Allegiant fires pilot after ordering an emergency evacuation
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First, the ABX case was filed in federal district court in Ohio. Although efforts to locate the case report failed, even without reading it, if the court applied any State's law, it surely would have been Ohio law, not Nevada. The point is, the place of refusal to violate safety rules, as a public policy exception to the at-will doctrine, varies by State. As noted earlier, the forum isn't the place for briefing Nevada law, but I can say the result under Ohio law would not be controlling.
It's a Federal District Court. It's not going to apply Ohio's law, or Nevada's law, or California law, or Texas law. There is a reason why we have State courts and Federal courts!And maybe you should actually read the court decision before commenting further.
Airline Professionals Association, Teamsters Local Union No. 1224 v. ABX Air, Inc.
As I wrote in my initial post, a private individual cannot sue another private entity for relief on the basis of FARs. The relevant claims in APA vs ABX was thrown out precisely for that reason:
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
...
In Count One, the Union claims that by requiring Captain Homme to admit
wrongdoing or face termination, ABX violated: (1) the “public policy of the
United States as set forth in the FARs”; (2) “a crewmember’s obligations under
the FARS”; (3) ABX’s FOM and AOM; and (4) “the crewmember’s obligations
under the [CBA].”
...
1. No Private Right of Action Exists to Enforce the FARs.
...
ABX correctly argues, however, that the Union’s alleged cause of action
pursuant to sections 91.3(a) and 121.537(e) is not proper because
no private right of action exists to enforce the regulations. “Federal
regulations cannot themselves create a cause of action; that is a
function of the legislature.” Smith v. Dearborn Fin. Servs., Inc., 982 F.2d
976, 979 (6th Cir. 1993) (citing Stewart v. Bernstein, 769 F.2d 1088,
1092-93 n. 6 (5th Cir. 1985)).
...
Although the Sixth Circuit has not squarely addressed whether the FARs
can be enforced by a private right of action, a developing consensus among
the federal courts hold that a private right of action does not exist.
See Brown v. Byard, 600 F.Supp. 396, 397 (S.D. Ohio 1984) (“The Federal
Aviation Act clearly does not expressly provide for a private cause of action
for violations of the Act.”);
...
Thus, to the extent that Count One of the Union’s Amended Complaint is
based on a violation of the FARs, that claim is dismissed.
...
In Count One, the Union claims that by requiring Captain Homme to admit
wrongdoing or face termination, ABX violated: (1) the “public policy of the
United States as set forth in the FARs”; (2) “a crewmember’s obligations under
the FARS”; (3) ABX’s FOM and AOM; and (4) “the crewmember’s obligations
under the [CBA].”
...
1. No Private Right of Action Exists to Enforce the FARs.
...
ABX correctly argues, however, that the Union’s alleged cause of action
pursuant to sections 91.3(a) and 121.537(e) is not proper because
no private right of action exists to enforce the regulations. “Federal
regulations cannot themselves create a cause of action; that is a
function of the legislature.” Smith v. Dearborn Fin. Servs., Inc., 982 F.2d
976, 979 (6th Cir. 1993) (citing Stewart v. Bernstein, 769 F.2d 1088,
1092-93 n. 6 (5th Cir. 1985)).
...
Although the Sixth Circuit has not squarely addressed whether the FARs
can be enforced by a private right of action, a developing consensus among
the federal courts hold that a private right of action does not exist.
See Brown v. Byard, 600 F.Supp. 396, 397 (S.D. Ohio 1984) (“The Federal
Aviation Act clearly does not expressly provide for a private cause of action
for violations of the Act.”);
...
Thus, to the extent that Count One of the Union’s Amended Complaint is
based on a violation of the FARs, that claim is dismissed.
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No reading required (or legal reasoning ability, either)
Actually, peekay.....where to begin?
First, as any rank-and-stoked first year civil procedure student would gladly remind you, federal district courts apply state law all the time - it's called a diversity jurisdiction suit. And your inaccurate statement, by itself, might not bear calling out, but in this instance, you earned it: the Allegiant case was filed in Nevada state court - and if diversity jurisdiction applies, and the defendant "removes" (in effect, transfers even over the plaintiff's objections) the case to federal court, inasmuch as the claims stated in the complaint all are state law claims....you can draw the conclusion. I hope.
