The Last Rivet
February 24, 2009
Alan D. Reitzfeld- New York
As we have done in the last few issues, we close this issue with an eclectic mix of information that we hope will be of interest.
Aviation Action Safety Program (ASAP) Developments
It is fairly rare to see ASAP developments reported in the general news media, but ASAP has indeed received recent publicity.
First, a little background: ASAP focuses on the voluntary reporting of safety issues by employees of certificate holders, with a goal of enhancing aviation safety. In order to encourage the voluntary reporting of safety issues, even though the reports may involve an alleged violation of Federal Aviation Regulations, enforcement-related incentives are designed into the program. “An ASAP is based on a safety partnership that will include the [FAA] and the certificate holder, and may include any third party such as the employee’s labor organization.”1 Certificate holders participate in the program by entering into a memorandum of understanding (MOU) with the FAA and by voluntarily sharing information with the FAA; employees who are covered under an ASAP MOU participate by submitting “ASAP reports” in accordance with the MOU.2
In the last few months of 2008, the media reported that a few air carriers were unable to reach agreement with their pilots on continued ASAP participation. Apparently in response, the FAA issued a press release in mid-December.3 The press release reported that Acting FAA Administrator Robert A. Sturgell urged labor unions and air carriers to resolve their differences and keep the voluntary reporting programs in place; he referred to the voluntary programs as “crucial to safety.” The press release also mentioned that: “The FAA this year implemented a voluntary reporting program with its air traffic controllers and plans to expand the program to include maintenance technicians. Just last month, American Airlines and its flight attendants began an ASAP program.” In addition, the press release indicated that “more than 70 operators have almost 170 programs covering pilots, mechanics, flight attendants and dispatchers.”
The day after the FAA’s press release, the NTSB issued a press release on the same general topic.4
Interestingly, the NTSB recently reported that one of the airlines (mentioned in its December 18, 2009 press release) had reinstated its ASAP program.5
For other developments regarding ASAP, see Judith R. Nemsick, “Court Holds Aviation Safety Action Program (ASAP) Materials Not Protected by Privilege,” Aviation: Centerline (May 2008).
Paperless Boarding Passes − Pilot Programs
In late November 2008, the TSA announced pilot programs with American Airlines for paperless boarding passes at three airports, Los Angeles International Airport, Chicago’s O’Hare International Airport and John Wayne Orange County Airport.6 Passengers will have the option to receive boarding passes electronically on a mobile phone or PDA, which will be scanned by TSA security officers. This new technology is said to improve customer service, reduce paper use and increase the ability to identify fraudulent boarding passes.
New FAA ATC System Command Center
The FAA reports that, in December 2008, ground was broken for a new state-of-the-art Air Traffic Control System Command Center near Warrenton, Virginia. The current command center, near Washington Dulles International Airport, will close in 2011 when its lease expires.7
The new center will continue to oversee the U.S. air traffic control system, including ATC towers, approach/departure facilities and high-altitude control centers; it will also monitor electronic navigation aids. The staff at the center do not directly control air traffic but instead coordinate and monitor with other air traffic facilities and system users (including airlines, business aviation groups and the military). The principle mission of the command center is the management of the entire airspace system, to address weather and other potential disruptions to air traffic, and to balance demand with capacity.
The command center will share the new building with the FAA’s Potomac terminal radar approach control (TRACON).
Passengers Who May Be Sensitive to Allergens
Our August 2008 issue briefly discussed AC 121-36 (Dec. 31. 2002)8 titled “Management of Passengers Who May Be Sensitive to Allergens.” See Alan D. Reitzfeld, “The Last Rivet,” Aviation: Centerline (August 2008).
Claims involving a young passenger with an allergy to treenuts and nuts were recently addressed by the Court in Haque v. American Airlines, Inc., No. 08 CV 5246, 2008 WL 5110852 (S.D.N.Y. Nov. 26, 2008). The plaintiffs in Hague were the young passenger (Ryahn Kahn) and his mother (Dr. Tehmina Haque), as his mother and natural guardian and in her individual capacity. Dr. Haque allegedly called American twice, several months before the flight and then a week before the flight, to alert them to her son’s life-threatening nut allergy. Before boarding the flight, Dr. Haque allegedly advised the boarding gate agent of her son’s life-threatening allergy and was advised by the gate agent that no nuts would be served on the flight. Dr. Haque also claimed that she advised a flight attendant of her son’s allergy and was thereafter informed by a purser that nuts would be served in First Class but not in the main cabin. Dr. Haque then was allegedly advised by another flight attendant that nuts would be served in the main cabin.
