IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO. 01-0244-CIV-KING/O'SULLIVAN

UNITED STATES OF AMERICA,

Plaintiff

v\.

NORWEGIAN CRUISE LINE LIMITED,

Defendant.

/

[MEMORANDUM IN SUPPORT OF THE UNITED STATES' MOTION FOR]{.underline}

[ORDER TO SHOW CAUSE AND TO ORDER SANCTIONS]{.underline}

[FOR CONTEMPT OF THE CONSENT ORDER]{.underline}

The United States submits this memorandum in support of its motion for
an Order requiring Defendant Norwegian Cruise Line Limited (NCL) to show
cause why it should not be held in contempt for failing to comply with
the Consent Order entered by this Court on August 28, 2001. Under the
Consent Order, the Court retained jurisdiction to enforce provisions of
the Order for five years from the date of the Order. The United States
requests that the Court enjoin NCL to comply with the Order and impose
sanctions on NCL for its failure to comply. Specifically, the United
States requests that the Court order Defendant to produce the
information requested by the United States so that it may review NCL's
compliance with the Consent Order, and stop discriminating against
hearing impaired passengers by denying them closed-captioned television
and access to other services. The United States has given NCL ample
opportunity to provide information so that the alleged violations could
be resolved without recourse to this Court, but NCL has declined to do
so.

[I. Factual Background]{.underline}

The United States filed this action against NCL on January 19, 2001 to
enforce Title III of the Americans with Disabilities Act ("ADA"). The
parties filed a Consent Order to resolve the action on August 22, 2001,
which was entered by this Court on August 28, 2001. (Attached as Exh.
1.)

Under the terms of the Consent Order, Defendant agreed to monetary and
injunctive relief. Among other things, the Order provides that "NCL
agrees not to request or require any person with a visual impairment to
travel with, or share a cabin with, another person unless such request
or requirement is made for reasons unrelated to the person's impairment
and is made to all similarly situated persons regardless of disability."
(Exh. 1, Consent Order at ¶17.1.) This term was intended to eliminate a
specific NCL policy that the United States alleged in its complaint
violated the ADA; the policy required persons with disabilities, as a
condition for traveling on NCL cruise ships, to travel with a companion
who was not disabled. (Exh. 1, Consent Order at ¶6.) While this action
was based on complaints from individuals who had vision impairments, and
addressed some concerns specific to individuals with vision impairments,
the Consent Order clearly addresses and prohibits discrimination on the
basis of *any* disability: "NCL agrees that it shall not deny its goods
or services to any person on the basis of disability." (Exh. 1, Consent
Order at ¶20.7.)

Despite these terms, NCL continued to post on its website, until on or
about April 6, 2004, a policy that plainly violated these provisions and
was almost identical in relevant respects to the statement cited in the
United States' Complaint.[^1] NCL's website, until April 6, 2004, said:
"All passengers with disabilities [must]{.underline} be self-sufficient
and should travel with a passenger who will provide any assistance
needed during the cruise or in the event of an emergency."
([[http://www.ncl.com/more/terms.htm#safety]{.underline}](../%3Chttp://www.ncl.com/more/terms.htm#safety>),
visited April 1, 2004, attached as Exh. 2 at p.2, emphasis added.) While
NCL has recently removed the policy from its website in response to our
demand, the United States is concerned that the policy, which appears to
have been on the NCL website from the execution of the Consent Order
until approximately April 6, 2004, may have prevented individuals with
disabilities from taking NCL cruises or forced them to travel with a
companion. The United States has asked NCL to identify any such
individuals but it has simply stated there are "none of which NCL is
aware." NCL does not even claim to have consulted its records, including
records of passenger complaints relating to disability issues.

In addition, the United States has received complaints from two
individuals who have hearing impairments and are substantially limited
in hearing. They allege that, while on an NCL cruise, they were denied a
closed-captioned television and/or did not have access to other services
because of their hearing impairment. NCL has provided no information
about the issues raised by the complaints, despite months of requests by
the United States. If these allegations are true, NCL's actions violate
Paragraph 20.7 of the Consent Order.

The first individual, Ms. Lori A. King, who has been diagnosed as having
a profound hearing impairment, took a cruise from Miami, Florida to
Cozumel, Mexico, on the Norwegian Majesty from January 6 through January
10, 2003. Ms. King alleges that NCL ignored her repeated advance
requests for accessible services, such as a closed-captioned television
set, which would allow her to access information on board the ship.
Finally, just days before the start of her cruise, she was notified that
there were no closed-captioned television sets on the Norwegian Majesty.
Ms. King claims that, as a result of NCL's failure to provide accessible
services, she was excluded from a mandatory emergency boat drill; she
was not able to hear the ship's alarm system or announcements made over
the public address system; and she had no access to the ship's
television broadcasts; the ship's daily activities calendar or
information on shore excursions.

