Boswell v. Skywest Airlines, Inc.

• Decision Date: 15 March 2004
• Docket Number: No. 02-4188.,02-4188.
• Citation: 361 F.3d 1263
• Parties: Susan BOSWELL, Plaintiff-Appellant, v. SKYWEST AIRLINES, INC., a Utah corporation, Defendant-Appellee. United States Department of Transportation, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

361 F.3d 1263

Susan BOSWELL, Plaintiff-Appellant, v. SKYWEST AIRLINES, INC., a Utah corporation, Defendant-Appellee.

United States Department of Transportation, Amicus Curiae.

No. 02-4188.

United States Court of Appeals, Tenth Circuit.

March 15, 2004.

Robert B. Denton, The Disability Law Center, Salt Lake City, Utah (John Pace and Sonia K. Sweeney with him on the brief), for the Plaintiff-Appellant.

Heidi E.C. Leithead, of Parr Waddoups Brown Gee & Loveless, Salt Lake City, Utah, for the Defendant-Appellee.

Rosalind A. Knapp, Deputy General Counsel, Paul M. Geier, Assistant General Counsel for Litigation, Samuel Podberesky, Assistant General Counsel for Aviation Enforcement and Proceedings of the United States Department of Transportation, and R. Alexander Acosta, Assistant Attorney General, and Mark L. Gross and Karl N. Gellert, Attorneys for the United States Department of Justice, filed an amicus curiae brief on behalf of the United States Department of Transportation for the Appellee.

Before SEYMOUR, HENRY, and McCONNELL, Circuit Judges.

HENRY, Circuit Judge.

Susan Boswell filed this action against Skywest Airlines, Inc., seeking an injunction requiring Skywest to provide medical oxygen for her on flights from St George to Salt Lake City, Utah. Ms. Boswell asserted claims under the Rehabilitation Act, 29 U.S.C. § 794, and the Air Carrier Access Act (ACAA), 49 U.S.C. § 41705. The district court granted summary judgment to Skywest, reasoning that: (1) the Rehabilitation Act did not apply to Skywest's flights from St. George to Salt Lake City because Skywest does not receive federal financial assistance for this flight, and (2) the ACAA and accompanying Department of Transportation regulations vest airlines with the discretion to provide medical oxygen but do not require airlines to do so. Boswell v. SkyWest Airlines, Inc., 217 F.Supp.2d 1212, 1214-24 (D.Utah 2002).

Ms. Boswell appeals only the district court's resolution of her ACAA claim. She argues that the statute and accompanying regulations require air carriers to provide medical oxygen unless they can demonstrate "an undue burden" or a "fundamental[] alter[ation] of their program." 14 C.F.R. § 382.7(c).

After reviewing the parties' supplemental briefs and an amicus curiae brief from the United States Department of Transportation, we conclude that ACAA establishes certain administrative remedies but not a private right of action. We therefore affirm the district court's grant of summary judgment in favor of Skywest and against Ms. Boswell on her ACAA claim on this alternative ground and do not address the other arguments made by the parties and the Department of Transportation.

I. FACTUAL BACKGROUND

Ms. Boswell has a lung disease that affects her breathing. In June 2000, her physician prescribed medical oxygen. For a few months, she was able to breath for an hour or two at a time without supplemental oxygen. However, in August 2000, her physician advised her to use oxygen continuously.

As a member of the Utah State Advisory Council for the Division of Services for the Blind and Visually Impaired, Ms. Boswell was required to fly the Skywest route between St. George, Utah and Salt Lake City. She requested Skywest to provide medical oxygen during the flights, but Skywest has refused. As a result, Ms. Boswell maintains, she surrendered her board position.

Ms. Boswell then filed this action in the district court, alleging a violation of the ACAA and the Rehabilitation Act. She requested the district court to order Skywest to provide medical oxygen to her unless it could show that the provision of oxygen would constitute an undue burden or would fundamentally alter its operations. See 14 C.F.R § 382.7(c).

