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private cause of action
Air Carrier Access Act revisited: just what is preempted?
March 19, 2013 by William Goren 5 Comments
Previously, I have written two different blog entries dealing with the Air Carrier Access Act. In the first, I talked about whether a private cause of action existed. In the second, I talked about whether the Air Carrier Access Act regulations being so pervasive preempted state laws. This entry concerns a slightly different issue. That is, assuming preemption exists, does that mean the preemption applies to the standards what does it mean the preemption applies to the remedies for both?
A recent case from the Ninth Circuit, Gilstrap v. United Airlines,_F.3d_, 2013 WL 930170 (9th Cir. March 12, 2013), addresses this very question. In this case, the plaintiff had difficulty walking due to a collapsed disc in her back, a knee replacement, another knee in need of replacing, and osteoarthritis. Id. at *1. In August 2008, she flew on United from Los Angeles to Calgary, from Calgary to Chicago, and from Milwaukee back to Los Angeles via Denver. Id. In December 2009, she flew from Burbank, California to Madison, Wisconsin by way of Denver. Id. When she booked both flights, she requested that United provide her with wheelchair assistance for moving through the airport. Id. During both trips, United repeatedly failed to provide the plaintiff with the assistance that she requested. Id. In particular: at one airport, she had to locate a wheelchair on her own; at another airport she only obtained a wheelchair from United after prolonged assistance and up to 45 minutes of waiting; and still at other airports she was never able to locate a wheelchair at all and had to walk. Id. Further, she alleged that a United agent yelled at her, expressed skepticism that she actually needed a wheelchair, and on two occasions, directed her to stand in line, which she was not able to do because of her disabilities. Id. At one point, a United agent from whom she asked for assistance, unilaterally revoked her ticket and booked her for a later flight after telling her that that is what she got for refusing to stand in line. Id. She sued United in tort alleging several different causes of action under California law including: negligence, negligent misrepresentation, breach of duty of a common carrier, intentional infliction of emotional distress, and negligent infliction of emotional distress. Id. She also alleged that United Air Lines violated title III of the ADA as well. Id. She did not sue alleging violations of the Air Carrier Access Act, rather the claim was that the Air Carrier Access Act was relevant to establishing negligence on the theory of negligence per se. Id.
Before proceeding further, a brief comment is in order about negligence per se. Negligence per se is a legal concept that basically says that violation of one statute can be used as a means of saying that the defendant was negligent. It is basic black letter law that everybody learns in law school. Many states, such as California and Georgia to name just two, have a statute that says violation of a statute, ordinance, or regulation can be used as a means to establishing negligence. The state statutes vary in their wording. They also vary in what happens once you show that the statute, ordinance, or regulation is violated. Basically, what can happen might vary from winning your case if you can show that the statute was violated and the person alleging the violation of the statute, regulation, ordinance was meant to be protected by that ordinanceVal D'Aosta v. Cross, 526 S.E.2d 580, 585 (Ga. App. 1999), to creating a rebuttable presumption of failure to exercise due care. See Gilstrap at *1.
The court had several potential issues before it. First, are the remedies under the Air Carrier Access Act exclusive. That is, do those remedies preclude other remedies? Second, if the remedies are not exclusive, what role does the extensive regulations implementing the Air Carrier Access Act play in any subsequent state law-based negligence suit? Third, does the Air Carrier Access Act provide for a private cause of action? Fourth, does the ADA apply to airline terminals?
With respect to the first issue, the Ninth Circuit found that the remedies in the Air Carrier Access Act are not exclusive. That is, the Air Carrier Access Act does not preclude other kinds of causes of action such as those lying in tort. The court found it extremely significant that the Federal Aviation Act, of which the Air Carrier Access Act is an amendment to, specifically says that any remedy under the Federal Aviation Act is in addition to any other remedies provided by law, and it also says that Department of Transportation certified air carriers have to maintain liability insurance sufficient to cover bodily injury, death, loss of property, or damage to property resulting from the operation or maintenance of the aircraft. Id. at *5. Therefore, the Federal Aviation Act on its face explicitly anticipated that other remedies besides those under the Federal Aviation Act may be utilized. Also, the court found that no conflict existed between federal and state liability standards in this case nor did allowing causes of action lying in tort frustrate the objective of the federal law. Id. at *11.
