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ANDERSON v. USAIR

September 30, 1985

RUSSELL WAYNE ANDERSON, Plaintiff,
v.
USAir, INC., Defendant


Stanley S. Harris


The opinion of the court was delivered by: HARRIS

 The Court readily can understand the desire of blind people to be treated equally with sighted persons to the greatest extent feasible. Nevertheless, there are situations in everyone's life in which a degree of autonomy must be given over to others in the interest of the safety and well-being of oneself and of others. This case presents such a situation. In this, the worst year in civil aviation history from the standpoint of the number of fatalities, the interest in air safety demands that every air passenger defer to the expertise of air transportation safety authorities and relinquish a measure of autonomy.

 Facts

 On February 6, 1985, Mr. Anderson and three companions boarded USAir Flight 371 at Washington National Airport. Mr. Anderson was assigned seat 12-C, which is located in the row which serves the overwing emergency exit on DC-9 aircraft. As he attempted to take his seat, a flight attendant advised him that the seat was in an emergency exit row and requested him to move to a seat in a non-emergency exit row. Mr. Anderson contends that he was told that he could not sit in the emergency exit row because he is blind. He also contends that he was told that there was a Federal Aviation Administration (FAA) policy prohibiting blind individuals from sitting in emergency exit rows. When Mr. Anderson refused requests to move by three USAir officials, he was arrested and left the plane. Mr. Anderson's refusal to move and the ensuing discussions delayed the flight's departure by 58 minutes.

 Mr. Anderson was taken to the FAA police station, where USAir officials told him that he could travel to his destination that evening on the next available flight. He also was read a statement of USAir's policy regarding emergency exit row seating, although he was never given a copy of the policy. Eventually, he requested a ticket for the next day on USAir, and he was released without charges.

 On February 7, 1985, Mr. Anderson returned to the airport. He approached the USAir ticket counter and requested seat 12-C on the flight for which he had been issued a ticket the day before. He was accompanied by some 50 people; the media had been alerted of the possibility of a demonstration at the airport. A USAir ticket agent told Mr. Anderson that he could not sit in seat 12-C. When Mr. Anderson insisted, the agent read a statement of USAir's policy. Mr. Anderson declined to sit elsewhere. Consequently, the agent refused to issue Mr. Anderson a boarding pass.

 Mr. Anderson and the group with him attempted thereafter to board the plane without a boarding pass. When a USAir employee offered to get him a pass, Mr. Anderson asked for each of the five seats in the emergency exit row. He was told they were all assigned. Without having been issued a pass, he attempted to board when the boarding began, but he was stopped at the jetway. Eventually, the plane departed without Mr. Anderson. Mr. Anderson and his supporters returned to the ticket counter and staged a demonstration until 11:00 p.m., roughly six hours after they had come to the airport.

 The complaint in this action was filed the next day, February 8, 1985. Coincidentally with the filing of this suit, the National Federation of the Blind released to the press a statement that the suit had been filed and that a nationwide shutdown of USAir was planned to protest discriminatory seating policies.

 Mr. Anderson's claims are based on section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; section 404(a) of the Federal Aviation Act, 49 U.S.C. § 1374(a); 14 C.F.R. § 121.586(b) (1985); and the commerce clause and the due process clause of the Constitution. He also alleges a tort of outrage, breach of his contractual rights, and a violation of the obligation of USAir as a public carrier to provide equal and courteous service to all.

 Claims Under the Rehabilitation Act

 Section 504 of the Rehabilitation Act reads as follows:

 
No otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .

 This section "seeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and benefit from programs receiving federal assistance." Alexander v. Choate, 469 U.S. 287, 105 S. Ct. 712, 722, 83 L. Ed. 2d 661 (1985). In this case, the program receiving federal assistance is air travel. The plaintiff does not assert that he was excluded from participation in or denied the benefits of air travel. Indeed, USAir made numerous offers to transport Mr. Anderson on flights of his choosing in non-emergency exit row seats. Mr. Anderson claims, rather, that he was subjected to discrimination in air travel within the meaning of § 504.

 As enacted, § 504 did not provide for administrative implementation of its mandate against discrimination. The Civil Aeronautics Board began an extensive rulemaking process in 1979 which ultimately resulted in regulations that left a great deal of discretion to the airlines. *fn1" The preamble to the regulations itself expressly suggested that it would be within an air carrier's discretion to request "handicapped passengers, along with children and others who might have trouble opening an emergency exit, not to sit in exit rows," even though able-bodied passengers would be permitted to sit there. 47 Fed. Reg. 25939 (June 16, 1982). Although the CAB did not require such a request, it gave explicit approval for the adoption of such a policy by the airlines.

 In addition to the preamble, the regulations require that a request by the air carrier be safety-related or necessary for the provision of air transportation. 14 C.F.R. § 382.3(c)(3)(ii) (1985). The request in this case is based on USAir's policy, filed with the FAA pursuant to 14 C.F.R. § 121.586, which provides in relevant part:

 
During boarding, and throughout your flight, do not allow the following passengers to be seated in ...

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