Skywest moved for summary judgment on both claims. As to the Rehabilitation Act, Skywest argued that because the airline did not receive federal financial assistance either for the Salt Lake City — St. George route in particular or for its operations "as a whole," see 29 U.S.C. § 794(b)(3)(A), the statute did not apply to the failure to provide medical oxygen. As to the ACAA, Skywest argued that the statute and accompanying regulations vest airlines with discretion to provide medical oxygen to passengers but do not require them to do so absent a showing of undue hardship.

In a well-crafted opinion, the district court agreed with both arguments, and granted summary judgment to Skywest. See Boswell, 217 F.Supp.2d at 1214-24. The court acknowledged that "it [was] not unsympathetic to Ms. Bowell's situation," id. at 1223, and accepted her statements that the denial of her request caused serious difficulties for her. Nevertheless, the court stated, the provision of oxygen raised legitimate concerns, and the balancing of those concerns with the requests of passengers like Ms. Boswell was "better addressed by regulatory agencies than by judicial interpretation of vague regulatory provisions." Id. at 1224.

II. DISCUSSION

In this appeal, Ms. Boswell challenges only the district court's grant of summary judgment on her ACAA claim. In addressing that claim, the parties — like the district court — presumed that Ms. Boswell could assert a private cause of action under the ACAA. That presumption was supported by two circuit court decisions. See Shinault v. Am. Airlines, 936 F.2d 796, 800 (5th Cir.1991) and Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 570 (8th Cir.1989).¹ However, after the district court granted summary judgment to Skywest, the Eleventh Circuit reached a contrary conclusion. See Love v. Delta Air Lines, 310 F.3d 1347, 1356 (11th Cir.2002). We then asked the parties and the United States Department of Transportation to file supplemental briefs regarding the existence of a private right of action under the ACAA.

In her supplemental brief, Ms. Boswell urges us to: (1) follow the reasoning of the Fifth and Eighth Circuits and hold that the ACAA creates a private right of action and then (2) interpret the ACAA and accompanying regulations to require Skywest to provide her with medical oxygen unless the airline can demonstrate that it would suffer an undue hardship or a fundamental alteration of its operations. Skywest responds that the Eleventh Circuit's decision in Love is correct and that we should follow it here by holding that the ACAA does not create a private right of action.

We may affirm the district court's decision "on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court." Lambertsen v. Utah Dep't of Corr., 79 F.3d 1024, 1029 (10th Cir.1996) (internal quotation marks omitted). Upon review of the ACAA, accompanying regulations, and applicable case law, we hold that the ACAA does not establish a private right of action. Accordingly, Ms. Boswell may not sue Skywest for the alleged violation of the statute. Instead, she must pursue the remedies established by Congress and the Secretary of Transportation.

In reaching this conclusion, we begin our analysis with the case law concerning private rights of action. We then proceed to the text of the ACAA and the arguments advanced by the parties.

A. Private Rights of Action

The test for determining whether a statute creates a private right of action has evolved substantially over the last thirty years. Supreme Court cases decided early in this period focused on Congressional purpose. See., e.g., J.I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) (stating that "under the circumstances here it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose" and concluding that sections 14(a) and 27 of the Securities Exchange Act, 15 U.S.C. §§ 77n(a), 77aa, authorized a federal cause for rescission or damages to a stockholder). Subsequently, the Court formulated a four-part inquiry, asking whether: (1) the plaintiff is part of the class for whose benefit the statute was enacted; (2) there is any indication of legislative intent, explicit or implicit, either to create or to deny a private right of action; (3) it would be consistent with the underlying purpose of the legislative scheme to imply a private right of action for the plaintiff; and (4) the cause of action is one traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); see also Southwest Air Ambulance, Inc. v. City of Las Cruces, 268 F.3d 1162, 1169 (10th Cir.2001) (discussing Cort).

Later Supreme Court decisions have shifted the inquiry again. Now, "Cort's four factors have been effectively condensed into one — whether Congress expressly or by implication, intended to create a private cause of action." Sonnenfeld v. City & County of Denver, 100 F.3d 744, 747 (10th Cir.1996) (citing Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) and Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979)). Thus, in its recent decisions, the Supreme Court has emphasized that the private right of action inquiry focuses on the Congressional intent underlying the particular statute at issue:

Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, 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. Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.

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