Robert Segalman v. Southwest Airlines Co.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT SEGALMAN, No. 17-15196
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-01800-
MCE-DB
SOUTHWEST AIRLINES COMPANY,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted March 14, 2018
San Francisco, California

Filed July 23, 2018

Before: Richard A. Paez and Sandra S. Ikuta, Circuit
Judges, and Eric N. Vitaliano, * District Judge.

Opinion by Judge Paez

*
The Honorable Eric N. Vitaliano, United States District Judge for
the Eastern District of New York, sitting by designation.
2 SEGALMAN V. SOUTHWEST AIRLINES

SUMMARY **

Air Carrier Access Act

The panel affirmed the district court’s dismissal of a
claim under the Air Carrier Access Act of 1986, which
prohibits air carriers from discriminating against individuals
on the basis of a physical or mental impairment.

Joining other circuits, the panel held that the ACAA’s
anti-discrimination prohibition is not enforceable through an
implied private cause of action.

COUNSEL

David C. Wakefield (argued), Law Offices of David C.
Wakefield, San Diego, California, for Plaintiff-Appellant.

Rebekka R. Martorano (argued) and Timothy J. Ryan, The
Ryan Law Group, Sacramento, California, for Defendant-
Appellee.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 SEGALMAN V. SOUTHWEST AIRLINES 3

OPINION

PAEZ, Circuit Judge:

The Air Carrier Access Act of 1986 (“ACAA”),
49 U.S.C. § 41705, prohibits air carriers from discriminating
against individuals on the basis of a physical or mental
impairment. We must decide whether this prohibition is
enforceable through an implied private cause of action. We
hold that it is not.

I. 1

Robert Segalman has cerebral palsy and uses a motorized
wheelchair. In 2009 and 2010, Segalman’s wheelchair was
repeatedly damaged while in the possession of Southwest
Airlines Co. (“Southwest”). On one occasion, Southwest
returned Segalman’s wheelchair to him without a seatbelt,
which had been attached when Segalman left the wheelchair
in Southwest’s care at the airport departure gate. Before
Segalman could get an appointment to replace the seatbelt,
he fell out of his wheelchair and broke his shin in two places,
resulting in a four-day hospital stay. On another occasion,
Southwest returned the wheelchair to Segalman with a
broken armrest. On a third occasion, Southwest returned the
wheelchair with damage to the joystick that rendered the
wheelchair inoperative.

In July 2011, Segalman brought this action against
Southwest and ten unidentified Southwest employees for

1
Because the district court dismissed Segalman’s ACAA claim
pursuant to Federal Rule of Civil Procedure 12(b)(6), we take the facts
alleged in the complaint as true and construe them in the light most
favorable to Segalman. Gilstrap v. United Air Lines, Inc., 709 F.3d 995,
998 n.1 (9th Cir. 2013).
4 SEGALMAN V. SOUTHWEST AIRLINES

damages and injunctive relief. He alleged negligence under
California state law and a violation of the ACAA, which
prohibits air carriers from “discriminat[ing] against an
otherwise qualified individual” on the ground that the
individual “has a physical or mental impairment that
substantially limits one or more major life activities.”
49 U.S.C. § 41705(a). 2 Segalman subsequently amended his
complaint twice, withdrawing his ACAA claim and adding
claims alleging California statutory violations. The district
court dismissed Segalman’s Second Amended Complaint
under Federal Rule of Civil Procedure 12(b)(6), and we
affirmed in part and reversed in part. Segalman v. Southwest
Airlines Co., 603 F. App’x 595, 597 (9th Cir. 2015).

On remand, Segalman amended his complaint a third
time, reinstating his initial ACAA claim and realleging
California statutory violations and negligence. Southwest
moved to dismiss Segalman’s Third Amended Complaint
except as to his negligence claim, and the district court
granted the motion. With respect to the ACAA claim, the

