Disability discrimination, preliminary injunction

DISABILITY DISCRIMINATION: Preliminary injunction granted halting MHRA proceeding in airline passenger’s complaint of being hassled about his ventilator, Court likely will ultimately find in declaratory action that complaint is preempted by ACAA, no implied private right of action for violations of ACAA as to electronic respiratory devices, and none of passenger’s state claims can survive preemption… Lovell.

Dustin Hankinson was preparing to board a Compass Airlines flight out of Missoula 10/4/11 when a flight attendant thought he was bringing in a prohibited Portable Oxygen Concentrator. A POC is permitted and it was actually a ventilator. She was also wrong in stating that he was required to present a medical release. A Delta CRO was able to correct the misunderstandings and Hankinson was told he could board but he was upset and declined. He filed a complaint with DOT alleging violation of the ACAA and its regulations. Compass apologized by phone and issued him and his companion vouchers for a free flight, suspended all crew members, and terminated both of the flight attendants and disciplined the pilot for failing to intervene. It then created a video, quiz, and questionnaire to teach its employees how to recognize medical devices and interact respectfully with disabled passengers. DOT issued a letter of warning to Compass. Hankinson then filed a complaint with the MHRB. Compass is concerned that he is an MHRC member. It requested a declaratory judgment that the ACAA has completely preempted the field raised by his claims and displaced all state law remedies that he could seek, and moved for a TRO and expedited preliminary injunction 11/15/12. The Court granted the TRO 12/13 and held a hearing on the preliminary injunction.

Compass asserts that regulations relating to electronic respiratory devices constitute a pervasive regulation of a very narrow field, such that Congress left no room for supplementation by state law. Hankinson cites fn. 6 of Summers (ND Cal. 2011) for the proposition that state law claims can co-exist with the ACAA as long as the state law claim uses the same standard of care as required by federal law. Where the carrier has already admitted violating ACAA regulations during the DOT proceeding, his theory would permit him to take the per se violation and collect damages in either the state administrative proceeding or state court.Summers discusses this possibility, disapproving of the Gilstrap (CD Cal. 2011) finding of such state proceedings in conflict with the DOT proceeding and therefore preempted. The Summers footnote was dicta. The actual holdings were that the passenger’s negligence claim for failure to provide assistance in deplaning was preempted by the ACAA and her negligence claim for failure to warn of and cure dangerous conditions was not preempted because no federal regulation addressed this latter claim. The latter claim had little or nothing to do with disability discrimination and was actually a typical tort sounding in negligence and alleging severe physical injuries. The most significant part of the first holding (the preempted ACAA claim) was that “Plaintiff’s claims are preempted by the ACAA and cannot be amended to cure the deficiency.” It is unsurprising that Summers never even discusses whether the plaintiff has a private action under the ACAA because not only is her 1st claim a state law claim, all of her claims are alleged under state laws in a diversity context. Her 2nd claim arose when she tripped on a gap between the plane’s door and a raised platform resulting in surgery and weeks in the hospital. No regulation applied to these allegations of negligent failure to warn of or cure dangerous conditions.

All courts agree that there is no express private right of action pursuant to the ACAA. Congress amended it in 2000 to add the DOT civil enforcement provisions, which courts have interpreted as an indicator that it did not intend a private right of action under the ACAA. Pre-amendment cases must be read in the context ofSandoval (US 2001), which provided that “absent a showing of congressional intent, `a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute’.” Segalman (ED Cal. 2012) (quoting Sandoval). When Congress added the DOT enforcement provisions to the ACAA it certainly gave no indication that it intended to create a separate implied right of action. There is a strong argument to be made that the opposite is true, and that a subsequent state claim premised on violation of the ACAA regulation serves as an impediment to DOT’s enforcement action, especially when it has obtained an admission of violation by the carrier and resulted in immediate retraining. It is not hard to imagine that if such DOT actions were routinely followed by state cases, the adversarial element would be inserted into the process so that DOT actions would no longer be resolved quickly and would not obtain admissions by carriers or result in immediate corrective measures.

Hankinson’s lawyer attempted to rescue his MHRA claim by stating that there is still something that remains after the ACAA claims are set aside: his claim for emotional distress because, as he stated in his MHRB complaint, the attendant “had a hostile and demeaning attitude towards me, did not look at me while speaking to me, did not inquire about my health or safety, made no efforts to check with airlines to see if I required any clearance.” He also stated in his complaint that “at no time did the flight attendant or captain of the airplane come and inform me that I was welcome to board the plane. At no time did any of the personnel who committed the discrimination express regret or acknowledge the discriminatory nature of their conduct.” This lack of concern and discriminatory intent is emphasized repeatedly, but in each instance the actual discrimination identified is the violation of ACAA regulation. His complaint makes clear that all his allegations of emotional distress are predicated upon the disability discrimination reflected in the ACAA violation. Thus any state claim of NIED, as suggested by his lawyer’s argument, would be a derivative claim based on the ACAA violation, which must also be preempted or it would swallow the preemption. The 1st preliminary injunction factor is met because Compass shows likelihood of success on the merits of its preemption argument.

In granting the TRO the Court conceded that the next prong is somewhat less convincing. Compass argues that it is at risk of immediate & irreparable harm if MHRB is permitted to proceed with Hankinson’s complaint. Indeed, it is facing discovery requests and a deposition in the state proceeding in which Hankinson has filed for a default judgment for Compass’s failure to file a prehearing statement. Clearly the state proceedings will go forward absent an injunction. Given the likelihood of its success on the merits and the fact that it is facing a potential default judgment, it has met the prong requiring a showing of likelihood of irreparable injury. 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 — balancing of the equities — favors Compass. If the declaratory judgment is denied, Hankinson’s position will be unchanged (after a minor delay), while being required to defend a preempted federal claim in state administrative proceedings might cause Compass to lose the protection of a federal law to which it may be entitled.

The 4th prong — public interest — causes the Court to consider the important governmental purpose of discouraging all prohibited discrimination under the MHRA. This is a difficult case because it is clear that Hankinson was distressed by the violation of federal regulations and because there appears to be no compensatory scheme to address his distress. Nevertheless, Congress’ goal of discouraging disability discrimination in air transportation has been furthered by the retraining of the Compass employees. The Court must also consider the public interest requirement that the rule of law not be violated and the Supremacy Clause be preserved in a case of conflicting state and federal jurisdiction. It is in the public interest to uphold Congress’ decisions. It is in the public interest to uphold uniformity of federal law as it pertains to safety in air travel (regulation of electronic respiratory devices being one narrow aspect of safety in air travel) and promote the purposes of the ACAA’s enforcement scheme.

It appears likely that this Court will ultimately find that Hankinson’s MHRA complaint is preempted by the ACAA, there is no implied private right of action for violations of the regulations as to electronic respiratory devices, and none of his state claims can survive the preemption. Compass’s motion for expedited preliminary injunction is granted. The parties shall submit a proposed schedule or notify the Court that a scheduling conference is required.

Compass Airlines v. MHRB, 40 MFR 105, 1/7/13.

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, Motl & Sherwood), Helena, for Intervenor Hankinson.