cannot be held responsible unless they had "actual knowledge"
of the accessibility problems at the Wall Days Inn. Pet. App. B8-B10. As
a result, petitioners may prevail on remand, rendering their current contentions
academic; and if petitioners do not prevail on remand, they can appeal the
final judgment, which would then be subject to review with the benefit of
a complete record.
3. In any event, the court of appeals' decision is correct, and the interpretation
urged by petitioners is inconsistent with the text and history of the statute.
Section 303 by its own terms does not expressly limit the class of actors
to which its prohibitions extend. Instead, Section 303(a) broadly provides
that, with respect to both public accommodations and commercial facilities,
the "failure to design and construct facilities for first occupancy
later than [January 26, 1993], that are readily accessible to and usable
by individuals with disabilities" violates the ADA. 42 U.S.C. 12183(a).
Because there is no express limitation on the persons who may be held liable
for violating Section 303(a), Section 303(a) is most naturally read as applying
to anyone who engages in the prohibited conduct, i.e., anyone who, with
the requisite interest, authority and control, fails to "design and
construct" public accommodations or commercial facilities that meet
the ADA's accessibility requirements. Here, the court of appeals concluded
that a franchisor that has substantial control and authority over design
and construction, and that has actual knowledge that the facility violates
the ADA, is a sufficient participant in the "design" and "construction"
of that facility to be liable for failure to meet the requirements of the
ADA. Pet. App. B8-B9.
Petitioners argue that Section 303 must be read as incorporating the same
list of potential defendants set forth in Section 302(a), i.e., "any
person who owns, leases (or leases to), or operates a place of public accommodation."
See Pet. 10 (arguing that Section 303's reference to Section 302 "makes
clear that the prohibitions * * * apply to the same persons as do [the prohibitions]
of Section 302"). In this case, petitioners contend, they did not own,
lease, or operate the hotel.2 Petitioners' argument, however, cannot be
squared with the fact that Section 303 differs from Section 302 in two critical
respects: first, it imposes with respect to newly constructed facilities
a different kind of responsibility-for design and construction- not applicable
to facilities covered by Section 302 alone; and second, with respect to
newly constructed facilities, it extends the reach of the statute to cover
"commercial facilities" that would not constitute "places
of public accommodation" covered by Section 302. Nor can it be squared
with the legislative history of those two provisions. All of these factors
counsel against wholesale importation of the list of responsible persons
from Section 302 into Section 303.
a. First, petitioners' argument ignores the fact that Sections 302 and 303
address different subject matters. Section 302 is directed to a wide range
of potentially discriminatory practices at public accommodations, such as
improper segregation of the disabled, provision of inferior facilities,
and failure to remove unnecessary and easily-removed architectural obstacles.
42 U.S.C. 12182(b)(1)(A)(i)-(iii) and (2)(A)(ii)-(iv). Liability for such
practices most logically falls on those who control and engage in them,
namely the owners, lessors, lessees, and operators of the public accommodation.
Section 303, in contrast, is not directed at practices occurring at pre-existing
public accommodations. Instead, it is addressed to the failure to design
and construct new and newly-altered facilities that meet ADA accessibility
requirements. Responsibility for the failure to design and construct ADA
compliant facilities most logically falls on those with significant control
over those activities, whether or not they own, lease, or operate the facility
themselves.
Moreover, Section 302 addresses public accommodations built before the ADA
was passed. It would have made little sense (and perhaps would have been
somewhat unfair) to hold the original designers and constructors of pre-existing
accommodations responsible for bringing them into compliance with that 1990
law. See, e.g., 42 U.S.C. 12182(b)(2)(A)(iv) (requiring removal of architectural
barriers to access where feasible). Such an approach, for example, would
require a company that designed and built a public accommodation such as
a private museum in 1890 to bring the facility into compliance with the
ADA in the 1990s, even though the company that built the facility parted
with it decades earlier. Accordingly, Congress placed the burden of bringing
existing public accommodations into compliance with the ADA not on their
builders and designers but rather on those who currently benefit from them,
i.e., those who currently own, lease, or operate them. Unlike Section 302,
however, Section 303 addresses new construction of commercial facilities
and public accommodations for first use 30 months after the ADA was passed.
