356 F.3d 641 (5th Cir. 2004), 02-21154, Spector v. Norwegian Cruise Line Ltd.

Docket Nº:02-21154, 03-20056.
Citation:356 F.3d 641
Party Name:Douglas SPECTOR, et al., Plaintiffs-Appellants, v. NORWEGIAN CRUISE LINE LTD., doing business as Norwegian Cruise Line, Defendant-Appellee. Douglas Spector, et al., Plaintiffs-Appellees, v. Norwegian Cruise Line Ltd., doing business as Norwegian Cruise Line, Defendant-Appellant.
Case Date:January 12, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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356 F.3d 641 (5th Cir. 2004)

Douglas SPECTOR, et al., Plaintiffs-Appellants,

v.

NORWEGIAN CRUISE LINE LTD., doing business as Norwegian Cruise Line, Defendant-Appellee.

Douglas Spector, et al., Plaintiffs-Appellees,

v.

Norwegian Cruise Line Ltd., doing business as Norwegian Cruise Line, Defendant-Appellant.

Nos. 02-21154, 03-20056.

United States Court of Appeals, Fifth Circuit

January 12, 2004

Page 642

William David George (argued), Brady Edwards, Edwards & George, William H. Bruckner, Elaine B. Roberts, Bruckner Burch, Houston, TX, for Doug Spector, Ana Spector, Julia Hollenbeck, David T. Killough and Rodger Peters.

Marie K. McElderry, Dennis J. Dimsey, Deputy Chief, U.S. Dept. of Justice, Civil Rights Div., Washington, DC, for U.S., Amicus Curiae.

Thomas Howard Wilson, Michael James Muskat (argued), Vinson & Elkins, Houston, TX, for Norwegian Cruise Line Ltd.

Page 643

Appeals from the United States District Court for the Southern District of Texas.

Before REAVLEY, JONES and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This appeal presents the question whether Title III of the Americans with Disabilities Act ("ADA") applies to foreign-flagged cruise ships. See 42 U.S.C. § 12182 (2000) et seq. As a matter of first impression in this circuit, we hold that it does not. We affirm in part and reverse in part the district court's interlocutory orders that formed the basis of this § 1292(b) appeal.

I. BACKGROUND

At various times in 1998 and 1999, the plaintiffs took cruises on Norwegian Cruise Line ("NCL") ships, the Norwegian Sea and the Norwegian Star. The cruises originated in the Port of Houston, Texas, and traveled to foreign ports of call. Both ships sail under the Bahamian flag. Afterwards, the plaintiffs filed suit asserting that they were discriminated against in violation of Title III of the ADA.

The plaintiffs comprise "disabled plaintiffs" and "companion plaintiffs." The disabled plaintiffs allege that physical barriers on the ships denied them access to: (1) emergency evacuation equipment and emergency evacuation-related programs; (2) facilities such as public restrooms, restaurants, swimming pools, and elevators; and (3) cabins with a balcony or a window. The disabled plaintiffs also allege that NCL charged them a premium for use of the four handicapped-accessible cabins and the assistance of crew members. The companion plaintiffs allege that they were discriminated against and denied access to the ships' facilities and amenities because of their "known association" with the disabled plaintiffs.

Alleging their intent to take future NCL cruises, the plaintiffs sought a declaratory judgment, injunctive relief, and reasonable attorneys' fees and costs. More specifically, the plaintiffs sought injunctive relief requiring NCL to remove certain barriers, some temporary and some permanent, that obstructed their access to the ships' facilities. NCL moved to dismiss for failure to state a claim. FED.R.CIV.P. 12(b)(6). After considering the motion, the district court: (1) ruled that foreign-flagged cruise ships are subject to Title III of the ADA; (2) dismissed the plaintiffs' claim concerning removal of physical barriers because the federal government failed to promulgate the necessary regulations; and (3) ruled that the companion plaintiffs stated a claim for associational discrimination.1 The district court certified the matter for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and we accepted the certification.2

II. STANDARD OF REVIEW

This court reviews de novo the district court's grant or denial of a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss.

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See Frank v. Delta Airlines, Inc., 314 F.3d 195, 197 (5th Cir. 2002). "The complaint must be liberally construed in favor of the plaintiff, and all the facts pleaded in the complaint must be taken as true to determine whether the plaintiff has stated a valid claim for relief." Haynes v. Prudential Health Care, 313 F.3d 330, 333 (5th Cir. 2002) (citations and quotation omitted). "The dismissal will be upheld only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief." Id. The district court's interpretation of a statute, the primary issue in this case, is also subject to de novo review. Lara v. Cinemark USA, Inc., 207 F.3d 783, 786 (5th Cir. 2000).