Second, I don't have to read the ABX opinion to be able to tell the difference between using public policy, in the form of FAA safety rules, as an exception to the at-will doctrine on the one hand, and on the other hand, basing a claim under the FARs themselves. That is what the court means about rejecting a private right of action under the FARs. The claim for wrongful termination is a state law claim for wrongful termination; and my view (unrebutted by your condescension) is that a public policy exception might well exist under Nevada law - as I said, I don't know - but if it does exist, it would not require, and in fact would have nothing to do with, the existence or non-existence of a private right of action under the FARs.
I guess PPRuNe convention holds it acceptable to fight fire with fire (pun here only unconsciously unintended): so, I hope you fly (or whatever you do professionally) better than you can discuss legal issues in front of a professional, but non-legal internet forum audience.
First, as any rank-and-stoked first year civil procedure student would gladly remind you, federal district courts apply state law all the time - it's called a diversity jurisdiction suit. And your inaccurate statement, by itself, might not bear calling out, but in this instance, you earned it: the Allegiant case was filed in Nevada state court - and if diversity jurisdiction applies, and the defendant "removes" (in effect, transfers even over the plaintiff's objections) the case to federal court, inasmuch as the claims stated in the complaint all are state law claims....you can draw the conclusion. I hope.
Second, I don't have to read the ABX opinion to be able to tell the difference between using public policy, in the form of FAA safety rules, as an exception to the at-will doctrine on the one hand, and on the other hand, basing a claim under the FARs themselves. That is what the court means about rejecting a private right of action under the FARs. The claim for wrongful termination is a state law claim for wrongful termination; and my view (unrebutted by your condescension) is that a public policy exception might well exist under Nevada law - as I said, I don't know - but if it does exist, it would not require, and in fact would have nothing to do with, the existence or non-existence of a private right of action under the FARs.
I guess PPRuNe convention holds it acceptable to fight fire with fire (pun here only unconsciously unintended): so, I hope you fly (or whatever you do professionally) better than you can discuss legal issues in front of a professional, but non-legal internet forum audience.
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federal district courts apply state law all the time - it's called a diversity jurisdiction suit
Application of State law under diversity jurisdiction is a complete red herring here and you know it. The Union sought relief pursuant to the RLA and the Declaratory Judgment Act. The Federal District Court wasn't going to make decisions based on Ohio law.
As for the rest, we will just have to wait and see how the court case will proceed.
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It's a Federal District Court. It's not going to apply Ohio's law, or Nevada's law, or California law, or Texas law. There is a reason why we have State courts and Federal courts!
Sit back and watch the blinking lights !
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Enough thread drift for me
Like two ships passing in the night. And neither of them is the Red Herring.
Peekay4, maybe you thought the context was limited to the ABX case in which, as you note, federal subject matter jurisdiction existed (it was an action for injunctive and declaratory relief under federal law, you are correct, sir). However, actually the discussion here was broader than the narrow gauge you have insisted upon. That is, the pilot in the Allegiant case has filed a suit in state court in which claims are asserted under Nevada state law. The specific point was whether or not Nevada, as a state adherent to the at-will doctrine, would countenance such claims. In that context - not limited to the ABX case at all - the dismissal won by the defendant in the ABX case is not really pertinent. Despite the ruling in the ABX case -- that a claim for injunctive and declaratory relief under the federal statute failed because there is no such private right of action under the FARs -- Nevada, which almost certainly has some public policy exceptions to the employment at-will doctrine, still could recognize the FARs as a source of public policy (for purposes of wrongful termination claims under Nevada law).
