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July 30, 1981

Michael ANGEL et al., Plaintiffs,

The opinion of the court was delivered by: GREEN


This matter is before the Court on the motion of the defendant, Pan American World Airways, Inc. ("Pan American"), for summary judgment, the plaintiffs' opposition, and the numerous subsequent filings both pre- and post-oral argument on the motion. Plaintiffs, Michael Angel and his mother, Carolyn Angel, brought this action for injunctive and declaratory relief, seeking also $ 15,000 compensatory and $ 10,000 punitive damages for defendant's refusal to transport Michael Angel from Germany to the United States aboard its carrier in the summer of 1977, solely because he has cerebral palsy and was not accompanied by an attendant. *fn1" A jury trial has been demanded as to those issues raised by their complaint for compensatory and punitive damages.

 Jurisdiction is asserted on several bases: 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 (diversity), 28 U.S.C. § 1337 (commerce), 28 U.S.C. §§ 2201-02 (declaratory judgment) and the doctrine of pendant jurisdiction. Venue is alleged under 28 U.S.C. § 1391(a), (b) and (c).

 Solely for purposes of this summary judgment motion, plaintiffs' factual allegations are accepted as true and are as follows:

 Both plaintiffs are residents of the State of Maryland. The defendant is a New York corporation, having there its principal place of business; it also transacts business in the District of Columbia. Pan American is an air carrier engaged in interstate and foreign air transportation pursuant to a certificate of public convenience and necessity issued by the Civil Aeronautics Board, is regulated by the laws of the United States relating to such interstate and foreign commerce, including the Federal Aviation Act (49 U.S.C. § 1301 et seq.) and applicable regulations, and, in connection with such business, has published and filed tariffs with the Civil Aeronautics Board covering carriage of passengers in international transportation, inter alia, between Frankfurt, West Germany and the United States, as required by 49 U.S.C. § 1373(a).

 Pan American originally moved for partial summary judgment on the theory that it could not establish as a matter of law that plaintiffs were not entitled to the refund value of the passenger ticket at issue. When plaintiffs' pleadings acknowledged that the ticket was without refund value because it was used on the Lufthansa flight taken by plaintiff Michael Angel subsequent to the incident complained of herein, defendant sought summary judgment as to all claims. Plaintiffs oppose the motions for partial and complete summary judgment. The matter has been fully explicated by written and oral argument.

 Plaintiff, then a student at the University of Maryland, has cerebral palsy, is confined to an electric wheelchair, is unable to walk, to feed himself, or to perform some personal functions without assistance. He can, however, crawl rapidly and take care of many other personal needs, including getting undressed, taking a bath, brushing his teeth, washing his hair, laying out his clothes, setting the alarm clock and getting into bed. He has no difficulty in descending a flight of stairs. His ordinary means of movement is crawling, at which he is quite adept and by which he maneuvers himself. Plaintiff is able to get into and out of an automobile unassisted, has taken trips on the District of Columbia subway system and has flown across the Atlantic Ocean without an attendant and without difficulty. He has repeatedly flown by himself between Washington, D.C. and Florida. He can, and has, seated himself inside an airplane. He can go without food for the duration of a flight and is able, when necessary, (and has so done on four occasions) to get out of his seat, crawl to the lavatory, use the facilities and return to his seat without assistance. In June of 1977, he made arrangements to travel on a charter flight to Europe, a trip he had made twice before without any inconvenience or discomfort. Prior to his departure, Carolyn Angel called Pan American's local reservation agent to ascertain whether her son would be permitted to return on Pan American in the event he curtailed his trip for any reason. The agent assured her, after being fully advised of his physical condition, that he would be able to return via Pan American. Mr. Angel did, in fact, subsequently decide to return earlier and, accompanied to the Frankfurt airport by a friend, attempted to purchase a return ticket from Pan American in late June, 1977. There, a Pan American ticket agent advised him that he could not fly via Pan American unless accompanied by an attendant. Learning of these events, Ms. Angel again telephoned a local Pan American ticket agent to resolve the problem. She was advised to cable her son a prepaid ticket and have him appear at the airport on the date of the flight to assure transport. Plaintiffs followed these instructions but a Pan American agent in Frankfurt on July 11, 1977 again refused Michael Angel permission to board, unless accompanied by an attendant, even though he appeared with both a prepaid ticket and a letter stating that Mr. Angel was physically capable of flying without an attendant. He was told at that time by both the ticket agent and supervisor that he was being denied transportation since he could not walk and was travelling without an attendant.