The second individual, Mr. Alan L. Weiser, in June 2003, booked a
passage for a cruise on the Norwegian Star to Hawaii, which was
scheduled to begin on August 3. Mr. Weiser, who is deaf, requested a
closed-captioned television set so he could access programs and
information on the cruise. NCL's Special Needs Department advised him
that all television sets on the ship had closed-captioning capabilities.
On arrival he was notified that none of the television sets on the ship
had closed-captioning capabilities. Mr. Weiser claims that no effort was
made to obtain a closed-captioned set before the ship's departure and
that no such sets were provided during the cruise.

[II. Procedural Background]{.underline}

The Consent Order sets out a procedure for reviewing compliance with and
enforcing the Order. Paragraph 19.2 of the Order sets out the procedure
for reviewing compliance:

> The United States may review compliance with this Order at any time.
> If the United States believes that NCL is not in compliance with this
> Order or any requirement contained herein, the United States agrees to
> notify NCL in writing of the alleged noncompliance and attempt to seek
> a resolution of the matter with NCL. NCL shall have sixty (60) days in
> which to correct the noncompliance. If the parties are unable to reach
> a resolution, the United States may seek appropriate relief from this
> Court. Failure by the United States to seek enforcement of or relief
> under this Order, or any of its provisions, shall not be construed as
> a waiver of the United States' rights under this Order. Any violation
> of this Order shall be considered a subsequent violation of the ADA.

The United States has followed all of these steps, but Defendant has not
responded fully to the substance of the allegations nor agreed to remedy
the alleged violations (with the exception of removing the policy from
the website). The United States first notified NCL of its alleged
noncompliance by letter on August 21, 2003, and addressed both the
companion policy and Ms. King's complaint. When NCL told us that the
letter had been sent to its former address, we resent it on October 8,
2003. The United States sent NCL an additional request for information
on January 28, 2004, reiterating the issues in the August 21 letter and
addressing Mr. Weiser's complaint. NCL has requested and been granted
seven extensions to provide requested information (on October 8,
November 21 and 26, December 2 and 9, and February 9 and 19).

On March 26, 2004, the United States sent NCL a letter notifying them
that absent a response from them and a resolution of the allegations by
April 6, 2004, it would seek appropriate relief from this Court. In its
letter of March 26, the United States also requested a pre-filing
conference under Local Rule 7.1.A. NCL responded on April 6 that it had
removed the website policy, but refused to address the complaints
regarding hearing impairments. The United States responded on April 8,
and reiterated the questions to which we sought answers.

On April 16, Defendant finally responded to these questions with
non-responsive answers or delayed responding. For example, the U.S.
requested -- first on January 28, 2004 and again on April 8 -- that NCL
identify all persons who identified themselves to NCL as guests with
disabilities who, from August 28, 2001 through April 6, 2004, sought to
take a cruise. On April 16, NCL responded that it could only answer this
after NCL's Assistant General Counsel returned from out-of-town and
after "all relevant considerations have been analyzed." Since the U.S.
first sought this information two and a half months ago, it is
unreasonable for NCL to claim, on April 16, that it cannot respond
because an attorney is out of town and it has not yet analyzed the
relevant considerations.

In its letter of April 16, NCL stated that it would respond to our
inquiries regarding Ms. King and Mr. Weiser, but under separate cover.
Since the United States has been requesting this information since
August 21, 2003 for Ms. King, and since January 28, 2004 for Mr. Weiser,
NCL's response on April 16, 2004 that they will respond to these
inquiries at some unspecified time in the future is not adequate.[^2]

[III. Discussion]{.underline}

Under the terms of the Consent Order, this Court retains jurisdiction of
this action to enforce provisions of the Order for five years from the
date of the Order. ([See]{.underline} Exh. 1, Consent Order at ¶ 20.4.)
A consent order is a legal obligation binding upon its signatories and
enforceable like any other final judgment of a district court.
[See]{.underline} [Firefighters Local Union No. 1784 v.
Stotts]{.underline}, 467 U.S. 561, 590-91 (1984) (Stevens, J.,
concurring). Courts have inherent power to enforce compliance with their
lawful orders through civil contempt sanctions. [See]{.underline}
[Spallone v. United States]{.underline}, 493 U.S. 265, 276 (1990). In
fact, "consent decrees, like all injunctions, are to be enforced through
the trial court's civil contempt power." [Reynolds v.
McInnes]{.underline}, 338 F.3d 1201, 1208 (11^th^ Cir. 2003).

To enforce a consent decree, a plaintiff moves the court "to issue an
order for the defendants to show cause why they should not be adjudged
in civil contempt and sanctioned." *[Id.]{.underline}* Then, the judge
orders a show cause hearing, and "the court must determine whether the
defendants have complied with the provision at issue and, if not, decide
what sanctions are necessary to ensure compliance." *[Id.]{.underline}*

The provisions of the Consent Order governing this matter, and the
corresponding duties of the parties, are unambiguous. Further, NCL
received immediate benefits from signing the Consent Order with the
United States, including savings of litigation expenses and elimination
of the risk of an unfavorable resolution of the litigation accompanying
the agreement. The United States has relied upon NCL's agreement to
fulfill its commitments to modify its policies and practices so as not
to discriminate against passengers with disabilities. To permit a party
to benefit from a consent decree and then refuse to comply with the
provisions of the decree subverts the process by which the decree was
reached. [Eatmon v. Bristol Steel & Iron Works, Inc.]{.underline}, 769
F.2d 1503, 1513 (11^th^ Cir. 1985); [George Banta Co., Inc., v.
NLRB]{.underline}, 604 F.2d 830, 838 (4^th^ Cir. 1979). Further, NCL's
blatant disregard of its obligations under the Consent Order, as
illustrated by the travel companion policy on its website, should be met
with sanctions.