Anyway, at least no one has claimed that this drift of the thread will not be complete until someone tries to explain the derivation of the phrase "red herring" (it may not be printable in a family-friendly forum such as PPRuNe, regardless. . . )
Peekay4, maybe you thought the context was limited to the ABX case in which, as you note, federal subject matter jurisdiction existed (it was an action for injunctive and declaratory relief under federal law, you are correct, sir). However, actually the discussion here was broader than the narrow gauge you have insisted upon. That is, the pilot in the Allegiant case has filed a suit in state court in which claims are asserted under Nevada state law. The specific point was whether or not Nevada, as a state adherent to the at-will doctrine, would countenance such claims. In that context - not limited to the ABX case at all - the dismissal won by the defendant in the ABX case is not really pertinent. Despite the ruling in the ABX case -- that a claim for injunctive and declaratory relief under the federal statute failed because there is no such private right of action under the FARs -- Nevada, which almost certainly has some public policy exceptions to the employment at-will doctrine, still could recognize the FARs as a source of public policy (for purposes of wrongful termination claims under Nevada law).
Anyway, at least no one has claimed that this drift of the thread will not be complete until someone tries to explain the derivation of the phrase "red herring" (it may not be printable in a family-friendly forum such as PPRuNe, regardless. . . )
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14 CFR
The case has been removed to Federal Court pursuant to 18 U.S.C. sec. 1441 and is based upon diversity jurisdiction. Therefore, the Federal Court will apply state law when determining the claims raised in the Plaintiff's Complaint. While the regulations cited in the Plaintiff's Complaint would preempt any state law that conflicts with said regulations, nothing in the regulations appears to prohibit an airline from terminating an employee based upon his or her actions or omissions in operating an aircraft. Having said that and based upon the allegations contained in the Complaint, it seems as though the Plaintiff is in the catbird seat. The Defendant would be crazy to let this case get to a jury.
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Court records still show the case at the Nevada District Court for some reason and I can't find any petition or notice of removal.
Nevertheless, removal implies there have been monetary discussions between the Captain and Allegiant (e.g., before the case was filed). Diversity requires the damages more than $75,000 -- a very low bar in this case -- but as a matter of routine State filings only specify "more than $10,000" which by itself is not sufficient for removal.
Nevertheless, removal implies there have been monetary discussions between the Captain and Allegiant (e.g., before the case was filed). Diversity requires the damages more than $75,000 -- a very low bar in this case -- but as a matter of routine State filings only specify "more than $10,000" which by itself is not sufficient for removal.
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Having said that and based upon the allegations contained in the Complaint, it seems as though the Plaintiff is in the catbird seat. The Defendant would be crazy to let this case get to a jury.
They way he was dismissed is going to be a problem for the defense as the reason for his dismissal is given as lack of performance and that rationale seem to be quite suspect which will give the complaint plenty of latitude to suggest other reasons for the dismissal, any of which may be damaging under Nevada law.
Besides to suggest the application of Federal regs have no relevance under state employment law, especially when safety is involved, could possibly mean that many other professions from coal mining to medicine would be greatly affected. I doubt federal courts would want to start a string of precedence of employees being fired because... say for example they would not be willing to violate an OSHA statute...
Last edited by Sorry Dog; 18th Nov 2015 at 15:12. Reason: missing "not"
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I doubt federal courts would want to start a string of precedence of employees being fired because... say for example they would willing violate an OSHA statute...
E.g., AIR21 (49 U.S.C. §42121) provides whistleblower protection status.
If a company is pressuring pilots to violate FARs and compromise air carrier safety, it may be advisable for a pilot to contact a lawyer (through a union if applicable) and immediately report such conduct to the FAA. The pilot will be protected under AIR21 against any retaliation (including termination).
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If a company is pressuring pilots to violate FARs and compromise air carrier safety, it may be advisable for a pilot to contact a lawyer (through a union if applicable) and immediately report such conduct to the FAA. The pilot will be protected under AIR21 against any retaliation (including termination).
1. At the time of the emergency... the Captain should not be having to worry about if he is covered by whistle blower laws (Which recently have not always worked at intended) nor should he be worried about his employment situation period... Your statement about the proper way for the captain to address safety concerns highlights the exact worries that half the comments in this thread are all about.
2. Even if it's not urgent situation, and there are laws against retaliation for voicing safety concerns... one still must take into account the risk one incurs from doing so.... significant career risk there always is...
...Mr. Kinzer's lack of success in finding new employment is a great example of that.
