GP Solo, Vol. 36, No. 2, March / April 2019, by the American Bar Association

This article discusses (1) the rights of air carriers to exclude or refuse to accept passengers on domestic and international flights under § 44902(b) of the Federal Aviation Act (FAA); (2) preemption of claims under § 1305(a)(1) of the FAA, commonly known as the Airline Deregulation Act (ADA); and (3) the rights of air carriers to exclude or refuse to accept passengers on international flights under the Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention).

Authors: Oliver Beiersdorf Catherine E. Kiernan

FAA: Rights of air carriers to exclude or refuse to accept passengers. Section 44902(b) of the FAA, known as “permissive refusal,” provides pilots with broad authority to remove passengers. The pilot in command stands in the role of the air carrier and can decide whether to remove a passenger from a flight for safety reasons.

State tort claims relating to a passenger’s removal from an aircraft for safety reasons are preempted by § 44902(b). While the FAA does not contain an express preemption provision, § 44902 impliedly preempts state tort claims because it is a federal standard directly on point and constitutes pervasive federal regulatory control in that area. This was recently reaffirmed in Register v. United Airlines, Inc., 2017 WL 784288 (S.D. Cal. Mar. 1, 2017), where the court dismissed the plaintiff’s state tort causes of action and held that “[t]he FAA preempts all state law impinging upon the circumstances under which an air carrier may remove a passenger from a flight for safety reasons.” Given the deferential standard in § 44902(b), the majority of courts hold that the removal or refusal to transport a passenger cannot give rise to a claim for damages unless the carrier’s decision was “arbitrary or capricious.”