Metropolitan News-Enterprise


Wednesday, January 20, 2016


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Ninth Circuit Says Federal Law Bars Suit Over Disabled Access to Airline Kiosks


By a MetNews Staff Writer


Federal law preempts states from enforcing anti-discrimination laws with respect to claims that airlines discriminate against blind travelers by making ticket kiosks inaccessible to blind travelers, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed a district judge’s dismissal of a class action brought by the National Federation of the Blind against United Airlines. The federation and three individuals alleged that because the kiosks do not include technologies such as tactile keyboards and audio interfaces, as ATMs are required to have, the blind are forced to rely on the assistance of others in order to use them, or must wait for help from airline agents.

That violates California’s Unruh Civil Rights Act and Disabled Persons Act, the plaintiffs insisted.

U.S. District Judge William Alsup dismissed the action, finding the claims preempted by both the Airline Deregulation Act and the Air Carrier Access Act. The former preempts any state “law…related to a price, route, or service of an air carrier,” while the latter delegates to the Department of Transportation the authority to enact regulations protecting the disabled from discrimination by air carriers.

Alsup reasoned that the kiosks were a “service,” so the deregulation act expressly bars the plaintiff’s claims. He also ruled that by delegating full authority over the subject to the DOT, Congress implied that states could not legislate access to kiosks for the disabled.  

The plaintiff’s appeal was argued 38 months ago. The panel delayed its decision pending the outcome of Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422 (2014), which held that states could not regulate airline frequent flyer programs, beyond enforcing whatever contract existed between the passenger and the airline.

The ruling was based on the Airline Deregulation Act.

By the time Ginsberg was decided, the DOT had replaced its interim regulation regarding kiosks with a final regulation. That rule establishes standards that will gradually require airlines to equip their kiosks with features that will make them more accessible to the visually impaired, although new kiosks need only meet the standards if installed on or after Dec. 12 of this year.

The appellate panel, in its ruling yesterday, held the district judge was wrong about the ADA. The judges concluded that kiosks are not a “service” within the meaning of the act.

Judge Marsha Berzon, writing for the court, cited Charas v. Trans World Airlines, 160 F.3d 1259 (9th Cir. 1998), an en banc ruling finding that the term “service” in the ADA refers to the provision of air transportation - such as “the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo or mail,” not airline-provided amenities like drinks and luggage handling.

The court, however, affirmed the judgment on the ground that the Air Carrier Access Act, and the final regulation codified as 14 C.F.R. §382.57, have impliedly preempted the field.

The new rule speaks “directly to the concerns raised by the federation’s suit,” Berzon wrote.

“Given its great detail and pervasive extent, the new regulation preempts any state regulation of that same field,” she added.

District Judge Roger T. Benitez, of the Southern District of California, sat by designation and joined Berzon’s opinion. Senior Judge Andrew Kleinfeld concurred separately, saying it was unnecessary to address the deregulation act in light of the panel’s conclusion that the access act preempted the plaintiffs’ claims.

The case is National Federation of the Blind v. United Airlines Inc., 11-16240.


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