Friday, December 23, 2011

Airline exclusion means no private claim for disability discrimination

A disabled woman was shafted by Jet Blue Airways when it did not provide her timely wheelchair assistance at Idlewild Airport in New York City and in Puerto Rico in July 2009, causing her physical and emotional injuries. She sues Jet Blue under the Air Carrier Access Act of 1986 and Title III of the Americans with Disabilities Act of 1990. She loses the case. There is no private right of action under the Air Carrier Access Act, and the complaint also fails to state a claim under the ADA.

The case is Lopez v. Jet Blue Airways, decided on December 1. Let's start with the Air Carrier Access Act, which prohibits airlines from discriminating against "an otherwise qualified individual" because she "has a physical or mental impairment that substantially limits one or more major life activities." This language mirrors the anti-discrimination provision under the ADA. The ACAA does not expressly allow people to sue for damages, so the Court of Appeals (Cabranes, Livingston and Chin) has to decide if the law implies a cause of action, no small task ever since the Supreme Court in 2001 made it harder for the courts to do this.

Prior to 2001, some Courts of Appeal said that you could sue for damages under the ACAA. That was before the Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001), tightened the screws. Since 2001, the Tenth and Eleventh Circuits said that under Sandoval, there is no private claim under the ACAA because the language and structure of that statute manifests no congressional intent to create a private right of action in federal court. The Second Circuit agrees with the Tenth and Eleventh Circuits. Under the ACAA, aggrieved persons may go after the airlines for disability discrimination, but only through an "administrative enforcement scheme designed to vindicate fully the rights of disabled passengers." Since Congress did not explicitly provide for any relief in court, that alternative remedy means there is no lawsuit for Lopez. Congress is allowed to make those choices, and thanks to the Sandoval, there is nothing the courts can do about it.

What about Lopez's claim under Title III of the ADA? No dice here, either. The ADA simply doesn't cover a claim like this. Under Title III, "private entities that are primarily engaged in the business of transporting people" cannot discriminate on the basis of disability in providing "specified public transportation services." But "specified transportation services" is defined under the ADA to exclude aircraft. It does cover bus, rail and any other conveyance. But not aircraft.

The only claim left for Lopez is Title III's prohibition against disability discrimination in "any place of public accommodation," which includes "a terminal, depot, or other station used for specified public transportation," defined to include terminals, depots or other stations only if they are used for "transportation by bus, rail, or any other conveyance (other than by aircraft)." As the Court of Appeals sees it, in conjunction with the aircraft preclusion, "terminal, depot, or other station" must "exclude a facility in which surface or underground transportation is merely an auxiliary function and the facility is primarily devoted to air travel." As such a facility is not a "terminal, depot, or other station" under the ADA, these things are not public accommodations under the statute. I wonder how much the airlines pushed for an airline exclusion under the ADA? Whatever they paid their lobbyists, it looks like the airlines got their moneys' worth.

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