Why Congress Must Act to Protect Air Passengers: A Lawsuit Brought by Passengers Trapped on the Tarmac Without Basic Necessities
Part Two in a Two-Part Series

By JOHN W. DEAN
Friday, Apr. 18, 2008

This column is Part Two in a two-part series on this subject. Part One appeared recently on this site. - Ed.

At the outset of the Summer 2008 travel season, as many readers will be well aware, airlines left countless thousands of passengers stranded. The delays and cancellations occurred because airlines had unconscionably failed to keep planes in compliance with safety regulations, and the Federal Aviation Administration (FAA) had finally been embarrassed by whistleblowers into taking action.

Debacles like this remind us that this deregulated industry cares little about its cargo. Indeed, in this series of columns, I have been focusing on merely a small part of the problem faced by average air travelers, by considering the frequent failure of the commercial airlines to consider the needs of its passengers when it strands them on an airport tarmac for endless hours.

During the difficult winter weather of 2006-2007, for example, many flights were grounded at New York City's principal airports, JFK International and LaGuardia, and not all the airlines handled the situation well from a traveler's point of view. Most noticeable was the pathetic performance of JetBlue, which had prided itself on low fares and strong customer service.

On February 14, 2007, more specifically, JetBlue's flight to Cancun, which was fully boarded and pulled away from the gate at 7:45 a.m. EST, never left the tarmac at JFK International. Yet not until 5:30 p.m. EST - almost ten hours later - did the plane return to a gate. "It was so hot. We had no food. We had no water. No toilets. We were hostages," one passenger reported. Another passenger literally went over the edge; imprisoned in the cabin, able to see the gates, she couldn't understand why the captain (and JetBlue management) refused to return her to the gate after five hours of sitting, so she locked herself in a bathroom for three hours.

As I reported in my last column, the actions of JetBlue and other airlines prompted New York lawmakers to take action, for it had become obvious that commercial air carriers, the FAA, the U.S. Department of Transportation and U.S. Congress had all failed to do so. The New York legislators' concern for passenger wellbeing was laudable, and provoked by some quite extreme facts. As the legislative history of the New York law records, it was utter disregard for passengers that moved the New York legislature into enacting a minimal passenger bill of rights.

Now, as I reported in Part One of this series, that law has been struck down by the U.S. Court of Appeals for the Second Circuit. The ruling, which has baleful consequences for airline passengers nationwide, has left all passengers at the mercy of the airline industry.

The Case In Which the New York Law Was Struck Down: Air Transport Association of America (ATA) v. New York Attorney General Andrew Cuomo

New York's law called for only basic services (food, water, power, and toilets) to be provided when airline passengers were delayed more than three hours on a New York airport runway, prior to takeoff. This was more than reasonable; even a two-and-a-half hour delay without basic services can be a hardship for many, with the disabled, young, and elderly especially harshly affected.

After New York acted, the Air Transport Association (ATA), the trade association for the airlines, moved immediately to strike down the law in federal court, claiming that federal law had preempted the field. Specifically, the federal law the court held to have preemptive effect was the 1978 law deregulating airlines in the United States.

The ATA suit was assigned to a seasoned senior judge appointed to federal bench by President Clinton, U.S. District Court Judge Lawrence E. Kahn. To Judge Kahn, the case was clear. New York merely sought to address the health and safety of passengers stuck on New York soil. In his view, that concern was surely within the police powers of New York. Moreover, under a long line of cases addressing state police powers, the judge found that the burden was on the party claiming preemption by federal legislation - that is, on the ATA. Accordingly, Judge Kahn found that the ATA failed to make the case that the federal law had preempted the police powers of New York to require airlines grounded in New York to provide food, water, power and lavatories for passengers who had been forced to sit on the ground for three hours in an airplane.

In its argument for preemption, the ATA relied on the Airlines Deregulation Act of 1978 (ADA), which declares that states "may not enact or enforce a law, regulation, or other provision ... related to a price, route, or service of an air carrier." However, Judge Kahn found that New York's effort to protect passengers stuck on a New York runway did not relate to any "price, route or service." Thus, he held that New York retained the power to act as it had, to protect passengers on the ground.

The ATA appealed Judge Kahn's ruling to the Second Circuit, where the case was assigned to a three-judge panel of Bush II appointees. The panel then overturned the ruling of the Clinton-appointed lower court judge, in Air Transport Association of America (ATA) v. New York Attorney General Andrew Cuomo.

