POSITION PAPER ON 

AMENDING THE AIR CARRIER ACCESS ACT 

 TO ALLOW FOR PRIVATE RIGHT OF ACTION

July 8, 2004 

National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004 

(202)272-2004 Voice 

(202)272-2074 TTY 

(202)272-2022 Fax

Lex Frieden, Chairperson 

 

Introduction 

The National Council on Disability (NCD) is an independent federal agency that advises the 

President and Congress on issues affecting more than 54 million Americans with physical and 

mental disabilities. NCD’s fundamental purpose is to promote policies, programs, practices, and 

procedures that guarantee equal opportunity for all individuals with disabilities, regardless of the 

nature or severity of the disability, and to empower individuals with disabilities to achieve 

economic self-sufficiency, independent living, inclusion, and integration into all aspects of 

society. 

For a number of years, NCD has been engaged in the effort to improve access to air travel for 

individuals with disabilities, and has monitored the efforts of the Department of Transportation 

to enforce the provisions of the Air Carrier Access Act.1

 The Air Carrier Access Act (ACAA) 

prohibits discrimination by air carriers against people with disabilities. NCD has addressed the 

issue of discrimination by air carriers against people with disabilities in a number of reports, 

including the following: 

• Achieving Independence: The Challenge for the 21st Century. July 26, 1996 (noting the 

persistent problems with air travel faced by people with disabilities such as: untrained or 

poorly trained attendants and other airline personnel, lack of accessible public 

announcement systems for people who are deaf or hard-of-hearing and the lack of 

captioning of TV monitors and airport channels at airports). 

• Enforcing the Civil Rights of Air Travelers with Disabilities: Recommendations for The 

Department of Transportation and Congress. February 26, 1999 (recommending, among 
other things, that Congress amend the Air Carrier Access Act to establish an express 

statutory private right of action). 

• National Disability Policy: A Progress Report, December 2000 - December 2001. July 

26, 2002 (recommending improved collaboration between the Department of Justice and 

the Department of Transportation in the implementation and enforcement of civil rights 

laws bearing on transportation). 

• National Disability Policy: A Progress Report, December 2001 - December 2002. July 

26, 2003 (voicing concern regarding the impact of major airline personnel cutbacks on 

services and accommodations for passengers with disabilities). 

For many years most courts recognized an implied private right of action to enforce the ACAA, 

but in the last few years the courts have moved to prohibit private rights of action to redress 

discrimination under the ACAA. This recent change in the interpretation of the law by the 

courts makes the need for Congressional action to amend the ACAA crucial if progress is to be 

made in improving access to air travel for people with disabilities. Congress must amend the 

ACAA to provide for a private right of action in order for the civil rights of persons with 

disabilities to be enforced effectively. 

NCD’s interest in amending the ACAA to provide for a private right of action stems partly from 

the fact that Title III of the Americans with Disabilities Act does not apply to air carriers, as well 

as the fact that the Department of Transportation (DOT), notwithstanding its more thorough 

investigation of complaints pursuant to the ACAA’s 2000 amendments, does not have the 

authority to ensure that victims of discrimination under the ACAA are reimbursed for economic 

losses or are directly compensated for other injuries. Civil penalties levied against an airline do 

nothing for the individual who has suffered a loss, economic or otherwise, as a result of 

discrimination. 

History of the Air Carrier Access Act 

The Federal Aviation Act of 1958 created a limited legal obligation of nondiscrimination. 

Section 404(a) required air carriers to provide “safe and adequate” service.2

 Section 404(b), as 

originally written, prohibited “undue or unreasonable preference or advantage to any particular 

person, port, locality, or description of traffic.”3

 Gradually, the legal meaning of these two 

provisions was understood to prohibit any kind of unjustified discrimination toward air travelers. 

