- The Washington Times - Tuesday, November 5, 2002

Disabled passengers are barred from suing airlines for discrimination under a 1986 federal law enacted specifically to protect them, a federal appeals court has ruled.
"We simply cannot create by implication a private right of action, no matter how socially desirable or otherwise warranted the result may be," a three-judge panel of the 11th U.S. Circuit Court of Appeals ruled in Atlanta.
Three other federal circuits had permitted such lawsuits under the 1986 Air Carrier Access Act (ACAA), but the 11th Circuit said two Supreme Court decisions in 2001 unrelated to air travel have tied its hands.
Those high-court rulings sharply restricted the right of individuals to go to court to enforce federal laws and, in cases where agency enforcement is available, required citizens to use those means. Only Congress can create this kind of individual right to sue, the 11th Circuit said.
"Congress is, of course, free to protect disabled air passengers by virtually any means it chooses. It certainly may provide them with the right to sue in a district court for ACAA violations," the 11th Circuit ruled in the case of Cynthia Love v. Delta Air Lines, involving a Montgomery, Ala., woman paralyzed by polio at age 3.
"We agree with, and are pleased, that it's a correct interpretation as intended by Congress," Kristi Tucker, a Delta spokeswoman, said Friday.
Ms. Love, who is confined to a wheelchair, sued because of problems reaching the lavatory when she became ill during a 1998 flight to Colorado Springs.
She charged that Delta did not provide an accessible "call button" to page an attendant, had no trained personnel, did not provide a narrow wheelchair to navigate the aisle, and that the restroom was too small and lacked privacy. Her son carried her to the bathroom.
On Oct. 12, 2001, U.S. District Judge Ira De Ment threw out several counts but ruled others could go to trial. Delta appealed to the 11th Circuit, which reversed those portions of the decision Thursday and sent the case back to the Alabama court with an instruction to dismiss the case.
The decision set up an apparent Catch-22 situation by requiring that complaints of discrimination because of disability go to the Department of Transportation. The DOT keeps statistics on such complaints, and uses its enforcement power to block discriminatory acts and fine airlines but not to compensate passengers who claim injury, spokesman Bill Moseley said.
"To obtain a personal, monetary award of damages, a complainant would have to institute a private legal action," the Department of Transportation advises complainants.
"Where does that leave people with disabilities? With little or no protection," said lawyer Sheila Bedi, of Georgetown University's Institute for Public Representation, who handled the appeal. "The court says they must go to the Department of Transportation. DOT says they must sue the airline."
Under some federal laws, government agencies act for individuals, as the Equal Employment Opportunity Commission did in winning a $40,250-verdict Friday for Kevin Armstrong, who was rejected by Northwest Airlines for a baggage-handler job in Memphis, Tenn., when it learned his diabetes was poorly controlled by insulin.
After arguments in the Delta appeal, Miss Bedi filed a supplemental brief saying the appeals court misunderstood limitations on options available at the Department of Transportation, which only could require that discriminatory practices stop and levy fines, leaving Ms. Love no redress.
"This argument is plainly wrong," the appeals court said, suggesting that after Department of Transportation acts, individuals could appeal the department action to a court of appeals and seek "equitable remedies."
Miss Bedi said the Institute is "strongly considering seeking a rehearing" before the entire circuit, rather than an immediate appeal to the Supreme Court.
Also yesterday:
The court agreed to decide whether two cancer-stricken Vietnam veterans can reopen a challenge against chemical companies over exposure to Agent Orange.
Canada lost a Supreme Court case over its attempt to use a U.S. anti-racketeering law to sue over cigarette smuggling.
Canadian leaders contend that R.J. Reynolds Tobacco tried to get around taxes by smuggling tobacco into Canada through an American Indian reservation.
Other countries had copied Canada's $1 billion lawsuit. The Supreme Court refused to consider reinstating the case, signaling that countries must use their own courts to pursue American companies they accuse of wrongdoing.

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