Implications of the Second Circuit's Holding

In crafting its law, New York was not unaware of the federal law. Indeed, as one commentator on the legislation noted, the sponsor of New York law "clearly foresaw the possibility of challenges to the legislation on preemption grounds," -- that is, on the ground that the Airline Deregulation Act of 1978 precluded any state regulation. Thus, the New York law was drafted accordingly, with the law's sponsor explaining, "While federal law places restrictions on what individual states can do when it comes to legislation relating to air travel, federal courts have held that the provision of 'amenities' for air travelers is one area that states can legitimately address."

The word "amenities" was taken from a ruling of the U.S. Court of Appeals for the Ninth Circuit, Charas v. Trans World Airlines. In Charas, the Ninth Circuit found as follows:

"Congress intended to preempt only state laws ... that would adversely affect the economic deregulation of the airlines and the forces of competition within the airline industry. ... Accordingly, we hold that Congress used the word 'service' in the phrase 'rates, routes, or service' in the ADA's preemption clause to refer to the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail. In the context in which it was used in the Act, 'service' was not intended to include an airline's provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities." (Emphasis added.)

The Third Circuit had reached the same conclusion in Taj Mahal Travel v. Delta Airlines. Thus, New York lawmakers had good reason to think that that food, water, fresh air and toilets - the bare-bones necessities they should have had to write a law to guarantee in the first place -- were within the "amenities" as to which state regulation had not been preempted by the federal deregulation law.

The Second Circuit, however, reached the exact opposite conclusion in its recent decision. By ignoring the legislative history of the ADA and giving the broadest possible interpretation to the less than clear rulings of the U.S. Supreme Court (in Morales v. Trans World Airlines, Inc. and American Airlines, Inc. v. Wolens ), the business-friendly Second Circuit panel concluded the ADA had preempted the state of New York from protecting the health and well-being of passengers stuck on their runways over three hours in a plane. The opinion declared that "[o]n board amenities, regardless of whether they are luxuries or necessities, still relate to airline service and fall within the express terms of the [ADA's] preemption provision."

In addition, the Second Circuit pointed out that Congress and the FAA have the power to regulate planes on the ground in the U.S., and have already regulated everything from mandatory onboard first-aid kits, to the carbon monoxide levels in the cabins. The panel added, too, that all pilots are subject to the orders of air traffic control personnel. Thus, while noting that food, water, fresh air and toilets have not been addressed in federal law, nor has existing federal law totally preempted all state tort actions, the panel held that these are matters for the Congress and FAA, not the states, to tackle.

Although, as I have described, the federal circuits are all over the lot on the ADA, it is probably better for passengers that this issue of rights to food, water, fresh air and toilets not go to the business-friendly U.S. Supreme Court. This will very likely only bring more bad news for travelers. Rather, attention must focus on the FAA's exerting its influence, or Congress's acting through legislation, to put an end to passengers' inhumane and unnecessary ordeals on the tarmac.

Why the Federal Government Has Failed To Act

Americans are just now learning that, since the early days of the Bush II Administration, at the supervisory level and above, the FAA has been in bed with the airlines. It's bad enough that the FAA could care less about passengers' basic amenities when stuck on a runway (and I have found no situation where an FAA supervisor or above-level person has been stuck in one of these endless runway delays). Far worse is that the FAA allowed basic safety supervision to approach a dangerous level of neglect, until recently. With the FAA so cavalier about passengers' very lives, surely no one should count on the FAA to take action regarding such problems as extreme passenger discomfort and unpleasantness.

Congress has held extensive hearings regarding passengers' lack of rights, and their helplessness in these situations. They are quite aware of the problem, as the House Subcommittee on Aviation hearings of April 20, 2007 and September 26, 2007 make clear. The Department of Transportation, the FAA, and Congress have not acted, however, because the problem only involves a few thousand Americans. Meanwhile, the airline industry is in dire fear of re-regulation by the government, so the industry claims - nay, solemnly promises - it is fixing the problem, yet in fact, does nothing.

Last year, based on these hearings, the House approved protections for passengers in the FAA's annual reauthorization legislation. That legislation, ironically, is very similar to the New York law struck down by the Second Circuit. Fortunately, several proposals on this score are also currently pending in the Senate, with the sponsorship of California Democratic Senator Barbara Boxer and Maine Republican Olympia Snowe, both of whom have rightly expressed their understanding of an urgent need to act, given the Second Circuit's ruling. Perhaps most ironic of all, airline lobbyists are currently working Capital Hill, pleading for Congress to give them another chance to do voluntarily what they have consistently shown they are incapable of doing: promising (through binding regulations) and carrying out their promise to never strand passengers without food, water, fresh air, and toilets for endless hours.

This is a good issue to watch to see if special interests will, as usual, trump the public's interest. Unfortunately, for too long, special interests have won the day and passengers have suffered. Let's hope Congress will shift the balance.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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