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Diversity (not the people type)
As to the 75 thousand dollar threshold, there need not have been discussions about the damages at issue in the case - and typically, with such a contentious firing the lawyers would rather poke their own eyes out than have their clients become aware that they had even a brief conversation of a co-operative nature with opposing counsel (and as to contentiousness here, the captain didn't retain just any old contingency trial lawyer and this seems directly reflective of the high temperatures on both sides). Not saying it did not happen or is impossible, but that it was not a necessity: the defendant can meet its legal requirement for federal court diversity jurisdiction (via "removal") even if the complaint itself formalistically only alleges damages in excess of 10 thousand (among other reasons, the complaint includes a claim for punitive damages, and any wrongful termination claim carries with it (as a yardstick for damages) the contractual value of the plaintiff's employment). Not clear as to whether the case actually was removed or not, but at the risk of legal cliché, defendant ought to remove it, for all sorts of reasons about the differences between the ways federal trial-level courts operate as compared to state courts.
On the issue of safety rules and whether a wrongful termination suit under state law can or should be a vehicle to uphold the importance of such rules....a prior post mentioned "preemption" and without spilling a ton more electronic ink, IIRC the idea that even using federal safety regulations (by OSHA, or FAA, or the NRC) as a predicate for any state's public policy exception to the employment at-will doctrine can be met with a preemption defense. At the risk of legal over-simplification, the defense argues that because federal law (including administrative regulations) occupies the entire field, a state court cannot even rule on a claim like the ones in the captain's complaint, or otherwise interpret federal rules. Not saying it always is a winning defense but (IIRC) it does get litigated. (And provides an example of why the defendant will prefer to be before an Article III federal district court judge, in preference to any state court.)
Last, about Section 42121 - and without drilling into a probably-overly-abstruse parsing and construction of the statutory terms - this captain isn't really within the paradigm of the whistleblower principle. He didn't oppose or report a safety violation, nor did he testify in a suit on behalf of someone who did. Rather, he acted in conformance with a safety rule. Not saying AIR21 is a bad law but, not convinced it contains the answer to the evident gaps in the state of the law, insofar as the type of claims this Allegiant captain has filed.
Thanks for the measured dialogue, for which PPRuNe is so famously and vastly (if not always) known . . ..
On the issue of safety rules and whether a wrongful termination suit under state law can or should be a vehicle to uphold the importance of such rules....a prior post mentioned "preemption" and without spilling a ton more electronic ink, IIRC the idea that even using federal safety regulations (by OSHA, or FAA, or the NRC) as a predicate for any state's public policy exception to the employment at-will doctrine can be met with a preemption defense. At the risk of legal over-simplification, the defense argues that because federal law (including administrative regulations) occupies the entire field, a state court cannot even rule on a claim like the ones in the captain's complaint, or otherwise interpret federal rules. Not saying it always is a winning defense but (IIRC) it does get litigated. (And provides an example of why the defendant will prefer to be before an Article III federal district court judge, in preference to any state court.)
Last, about Section 42121 - and without drilling into a probably-overly-abstruse parsing and construction of the statutory terms - this captain isn't really within the paradigm of the whistleblower principle. He didn't oppose or report a safety violation, nor did he testify in a suit on behalf of someone who did. Rather, he acted in conformance with a safety rule. Not saying AIR21 is a bad law but, not convinced it contains the answer to the evident gaps in the state of the law, insofar as the type of claims this Allegiant captain has filed.
Thanks for the measured dialogue, for which PPRuNe is so famously and vastly (if not always) known . . ..
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On AIR21.
The Captain wasn't fired in an instant. He supposedly had several conversations with Allegiant after the incident, and he was fired after "repeatedly" stating that he would again evacuate the aircraft if presented with a similar situation in the future.
During this period, if he felt pressured by Allegiant to abandon his PIC obligations under FARs or face disciplinary action (likely including termination), then he could have formally filed a with the FAA about his safety concerns, and give notice to Allegiant of this complaint.
By doing so he might have gained AIR21 protections in addition to other remedies available to him.
The Captain wasn't fired in an instant. He supposedly had several conversations with Allegiant after the incident, and he was fired after "repeatedly" stating that he would again evacuate the aircraft if presented with a similar situation in the future.