2
The ACAA was enacted in 1986 as section 404(c) of the Federal
Aviation Act of 1958 (“FAA”), see Pub. L. No. 99-435, § 2(a), 100 Stat.
1080 (1986) (codified at 49 U.S.C. § 1374(c)), and recodified in 1994,
with immaterial changes, at 49 U.S.C. § 41705, see Pub. L. No. 103-272,
§ 1(e), 108 Stat. 745, 1141 (1994). Although Congress amended the
ACAA two more times, in 2000 and 2003, the prohibition against
disability discrimination has not changed since 1994. In 2000, Congress
added subsections (b) and (c) to the ACAA to clarify that a “separate
violation occurs under [the statute] for each individual act of
discrimination prohibited” and to require the Secretary of Transportation
to “investigate each complaint of a violation,” among other changes. See
Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century (the “FAIR Act”), Pub. L. No. 106-181, Title VII, § 707,
114 Stat. 61, 158 (2000). Congress most recently amended the ACAA
in 2003 to make minor technical changes. See Pub. L. No. 108-176, Title
V, § 503(d)(1), 117 Stat. 2490, 2559 (2003).
 SEGALMAN V. SOUTHWEST AIRLINES 5

district court concluded that no implied private cause of
action existed, and that even if it did, Segalman failed to
allege that he exhausted his administrative remedies. In
December 2016, pursuant to the parties’ stipulation, the
district court dismissed Segalman’s remaining negligence
claim with prejudice. The district court subsequently
entered final judgment, and Segalman timely appealed the
dismissal of his ACAA claim.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo the district court’s dismissal under Rule
12(b)(6), Flores v. County of Los Angeles, 758 F.3d 1154,
1158 (9th Cir. 2014), including the question whether a
statute provides an implied private cause of action, Northstar
Fin. Advisors, Inc. v. Schwab Invs., 615 F.3d 1106, 1115 (9th
Cir. 2010).

III.

Applying Alexander v. Sandoval, 532 U.S. 275 (2001),
we hold that the ACAA does not create an implied private
cause of action. 3 First, for context, we briefly review the
shift in the Supreme Court’s case law addressing implied
cause of action claims, and the corresponding change in our
sister circuits’ decisions applying that case law to the
ACAA. Second, we join the Second, Fifth, Tenth, and
Eleventh Circuits in concluding that, in light of the ACAA’s
statutory structure, Congress did not intend to create a

3
“Courts have used the terms ‘private right of action’ and ‘private
cause of action’ interchangeably.” Wisniewski v. Rodale, Inc., 510 F.3d
294, 296 n.3 (3d Cir. 2007) (citing cases). Throughout this opinion, we
use “cause of action” except when quoting a case that uses “right of
action.”
6 SEGALMAN V. SOUTHWEST AIRLINES

private cause of action under the ACAA. Because we are
not at liberty to recognize a private cause of action in the
absence of such intent, we affirm the district court’s
dismissal of Segalman’s ACAA claim.

A.

As the Supreme Court’s approach to claims alleging an
implied cause of action shifted in recent decades, so too did
the decisions of our sister circuits addressing claims of
ACAA violations. When Congress enacted the ACAA in
1986, the prevailing framework for evaluating whether a
statute implied a private cause of action was the four-factor
test set out in Cort v. Ash, 422 U.S. 66 (1975). Under that
framework, courts considered the following questions:

[1] [I]s the plaintiff one of the class for whose
especial benefit the statute was enacted—that
is, does the statute create a federal right in
favor of the plaintiff?

[2] [I]s there any indication of legislative
intent, explicit or implicit, either to create . . .
a [private] remedy or to deny one?

[3] [I]s it consistent with the underlying
purposes of the legislative scheme to imply
. . . a [private] remedy for the plaintiff?

[4] [I]s the cause of action one traditionally
relegated to state law, in an area basically the
concern of the States, so that it would be
inappropriate to infer a cause of action based
solely on federal law?

Id. at 78 (citations and internal quotation marks omitted).
 SEGALMAN V. SOUTHWEST AIRLINES 7

