Captain's authority versus ADA.

[Otterman]

Can anyone give me some feedback about this issue. On a recent flight from the USA to Europe one of the passengers fell down shortly after he entered the aircraft (this is a major European carrier). He showed as someone who could walk short distances, and was brought to the aircraft by wheelchair.

The passenger travelled alone, was elderly, and not able to communicate in any meaningful manner (he is from a non-English speaking country). The cabin lead and captain decided to off load this passenger, but he refused to de-plane saying only that he was ok. Assistance was asked from the airport police and they refused to assist the passenger off the aircraft saying he was protected by the ADA (Americans with Disabilities Act). Only if the captain would arrest the passenger would they take him off. The reason to de-plane the passenger had to do with the higher risk of an in-flight diversion and the extra workload that this passenger would require without a proper way to communicate, and not a fear of violence.
Can anyone elaborate on whether the ADA supersedes the captains authority to “Disembark any person, or any part of the cargo, which in his opinion, may represent a potential hazard to the safety of the aeroplane or its occupants”?

The USA is a signatory to all the ICAO conventions which clearly outline the rule book most countries play by. But in this they seem to make their own interpretation.

And lastly how far does the responsibility go for airlines in transporting these types of passengers? I personally sympathize, but find it amazing that it is not required for a “helper” to travel along with these passengers. Shameful behavior by the family (he was dropped at the airport by his son).

Follow up:
The flight left with the passenger. They made it to the hub airport (more than 9 hours flying away). The passenger was taken to the hospital where he spend two weeks (paid by the taxpayer, since he was not insured), before the final leg of the journey to his home country could be made. His hospilization was not related to the fall, but not having the proper medicines on his person for his heart condition (which the airline did not know of). Family was flown in from the USA on the airline’s dime (including hotel costs), and a lawsuit was filed because of the fall by the passenger on board.

[weasil]

This is not an issue for the police - it should be handled by this airline's customer service staff. They are required to have a supervisor trained in the finer points of the ADA. If the Captain really wanted this guy off, then it is up to him/her. That's what the parking brake is for.
Were you involved in the decision making process, or a member of the crew?

[GlueBall]

After consultation with the cabin staff, I had off loaded a pax [and his checked baggage] after he had briefly fainted during boarding. The attending physician of the airport's emergency services had checked his vitals and declared that the pax was fit to fly. But the physician would not sign a company required medical release as such. End of story.

[DownIn3Green]

I too, have off-loaded barely ambulatory or otherwise visibly disabled pax who were traveling without a helper.

It is primarily a SAFETY issue...one who can barely walk could fall down during an evacuation thus endangering others...also as mentioned above, the crew are not nurses or baby-sitters...

When flying commuters years ago, I even offered to take a relative Free of Charge to assist during flight, and then bring her back on our return leg...she was to busy, so I guess her day got screwed up because Dad had to stay with her...

She decided to wait 4 hours for the next flight...Guess what?...That's right...me again...

[SNS3Guppy]

The USA is a signatory to all the ICAO conventions which clearly outline the rule book most countries play by. But in this they seem to make their own interpretation.

If the captain feels a passenger is detrimental to the safety or conduct of the flight, he's within his discretion to address that matter. ICAO is irrelevant on that topic, and presents no disagreement.

I've parked an airplane before, grounded the flight, due to a disruptive passenger.

The pilot in command is the final authority regarding the safe conduct of the flight.

[Otterman]

I was not personally involved in the incident. But I carry responsibility for the operations for our airline in North and South America. This besides my job in the left seat. And that is how I got involved.

The issue here is that the captain made a valid determination to off load. The passenger refused to comply with the request to get off the aircraft. And local authorities refused to assist in the removal referring in this case to the Americans with Disabilities Act. I can understand the fear of bad press. It never is good to have pictures or videos circulating on the internet, or worse news organizations where you are carrying off a elderly confused man off the aircraft. Can’t defend yourself against them.

But at our home base (one of the world’s largest) the refusal to follow the captain’s valid instructions would be reason enough for the police to off load any person regardless of their physical or mental state.

That is the reason for my enquiry as to the ADA superseding other, well established laws.

Our local staff are also quoting this ADA as imposing restrictions in this matter. We are currently having our lawyers looking into this, but I am using this forum to get any feedback from the user community to see if any USA based pilots have any relevant experience to share.

Thanks for any reply.

Greetings O.

