742 F.2d 1202 (9th Cir. 1984), 82-5477, Jacobson v. Delta Airlines, Inc.

Docket Nº:CA 82-5477.
Citation:742 F.2d 1202
Party Name:Neil JACOBSON, Plaintiff-Appellant, v. DELTA AIRLINES, INC., a Georgia Corporation, and Hugh Burton, individually and as Customer Service Supervisor of Delta Airlines, Defendants-Appellees.
Case Date:September 18, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1202

742 F.2d 1202 (9th Cir. 1984)

Neil JACOBSON, Plaintiff-Appellant,


DELTA AIRLINES, INC., a Georgia Corporation, and Hugh

Burton, individually and as Customer Service

Supervisor of Delta Airlines,


No. CA 82-5477.

United States Court of Appeals, Ninth Circuit

September 18, 1984

Submission Withdrawn Dec. 7, 1983. Argued and Submitted Oct. 3, 1983.

Submission Withdrawn Dec. 7, 1983.

Resubmitted March 15, 1984.

Page 1203

[Copyrighted Material Omitted]

Page 1204

Stanley Fleishman, Los Angeles, Cal., for plaintiff-appellant.

Peter P. Brotzen, Chase, Rotchford, Drukker & Bogust, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before FARRIS and REINHARDT, Circuit Judges, and SOLOMON, [*] District Judge.

REINHARDT, Circuit Judge:

Plaintiff is a handicapped person. He challenges Delta Airline's policy of requiring handicapped persons to sign a "medical release form" acknowledging that they may be removed from a flight at any point for specified reasons. In the district court he contended that the policy violated section 404(b) of the Federal Aviation Act, 49 U.S.C. Sec. 1374(b) (1976), section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794 (1982), and state tort laws. He prayed for damages, injunctive relief, and attorney's fees. The district court granted Delta's motion for summary judgment on the Rehabilitation Act claim, ruling that Delta was not a recipient of federal financial assistance. It submitted the Federal Aviation Act claim and the state-law claim to the jury, and the jury ruled against the plaintiff on all counts.

Plaintiff appeals only the federal claims. He argues that Delta was receiving federal financial assistance when the acts in question occurred and was therefore covered by the Rehabilitation Act. He also argues that Delta's policy violates the Federal Aviation Act as a matter of law. We reverse on the Federal Aviation Act claim but affirm on the Rehabilitation Act claim.


Plaintiff Neil Jacobson has cerebral palsy. He requires a wheelchair to transport himself. His condition is neither contagious nor progressive. He is married, holds a full-time job as a computer programmer analyst, and lectures frequently on, as he puts it, "how wonderful it is to be handicapped." In short, he leads a full and productive life. He cannot, however, walk without the assistance of another person.

On March 1, 1980, he presented himself at the Delta Airlines ticket counter at the Birmingham, Alabama, airport to check his baggage for a return flight to Los Angeles. There, employees of defendant Delta Airlines, including defendant Hugh Burton, refused to allow him to board his flight unless he first signed a so-called "medical release form." It was Delta's policy at the time to require all handicapped persons to sign such a form before boarding. 1 The form provided as follows:

I understand that upon subsequently acquired medical advise [sic], Delta Airlines may refuse me passage or remove me at any point and refund the appropriate portion of my fare without further obligation. I understand that I may be removed at any point if it becomes necessary for the comfort and safety of other passengers.

Plaintiff initially refused to sign the form, asserting that it discriminated against handicapped persons and was prohibited by federal law. Shortly before the flight's departure, however, plaintiff signed the form under protest, informing the Delta employees that he intended to bring suit. After signing the form, he was permitted to board. He completed the flight without incident.

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I. The Federal Aviation Act Claim.

Section 404(b) of the Federal Aviation Act prohibits all air carriers from "subject[ing] any particular person ... to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever." 49 U.S.C. Sec. 1374(b) (1976). Both parties agree that Delta is an "air carrier" subject to section 1374(b). They also agree that 1374(b)'s antidiscrimination provision incorporates the antidiscrimination provision in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1982). In applying the Federal Aviation Act's antidiscrimination provision to handicapped persons, we therefore refer to the more frequently construed language in section 504 of the Rehabilitation Act and the regulations promulgated thereunder.

