DISABILITY DISCRIMINATION: Airline passenger’s complaint of being wrongly hassled about his ventilator preempted by FAA, reconsideration of preliminary injunction against MHRB proceeding denied, permanent injunction granted… Lovell.
Dustin Hankinson was scheduled to fly from Missoula on Compass Airlines to receive an award in DC for disability advocacy. He was arriving after all other passengers had boarded. He has Duchenne Muscular Dystrophy and uses a ventilator and power wheelchair. A flight attendant, who believed he had to present a medical certificate before he could bring a portable oxygen concentrator on board, directed the gate agent to tell him he could not board. The door was shut and the gate agent denied Hankinson permission to board. He was only bringing a ventilator, not a POC, and he had cleared it with Delta. The Conflict Resolution Officer recommended letting Hankinson board and the pilot agreed to do so. Hankinson chose not to board allegedly due to what he perceived as a hostile environment. He and his companion received refunds. He then filed a complaint with DOT, which referred to Delta. Both flight attendants were suspended and then fired. The captain was suspended for 7 days without pay for lack of leadership and he and the first officer were given additional training as to passengers with disabilities. The CRO admitted that a violation of the Air Carrier Access Act had occurred and Delta apologized for its and Compass’s errors. DOT informed Hankinson that it does not necessarily take a formal enforcement action unless a violation is particularly egregious or numerous complaints indicate a pattern, and that it would take his complaint into account if any future complaints were filed. Compass had a training video on passengers with disabilities created for presentation to its remaining 417 flight attendants and all Compass pilots. After receiving DOT’s disposition and warnings to Delta and Compass, Hankinson filed a charge against Compass with the MHRB, which set a hearing. Compass sought a declaration in this Court that the ACAA and regulations preempt all of his claims and requested a TRO, which the Court granted, followed by a preliminary injunction. Hankinson filed a Younger motion to dismiss, a summary judgment motion, and a motion for reconsideration of the preliminary injunction. Compass also requests summary judgment.
LR 7.3(b) permits reconsideration of “any interlocutory order” if the facts or law are materially different from those presented before entry of the order and the party did not know such fact or law or new material facts emerged or a change of law occurred. Hankinson requests reconsideration based on Gilstrap (9th Cir. 2013), which is recent case law that is binding precedent. Relying on Elassad (3rd Cir. 2010) (bodily injury/aircraft stairway case where no federal regulation was directly implicated) and Abdulla (3rd Cir. 1999) (bodily injury due to lack of warning of turbulence), Gilstrap concluded that a state law remedy may be available for violation of FAA regulations. However, Hankinson does not claim bodily injury and therefore the Insurance Clause (requiring carriers to carry insurance for bodily injury, death, and property) does not justify that exception to complete field preemption. Further, DOT has provided detailed advice to carriers to interpret Part 382 to safeguard the dignity of disabled passengers and guide interactions with them. Unlike Gilstrap, any state claims of infliction of emotional distress are intertwined with the preempted claims and would require a trial of the alleged violations of ACAA regulations. Thus there is an implied preemption, the Insurance Clause does not provide the exception to preemption, and the state claims are factually predicated upon federal regulatory violations. To the extent that ACAA regulations ought to be viewed as economic as opposed to safety, the explicit preemption by the Airline Deregulation Act is implicated. A state action alleging wrongful denial of air transportation (whether by outright denial of boarding or by hostile environment) is an enforcement of a general law affecting a carrier’s services. Allowing state claims to regulate airlines indirectly by allowing non-bodily injury tort claims based on regulatory violations could result in a state-by-state patchwork, inconsistent with Congress’ major effort to leave such decisions, where federally unregulated, to the marketplace. Rowe (US) Hankinson’s motion for reconsideration of the preliminary injunction is denied.
The Younger test is not met because, unlike the attorney discipline in Hirsch, aviation is not a significant state interest. The Montana Legislature has stated that its aviation policy is to cooperate with federal authorities in “effecting a uniformity of the laws,” accomplish “the purposes of federal legislation,” and eliminate “costly and unnecessary duplication of functions.” §67-1-102.
Hankinson’s hostile environment claim is derivative of and would require trial of ACAA violations. The only reason there is no DOT ruling on an ACAA violation related to his “hostile environment” claim is that he never presented it to Compass or DOT. It is inextricably intertwined with the ACAA regulations that werepresented, but the Court has found that such claims are FAA field-preempted. Whether or not Congress intended an exclusive administrative remedy or one coupled with the Insurance Clause exception, it seems highly unlikely that it intended a hybrid whereby a passenger could submit some of his claims for administrative enforcement by DOT while reserving his factually related claims for adjudication by a state agency. That is the case presented here, which the Court finds distinguishable from Gilstrap.
Summary judgment for Compass. HRB is enjoined from jurisdiction over Hankinson’s complaint.
Compass Airlines v. MHRB and Hankinson, 41 MFR 1, 8/12/13.
Christopher Mangen & Daniela Pavuk (Crowley Fleck), Billings, Jeffrey Ellis (Quirk & Bakalor), NYC, and David Hayes (Trans States Holding), Bridgeton, Mo., for Compass; Linda Deola & Brian Miller (Morrison, Sherwood, Wilson & Deola), Helena, for Hankinson.
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