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When Can Airline Pilots Remove Passengers Who May Be a Threat?

Oliver Beiersdorf and Catherine E. Kiernan

This article discusses (1) the rights of air carriers to exclude or refuse to accept passengers on domestic and international flights under § 44902(b) of the Federal Aviation Act (FAA); (2) preemption of claims under § 1305(a)(1) of the FAA, commonly known as the Airline Deregulation Act (ADA); and (3) the rights of air carriers to exclude or refuse to accept passengers on international flights under the Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention).

FAA: Rights of air carriers to exclude or refuse to accept passengers. Section 44902(b) of the FAA, known as “permissive refusal,” provides pilots with broad authority to remove passengers. The pilot in command stands in the role of the air carrier and can decide whether to remove a passenger from a flight for safety reasons.

State tort claims relating to a passenger’s removal from an aircraft for safety reasons are preempted by § 44902(b). While the FAA does not contain an express preemption provision, § 44902 impliedly preempts state tort claims because it is a federal standard directly on point and constitutes pervasive federal regulatory control in that area. This was recently reaffirmed in Register v. United Airlines, Inc., 2017 WL 784288 (S.D. Cal. Mar. 1, 2017), where the court dismissed the plaintiff’s state tort causes of action and held that “[t]he FAA preempts all state law impinging upon the circumstances under which an air carrier may remove a passenger from a flight for safety reasons.”

Given the deferential standard in § 44902(b), the majority of courts hold that the removal or refusal to transport a passenger cannot give rise to a claim for damages unless the carrier’s decision was “arbitrary or capricious.” The First Circuit in Cerqueira v. American Airlines, Inc., 520 F.3d 1, 14 (1st Cir. 2008), clarified that “[t]he arbitrariness or capriciousness standard here is not the same as reasonableness under a negligence standard.” Some courts have gone a step further and have interpreted § 44902 as an “affirmative grant” of permission to the air carrier, thus creating a presumption that the pilots’ decisions and actions were reasonable and placing the burden on the plaintiffs to show that § 44902 is inapplicable.

To determine whether a pilot’s decision to remove a passenger was arbitrary or capricious, courts consider the facts and circumstances known by the pilot at the time she formed her opinion. This includes consideration of the limited facts known by the pilot at the time, the time constraints in making the decision, and the general security climate surrounding the events.

The preemptive effect of § 44902(b) is limited in that it does not preempt claims arising from situations that occur in the airport terminal that are unrelated to any decision made by the pilot in command during boarding. For example, in Doe v. Delta Airlines, 129 F. Supp. 3d 23 (S.D.N.Y. 2015), the court held that § 44902 did not preempt the plaintiff’s state law tort claims arising from her alleged altercation with a gate agent and subsequent arrest for intoxication in the airport terminal. The court held that the plaintiff’s claims were not preempted because the altercation occurred in the terminal, the identities of the gate agent and person who reported the passenger to the police were unknown, and there was no indication that their actions were based on the pilot’s decision to deny the plaintiff boarding.

Preemption of claims under the Airline Deregulation Act. Preemption under § 1305(a)(1) of the FAA, commonly known as the Airline Deregulation Act (ADA), provides additional protection that helps to ensure air carriers have discretion to remove potentially dangerous passengers without fear of legal consequences. The ADA’s express preemption provision provides that states are prohibited from “enact[ing] or enforc[ing] a law, regulation, or other provision having the force and effect of law related to [an air carrier’s] price, route, or service.”

In Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), the U.S. Supreme Court held that the phrase related to in the ADA expresses a “broad preemptive purpose” and that the ADA preempted the use of state consumer protection laws to regulate airline advertising, concluding that “relat[es]” means “ha[s] a connection with, or reference to, airline rates, routes, or services.” The express preemption provision of the ADA has been interpreted to extend to claims arising out of an airline’s refusal to allow a passenger to board because those claims concern the denial or inadequate provision of the airline’s “services.”

Courts consider three factors in determining whether the ADA preempts state law claims. First, the court must determine whether the activity in question implicates a service provided by the airline. Many courts have adopted the definition of service in the ADA specifically to include boarding procedures and baggage handling. Second, the court must determine whether the claim affects the airline service “directly or tenuously, remotely, or peripherally.” Finally, if the claim implicates an airline service and affects the service directly, the court must determine whether the underlying allegedly tortious conduct was reasonably necessary to the provision of the service. The preemption analysis under the ADA is claim specific and can result in different treatment for multiple claims arising from the same flight.

By its express terms, the ADA does not shelter airlines from suits that do not allege violation of state-imposed obligation but instead only seek to recover for the airline’s breach of its own, self-imposed undertakings. The cases interpreting the ADA reinforce the protections provided to air carriers and ensure that state law cannot undermine federal regulations.

Tokyo Convention: Rights of air carriers on international flights. The Tokyo Convention limits the liability of the air carrier for intentional flights when a passenger’s claims arise from actions taken by the pilot or flight crew to preserve order and safety on board. Article 6 specifically authorizes the pilot in command of an international flight to “take reasonable measures including restraint” when he “has reasonable grounds to believe” that a passenger “committed, or is about to commit” a criminal offense or an act that jeopardizes the safety of the aircraft or “good discipline on board.”

To date, Eid v. Alaska Airlines, Inc., 621 F.3d 858 (9th Cir. 2010), is the only U.S. court case interpreting the Tokyo Convention. In this case, a group of plaintiffs alleged that they were forced to disembark an international flight based on a flight attendant’s uncorroborated allegation that their conduct had caused her to “los[e] control of the first-class cabin.” The Eid court declined to adopt the “arbitrary and capricious” standard for a pilot’s decision to restrain or remove passengers. Instead, the court applied an objective negligence standard of reasonableness, which it stated was consistent with the drafting history and plain language of the Tokyo Convention requiring the pilot to have “reasonable grounds” to take action. Applying that standard, the Eid court held that a jury could find that it was inappropriate for the pilot in command to immediately divert the plane based on the uncorroborated statement of the flight attendant without asking follow-up questions or looking through the cockpit window to view the cabin. The court emphasized that a jury could conclude that a reasonable captain should have tried to find out “something” before undertaking an emergency landing.

The Eid court’s interpretation is significantly different from the strong protections afforded under § 44902(b) and appears to require that pilots take the time to investigate the legitimacy of their crew’s representations about events occurring in the cabin despite their primary duty to safely pilot the aircraft.

ABA TORT TRIAL AND INSURANCE PRACTICE SECTION

This article is an abridged and edited version of one that originally appeared on page page 56 of The Brief, Summer 2018 (47:4).

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By Oliver Beiersdorf and Catherine E. Kiernan

Oliver Beiersdorf (obeiersdorf@reedsmith.com) is a partner at Reed Smith and is based in New York City. Catherine E. Kiernan (ckiernan@reedsmith.com) is an associate at Reed Smith and is based in Princeton, New Jersey.