Updated April 30, 2018 – In a surprising turnaround of its usual tilt toward the interests of the aviation industry, the United States House of Representatives passed, on April 27, 2018, its version of the six year budget reauthorization for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2018 (“Reauthorization Act”), a number of provisions that appear to address the long smoldering, and vociferously expressed, concerns of the flying public with, among other things, the unannounced “bumping” of passengers with reservations and paid tickets to make way for airline employees; airline employees’ difficulty in dealing with passengers in such stressful situations; the size and orientation of aircraft seats that have been radically shrinking in order to make room for more passengers; and even the absence of ground transportation accessing the airport itself.  

Continue Reading FAA Reauthorization Act of 2018 Gives the Nod to Passenger’s Rights, Both in the Air and On the Ground

Airports and airlines across the nation last week welcomed the introduction of two bills aimed at alleviating mounting congestion in airport security lines by increasing TSA efficiency and reallocating billions of dollars in security fees paid by passengers.
The FASTER Act (H.R. 5340) is aimed at ensuring passenger security fees are used for aviation security, according to a statement released last week by Rep. Peter DeFazio, Ranking Member of the Transportation and Infrastructure Committee.  Since 2013, the federal government has diverted billions in funds collected from the 9/11 Passenger Security Fee away from aviation and into general government spending.  “At airports across the country, people are forced to wait in long security lines like cattle, causing many to miss their flight,” said DeFazio.  “To add insult to injury, funding to help fix the wait times exists – it’s just being diverted. I doubt most passengers know that a portion of the security fee they pay with every flight is being used for other purposes.  With peak travel season starting this weekend, Congress needs to direct all of the designated funds towards the intended purpose in order to improve the efficiency of airport screening and keep passengers safe.”
A second piece of legislation, introduced last week by Homeland Security Subcommittee on Transportation Security Chairman John Katki (R-NY), named the bipartisan Optimization and Efficiency Act of 2016, is aimed at reducing long airport security lines by efficiently reallocating TSA staffing and resources.  “Travelers are frustrated with TSA’s bureaucracy – facing longer lines, and in some cases, missing flights and having to return home or stay overnight in the airport,” said Representative Katko in a statement.  “This is a crisis that must be addressed before we head into the busy summer months of travel.  Today, I’ve introduced legislation which takes the first step in requiring greater coordination between the TSA and local airports so that we can relieve congestion and ensure that travelers are able to make it to their destinations on schedule.”
The new bills were introduced amidst a flurry of requests last week by Homeland Security seeking Congressional reallocation of over $60 million to TSA for the expedited hiring of screeners and overtime pay for current security staff.
Though these new measures were received with applause by the vast majority of the aviation industry, it remains to be seen whether the effects of additional funding and increased efficiency will be realized in time for the fast-approaching summer travel season.

On March 20, 2012, in a far reaching opinion, the California Appellate Court for the Second District incurred into the territory usually occupied by the Federal Courts of Appeals, by holding that Federal Aviation Administration (“FAA”) safety standards, published in FAA Advisory Circular 150/5300-13 (“Advisory Circular”) do not preempt state tort law on the standard of care applicable to utilization of an airport’s “Runway Protection Zone” (“RPZ”). 

The case, Sierra Pacific Holdings, Inc. v. County of Ventura, 2012 WL 920322 (Cal.App.2 Dist.)), concerns damage to an aircraft owned by Sierra Pacific Holdings, Inc. (“Sierra”), allegedly caused by a barrier erected within the RPZ at Camarillo Municipal Airport.  The airport, owned and operated by Ventura County (“County”), erected the barrier for the apparent purpose of preventing runway incursions by police vehicles leasing space in part of the RPZ at the airport.  The trial court upheld the County’s motion in limine to exclude evidence of state safety standards relating to “airport design and construction,” on the ground that Federal standards in the Advisory Circular preempt state tort law on the standard of care.  The trial court’s holding was based on the Federal government’s “implied preemption” of safety standards at airports, and, thus, the foreclosure of Sierra’s negligence action based on a dangerous condition of public property under state tort law.  Cal. Gov. Code § 835.  The Appellate Court reversed on the ground that “Congress has not enacted an express preemption provision for FAA safety standards” and, thus, if preemption exists, it must be implied.  The Appellate Court’s decision is flawed for at least two reasons. 

Continue Reading A California Appellate Court Puts a Fence Around Federal Preemption of Airport Safety Standards

The United States Department of Transportation has finally taken a step the United States Congress refused to take: it has enacted an Airline Consumer Protection Rule that, among other things: (1) limits to three hours the amount of time passengers at large and medium hub airports must spend on a delayed aircraft without deplaning (with exceptions for safety and security); (2) requires food, potable water and usable bathrooms after no more than two hours; (3) requires provision of medical attention where required; and (4) requires airlines, by July 23, to display on their website delay information for every domestic flight the airlines operate.  www.dot.gov/affairs/2010/dot8210.htm

It has been Chevalier, Allen & Lichman, LLP’s position from the outset that the Fourth Amendment to the United States Constitution, prohibiting unreasonable search and seizure, has always required that passengers be released from delayed aircraft whether on the tarmac or not (see previous Chevalier, Allen & Lichman blog on the subject). However, the courage and proactivity of the Department of Transportation, especially in the absence of the same courage from Congress, deserves approbation from the public and from Chevalier, Allen & Lichman, LLP. The full text of the Final Rule can be found at edocket.access.gpo.gov/2009/pdf/E9-30615.pdf.

UPDATE:  See also Dr. Lichman’s recent post "Passengers Detained Have Constiutional and Other Legal Rights," which was posted August 13, 2009.

Most of us have been caught in airplanes delayed on the tarmac for what seems like an eternity.  Some of us have really been trapped for as long as 10 hours, often without food, water or sanitary facilities.  Some states, like New York, have attempted to pass legislation that would guarantee stalled passengers at least these basic needs.  Their efforts have not met with success in the courts.  As recently as the end of March, 2008, the Federal 2nd Circuit Court of Appeals struck down the New York law as preempted by Federal law governing airline regulation.  

In Chevalier, Allen & Lichman’s view, however, legislation on this subject, though well intended, is superfluous, because passengers are already protected by the Fourth Amendment to the United States Constitution.  Airlines operate on airport property.  Airports receive funding for their development from the Federal government.  In fact, substantially all airfield facilities such as runways, taxiways and navigation aides, as well as a portion of terminal development, are paid for by funds appropriated by Congress and administered by the Federal Aviation Administration.  Moreover, the vast majority, if not all, commercial airports are run by public entities.  Finally, Air Traffic Control is operated directly and exclusively by the FAA.  

Therefore, even though airlines are private companies, they operate on, and, are in fact, dependent upon Federal facilities.  Citizens using those facilities are, in turn, protected by the Federal and State Constitutions, including the constitutional prohibition on “unreasonable search and seizure” set forth in the Fourth Amendment.

It is beyond dispute that imprisoning passengers against their will on a snow bound plane, on an icy airport apron, without food, for an indeterminate period, and without any probable cause to believe they have violated the law, is both “unreasonable” and a “seizure” of their persons.  As a passenger, you may be within your rights to deplane if it is safe to do so.  In the final analysis, you will have a cognizable claim against the airport operator and the airline, both consumers of Federal dollars, under the United States and State Constitutions, and potentially against the airline under state law for false imprisonment, even without additional State or Federal legislation.