Disability discrimination, airline passenger

DISABILITY DISCRIMINATION: TRO granted staying MHRB proceeding on airline passenger’s complaint pending decision on airline’s motion for preliminary injunction and question of federal preemption…. Lovell.

Dustin Hankinson was stopped by a flight attendant as he was preparing to board a Compass Airlines Delta Connection flight from Missoula to Minneapolis/St. Paul because she thought he was carrying a prohibited Portable Oxygen Concentrator. She was twice wrong: a POC is permitted and the device was a ventilator, not a POC. She also stated that he was required to present a medical release for the flight; there too she was wrong. Because the aircraft had left the jet bridge, a Delta Complaint Resolution Officer arrived at the gate (as required by federal regulations whenever a disabled passenger is to be denied boarding), and was able to correct the attendant’s misunderstandings. Hankinson was told he could board the flight, but he declined to do so, and instead filed a complaint with DOT alleging violation of the Air Carrier Access Act. Compass apologized by phone and in writing and issued him and his companion vouchers for a free flight, and suspended all the crew members pending its investigation. At the conclusion of the investigation it terminated both flight attendants and temporarily suspended the pilot without pay for failing to intervene. It created a training video, quiz, and questionnaire to teach its employees how to recognize medical devices and interact respectfully with passengers with disabilities. All attendants have completed this training and it is being presented at annual pilot training. DOT issued a warning letter to Compass. Hankinson then filed a complaint with MHRB. Of some concern to Compass, he is an MHRC member. Compass requests a TRO and preliminary injunction.

Compass clearly demonstrates likelihood of success on the merits, the 1st prong of the Winter (US 2008) test for a TRO. DOC’s substantial regulations as to electronic respiratory devices by passengers is detailed, unambiguous, and expansive. Such pervasive regulation of a subject may well give rise to field preemption and federal jurisdiction to the exclusion of state law claims. Although the ACCA contains no express preemption, Congress may express its intent to preempt state law by implication through structure & purpose of its law. Montalvo (9th Cir. 2007). Implied preemption may be the result of a direct conflict with a state law that stands as an obstacle to a federal law, or of a field preemption. Compass asserts that regulations relating to electronic respiratory devices constitute a pervasive regulation of a very narrow field, tending to the conclusion that Congress left no room for supplementation by state law.

The next prong is somewhat less convincing. Compass argues that it is at risk of immediate and irreparable harm if the MHRB is permitted to proceed with Hankinson’s complaint. It is facing discovery requests and a deposition in the HRB proceeding, Hankinson has filed for a default judgment for its failure to file a prehearing statement, and HRB has stated that it intends to go forward absent an agreement to stay pending outcome of this federal case. However, given the strength of the likelihood of Compass’s success and the fact that it is currently facing a potential default judgment in the MHRB proceeding, it has met the prong requiring it to show likelihood of irreparable injury if the MHRB proceedings are not enjoined. The threat is thus likely and immediate, and the harm of being forced to defend in a proceeding by an administrative agency lacking jurisdiction may not be remedied by monetary damages.

The 3rd prong, balance of hardships, favors Compass. If a preliminary injunction is subsequently denied Hankinson’s position will be unchanged (despite a minor delay), while a default judgment against Compass might present a serious hardship and loss of the right not to have to defend. Morales (US 1992) (noting Hobson’s choice of violating the state law or obeying the state law during pendency of state proceedings).

The 4th prong, public interest, causes the Court to focus on the public interest that federal law not be violated and the Supremacy Clause be preserved in a case of conflicting state and federal jurisdiction. ATA (9th Cir. 2009) (finding preemption of local regulations by federal motor carrier regulations and considering the public interest to be represented by “the Constitution’s declaration that federal law is to be supreme”). Essentially, it is in the public interest to avoid constitutional violation and to uphold Congress’ decisions. Id.

The MHRB is restrained from exercising jurisdiction in Hankinson’s complaint and proceeding pending this Court’s decision on Compass’s motion for preliminary injunction and the question of federal preemption.

Compass Airlines v. MHRB, 40 MFR 92, 12/13/12.

Christopher Mangen & Daniela Pavuk (Crowley Fleck), Billings, for Compass; Brian Miller (Morrison, Motl & Sherwood), Helena, for Intervenor Dustin Hankinson; no appearance by MHRB.