With respect to the second issue, the regulations are indeed extensive and pervasive. The court said in that kind of case, where the statute clearly says that the remedies are not exclusive, but you do have extensive and pervasive federal regulations, what happens is that those extensive and pervasive federal regulations establish the standard of care for the state law cause of action. Id. at **8-9.
With respect to the third issue, the court noted that there are opinions out there, which we have also discussed in another blog entry, that say the Air Carrier Access Act, does not give rise to a private cause of action. Id. at *5. However, since the plaintiff did not sue under the Air Carrier Access Act, the court said that that was a question they did not have to reach. Id.
With respect to the final issue, as we have also discussed in a prior blog entry, the court found that the Americans with Disabilities Act was quite explicit that title III does not apply to airport terminals. Id. at *14. However, in a footnote, the court said that the implementing regulations under title II of the ADA do note that airports operated by public entities are covered by title II of the ADA, but since the plaintiff did not make any claims under title II it wasn't necessary to visit that question. Id. at n. 11.
So what does this all mean?: First, the Air Carrier Access Act does not preempt both standards and remedies because the Federal aviation act, of which the Air Carrier Access Act is a part of, allows for other remedies, and allowing for other remedies does not conflict with the purpose of the Federal aviation act. Second, while remedies under the Air Carrier Access Act are not exclusive, the standards contained in the regulations implementing the Air Carrier Access Act are the standards that will have to be used in any subsequent state law cause of action alleging injuries from violation of the Air Carrier Access Act regulations. Third, while this case doesn't address the question of whether a private cause of action exists, for reasons mentioned in another blog entry, it probably doesn't. Third, it is quite clear from the cases that title III of the Americans With Disabilities Act does not apply to airport terminals, but it may be possible that title II of the ADA applies to airport terminals.
Plaintiff/Defendant think: On the plaintiff's side, this case is a real positive jolt for plaintiffs. A person with a disability who is not properly accommodated during their time in an airport is quite likely to have those disabilities aggravated in some way or have some new injury result. This case gives plaintiffs a real opportunity to redress violations of the federal regulation that aggravated and/or caused additional injuries. On the defense side, it means that airlines are going to have to make sure that their staff are fully trained on all the regulations and that steps are taken to minimize the risk of violations of any of the regulations. In short, if a client comes into a plaintiff personal injury law firm to talk about a situation where they were injured in an airport as a result of the Air Carrier Access Act regulations not being followed, the plaintiff's attorney would want to seriously think about filing state law tort claim lawsuits using the Air Carrier Access Act as the standards for liability. Since many airports are publicly owned, the plaintiff attorney may also want to consider bringing a cause of action under title II of the Americans with Disabilities Act as well. On the defense side, if the plaintiff alleges a violation of title III, a likely successful argument is that title III of the ADA does not apply to airport's terminals. If the plaintiff brings suit under the Air Carrier Access Act, another likely successful argument is that a private cause of action does not exist under that act. If a plaintiff brings suit under title II of the ADA, the defense would want to argue that title II applies to public entities and the airlines are not public entities. Finally, if there is a personal injury suit based on state law claims, the defendant first would want to argue that the Air Carrier Access Act preempts state law remedies as well (but as we have seen in this case, that argument may not be successful). Second, the defense would need need to be prepared to deal with the Air Carrier Access Act regulations as the basis for liability.
So where does this case go? Whenever a U.S. Court of Appeals decides a case, a person losing would have two options. First, ask for a rehearing en banc. Considering that this is the Ninth Circuit and considering the nature of this case, it is hard to say whether such a rehearing request would be granted (a majority of the entire Ninth Circuit judges would have to agree to do that). The other option of course is to appeal the case to the United States Supreme Court. In that situation, at least four justices would have to agree to hear the case. With respect to whether the judges would agree to hear the case, it would help if a conflict between the circuits exist. There is a theoretical conflict between the circuit with respect to whether a private cause of action exists under the Air Carrier Access Act, but this particular case does not address that question because the plaintiff did not sue under that act. Also, since the Supreme Court decision in Alexander v. Sandoval, the circuits have not split on the question of whether the Air Carrier Access Act has a private cause of action component (they have all found that it does not). With respect to the other issues in Gilstrap, it would take further research but this case doesn't seem to suggest that a conflict among the circuits exists with respect to those other issues. Finally, even if the U.S. Supreme Court were to take this case for some reason, I wouldn't want to hazard a guess as to whether the United States Supreme Court would hold that the remedies under the Air Carrier Access Act where exclusive, especially considering the act's explicit discussion of other remedies being in play and the insurance requirements. I do think it would probably be likely that the United States Supreme Court would decide that title III of the ADA does not apply to airport terminals and, if the question were before it, would also decide per Alexander v. Sandoval that the Air Carrier Access Act does not have a private cause of action component to it.