It is neither awkward nor unfair to hold those with significant control
over the design and construction of public accommodations and commercial
facilities after the ADA's passage liable when their design and construction
violates the ADA's clearly articulated accessibility requirements. To the
contrary, imposing liability on the very people who commit the prohibited
act-here, those who fail to design and build properly accessible facilities-is
the most logical way of ensuring compliance.
b. Second, petitioners' proposal to incorporate into Section 303 the list
of potentially liable parties from Section 302 would effectively nullify
Congress's express effort to bring "commercial facilities" within
Section 303's scope. Unlike Section 302, which applies to "place[s]
of public accommodation," Section 303 extends both to "public
accommodations" and "commercial facilities." Petitioners'
proposal to limit those responsible for complying with Section 303 to the
potential defendants listed in Section 302 would have the effect of reading
the words "commercial facilities" out of Section 303, because
Section 302 imposes liability only on "any person who owns, leases
(or leases to), or operates a place of public accommodation," 42 U.S.C.
12182(a) (emphasis added), and makes no mention of owners, lessors, lessees,
and operators of "commercial facilities." As the court of appeals
explained, "[t]he practical application of [petitioners'] interpretation
would leave no entity liable for violations of the new construction accessibility
standards for buildings which are commercial facilities" and not public
accommodations, thereby creating "an inexplicable gap in coverage of
buildings that Congress clearly intended to include." Pet. App. B5-B6.
The resulting nullification of the term "commercial facilities"
in Section 303 would contravene "the 'elementary canon of construction
that a statute should be interpreted so as not to render one part inoperative.'"
Department of Revenue v. ACF Indus., 510 U.S. 332, 340-341 (1994) (citation
omitted).
Petitioners argue that nullification of the term "commercial facilities"
can be avoided by reading Section 303's reference to Section 302 as limiting
the permissible defendants under Section 303 to owners, lessors, lessees
and operators of public accommodations or commercial facilities. That reading,
however, conflicts with the plain language of both Sections: It is inconsistent
with the text of Section 303, which contains no express limit on the responsible
parties whatsoever, and irreconcilable with the text of Section 302, which
limits its coverage to owners, lessors, lessees and operators "of any
place of public accommodation," 42 U.S.C. 12182(a). In effect, petitioners'
proposed solution is to judicially amend the language of Section 302 (in
the context of Section 303 actions) to include the phrase "or commercial
facilities." But, as the court of appeals correctly recognized, such
a rewriting of Section 302 "violates the maxim of statutory interpretation
that courts should give effect to the plain language of the statute."
Pet. App. B6. More than once this Court has recognized that federal courts
are under a "duty to refrain from reading a phrase into the statute
when Congress has left it out." Keene Corp. v. United States, 508 U.S.
200, 208 (1993); Russello v. United States, 464 U.S. 16, 23 (1983).
c. Contrary to petitioners' contention (Pet. 13-14), the court of appeals'
interpretation gives full effect to Section 303's cross-reference to Section
302(a). Section 303's reference to Section 302(a) makes it clear that the
failure to design and construct commercial facilities and public accommodations
that meet accessibility requirements is a type of "discriminat[ion]
* * * on the basis of disability," 42 U.S.C. 12182(a), prohibited by
the ADA. There is no suggestion that Section 303's reference to Section
302(a) was intended to incorporate into Section 303 any or all of the limits
on the persons who may be liable under Section 302(a).
To the contrary, the evolution of Sections 302 and 303 confirm that no such
limit was intended. The provision that became Section 303 was originally
a subsection of the general prohibition against discrimination now contained
in Section 302(a), Pet. 17-18, at a time when that general prohibition did
not include any language limiting its application to owners, operators,
lessors and lessees. See S. 933, 101st Cong. § 402(a) and (b)(6) (May
9, 1989); H.R. 2273, 101st Cong. § 402(a) and (b)(6) (May 9, 1989).