The Civil Aeronautics Board, which was the regulatory agency then responsible for the 

enforcement of these provisions, generally only invoked these provisions in connection with rate 

or fare issues. As a consequence, these provisions had little actual impact on improving access 

to air transportation for persons with disabilities. Airline and airport policies, as a rule, remained 

unresponsive to the needs of persons with disabilities, justifying their unresponsiveness on the 

basis of safety, economics, and the convenience of other passengers.4

In 1973, discrimination on the basis of disability was specifically prohibited by law with the 

passage of the Rehabilitation Act.5 Section 504, as amended, prohibits discrimination on the 

basis of disability in any federally assisted program;6 however, the anti-discrimination 
proscription of the Rehabilitation Act applies only to carriers that receive direct federal 

subsidies.7

The Paralyzed Veterans of America (PVA) challenged the limited application of Section 504, 

arguing that all carriers benefit from federal assistance in the form of air traffic control services 

and federal grants for improving airport facilities.8 The PVA argued that since the airlines 

indirectly received federal assistance, the regulations promulgated pursuant to Section 504 

should apply to all air carriers.9 The Supreme Court disagreed however, and held that 

unsubsidized carriers were not recipients of federal assistance and thus were outside the scope of 

Section 504.10 This decision of the court exempted most carriers from the duty to make specific 

accommodations in providing services to passengers with disabilities, and left the passenger with 

a disability little or no protection against discrimination by the airline industry. 

In response to this decision, Congress enacted and President Reagan signed into law, the Air 

Carrier Access Act of 1986.11 Initially codified as Section 404(c) of the Federal Aviation Act 

(49 U.S.C. 1374(c)), the amendment prohibited discrimination on the basis of disability by all 

carriers, and authorized DOT to issue regulations “to ensure nondiscriminatory treatment of 

qualified handicapped individuals consistent with safe carriage of all passengers on air 

carriers.”12 Subsequently, DOT has issued a series of regulations implementing the ACAA that 

are codified at Title 14 CFR Part 382. In 2000, Congress amended the ACAA to require foreign 

air carriers to comply with U.S. accessibility standards and strengthen enforcement by DOT. 

THE NEED TO AMEND THE AIR CARRIER ACCESS ACT TO PROVIDE FOR A 

PRIVATE RIGHT OF ACTION 

Changed Judicial Interpretation 

For many years, the courts held that the Air Carrier Access Act provided an implied private right 

of action to enforce the statute. In Tallarico v. Trans World Airlines, Inc.,

13 the United States 

Court of Appeals for the Eighth Circuit held that the ACAA impliedly provides for a private 

right of action to enforce the statute. In Tallarico, the court analyzed the ACAA using the four 

factors that were enumerated in the Supreme Court opinion, Cort v. Ash.

14 In the Cort case, the 

Supreme Court established the four factors, hereinafter Cort factors, which a court should use in 

determining whether a statute provided an implied private right of action. These four factors are: 

(1) whether the plaintiff is one of the class of persons whom the statute was intended to benefit; 

(2) whether the legislature intended to create a private remedy; (3) whether a private remedy is 

consistent with the underlying statutory scheme; and (4) whether the contemplated remedy 

traditionally has been relegated to state law. 

The United States Court of Appeals for the Fifth Circuit likewise concluded that the ACAA 

allowed for a private right of action. In the case of Shinault v. American Airlines, Inc.,15 the 

Court analyzed the ACAA by applying the four Cort factors and agreed with the Eighth Circuit 

that the ACAA satisfied all four of the Cort factors as applied in that case, and concluded that 

“Congress intended to allow private plaintiffs to recover all necessary and appropriate 

remedies.”16 Most courts around the country that had the opportunity to decide the issue either 
agreed with the Eighth and Fifth Circuits that the ACAA provided for an implied private right of 

action, or assumed as much since the issue was not raised by the parties.17

In April of 2001 the United States Supreme Court decided the case of Alexander v. Sandoval.18

While the Sandoval case did not deal directly with the ACAA, the Court announced that private 

rights of action to enforce federal law, like federal substantive law itself, must be created by 

Congress, and that statutory intent is determinative in deciding whether a statute creates not just 

a right but also a private remedy.19 This opinion was the catalyst for the United States Court of 

Appeals for the Eleventh Circuit to decide that, contrary to the opinion of other courts around the 

country, the ACAA does not provide for a private right of action to enforce the statute.20

The Effect of the Sandoval Opinion on the Air Carrier Access Act

In Love v. Delta Air Lines,

21 the Eleventh Circuit held that the ACAA does not grant litigants a 

private right of action. Justice Marcus, writing for the court in Love, concluded that the ACAA 

contains no congressional intent to create a private right of action because it contains no “rightscreating language,” which focuses on the class to be protected rather than the persons to be 

regulated.22 The court stated that its analysis of the issue in the context of the ACAA is 