Filed Under: Federal Cases, Final Federal Regulations, General, State Cases, Title II, Title III Tagged With: ADA, aggravation of pre-existing disabilities, air carrier Access act, airline terminals, Alexander v. Sandoval, Americans with Disabilities Act, be a preemption, bodily injury, breach of duty of a common carrier, California, conflict between the circuits, conflict preemption, damage to property, death, disability discrimination, en banc, establishing the standard of care, exclusive remedies, extensive regulations, failure to exercise due care, failure to provide assistance, field preemption, Georgia, Gilstrap v. United Airlines, intentional infliction of emotional distress, loss of property, maintain liability insurance, minimizing the risk of violations of regulations, negligence, negligence per se, negligence suit, negligent infliction of emotional distress, negligent misrepresentation, Ninth Circuit, objective of federal law, operation or maintenance of aircraft, personal injury, pervasive, pervasive regulation, preclusion of other kinds of causes of action, preemption, private cause of action, publicly owned airport, rebuttable presumption, rebuttable presumption of failure to exercise due care, remedies, remedies in addition to any other remedies provided by law, standards, standards preempt, title II, title III, tort, United Airlines, United States Court of appeals, United States Supreme Court, Val D'Aosta v. Cross, wheelchair
Air carrier access act: only one place to go
November 4, 2012 by William Goren 5 Comments
In a previous blog entry, the Air Carrier Access Act was discussed in terms of whether it allowed for a private cause of action where an airline violated the regulations that carry out that act. However, that blog entry did not answer two questions. First, assuming a private cause of action for violation of that act is allowed, would you have to exhaust administrative remedies first? Second, assuming a private cause of action is not allowed, could you then pursue a claim under a state law that might apply?
A case that answers both of these questions is Segalman v. Southwest Airlines, 2012 WL 5289308 (E.D. Cal. October 24, 2012). In this case, the plaintiff flew Southwest Airlines several different times. Id. at *1. During each of those times, Southwest Airlines did not comply with the Air Carrier Access Act regulations with respect to stowing wheelchairs. Id. As a result, he was not able to use his wheelchair upon arriving at his destinations. Id.. The plaintiff had cerebral palsy and had to use a specific wheelchair. Id. Under the Air Carrier Access Act, there are very specific regulations dealing with how an airline is supposed to deal with the person's wheelchair. Id. at *6. Those regulations were not complied with. That caused him considerable distress, physical mental anguish, and considerable inconvenience as he had to get the wheelchair fixed in a variety of different locations. Id. Instead of filing an administrative complaint with the Department of Transportation, which enforces the Air Carrier Access Act, the plaintiff filed suit against Southwest Airlines alleging violations of the Americans with Disabilities Act, violation of the California Unruh Act, and violation of the California Disabled Persons Act. Id. at *2. Not surprisingly, in light of our previous blog entry, Southwest Airlines moved to dismiss the Americans with Disabilities Act claim. They also moved to dismiss the state law claims as well arguing that the state law claims were preempted by federal law.
For the reasons mentioned in the other blog entry dealing with this subject, the Eastern District of California dismissed the Americans with Disabilities Act claim saying that the Americans with Disabilities Act did not apply to this situation. Rather, the applicable law was the Air Carrier Access Act. Id. at *3-5. However, the court went even further when it said that since the federal government had issued extensive regulations implementing this particular statute, that means that the federal government meant to preempt the field with respect to other laws that might apply, certainly with respect to any laws where the federal government had very specific specific applicable regulations (the Air Carrier Access Act has very specific regulations on how wheelchairs must be stowed). Id. at *5-7.