 After more delay, Pan American arranged with Lufthansa Airlines to transport plaintiff to Boston, attended by an extra flight attendant. He was then transferred to a domestic carrier for the flight to Washington, D.C. Contrary to the assurances given Michael Angel, the Pan American agent in Germany failed to notify Ms. Angel to advise her of the flight change. Ms. Angel learned of this change from another source and was able to make arrangements to meet the appropriate flight.

 As a result of the above events, plaintiffs assert a cause of action for breach of contract; violations of tariffs, Civil Aeronautics Board (CAB) and Federal Aviation Administration (FAA) regulations; misrepresentation; gross negligence; and breach of a common carrier's duty to the public, all of which have allegedly caused plaintiffs mental distress, physical hardship, and financial loss. *fn2" Pan American's motion to stay discovery was granted until resolution of the instant motion.

 Pan American argues that it acted in conformity with all applicable regulations, tariffs, and procedures pertaining to international transportation by air carriers of handicapped or incapacitated persons and essentially that this Court does not have jurisdiction to entertain this action under the doctrines of primary jurisdiction of the CAB and the FAA and failure to exhaust administrative remedies.

 The doctrine of primary jurisdiction, the defendant argues, is particularly applicable to the area of aviation which is subject to extensive federal regulation by the CAB and FAA under the Federal Aviation Act of 1958 (the "Aviation Act"), 49 U.S.C. § 1301 et seq. This statute, inter alia, seeks to promote uniformity of the air transportation industry and facilitate resolution of technical questions as to airline safety, aircraft design, technology, and federal transportation policy. Pan American invokes the primary jurisdiction doctrine, asking that the Court stay its pen to permit the expert administrative agencies to consider the important questions presented herein prior to a judicial decree.

 Originating in Texas and P. R. Co. v. Abeline Cotton Oil Co., 204 U.S. 426, 27 S. Ct. 350, 51 L. Ed. 553 (1907), "primary jurisdiction" provides that courts will not determine a controversy involving a question which is within the jurisdiction of an administrative agency prior to that tribunal's decision where the issue involves the exercise of administrative expertise and where uniformity of ruling is especially important to comply with the purposes of the regulatory scheme. See Kappelmann v. Delta Air Lines, Inc., 176 U.S. App. D.C. 163, 539 F.2d 165, 169 (D.C.Cir. 1976), cert. denied, 429 U.S. 1061, 97 S. Ct. 784, 50 L. Ed. 2d 776 (1977). The Supreme Court has noted that "(n)o fixed formula exists for applying primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation." United States v. Western Pacific Ry., 352 U.S. 59, 64, 77 S. Ct. 161, 165, 1 L. Ed. 2d 126 (1956). See also Board of Education v. Harris, 622 F.2d 599 (2d Cir. 1979), cert. denied, 449 U.S. 1124, 101 S. Ct. 940, 67 L. Ed. 2d 110 (1981).