[SNS3Guppy]

The following Legal Interpretation by the FAA Chief Legal Counsel's Office may be of interest to your case.

The interpretations issued by the Chief Legal Counsel's office are one of three standards for determining the meaning and application of the regulation. These are authoritative, represent the position of the FAA Administrator, and are defensible in court.

October 17, 2002

James W. Johnson
Supervisory Attorney
Air Line Pilots Association, International
535 Herndon Parkway
PO Box 1169
Herndon, Virginia 20172-1169

Re: FedEx Pilots Association Request for Clarification Concerning PIC Authority

Dear Mr. Johnson:

This letter is in response to the February 6, 2002, letter sent to David G. Leitch, Chief Counsel of the Federal Aviation Administration (FAA), from Captain David Webb, President of the former FedEx Pilots Association (FPA). We are directing our response to you since the FPA is now a member of the Air Line Pilots Association (ALPA).

I. The Issue

The FPA asked that the FAA "confirm" that a pilot-in-command's (PIC) "authority to protect the integrity of the flight deck extends to denying permission to passengers to be seated aft of the flight deck1 if the PIC determines in good faith that their carriage presents an unacceptable risk to either the safety or security of the flight." Letter from Webb to Leitch at 2. It appears from statements made by Captain Webb in his letter that the FPA believes a PIC should have unfettered discretion to deny passage of a person that will be seated aft of the flight deck if the PIC believes that person poses a risk to the flight. In other words, FPA asserts (1) a pilot has sole authority over who rides in the aircraft's cabin; (2) a PIC essentially is unfettered in the exercise of this authority; and (3) if a PIC exercises such authority, his or her determination is not subject to review if questioned.

II. Analysis
A. A PIC does not have Limitless Authority
1. Authority over the Flight Deck versus the Cabin

As discussed in the series of correspondence from the FAA to the FPA and the ALPA, if a situation involves 14 CFR § 121.547(a)(3) or (a)(4),2 a PIC has unfettered discretion to determine whether to admit certain people to the flight deck.3 The PIC's decision to deny permission for certain people to enter the flight deck cannot be second-guessed without undermining the safety underpinnings for having a "PIC-permission-provision" in the regulations. The FPA now seeks FAA concurrence that the authority provided to a PIC under § 121.547(a)(3) and (a)(4) extends aft of the flight deck. No such authority exists. In fact, the FPA did not cite any section of the federal regulations that directly addresses a pilot's authority regarding passenger admission to the aircraft's cabin. Section 121.547 only applies to the flight deck, and there is nothing in the regulatory text or its history that suggests that a pilot's authority under this section, or any other section for that matter, is to be extended to allow a PIC to deny someone passage on a flight when seated aft of the flight deck with the same unfettered discretion a PIC has for most people who seek to enter the flight deck.

The United States Code provides that "an air carrier . . . may refuse to transport a passenger or property the carrier decides is or might be inimical to safety." 49 USC § 44902(b). Further, the Department of Transportation's (DOT) regulation under 14 CFR § 382.31(d) states that

Carrier personnel, as authorized by 49 USC 1511, 14 CFR 91.8,4 or 14 CFR 121.533, may refuse to provide transportation to any passenger on the basis of safety, and may refuse to provide transportation to any passenger whose carriage would violate the Federal Aviation Regulations. In exercising this authority, carrier personnel shall not discriminate against any qualified individual with a disability on the basis of disability and their actions shall not be inconsistent with the provisions of this part. In the event that such action is inconsistent with the provisions of this part, the carrier shall be subject to remedies provided under Sec. 382.65.

Given the FPA's recitation of the language under § 44902(b), i.e., "denying admission to passengers in circumstances the captain, in good faith, believes is inimical to the safety of the flight is within his or her regulatory authority," it is clear that the FPA is familiar with this statutory provision. Letter from Webb to Leitch at 7 (emphasis added). However, we note that the FPA makes only passing reference to this key provision. See id. at 8, n.2. It appears that the FPA seeks to have the FAA declare that a PIC can deny someone admission to the passenger cabin and that the PIC's actions cannot be questioned. As case law reflects and as discussed more thoroughly below, there is no room to extend the authority granted to air carriers under § 44902(b) to pilots in the manner that the FPA suggests. Specifically, a determination to deplane a passenger must be reasonable and is subject to review if necessary, by, among others, the carrier itself or a court.