Apparently no physical harm came to Ryahn Kahn during the flight. However, he and his mother were upset by the events − such as the allegedly rude and unprofessional conduct by airline employees and misinformation about whether, and to what extent, nuts would be served − and his mother was anxious about her son’s well-being during the flight.
The complaint pleaded causes of action for intentional infliction of emotional distress, emotional distress due to the defendant’s breach of its own policy and a violation of civil rights under 42 U.S.C. § 1983. All of the claims were dismissed by the court on defendant’s motion to dismiss.
The claims for emotional distress were dismissed based on the preemption provision (49 U.S.C. §41713(b)(1)) of the Airline Deregulation Act of 1978,9 which provides that “States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” The Court noted a split in the Circuits on the definition of “service” in the preemption provision, with the majority giving it a broad interpretation. In finding the emotional distress claims preempted, the Court relied in part on the interpretation of the preemption provision by the Second Circuit in Air Transport Ass’n of America, Inc. v. Cuomo, 520 F.3d 218 (2d Cir. 2008). In addition, in case its preemption holding was reversed on appeal, the Court dismissed the emotional distress claims on the merits. The Court held that, even if such conduct occurred, giving conflicting information about the food service on the flight, refusing a request to refrain from serving nuts on the flight, and using an aggressive and loud tone of voice with the plaintiffs did not rise to the level of “extreme and outrageous conduct” necessary to prove a claim for intentional infliction of emotional distress. Further, the Court found that there is no cognizable claim under New York law for “emotional distress due to breach of policy” and, even if there was such a claim and it was not preempted, the actions alleged in the complaint failed to constitute a breach of American’s nut-service policy. The nut-service policy in American’s Conditions of Carriage included, among other things, that American does not serve peanuts but does serve other nut products, that there may be traces of unspecified peanut ingredients in meals and snacks, and that American makes no provisions to be peanut free.
Lastly, the Court dismissed the civil rights claim, a prerequisite for which is that a defendant must have acted under color of state law. The Court held that the plaintiffs cited no local or New York law that American’s employees acted under with respect to the actions complained of and that the plaintiffs did not allege that American’s employees were working in concert with local or state officials.
The decision also is in line with another federal court’s ruling last year in Panitch v. Continental Airlines.10 The Court in Panitch held that the provision of food and drink constitutes a “service” provided by the airline and that the ADA therefore preempted claims of handicap discrimination, intentional and negligent infliction of emotional distress that were based on the airline’s refusal to render a flight nut-free to accommodate a teenage passenger’s severe nut allergy. The Panitch court, like the Haque case, also found that the plaintiff had failed to meet her burden of proof on the merits on the emotional distress claims.
For more information, contact:
Alan Reitzfeld
212.513.3400
alan.reitzfeld@hklaw.com
toll free: 1.888.688.8500
1 See http://www.faa.gov/safety/programs_initiatives/aircraft_aviation/asap/
2 A link to
ASAP-related Orders and Advisory Circulars, policy updates, FAQs and a list of ASAP participants.
3 See Press Release, Federal Aviation Administration, “
FAA Calls on Airlines, Pilots to Keep Voluntary Reporting” (Dec. 18, 2008).
4 See Press Release SB-08-59, National Transportation Safety Board, “
NTSB Expresses Concern As Air Carriers Suspend Proactive Safety Programs” (Dec. 19, 2008).
5 See Press Release SB-09-04, National Transportation Safety Board, “
NTSB Pleased With Delta’s Decision to Reinstate ASAP” (Jan. 28, 2009).
6 See Press Release, Transportation Security Administration, “
TSA and American Airlines Initiate Paperless Boarding Pass” (Nov. 20, 2008).
7 See Press Release, Federal Aviation Administration, “
FAA Breaks Ground for New Air Traffic Control System Command Center,” (Dec. 4, 2008).
8 AC 121-36
9 Pub. L. No. 95-504, 92 Stat. 1705.
10 No. 06-3611, 2008 WL 906240 (D.N.J. Mar. 31, 2008).
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