Anderson v. USAir, Inc.

• Decision Date: 05 May 1987
• Docket Number: No. 85-6050,85-6050
• Citation: 260 U.S.App.D.C. 183,818 F.2d 49
• Parties: , 55 USLW 2601, 7 Fed.R.Serv.3d 1311, 22 Fed. R. Evid. Serv. 1770 Russell Wayne ANDERSON, Appellant, v. USAIR, INC.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 49

818 F.2d 49

260 U.S.App.D.C. 183, 55 USLW 2601, 7

Fed.R.Serv.3d 1311,

22 Fed. R. Evid. Serv. 1770

Russell Wayne ANDERSON, Appellant, v. USAIR, INC.

No. 85-6050.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 19, 1986.

Decided May 5, 1987.

Peggy Pindar, with whom Mary T. Porter, Washington, D.C., was on the brief, for appellant.

Richard M. Sharp, Washington, D.C., for appellee.

Before BORK and BUCKLEY, Circuit Judges, and LOUIS F. OBERDORFER, ^* United States District Judge for the District of Columbia.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

USAir flight personnel refused to seat appellant Russell Anderson in an emergency overwing exit row because he is blind. Appellant promptly filed, inter alia, two statutory, three constitutional, and three common law claims challenging USAir's action. Although appellant pursues all but one of the claims on appeal, only a statutory claim is potentially compelling; namely, whether the airline, in refusing to seat Anderson, violated its duty "to provide safe and adequate service" pursuant to section 404(a) of the Federal Aviation Act of 1958 ("the Aviation Act" or "Act"), 49 U.S.C. app. Sec. 1374(a) (1982).

Appellant bases the Aviation Act claim on final regulations promulgated in 1982 by the Civil Aeronautics Board ("CAB") which concluded that the "safe and adequate service" requirement provides the statutory authority to require all airlines to comply with a general provision prohibiting discrimination against the handicapped. See Nondiscrimination on the Basis of Handicap, Subpart A, 14 C.F.R. Sec. 382.1-.5 (1986). We do not address the validity of the final regulations because, on an issue necessarily prior, we find that no congressional intent, express or implied, allows a private citizen to bring suit to enforce the Aviation Act's duty of "safe and adequate service." As there are no grounds to support appellant's remaining claims, the district court's grant of summary judgment in favor of appellee is affirmed.

I. BACKGROUND

On February 6, 1985, Russell Anderson boarded USAir Flight 371, scheduled to depart Washington National Airport for Indianapolis. Anderson took his assigned seat in one of the two rows with emergency overwing exits. The DC-9 had a total of twenty-two rows. A USAir employee asked Anderson to move to a non-emergency seat, informing him that Federal Aviation Administration ("FAA") regulations barred blind passengers from sitting in the emergency exit row. Anderson, who is an attorney, disputed that such a regulation existed. A Passenger Service Representative, a Shift Supervisor, and the Assistant Customer Services Manager in turn asked Anderson to change seats.

After fifty-eight minutes, during which time appellant alleges other passengers shouted abuses at him without restraint by USAir employees, Anderson was arrested by an FAA police officer, taken into custody, and released one hour later without being charged. The FAA police contacted an Assistant U.S. Attorney who determined that the asserted FAA regulation barring blind persons from sitting in the emergency exit row did not exist.

USAir had a policy, however, duly filed with the FAA and conforming with FAA and CAB recommendations, that provided:

During boarding, and throughout your flight, do not allow the following passengers to be seated in the Emergency Exit rows:

--incapacitated passengers

--children (12 and under)

--women/men with babies

--elderly/senile passengers

--prisoners

--blind passengers

--obese passengers

Anderson v. USAir, 619 F.Supp. 1191, 1194 (D.D.C.1985).

USAir employees offered Anderson seating on the two next available flights that evening--either on USAir or TWA. Appellant requested a seat on USAir Flight 463, departing the next day, February 7.

According to appellee, Anderson returned the following day at about 5 p.m. and requested to be assigned to an emergency row seat. The USAir agent refused to do so and read a short statement that blind persons could not be seated in the emergency exit row. The agent offered Anderson other seats, but he refused them. At the gate, Anderson, who had a ticket but no boarding pass, was told all the seats in emergency row twelve were occupied. The flight left without appellant, who remained at the USAir ticket counter with approximately fifty friends and supporters until 11 p.m.