2. Section § 44902 of the Federal Aviation Act does not give a Pilot Unfettered Discretion

The language under § 44902 grants authority to "air carriers" to refuse transportation to a passenger. The courts recognize that the air carriers generally exercise that authority through their pilots. For instance, the United States Court of Appeals for the Ninth Circuit in Cordero v. Cia Mexicana de Aviacion held that the following jury instruction was correct: "An airline is justified in refusing to transport a passenger if that transportation in the opinion of the airline and, that again, means pilot, would be inimical to the safety of the flight." 681 F.2d 669, 671 (9th Cir. 1982) (emphasis added). One could surmise that the basis for the allowance is practical application — if a passenger does present a threat, then the pilot, being on-the-scene, is best able to make a timely decision.

While a pilot's exercise of the air carrier's authority to determine whether or not a passenger should be asked to leave an aircraft in the interest of safety is consistent with case law, there is no legal precedent for a pilot's unfettered discretion in exercising this authority on behalf of the air carrier. The air carrier, and thus the pilot, is required to make a reasonable decision based on the facts presented. "The test of whether or not the airline [pilot] properly exercises its power under 49 USC § [44902] to refuse passage to an applicant or ticket-holder rests upon the facts and circumstances of the case as known to the airline [pilot] at the time it formed its opinion and made its decision, and whether or not the opinion and decision is rational and reasonable in the light of those facts and circumstances." Cordero, 681 F.2d at 672. The courts recognize that air carriers require broad discretion in making a finding that a passenger is or might be inimical to safety. Schaeffer v. Cavallero, 54 F. Supp. 2d 350, 352 (D. S.D.N.Y. June 30, 1999). Hence, an air carrier is only liable for damages if the decision to eject a passenger is arbitrary and capricious. Id. The courts, however, are clear in their opinion that there is a statutory standard, and "to say that anytime an impolite or unpleasant passenger debates a non-safety issue with an airline employee in a boisterous or abusive manner, he automatically poses a potential threat to safety would be in effect to set no meaningful limits to the carrier's exercise of its discretion and thus to eliminate the statutory standard altogether." Id.

There are several examples where it was held that a pilot acted in an arbitrary and capricious manner in removing a passenger on grounds of safety. For instance, in Schaeffer v. Cavallero, a passenger was told he could not bring two pieces of carry-on luggage. He relinquished one of the bags under protest but vociferously demanded a baggage receipt. In response to his verbal protests, he was asked to leave the plane. The court held that a reasonable juror could find that the pilot acted in an arbitrary and capricious manner in removing the passenger on grounds of safety risk when all he had done was loudly protest a non-safety matter. Id. In another example, the U.S. Court of Appeals for the Ninth Circuit held a jury might have concluded that the pilot acted unreasonably in excluding a passenger from the flight when the passenger was not provided an opportunity to present his side of the story. Cordero, 681 F. 2d 669.

In conclusion, it is apparent that a pilot exercising the air carrier's authority can refuse to transport a passenger if that passenger acts in a manner that raises legitimate questions as to whether he or she pose a risk to the safety of the flight. The decision to ask that passenger to leave an aircraft, however, must be reasonable and may be questioned and reviewed. If it is found to be arbitrary or capricious, liability can attach.

B. Doors

In a related matter, the FPA discusses regulatory developments associated with strengthening flight deck doors. The FPA's concerns stem from Federal Express' proposal to restore cabin seating privileges to all entitled company employees and business passengers5 without implementing all the security measures required for passenger planes. The FPA seems to suggest that unless Federal Express retrofits the flight deck doors and, among other things, develops policies for opening, closing and locking of the flight deck doors, pilots should have the authority to refuse to fly passengers that would be seated aft of the flight deck.

The FAA determined that the threat [of using a cargo aircraft as a weapon of mass destruction] is similar to that of passenger airplanes. 66 Fed. Reg. 51546 (Oct. 9, 2001). Thus, under the Flight crew Compartment Access and Door Designs final rule (SFAR 92-3), the FAA requires that all-cargo airplanes that have flight deck doors as of January 15, 2002, must modify flight deck doors by April 2003 in compliance with the rule to improve security. 67 Fed. Reg. 2112 (January 15, 2002). Under 14 CFR § 25.795, the flight deck door installation must be designed to resist intrusion by any person who attempts to enter the flight deck by physically forcing his or her way through the door.
It is our understanding that Federal Express aircraft currently have flight deck doors with a bolt mechanism, and the company fully intends to retrofit these doors by April 2003 as required by the Flight crew Compartment Access and Door Designs final rule. With flight deck doors in place, there is nothing that prevents the company from granting passage aft of the flight deck to certain persons defined in 14 CFR § 121.583(a). A PIC — acting on behalf of the air carrier — can only deny a person a seat aft of the flight deck if he or she reasonably determines that the person is or might be inimical to safety as provided under 49 USC § 44902(b). It would be inconsistent with this statutory provision for the FAA to issue a rule authorizing a PIC to deny a passenger admission to the passenger cabin for any reason or for no reason whatsoever.