Section 504 provides that:

[n]o otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

29 U.S.C. Sec. 794 (1982). It is undisputed that the plaintiff is a "handicapped individual." And because under Delta's policy all handicapped persons are required to sign the medical release forms, the policy applies to handicapped persons "solely by reason of [their] handicap[s]." There thus remain only two questions: whether plaintiff was "otherwise qualified" and whether he was subjected to "discrimination" within the meaning of the Rehabilitation Act. Those questions are closely related in this case.

In Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the Supreme Court defined an "otherwise qualified" person as "one who is able to meet all of a program's requirements in spite of his handicap." Id. at 406, 99 S.Ct. at 2367. Rejecting the court of appeals' view that institutions cannot impose requirements that take physical limitations into account, the Court held that even requirements that would exclude persons with handicaps can properly be imposed. It recognized, however, that under some circumstances "an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program." Id. at 412, 99 S.Ct. at 2370. "[S]ituations may arise," the Court said, "where a refusal to modify an existing program might become unreasonable and discriminatory." Id. at 412-13, 99 S.Ct. at 2370.

Davis thus indicates that a person is "otherwise qualified" if he satisfies all of a program's requirements other than those that are "unreasonable and discriminatory." If he does, then section 504 protects him from an institution's continuing insistence on discriminatory requirements. Such an insistence constitutes "discrimination" within the meaning of section 504. Where, as here, the plaintiff is challenging a requirement that he fails to satisfy, the two questions posed above are actually one: Is the requirement "unreasonable and discriminatory"?

Here, plaintiff failed to satisfy Delta's requirement that handicapped persons sign a medical release form before boarding. He is challenging that requirement as unreasonable and discriminatory, at least as applied to persons who, like himself, are simply nonambulatory.

An action challenged as discriminatory under the Rehabilitation Act must be given rigorous scrutiny. See Bentivegna v. United States Department of Labor, 694 F.2d 619, 621 (9th Cir.1982). We think that Delta's policy does not withstand such scrutiny. Indeed, Delta has failed even to demonstrate that its policy is reasonably related to achieving a legitimate purpose. The justifications Delta has advanced for distinguishing between handicapped and nonhandicapped persons either are based on impermissible assumptions or advance impermissible ends.

Page 1206

The medical release form that Delta required plaintiff to sign was simply an acknowledgement by the signer that he may be refused passage or removed at any point "upon subsequently acquired medical advice" or if it becomes necessary for the comfort and safety of other passengers. The tariffs 2 applicable to Delta make it clear that Delta had the power to remove any passenger at any point if he was unescorted and unable to take care of his physical needs in flight or if it became necessary for the comfort and safety of other passengers. See Tariff Rule 35(F)(4)(h); Rule 35(H)(1). 3 Indeed, it appears that Delta had a duty under the tariffs to remove such a passenger. Id. The only purpose of requiring persons to sign the medical release form would thus appear to be to give the signer notice of Delta's power. We assume that a policy designed to achieve such a purpose would be legitimate if applied to all passengers. Delta has offered no legitimate reason, however, for requiring the signatures only from handicapped persons. We find none.

Delta argues that its policy was designed only to comply with its duties under its tariffs. It argues that because handicapped persons are more likely to have problems of the type that would require their removal from a flight, its policy of having only those persons sign the waiver was reasonably related to ensuring compliance with the tariff. However, even if a reasonable relationship to a legitimate purpose would suffice to render the policy valid, cf. supra at 1205 (actions challenged under the Rehabilitation Act should be given "rigorous scrutiny"); Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1383 (10th Cir.1981) ("The rational basis test is not applicable where there is an alleged violation of [section 504]."), Delta's argument would fail.

Delta has not substantiated in any way its assertion that handicapped persons are more likely than others to have problems of the type that would require their removal from a flight. Delta asks us to take judicial notice of the fact that handicapped persons are more likely to have medical problems during a...

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