Anderson filed suit the next day for injunctive relief and damages. The five counts of the complaint still at issue allege that USAir's emergency exit row seating policy violated (1) section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. Sec. 794 (prohibiting discrimination against the handicapped under programs or activities receiving federal financial assistance); (2) section 404(a) of the Federal Aviation Act, 49 U.S.C. app. Sec. 1374(a) (obligating carriers "to provide safe and adequate service"); (3) plaintiff's constitutional rights, including the right to travel, and rights under the Commerce Clause and Fifth Amendment Due Process Clause; (4) the common law standards for the tort of outrage; and (5) plaintiff's contractual rights.

On May 10, 1985, the court denied appellant's motions for class certification and a permanent injunction. Discovery, by agreement of the parties, concluded May 13, 1985, and on May 24, cross-motions were filed for summary judgment. Appellant on the same day moved to amend his complaint, principally by deleting one count and adding five new counts, alleging slander and defamation, abuse of process or malicious prosecution, and negligent or fraudulent misrepresentation. The district court ruled that the motion to amend was untimely, superfluous, and would cause unnecessary delay. On September 30, 1985, the district court denied plaintiff's motion for summary judgment and granted defendant's cross-motion. 619 F.Supp. at 1198.

Anderson appeals the dismissal of all the counts. He also argues that the court committed error in denying the motion to amend and in relying on facts not in the record (e.g., that 1985 was the worst year on record for air fatalities). We address in turn appellant's statutory claims, the constitutional and common law claims, and the charges of judicial error.

II. ANALYSIS

A. Statutory Claims

1. Background

We briefly review the statutory and regulatory schema pertaining to discrimination charges against air carriers. A recent Supreme Court decision and an amendment to the Aviation Act enacted subsequent to the filing of this lawsuit require passing mention.

In his appellate brief, Anderson claimed that USAir's action violated section 504 of the Rehabilitation Act, which makes it unlawful to discriminate against "otherwise qualified handicapped individual[s]" involved in "any program or activity receiving federal financial assistance...." 29 U.S.C. Sec. 794. In addition, according to appellant, USAir's action violated the "safe and adequate service" requirement of section 404(a) of the Federal Aviation Act.

Linking these two statutory claims, the CAB, pursuant to instructions issued to all agencies to insure compliance with the Rehabilitation Act, promulgated final regulations in 1982 with three subparts: a general prohibition against handicapped discrimination in air transportation (subpart A); detailed service requirements (subpart B); and compliance and enforcement mechanisms (subpart C). See 14 C.F.R. Pt. 382 (1986). On its own authority, but with the approval of the Attorney General, the CAB held that subpart A of the regulations extended to all commercial carriers pursuant to section 404. The CAB also ruled that by authority of section 504 of the Rehabilitation Act, subparts B and C applied to airlines receiving subsidies for mail transport and service to small communities. 47 Fed.Reg. 25,936-39 (1982).

In January 1985, one month before appellant filed his complaint in district court, this court reversed the CAB and ordered that regulations applicable to all commercial airlines issue pursuant to section 504 of the Rehabilitation Act. Paralyzed Veterans of America v. CAB, 752 F.2d 694 (D.C.Cir.1985). Following this lead, the district court found that the regulations applied to USAir, but that seating blind persons in the overwing exit rows was safety-related and not discriminatory. Appellant vigorously denied the court could decide the safety issue as a matter of law given the scanty and questionable evidence presented. Brief for Appellant at 9-17. Rather, appellant asserted that USAir's "exclusionary seating policy is a classification on the basis of blindness unrelated to any legitimate interest in safety." Id. at 25.

After Anderson submitted his brief on appeal, but before oral argument, the Supreme Court in June 1986 overturned this court's conclusion (without addressing the application of the regulations pursuant to section 404 of the Aviation Act), holding that section 504 applies only to those commercial airlines receiving direct federal subsidies under section 406(b) or section 419 of the Aviation Act. United States Dep't of Transp. v. Paralyzed Veterans of America, --- U.S. ----, 106 S.Ct. 2705, 2710, 91 L.Ed.2d 494 (1986) (hereinafter "PVA" ). As USAir affirmed by affidavit that it does not receive such subsidies, appellant withdrew his section 504 claim at oral argument.

Congress, however, subsequently passed legislation, approved October 2, 1986, that effectively overruled the PVA decision by amending the Federal Aviation Act. See Air Carrier Access Act of 1986, Pub.L. No. 99-435, 100 Stat. 1080 (1986). The Act provides in pertinent part:

(c)(1) No air carrier may discriminate against any otherwise qualified handicapped individual, by reason of such handicap, in the provision of air transportation.

(2) For the purposes of paragraph (1) of this subsection the term "handicapped individual" means any individual who has a physical or mental impairment that substantially...