Finally, the private cause of action discussion in this case has an interesting element to it. That is, while the court said that no private cause of action exists, they also said that if somehow a private cause of action did exist, the statutory scheme was such that it required exhaustion of administrative remedies. Id. at *5. In this case, the plaintiff did not exhaust administrative remedies because he never filed a claim with the Department of Transportation. Id.. This discussion of administrative remedies is very interesting because there is nothing in this opinion that suggests that exhaustion of administrative remedies would change the equation with respect to whether a private cause of action exists in the first place.
Preventive tips: If you are plaintiff, you definitely want to file with the Department of Transportation and go through that process. Once that process is complete, you could try filing in federal court. The problem with that approach is that the statute doesn't contain any indication that you can go to federal court, in much the same way as you would go to federal court under title I of the ADA once administrative remedies are exhausted. That said, once that process is completed, the plaintiff may want to try and argue that the regulations themselves create a private cause of action, which for reasons discussed in the other blog entry would be a tough sell but maybe it's worth a shot. Also, if a state law deals with the situation and the Air Carrier Access Act regulations do not specifically pertain to the situation at issue, then a plaintiff might argue that violations of the state law occurred and were not preempted by the federal regulations. On the defense side, the argument is pretty simple. That is, the Air Carrier Access Act is the only law that applies with respect to air carriers, airports and persons with disabilities. Further, the Air Carrier Access Act statute does not allow for a private cause of action. Also, the statutory scheme is such that a private cause of action for violating the regulations would not be allowed either. Finally, the defendant would argue that any allegations that state law was violated were preempted by the federal regulations. For good measure, the defendant could argue that a plaintiff would need to exhaust administrative remedies first, just in case the plaintiff did not do that. With respect to the administrative remedies exhaustion, I am not really sure I follow that argument because it simply would not come into play if no private cause of action existed in the first place. Also, by saying administrative remedies should be exhausted first, the implication is that a private cause of action exists after that. In short, it would seem that the defense in a case such as this would have the upper hand absent some congressional enactment making clear that a private cause of action existed.*
*I recently attended the labor and employment convention of the American Bar Association. At that conference, I heard a distinguished panel of attorneys discussing the future of labor and employment law generally. During that discussion, the panelists said that it was their belief that due to budgetary constraints, that it was probably a better use of resources for federal agencies to move in the direction of technical assistance and guidance and leave the litigation to private parties. If that belief is correct, then it would make sense for Congress to move in the direction of authorizing a private cause of action for violation of the Air Carrier Access Act, either generally or where specific regulations are violated. Of course, in such an eventuality, the question of attorneys fees would need to be addressed as well.
Filed Under: Final Federal Regulations, General, Proposed Federal Regulations, Title III Tagged With: ADA, air carrier Access act, air carrier access act regulations, American Bar Association, Americans with Disabilities Act, attorneys fees, California, Department of Transportation, disabled persons act, Eastern district of California, exhaustion of administrative remedies, field preemption, guidance, labor and employment, motion to dismiss, preemption, preventive tips, private attorney general, private cause of action, Segalman, Southwest Airlines, specifically pertain to a regulation, statutory scheme, technical assistance, Unruh Act, wheelchair
The ADA doesn't reach everywhere
September 5, 2012 by William Goren 10 Comments
The ADA is an extremely complex and comprehensive law. The temptation is to think that the ADA applies whenever a person with disability has their rights arguably infringed. However, that just isn't the case. The situation may be governed by other laws. For example, if a person has an individual education plan, the law that covers that situation is IDEA. Another example, is if an airline discriminates against a person with a disability, the ADA is probably not the law involved. Recently, the actions of American Airlines made news. If a person faced with a similar situation were to sue under the Americans with Disabilities Act, would they be successful?
A case that probably answered this question, the answer being in the negative, is Lopez v. Jet Blue Airways, 662 F.3d 593 (2nd Cir. 2011). In that case, a person with a disability alleged that JetBlue discriminated against them by failing to provide timely wheelchair assistance during a round trip that she took from JFK to Puerto Rico with the result that she suffered pain and swelling in the foot as well as suffering from anguish, anxiety, and nightmares. Id. at 595. She filed a claim with the Department of Transportation but the Department of Transportation was unable to determine whether the airline had violated any regulations. Id. The Department of Transportation then took no further action against the airline with respect to the complaint. Id. The plaintiff then filed on their own a complaint against the airline in US District Court alleging violations of the Air Carrier Access Act and the Americans with Disabilities Act. Id. JetBlue filed a motion to dismiss claiming that regardless of whether the claim fell under Air Carrier Access Act or the Americans with Disabilities Act, neither law allowed for a private lawsuit in this situation. Id.