“informed and controlled” by the Supreme Court’s decision in Alexander v. Sandoval, which it 

said “distills and clarifies” the approach that the court is obliged to follow in such 

determinations.23 In the Love case, the court also concluded that since the ACAA does contain 

some express provision for enforcement, Congress must have intended to preclude other forms 

of enforcement. In the Love case, the court ultimately found that, “our review of the text and 

structure of the ACAA yields no congressional intent to create a private right of action in a 

federal district court.24

The court in the Love case stated that the Supreme Court, at one time, implied a private right of 

action from a statute if it concluded that doing so would advance what it perceived to be 

Congress’ purpose in enacting the statute.25 The Love court went on to state that while the 

Supreme Court’s decision in Cort v. Ash 26 gave more concrete guidance to such an inquiry by 

articulating four factors that must be considered before a private right of action may be implied, 

the Supreme Court, since the late 1970s, had receded from reliance on three of the four Cort 

factors, instead focusing solely on legislative intent to create a private right of action as the 

“touchstone” of its analysis, with this trend culminating in the Supreme Court’s decision in 

Alexander v. Sandoval.27 The court in the Love case pointed out that the Supreme Court had 

stated in Sandoval that without statutory intent to create a private cause of action, the courts 

cannot create one, no matter how desirable as a policy matter or how compatible with the statute, 

because while creating causes of action may be a proper function for common-law courts, it is 

not a proper function for federal tribunals.28 

Deterrence and the Redress of Injuries

Even though the Department of Transportation is mandated by the ACAA to investigate 

complaints of discrimination reported to it by citizens, there is no provision that would allow 

DOT to order the offending party to make restitution to a person with a disability who has 
suffered a physical or economic injury caused by discrimination on the basis of disability. The 

current practice of a number of airlines is to offer a complaining party a free ticket for air travel, 

presumably to encourage the complainant not to pursue the matter any further. Many 

complainants accept the tickets out of the belief, rightly or wrongly held, that it is their only 

chance at some sort of compensation for their injury. 

Additionally, at least one court has determined that, while Congress required DOT to 

“investigate” every ACAA complaint that does not mean that DOT must “adjudicate” every 

ACAA complaint.29 Thus, people with disabilities currently have no guarantee that a claim of 

discrimination against an air carrier will be resolved on the merits. By allowing for a private 

right of action to enforce the statute, Congress will be ensuring that meaningful redress is 

available to victims of discrimination. 

One may ask, what types of injuries do victims of discrimination suffer? To list just a few 

examples, many times people will have scheduled an event such as a cruise, where they stand to 

lose thousands of dollars if they are not on board when the cruise departs. As in the case of 

Shinault v. American Airlines,30 the complainant had just met with President George H.W. Bush 

at the White House and was attempting to return to Jackson, Mississippi where a press 

conference was scheduled, but missed his connecting flight because the airline had allegedly 

refused to let him deplane until all the other passengers had deplaned, and refused to board him 

on his flight to Jackson even though the plane had not yet left the gate. 

In Tallarico v. Transworld airlines,31 a fourteen-year-old girl with cerebral palsy was prohibited 

by Transworld Airlines from traveling alone on the basis of her disability. As a result, her father 

had to fly to Houston, where she had attempted to board a flight to St. Louis for the 

Thanksgiving holidays, and fly with her, at a cost to him of $1,350. 

Paralyzed Veterans of America members report encountering broken or unavailable wheelchairs, 

poor boarding assistance, and lack of seating accommodations, making many think twice about 

future air travel.32

The number and types of discrimination by air carriers against passengers with disabilities are 

also evident in DOT enforcement records. In September 2001, the Department of Transportation 

charged Northwest Airlines with several hundred violations of the Air Carrier Access Act, 

including instances of lengthy delays in obtaining wheelchairs, passengers being stranded aboard 

aircraft for extended periods, and passengers being left at the wrong gate, resulting sometimes in 

the passenger missing his or her flight.33 People with disabilities should not have to experience 

hundreds of acts of discrimination before some action is taken against an air carrier. 