As to the outstanding concerns outlined in the FPA's February 6, 2002, letter to the FAA, e.g., no approved procedure for sharing FAA or company security directives with the PICs and no procedure for securing the flight deck door when a crew member leaves the flight deck, we forwarded the FPA's letter and this •resp onseto tI*Transportation Security Administration's Principal Security Inspector assigned to oversee FedEx's security program for consideration.

We trust this letter is responsive to the inquiry.- This letter was prepared by Komal K. Jain, Attorney-Advisor, Office of the Chief Counsel, reviewed by Joseph Conte, Manager, Operations and Air Traffic Law Branch, Office of the Chief Counsel and coordinated with the Air Transportation Division of Flight Standards Service.

Sincerely,

Donald P. Byrne
Assistant Chief Counsel Regulations Division

[NEDude]

One must also keep in mind that airlines are not covered under the ADA. There is a separate law called the "Air Carrier Access Act" that cover the transportation of disabled, less-abled (or what other term you prefer to use). This law takes into account the special circumstances that exist in air travel and quite often does not go as far as the ADA in protecting the disabled.

[crj705]

NEDude is 100% correct. Don't bother researching the ADA. Only the ACAA applies to airlines and there is a ton of information available online. It is pretty specific about what can and cannot be done. Helpers are also specifically addressed in the ACAA.

Being old and unable to speak English is not a cause to deny transportation under the ACAA, but if he fell and was injured prior to boarding and there was any doubt as to whether or not he was medically fit to fly, I would think that would be reasonable grounds unless he had a doctor that said otherwise. But I would think that situation would also be outside the scope of the ACAA.

Not sure what the airport police meant by having the Captain "arrest" the passenger.

[Northbeach]

Free money up for grabs - - - joy abounds!

I am not an attorney nor am I associated with law enforcement, therefore the opinions expressed do not represent legal advice nor should they be relied upon as advice upon how to proceed. Now isn’t that irritating? But the fact of the matter is here in the United States any person or entity can be taken to court and sued for any alleged infraction. Ironclad advice and unequivocal decisions are hard to come by, as appeals, motions to dismiss, sealed settlements and varying interpretations abound.

As the Captain, I do not have the authority to “arrest” anybody – anytime. I can call for airport security (Police force in most airports) and they have the authority to arrest. But when they show up they will conduct their own investigation-they do not report to me, nor do they do my bidding as the Captain of the flight.

In the USA your passenger will have no trouble finding an attorney to sue your airline as most large corporations are viewed as outside the law renegade cash cows deserving to be milked dry. Nor is the outcome of their lawsuit by any means clear. As there have been many crazy (in my opinion) awards by juries; much to the delight of the legal profession.

Our airline had contracted with an outside medical vendor. We contact the vendor whenever we have any kind of medical event in the air or on the ground. The medical vendor has the resources to provide guidance-and they assume the legal responsibility (provided we follow their advice, act in good faith, etc, etc, etc……..) If you want the name of the organization PM me and I will forward it to you. I do not work for them and I have no commercial involvement.

Good luck!

Northbeach

[Otterman]

From statements received by us. The law enforcement officer could not find a reason to escort the passenger. Only the captain telling him that the passenger was a safety risk and by not following the request of the captain to get off the plane would he be able to do something. And that was arresting him. To the captain this was much too heavy handed. So that is where the impasse stood.

Anyway our lawyers have reached agreement with the other party, and a not small sum was paid to the passenger. On top of all the costs for the family’s journey and stay. Another reason to be very cautious when flying to a country that has laws and rules vastly different than the ones you are used to.

I am closing off my participation in this discussion. Thanks for all the feedback provided. Currently our passenger handling rules are being adjusted.

Regards, O.