During this period, if he felt pressured by Allegiant to abandon his PIC obligations under FARs or face disciplinary action (likely including termination), then he could have formally filed a with the FAA about his safety concerns, and give notice to Allegiant of this complaint.
By doing so he might have gained AIR21 protections in addition to other remedies available to him.
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PIC authority and responsibilities - not minor matters (or disputes)
The development of whistleblower protections in statutes and statutory terms is way, way beyond the scope of the thread - but I agree with and appreciate your post, peekay4. Clearly if the facts are as you have indicated, then the Capt's legal position indeed would have been squarely, I mean right down the middle of the strike zone, within the zone of interests sought to be protected by AIR21. So . . .
. . . I suppose a subject for discovery, particularly deposition, would be the captain's thought process about why he elected not to avail himself of those protections. Once again, conventional litigation in a court of law will prove to be a most inefficient means of getting at the underlying issues in the particular situation - yeah money and intangibles will be bought, sold and paid for, but the larger interests invoked -- or called into view -- by the disputes will be mere litigation wallflowers. Too bad no one has figured out how to move the system toward "interest mediation" - resolution of the case or controversy, like ordinary mediation, but with policy or procedural reforms mandated by the outcome, akin to interest arbitration.
Back to the ABX litigation you mentioned earlier, for a second. . . that suit was brought by the collective bargaining representative of the pilots of that air carrier. Under the Railway Labor Act. Do you think the course of such lawsuits (as a specific example), and the generally antediluvian nature of cross-ties and steel rail technology as compared to today's complex approaches and the technological complexity of air carrier aviation overall (as a general point) signal that the time is upon the U.S. to move aviation labor law out of the steam engine era? (I am indeed aware of the puppy-tail-chasing machinations of the Congress on something as relatively straight-forward as FAA re-authorization, but, hey, it doesn't hurt to ask.)
Cheers! (and Keep Your Eyes on the Sky . . .)
. . . I suppose a subject for discovery, particularly deposition, would be the captain's thought process about why he elected not to avail himself of those protections. Once again, conventional litigation in a court of law will prove to be a most inefficient means of getting at the underlying issues in the particular situation - yeah money and intangibles will be bought, sold and paid for, but the larger interests invoked -- or called into view -- by the disputes will be mere litigation wallflowers. Too bad no one has figured out how to move the system toward "interest mediation" - resolution of the case or controversy, like ordinary mediation, but with policy or procedural reforms mandated by the outcome, akin to interest arbitration.
Back to the ABX litigation you mentioned earlier, for a second. . . that suit was brought by the collective bargaining representative of the pilots of that air carrier. Under the Railway Labor Act. Do you think the course of such lawsuits (as a specific example), and the generally antediluvian nature of cross-ties and steel rail technology as compared to today's complex approaches and the technological complexity of air carrier aviation overall (as a general point) signal that the time is upon the U.S. to move aviation labor law out of the steam engine era? (I am indeed aware of the puppy-tail-chasing machinations of the Congress on something as relatively straight-forward as FAA re-authorization, but, hey, it doesn't hurt to ask.)
Cheers! (and Keep Your Eyes on the Sky . . .)
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This would seem to be the likely way it would play out, except it on the defense side it would definitely be worth the delaying action and possibly even some luck for them to try a few motions mentioning the arguments presented by peekay. It's worth noting that even if the ABX case is cited by defense, it is at best only a supporting argument and easily rebutted in a response. However, I would think it would be in the interest of Allegiant (and their council's legal bill) for them to drag out discovery and pre-trial procedures for a year or more and then worry about settlement.
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What? Say Again, WHAT?
I'd bet my ruined pension that there is a Whole Lot More to this story than has been reported thus far. I do not know why a pip-squeak like Allegiant has so many problems, but most of them sound like in-house politics to me. Very small airlines are ALWAYS suspect for safety issues, but that just not the sense that I get about Allegiant. As a famous ULCC their neck is always on the chopping block, I firmly suspect that the vast majority of thiere problems are in-house, management-pilot issues, safety being mentioned only when they cannot think of anything else.