[A. NCL's Requirement of a Travel Companion]{.underline}

As recently as April 5, NCL publicly stated on its website that "\[a\]ll
passengers with disabilities must be self-sufficient and should travel
with a passenger who will provide any assistance needed during the
cruise or in the event of an emergency." This statement violated
Paragraphs 17.1 and 20.7 of the Consent Order (as discussed above at
2-3). We request that the Court order NCL to provide to the United
States the information -- which is within NCL's control and possession
-- necessary to review whether individuals with disabilities were denied
the opportunity to go on an NCL cruise or subjected to an unequal and
unnecessary condition to take an NCL cruise since the effective date of
the Consent Order.

> [B. Closed Captioned Television and Other Services for Passengers with
> Hearing Impairments]{.underline}

NCL agreed in Paragraph 20.7 of the Consent Order "that it shall not
deny its goods or services to any person on the basis of disability."
Denying passengers with hearing impairments access to television and
other information provided to passengers clearly violates this
provision.[^3] Televisions are provided in each passenger room and are a
service of the cruise, as are announcements, emergency drills, and
information about activities and excursions.

In accordance with the ADA, the denial of closed captioned televisions
to individuals with hearing impairments by a place of lodging is clearly
a "den\[ial of\] its goods or services to \[a\] person on the basis of
disability," and a violation of the Consent Order, Paragraph 20.7. The
ADA specifically states that no individual with a disability shall be
denied services because of the absence of auxiliary aids and services,
unless the entity can demonstrate that providing the service would
fundamentally alter the nature of the service or would result in an
undue burden. 42 U.S.C. §12182(b)(2)(A)(iii). The regulation further
specifies that this provision requires that places of lodging that
provide televisions in five or more guest rooms shall provide, upon
request, closed captions for individuals with impaired hearing. 28
C.F.R. §36.303(e).

Based on Ms. King's and Mr. Weiser's allegations, we request that this
Court order NCL to provide closed-captioned televisions for individuals
with hearing impairments, upon request, and to ensure that its emergency
drills, the alarm system, announcements made over the public address
system, and the ship's television broadcasts, daily activities calendar,
and information on shore excursions are available to individuals with
hearing impairments in an accessible format.

For the above reasons, the United States moves this Court to enter an
Order: (1) requiring NCL to show cause why it should not be held in
contempt for failing to comply with the Consent Order; (2) enjoining NCL
to provide the United States with the information it has requested and
to provide its services, including closed-captioned televisions, in
accessible formats for individuals with hearing impairments; (3) after
evaluating NCL's response to the order to show cause, ordering, if
appropriate, NCL to pay sanctions for its disregard of its obligations
under the Consent Order; and, (4) ordering appropriate relief for Ms.
King, Mr. Weiser, and any other individuals discriminated against in
violation of the Consent Order.

COUNSEL FOR THE UNITED STATES:

R. ALEXANDER ACOSTA

Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH

Chief

L. IRENE BOWEN

Deputy Chief

> PHILIP BREEN

Special Legal Counsel

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

EUGENIA ESCH (Special Bar No. A5500563)

\(202\) 514-3816

eugenia.esch@usdoj.gov

AMANDA MAISELS (Special Bar No. A5500819)

\(202\) 305-8454

amanda.maisels@usdoj.gov

Trial Attorneys

U.S. Department of Justice

Disability Rights Section - NYA

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

\(202\) 307-1197 (facsimile)

Dated: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

MARCOS D. JIMENEZ

U.S. Attorney

VERONICA HARRELL-JAMES

Assistant United States Attorney

99 N.E. 4^th^ Street, 3d Floor

Miami, Florida 33132

\(305\) 961-9327

\(305\) 530-7139 (facsimile)

[^1]: NCL contends that this statement on its website was not a
    "policy." However, the statement uses mandatory language, and is
    almost identical to the policy identified as such in the Consent
    Order.

[^2]: While NCL stated that it "remains willing to cooperate with the
    DOJ" in its letter of April 16, it has not, in fact, cooperated in
    providing the information we have requested, and thus we have been
    unable resolve this matter without the Court's intervention.

[^3]: When enforcing a consent decree, "the proper focus must be on the
    language contained within the consent decree itself," according to
    the Court in [United States v. City of Northlake]{.underline}, 942
    F.2d 1164, 1167 (7^th^ Cir. 1991), which upheld the United States'
    motion to enforce the consent decree's general non-discrimination
    provision.