A complaint to DOT may accomplish the goal of eventually having the airline fined, but it will 

not reimburse the complainant for his or her loss of income or opportunity, and many individuals 

may suffer discrimination before action is taken. In order for victims of discrimination to have a 

remedy for their losses, and for enforcement to have a deterrent effect, a private right of action is 

necessary. Civil penalties do nothing to address plaintiffs’ injuries, and excessive delay in 

enforcement actions invites repeated acts of discrimination. 
In order for the private right of action to be of benefit to ACAA claimants, it must be 

accompanied by the same statutory right to attorneys' fees and damages as plaintiffs under Title 

VII and the Americans with Disabilities Act. Such statutory rights have a common goal: to 

minimize the cost of litigation to plaintiffs and maximize the incentive of potential defendants to 

stop discriminatory policies and practices. 

The legal and financial resources of people with disabilities are no match for the legal and 

financial resources of air carriers. Individuals with disabilities will not be able to pursue ACAA 

discrimination claims without the ability to recover attorneys’ fees. 

THE CURRENT STATUS OF THE AIR CARRIER ACCESS ACT 

The Actions of the Judiciary 

More recent ACAA decisions have held that there is no private right of action under the ACAA. 

 As explained above, currently there is no private right of action to enforce the ACAA in the 

Eleventh Circuit due to the decision handed down by the court in Love.

34 In 2004, the United 

States Court of Appeals for the Tenth Circuit, in the case of Boswell v. Skywest Airlines,35 sided 

with the Eleventh Circuit and also held that there is no private right of action under the ACAA. 

In doing so the court held that the ACAA contained “no rights-creating language,” and that 

under the “newer standard” it cannot add a right where none exists. 

In another court opinion decided in March of 2003, 36 the United States District Court for the 

District of Minnesota noted that in April 2000 Congress added a subsection to the ACAA that 

established specific administrative procedures for investigating complaints of discrimination 

against persons with disabilities. The alarming aspect of the court’s dicta was that the court 

opined that this amendment rendered an implied right of action under the ACAA “inconsistent 

with the structure of the statute.”37 While this is the opinion of a trial court, it is remarkable that 

this trial court is part of the Eighth Circuit Court of Appeals that previously held, in the Tallarico

case, that there was an implied private right of action under the ACAA. 

The question of what type of relief is available under the ACAA is also unclear.38 Few, if any, 

courts have explicitly held that punitive damages are available under the ACAA. Only by 

allowing for punitive damages, as well as a private right of action under the ACAA, can the Act 

be sufficiently enforced. Proving the amount of compensatory damages in such cases can be very 

difficult,39 and if this is the only risk to which an airline may be exposed for violating the Act, 

the airlines may determine that it is worth the risk to continue their discriminatory practices. 

The Actions of Congress

While Congress did not expressly provide for a private right of action under the ACAA when it 

was passed in 1986, nor in 2000 when the law was amended, it can be argued that Congress 

intended for there to be an implied private right of action to enforce the ACAA. At the time of 

its original enactment in 1986, the standard for determining whether a statute provided for an 

implied private right of action was enumerated in Transamerica Mortgage Advisors, Inc. v. 

Lewis.

40 Given the holdings of Transamerica, Congress had every reason to assume that an 
implied private right of action would be available.41 When Congress amended the ACAA in 

2000, nearly every court that had the opportunity to address the issue had either held that there 

was an implied private right of action under the ACAA, or presumed as much since the issue was 

not raised by the parties. Given the case law at the time, if Congress had intended to limit 

enforcement of the ACAA to the regulatory agencies only, it would likely have done so 

expressly. To add a limitation to the ACAA, which Congress did not add, constitutes the very 

same form of unauthorized judicial “federal substantive lawmaking” that the court disapproved 

of in the Sandoval case. Rather than concluding that because Congress did not explicitly provide 

a private right of action and therefore it must have intended for there not to be such a right, the 

more logical interpretation of the ACAA, given the history of the Act, is to conclude that 

Congress intended for there to be a private right of action as the courts had so held for more than 

a decade before Congress amended the Act in 2000. 

The Supreme Court in its Sandoval opinion concluded that, since Congress expressed a form of 

remedy, it must have meant to exclude others. This is an example of the maxim that to express 

one thing is to exclude the other by implication. However, as Justice Souter stated in the case of 

Chevron v. Echazabal,42 “[t]he rule is fine when it applies, but this case joins some others in 

showing when it does not.” As Lord Justice Lopes said of the maxim in Colquhoun v. Brooks:43: 

“It is often a valuable servant, but a dangerous master to follow in the 

construction of statutes or documents. The exclusio is often the result of 

inadvertence or accident, and the maxim ought not to be applied, when its 

application, having regard to the subject-matter to which it is applied, leads to 

inconsistency or injustice.” (Emphasis added.) 