The Second Circuit agreed with JetBlue's claims. Id. at 596. The air carrier access act is actually a single statute, 49 U.S.C. § 41705. The statute doesn't say much. The first section of the statute tracks what is a person with a disability under the ADA and said that an air carrier, including a foreign air carrier, may not discriminate against an otherwise qualified handicapped individual (for whatever reason, Congress has not amended the law to strike handicapped in favor of a person with a disability). See Id. at § 41705(a). The second part of the statute goes on to say that a separate violation occurs for each individual act of discrimination. Id. at § 41705(b). The final section of the law says that the Department of Transportation is responsible for investigating such claims and for offering technical assistance. Id. at § 41705(c).
The Second Circuit was faced with two issues. First, is there a private cause of action under the Air Carrier Access Act? Second, does the ADA even apply to a situation where airline transportation is involved? With respect to the first issue, the Second Circuit said that the Air Carrier Access Act does not authorize a private cause of action. Lopez 662 F.3d at 597. The Second Circuit relied on a Supreme Court opinion that that held a statute must have a clear manifestation of congressional intent in order to create a private cause of action before the court can find that Congress implied a private cause of action. Id. at 596 citing to Alexander v. Sandoval 532 U.S. 275 (2001). In particular, the court noted that the Air Carrier Access Act does not expressly contain the right to sue the air carrier and further, the statute provides an administrative enforcement scheme designed to vindicate fully the rights of passengers with disabilities. Id. That administrative scheme includes a mandate that the Department of Transportation: investigate complaints that appear to be based on reasonable grounds; issue orders to compel compliance with statutory provisions after they have completed their investigation and given the air carrier an opportunity to be heard; review all complaints directed against air carriers of disability discrimination and publish disability related complaint data, have the option to revoke an air carrier certificate; impose fines; or even request that the Atty. Gen. bring a civil enforcement action. Id. at 597 and fn 3. The Air Carrier Access Act also provides for the ability of an individual with a substantial interest in the administrative decision the Department of Transportation file a petition for review in the United States Court of Appeals. Id. at 597. Accordingly, while a person who suffered discrimination by the airlines cannot bring a private cause of action, they can file a complaint with the Department of Transportation.
What about the Americans with Disabilities Act? With respect to the ADA, the court found that the ADA simply did not apply to the situation where a person is discriminated by airlines during the course of air travel. Id. at 598. In particular, the court said that title III of the ADA, which prohibits places of public accommodation from discriminating against persons with disabilities, was not in play at all. In particular, while the ADA does apply to terminals, depots, or other stations used for specified public transportation, that particular statute contains an exception for aircraft. Id. at 599. See also 42 U.S.C.A. § 12181(10). Therefore, the Second Circuit held that the rest from two terminal, depot, or other station contained in the public accommodation provisions of the Americans with Disabilities Act would not meant to include facility devoted primarily to air travel. Id. at 599.
But is that the end of the story? Not necessarily. In a footnote, the Second Circuit said that there were questions that remain open. For example, could an air carrier be found to be an owner, lessor, lessee, or operator of a public accommodation? Id. at 599 fn 8. Another question that remains open is whether there carrier could be held liable for disability discrimination if they were somehow involved in the provision of travel services other than by aircraft or in the provision of travel services located in a terminal, depot, or other station not primarily used for air travel. Id.
Finally, what about the regulations themselves? They are extremely comprehensive. Recently, the Department of Transportation requested comments on an update to the technical assistance manual. Those comments are due by October 3, 2012 and can be found at.
Filed Under: General, Title III Tagged With: ACAA, ADA, administrative enforcement scheme, air carrier Access act, aircraft exception to the ADA, Alexander v. Sandoval, American Airlines, Americans with Disabilities Act, civil enforcement action, compelling compliance, complaint investigation, Department of Transportation, Department of Transportation proposed regulations, depot, disability discrimination, discrimination against the handicapped in air travel, down's syndrome, implied private cause of action, imposing fines, Lopez v. JetBlue Airways, or other station, petition for review, place of public accommodation, private cause of action, publishing disability related complaint data, revoking your certificate, right to sue, Second Circuit, technical assistance, technical assistance manual, terminal
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