Congress then placed the provision relating to new construction and alterations
in a separate section of the statute, and labeled it Section 303. See S.
933, 101st Cong. §§ 302, 303 (Oct. 16, 1989). But even then Section
303's cross-reference to Section 302 could not have been thought to incorporate
a limit on the persons who could be liable under Section 303, as Section
302 at that time (like Section 303 today) still contained no such limit.
Ibid. Finally, when Congress did add a limit on those who could be held
liable months later, it added that limit only to Section 302, and did not
add it to Section 303. See H.R. Rep. No. 485, pt. 3, supra, at 11; H.R.
Rep. No. 488, 101st Cong., 2d Sess. 30 (1990). It is, of course, a fundamental
principle of statutory construction that "Congress acts intentionally
and purposely" when it "includes particular language in one section
of a statute but omits it in another." Keene Corp., 508 U.S. at 208
(quotation marks and citation omitted).3
Moreover, the floor debates and hearings show that Congress was well aware
that omitting the owner, lessor, lessee or operator limit from Section 303
would make it possible for persons other than owners, lessors, lessees and
operators to be held liable. Thus, Representative DeLay specifically noted
that the ADA would permit "suit against * * * contractors" who
were about to build an inaccessible facility, 136 Cong. Rec. 10,457 (1990),
and groups representing architects and contractors recommended certain modifications
to the Act to give them greater certainty regarding the specific design
requirements being imposed. See H.R. Rep. No. 485, pt. 2, supra, at 125-126;
Americans with Disabilities Act of 1989: Hearings on H.R. 2273 Before the
House Comm. on the Judiciary, 101st Cong., 1st Sess. 308-309, 314-315, 444-446
(1989) (American Institute of Architects); 136 Cong. Rec. 11,475 (1990)
(Rep. Hoyer); id. at 11,461-11,462 (Rep. Schroeder).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney General
JESSICA DUNSAY SILVER
GREGORY B. FRIEL
Attorneys
FEBRUARY 1999
1 Two other courts of appeals may consider the issue in the future in cases
brought by the United States against Days Inns of America, each of which
rests on distinctive factual allegations that may be relevant to the issue.
In United States v. Days Inns of America, No. 98-15433 (9th Cir.), the parties
have filed briefs but argument has not yet been scheduled; moreover, other
issues in the case may obviate the need to address the question. In United
States v. Days Inns of America, No. 98-6610 (6th Cir.), the parties have
not yet filed briefs.
2 Petitioners do not in their petition dispute that, if Section 303 is not
limited to owners, lessors, lessees and operators, then a person with substantial
control and authority over design and construction, who is aware of the
ADA violation, is properly held liable therefor. The International Franchise
Association (IFC), as Amicus Curiae, does appear to question that holding,
at least insofar as the party with control, authority and knowledge is a
franchisor. See International Franchise Ass'n Amicus Br. 5-12. IFC, however,
identifies no circuit conflict on the extent of participation necessary
to make a party liable, and review of such a fact-intensive question would
in any event best be addressed in a case that has a full record.
3 For similar reasons, petitioners are incorrect to contend that, because
Section 302(b)(2) of the ADA, 42 U.S.C. 12182(b)(2), covers only parties
identified in Section 302(a), the same limitation should be read into Section
303. Pet. 11-12. That argument ignores the fact that Congress inserted the
limitation to owners, lessors, lessees and operators only into Section 302,
and not into Section 303, after the two provisions had been separated into
separate sections. It ignores the different purposes and substantive scope
of the two provisions. See pp. 10-12, supra. And it ignores the fact that-because
Section 302(a) and (b) cover the same entities, while Section 303 covers
additional entities (commercial facilities) not covered by Section 302-the
limitation of Section 302(a) can be applied to Section 302(b) without untoward
effect, whereas applying it to Section 303 would produce an incongruous
gap in coverage. See pp. 12-13, supra.