For the record, I do NOT know who is right or wrong in this case and in several others. Also for the record, I darn sure will NOT fly a carrier that cannot treat its pilots fairly and also provide some measure of dignity for their customers. ONCE, !about 2.5 years ago, was one too many times; perhaps the worst flying experience of my life (I've been flying for >60 years). Horrible! It will be the
before I give this carrier another nickle of my money. Every. Despite some trivial influence toward keeping some competitive route fares a bit lower, seeing this miserable airline imitator go would not bother me at all. The FAA should have revoked their Part 121 operating ticket before their first flight. At best, they are SOBs, looking only for your last bit of pocket change; if you have any, these will find it. 
For the record, I do NOT know who is right or wrong in this case and in several others. Also for the record, I darn sure will NOT fly a carrier that cannot treat its pilots fairly and also provide some measure of dignity for their customers. ONCE, !about 2.5 years ago, was one too many times; perhaps the worst flying experience of my life (I've been flying for >60 years). Horrible! It will be the
before I give this carrier another nickle of my money. Every. Despite some trivial influence toward keeping some competitive route fares a bit lower, seeing this miserable airline imitator go would not bother me at all. The FAA should have revoked their Part 121 operating ticket before their first flight. At best, they are SOBs, looking only for your last bit of pocket change; if you have any, these will find it.
If you had a choice of
a) 99% chance of evacuating with a couple of broken arms and legs (and no real fire), or:
b) 1% chance of 20-30 people burning to death because of a delayed evacuation
Most pilots would, and should, choose option (a) every time.
Yes, evacuations have their risks - but better to evacuate and then perhaps regret doing so, than regret not evacuating and have a bunch of corpses on your hands.
The management are setting a very dangerous precedent - not just legally against the pilot, but also safety wise for every other Captain in the company.
Seems the management pilots at Allegiant need to worry less about crucifying complex decisions in a very difficult, time pressured environment, and worry more about taking enough fuel for their own flight.
a) 99% chance of evacuating with a couple of broken arms and legs (and no real fire), or:
b) 1% chance of 20-30 people burning to death because of a delayed evacuation
Most pilots would, and should, choose option (a) every time.
Yes, evacuations have their risks - but better to evacuate and then perhaps regret doing so, than regret not evacuating and have a bunch of corpses on your hands.
The management are setting a very dangerous precedent - not just legally against the pilot, but also safety wise for every other Captain in the company.
Seems the management pilots at Allegiant need to worry less about crucifying complex decisions in a very difficult, time pressured environment, and worry more about taking enough fuel for their own flight.
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If you had a choice of
a) 99% chance of evacuating with a couple of broken arms and legs (and no real fire), or:
b) 1% chance of 20-30 people burning to death because of a delayed evacuation
Most pilots would, and should, choose option (a) every time.
Yes, evacuations have their risks - but better to evacuate and then perhaps regret doing so, than regret not evacuating and have a bunch of corpses on your hands.
The management are setting a very dangerous precedent - not just legally against the pilot, but also safety wise for every other Captain in the company.
Seems the management pilots at Allegiant need to worry less about crucifying complex decisions in a very difficult, time pressured environment, and worry more about taking enough fuel for their own flight.
a) 99% chance of evacuating with a couple of broken arms and legs (and no real fire), or:
b) 1% chance of 20-30 people burning to death because of a delayed evacuation
Most pilots would, and should, choose option (a) every time.
Yes, evacuations have their risks - but better to evacuate and then perhaps regret doing so, than regret not evacuating and have a bunch of corpses on your hands.
The management are setting a very dangerous precedent - not just legally against the pilot, but also safety wise for every other Captain in the company.
Seems the management pilots at Allegiant need to worry less about crucifying complex decisions in a very difficult, time pressured environment, and worry more about taking enough fuel for their own flight.
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That's another "complicated" part of the story since we don't have all the details.
Per Allegiant's FAA filing, mechanics who examined the aircraft & the engine afterwards found no discrepancies at all. Apparently there was no evidence of fire, and possibly there was no smoke. The source of the smell reported by the Flight Attendant remains unknown.
Per Allegiant's FAA filing, mechanics who examined the aircraft & the engine afterwards found no discrepancies at all. Apparently there was no evidence of fire, and possibly there was no smoke. The source of the smell reported by the Flight Attendant remains unknown.