CONCLUSION 

Despite improved enforcement of the Air Carrier Access Act by the Department of 

Transportation since the 2000 ACAA amendments, people with disabilities continue to 

experience widespread discrimination by air carriers. While earlier court decisions recognized 

an implied private right of action under the ACAA, since the Supreme Court’s decision in 

Sandoval, which changed the test for determining whether a private right of action exists, two 

circuit courts have ruled that the ACAA does not allow private suits. Under Sandoval, Congress 

must expressly provide for a private right of action in the statute. Thus, only by expressly 

allowing for a private right of action under the ACAA will victims of discrimination based on 

disability be able to seek redress for their injuries, and disability-based discrimination by air 

carriers be deterred. Currently, there is legislation pending before Congress to amend the ACAA 

to explicitly provide for a private right of action under the ACAA.44 NCD again calls on 

Congress to amend the ACAA to establish a private right of action for the recovery of 

compensatory and punitive damages for violations of the ACAA and for the recovery of 

attorneys’ fees. 

 

The National Council on Disability wishes to acknowledge Dwayne Burns for his work in the 

preparation of this document. 
 

1. 49 U.S.C. § 41705.

2. Federal Aviation Act, 49 U.S.C. § 1374(a).

3. See supra note 2, § 1374(b). 

4. See Nondiscrimination on the Basis of Disability in Air Travel, 14 CFR Pt. 382 including 

November 1996 amendments, at 13-14, U.S. Department of Transportation (1996).

5. Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended at 29 

U.S.C. § 701 et seq.).

6. 29 U.S.C. § 794.

7. Id. See also Boswell v. Skywest Airlines, Inc., 217 F. Supp. 2d 1212, for a discussion of this 

requirement.

8. See PVA v. CAB, 752 F.2d 694 (D.C. Cir. 1985). 

9. Id., at p.701.

10. See DOT v. PVA, 477 U.S. 597 (1986).

11. 49 U.S.C. § 41705.

12. Air Carrier Access Act, Pub. L. No. 99-435, 100 Stat. 1080 (then codified at 49 U.S.C. § 

1374 (c)(1986)). 

13. 881 F.2d 566 (8th Cir. 1989).

14. 422 U.S. 66 (1975).

15. 936 F.2d 796 (1991).

16. Id., at 804. 

17. See Tunison v. Continental Airlines Corp., Inc., 162 F.3d 1187,1189.

18. 532 U.S. 275 (2001).

19. Id., at 286.

20. See Love v. Delta Air Lines, 310 F.3d 1347 (11th Cir. 2002).

21. Id.

22. See supra note 20, at 1352-53.
 

23. See supra note 20, at 1351.

24. See supra note 20, at 1360. 

25. See supra note 20, at 1351.

26. See supra note 14.

27. See supra note 20, at 1351-52.

28. See supra note 20, at 1352.

29. 51 Fed.Appx. 320, 2002 WL 31545973 (D.C.Cir.) 

30. See supra note 15.

31. Tallarico v. Trans World Airlines, Inc., 881 F.2d 566 (8th Cir. 1989). 

32. http://www.pva.org/aboutPVA/lifestorie/fight_rights.htm

33. www.dot.gov/affairs/dot9001.htm

34. See supra note 20.

35. 2004 WL 502193 (10th Cir. 2004).

36. See Alasady v. Northwest Airlines Corp., 2003 WL 1565944 (D. Minn.)

37. Id., at 10, fn 13 

38. See supra note 32, at 311.

39. See eg., Tunison, supra at note 17. 

40. 444 U.S. 11 (1979).

41. See Nancy Eisenhauer, Implied Causes of Action Under Federal Statutes: The Air Carrier 

Access Act of 1986, 59 U. Chi. L. Rev. 1183 (1992).

42. 536 U.S. 73 (2002). 

43. L.R. 21 Q.B.D. 52 (1888).

44. Section 301 of Senate Bill 2088 cited as the “Fairness and Individual Rights Necessary to 

Ensure a Stronger Society: Civil Rights Act of 2004” would amend the ACAA to provide for a 

private right of action.