III. DISCUSSION

NCL challenges the district court's conclusion that Title III of the ADA applies to foreign-flagged cruise ships. NCL asserts that there is no evidence that Congress intended Title III to apply to foreign-flagged vessels or that Congress even considered the issue. Although, as will be seen, arguments can be made both ways concerning the interpretation of congressional intent, we are persuaded that NCL is correct.

Title III of the ADA provides that: "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. § 12182(a)(2000). Title III also prohibits discrimination against disabled individuals on "specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce." 42 U.S.C. § 12184(a)(2000). Both "public accommodations" and "specified public transportation services" are subject to the barrier removal requirements of Title III. See 42 U.S.C. §§ 12182(b)(2)(A)-(C)(2000).3

It is settled that "a ship voluntarily entering the territorial limits of another country subjects itself to the laws and jurisdiction of that country." Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 142, 77 S.Ct. 699, 701-02, 1 L.Ed.2d 709 (1957) (citing Wildenhus' Case, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565 (1887)). However, the local sovereign is under no obligation to exercise its authority to the outer limits of its jurisdictional reach. Benz, 353 U.S. at 142, 77 S.Ct. 699. Since "the exercise of that jurisdiction is not mandatory but discretionary," id., the Supreme Court held, to apply domestic law to foreign vessels entering United States waters, "there must be present the affirmative intention of the Congress clearly expressed." Id. at 147, 77 S.Ct. 699. Absent an affirmative intention, "such appeal should be directed to the Congress rather than the courts." Id.

In Benz, the Supreme Court considered whether the Labor Management Relations Act of 1947 ("LMRA") applied to a dispute involving "a foreign ship operated entirely by foreign seamen under foreign articles while the vessel is temporarily in an American port." 353 U.S. at 139, 77 S.Ct. 699. The Court answered that question in the negative. Id. If Congress had "so chosen, it could have made the Act

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applicable to wage disputes arising on foreign vessels between nationals of other countries when the vessel comes within its territorial waters." Id. at 142, 77 S.Ct. 699. But given the dearth of legislative history evincing Congress's intent to apply the LMRA to foreign-flagged vessels, id. at 143-147, 77 S.Ct. 699, the Court concluded that Congress had not "fashion[ed] itself to resolve labor disputes between nationals of other countries operating ships under foreign laws." Id. at 142, 77 S.Ct. 699.

Likewise, in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), which addressed whether the National Labor Relations Act ("NLRA") applied to the "maritime operations of foreign-flag ships employing alien seamen," id. at 13, 83 S.Ct. 671, the Court again emphasized that the decisive question was not whether Congress had the power to apply the NLRA to foreign-flagged ships, but whether Congress had chosen to do so. See id. at 17, 83 S.Ct. 671. The McCulloch plaintiffs asserted that their case, unlike Benz, involved "a fleet of vessels not temporarily in the United States waters but operating in a regular course of trade between foreign ports and those of the United States[.]" McCulloch, 372 U.S. at 19-20, 83 S.Ct. 671. The Court found the distinction unavailing.

As in Benz, the McCulloch plaintiffs were "unable to point to any specific language in the Act itself or in its extensive legislative history that reflect[ed] such a congressional intent." McCulloch, 372 U.S. at 20, 83 S.Ct. 671. Accordingly, the Court held that the NLRA did not apply to foreign-flagged ships, and it reiterated that the plaintiffs should petition "to the Congress rather than to us." Id. at 22, 83 S.Ct. 671 (citation omitted).

EEOC v. Arabian American Oil Co., 499 U.S. 244, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (" ARAMCO "), amplifies the Supreme Court's adherence to established principles of statutory construction and fundamental tenets of international law. In ARAMCO, the Court considered whether Title VII applied "extraterritorially to regulate the employment practices of United States employers who employ United States citizens abroad." Id. at 247, 111 S.Ct. 1227. The Court stated that "[i]t is a longstanding principle of American law that legislation of Congress, unless contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." Id. at 248, 111 S.Ct. 1227 (citations and quotations omitted). "It serves to protect against unintended clashes between our laws and those of other nations which could result in international discord." Id. (citing McCulloch, 372 U.S. at 20-22, 83 S.Ct. 671). Therefore, "[w]e assume that Congress legislates against the backdrop of the presumption against extraterritoriality." ARAMCO, 499 U.S. at 248, 111 S.Ct. 1227 (quoting Benz 's requirement of clear expression by Congress, 353 U.S. at 147, 77 S.Ct. 699).

The EEOC, relying on two statutory provisions, contended that Congress did intend for Title VII to...

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