 This case does not present a matter that the Court should withhold decision upon pending some action by the CAB or the FAA. Initially, at dispute is the meaning of the tariff existing in June, 1977. In short, plaintiffs argue that the tariff, properly interpreted, would not have prohibited Michael Angel from boarding the Pan American flight leaving Germany. Mr. Justice Brandeis, writing for the Supreme Court in Great Northern Ry. v. Merchants Elevator Co., 259 U.S. 285, 42 S. Ct. 477, 66 L. Ed. 943 (1922), expressly held that "the attainment of uniformity does not require that in every case where the construction of a tariff is in dispute, there shall be a preliminary resort to the" administrative agency. Id. at 291, 42 S. Ct. at 479. "It is not true," the Justice noted, "that uniformity in construction of a tariff can be attained only through a preliminary report to the (Interstate Commerce) Commission to settle the construction in dispute." Id. at 290, 42 S. Ct. at 479. This reasoning applies with equal force in this litigation, for the plaintiffs' chief contention is that the Pan American agent in Germany erred in his interpretation of the tariff then existing when he refused to let Michael Angel board. The parties have briefed and argued the meaning of the tariff before the Court and that question of law is now at issue, without need for factual determinations within the CAB's or the FAA's special expertise.

 Additionally, the parties' submissions reflect that uniformity is not critical in constructing guidelines for carriage of the handicapped. Although the tariff relating to transportation of the physically handicapped in effect in 1979 is not at issue here, it demonstrates that airlines have adopted different procedures concerning handicapped passengers, including varying maximum numbers of such persons who might be carried on different types of aircraft. See Defendant's Exhibit M. Although uniformity is important, especially in a technically complex area as aviation, the airlines' own conduct belies the notion that a single rule must be promulgated. Accordingly, one of the bases for invoking primary jurisdiction is simply not present in this case.

 The defendant next asserts that Michael Angel has not exhausted his administrative remedies, and therefore that this Court should not act pending the decision by the CAB on his complaint. The exhaustion requirement is well-settled as an instrument to avoid premature adjudication of disputes. See American Dairy of Evansville, Inc. v. Bergland, 201 U.S. App. D.C. 266, 627 F.2d 1252 (D.C.Cir. 1980); National Conservative Political Action Committee v. Federal Election Commission, 200 U.S. App. D.C. 89, 626 F.2d 953 (D.C.Cir. 1980).

 Plaintiff's complaint has been pending since 1978 at the CAB; it would be unreasonable to dismiss this action now so that he could pursue his remedies at the administrative level. As obvious as is the exhaustion requirement, so is its exception that one need not resort to the administrative agency where to do so would be a futile act. See Porter County Chapter of Izaak Walton League of America v. Costle, 571 F.2d 359 (7th Cir.) cert. denied 439 U.S. 834, 99 S. Ct. 115, 58 L. Ed. 2d 130 (1978); Davis v. Bolger, 496 F. Supp. 559 (D.D.C.1980).

 Defendant contends that this action is barred by 49 U.S.C. § 1487, which provides that an action alleging a violation of 49 U.S.C. § 1372 may only be brought by the CAB. § 1372, "Permits to foreign air carriers," is not in issue in this litigation. Rather, plaintiffs allege discrimination in violation of § 1374 which prohibits all forms of discrimination by commercial air carriers. There is a private right of action under § 1374, see Nader v. Allegheny Airlines, Inc., 167 U.S. App. D.C. 350, 512 F.2d 527 (D.C.Cir. 1975), rev'd on other grounds 426 U.S. 290, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976), and plaintiffs clearly assert that Pan American discriminated against Michael Angel in its interpretation of its own tariffs and procedures and, alternatively, that those tariffs and procedures themselves are discriminatory.

 It having been determined that principles of primary jurisdiction and exhaustion of remedies do not bar the plaintiffs from proceeding in this Court, the query remains whether there are material factual questions in dispute and, if not, whether the defendant is entitled to summary judgment as a matter of law. The plaintiffs' case states three independent causes of action: a violation of section 504 of the Vocational Rehabilitation Act, predicated on Pan American's alleged discrimination against a handicapped individual; misrepresentation and gross negligence, based on the airline's statements to plaintiffs (directly to Carolyn Angel and through her, to Michael Angel) that it would transport Michael Angel without an attendant and that it would contact Carolyn Angel concerning Michael's arrival from Germany; and a claim seeking a declaration that under Pan American's tariffs, the airline must permit Michael Angel to board without his needing an attendant.

 Section 504 of the Vocational Rehabilitation Act stated in the summer of 1977:

No otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any ...

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