Within five years of the ACAA’s enactment, the Fifth
and Eighth Circuits held that, under Cort, the ACAA creates
an implied private cause of action. See Shinault v. American
Airlines, Inc., 936 F.2d 796, 800 (5th Cir. 1991), overruled
by Stokes v. Southwest Airlines, 887 F.3d 199, 205 (5th Cir.
2018); Tallarico v. Trans World Airlines, Inc., 881 F.2d 566,
570 (8th Cir. 1989). In Tallarico, the Eighth Circuit
concluded that all four Cort factors weighed in favor of
recognizing an implied private cause of action. 881 F.2d at
569–70. With respect to the second factor, legislative intent
to create a private remedy—the absence of which, as we
explain infra, is now determinative—the Eighth Circuit
relied on a senate report. Id. According to that report,
Congress enacted the ACAA in response to the Supreme
Court’s decision in United States Department of
Transportation v. Paralyzed Veterans of America (PVA),
477 U.S. 597 (1986), which held that section 504 of the
Rehabilitation Act of 1973 applies only to those commercial
airlines that receive direct federal subsidies, id. at 609. S.
Rep. No. 99-400, at 1–2 (1986), as reprinted in 1986
U.S.C.C.A.N. 2328, 2329. Based on the senate report and
“the fact that the ACAA [wa]s patterned after the
Rehabilitation Act of 1973, which Act ha[d] been held to
imply a private cause of action,” the Eighth Circuit
concluded that “Congress implicitly intended that
handicapped persons would have an implied private cause of
action to remedy perceived violations of the ACAA.”
Tallarico, 881 F.2d at 570 (brackets and internal quotation
marks omitted). Two years later, the Fifth Circuit agreed:
“The legislative history of the ACAA indicates that
Congress intended to provide a private cause of action under
the ACAA and that cause of action would be consistent with
8 SEGALMAN V. SOUTHWEST AIRLINES

the statutory scheme.” Shinault, 936 F.2d at 800 (citing
Tallarico, 881 F.2d at 569–70). 4

That was before the Supreme Court’s decision in
Sandoval. There, the Court “narrowed the framework for
evaluating whether a statute implies a private cause of
action.” Gilstrap v. United Air Lines, Inc., 709 F.3d 995,
1002 (9th Cir. 2013); see also Ziglar v. Abbasi, 137 S. Ct.
1843, 1855–56 (2017). In particular, Sandoval explained
that courts are tasked with determining only whether
Congress intended to create a private cause of action. See
532 U.S. at 286–91. In addition, the Court clarified that the
absence of the second Cort factor—i.e., an indication of
legislative intent to create a private remedy—is dispositive:

The judicial task is to interpret the statute
Congress has passed to determine whether it
displays an intent to create not just a private
right but also a private remedy. Statutory
intent on this latter point is determinative.
Without it, a cause of action does not exist
and courts may not create one, no matter how
desirable that might be as a policy matter, or
how compatible with the statute.

Id. at 286–87 (citations omitted).

4
Relying on Tallarico and Shinault, we recognized an implied
private cause of action under the ACAA in an unpublished decision. See
Adiutori v. Sky Harbor Int’l Airport, 103 F.3d 137 (Table), 1996 WL
673805, at *3 (9th Cir. Nov. 20, 1996). We also addressed the merits of
a claim brought under the ACAA, without squarely addressing the
implied cause of action issue, in Newman v. American Airlines, Inc.,
176 F.3d 1128, 1132 (9th Cir. 1999).
 SEGALMAN V. SOUTHWEST AIRLINES 9

Thus, in the wake of Sandoval, we evaluate whether an
implied private cause of action exists under a statute by using
ordinary tools of statutory interpretation, and we are not
“constrained by the Cort framework.” Logan v. U.S. Bank
Nat’l Ass’n, 722 F.3d 1163, 1171 (9th Cir. 2013); see also,
e.g., In re Digimarc Corp. Derivative Litig., 549 F.3d 1223,
1233 (9th Cir. 2008) (“Because the text and the structure of
the Sarbanes-Oxley Act do not demonstrate an intent to
create a private right of action under section 304, we need
not delve into the first (federal right in plaintiff’s favor),
third (general statutory purpose), and fourth (nature of the
action) Cort factors.”). Under this approach, “[w]e begin our
search for congressional intent with the language and
structure of the statute, and then look to legislative history
only if the language is unclear, or if there is a clearly
expressed contrary intention in the legislative history that
may overcome the strong presumption that the statutory
language represents congressional intent.” Logan, 722 F.3d
at 1171 (citations omitted). Most relevant here, with respect
to statutory structure, “[w]e . . . look to see whether
Congress designated a method of enforcement other than
through private lawsuits, because ‘[t]he express provision of
one method of enforcing a substantive rule suggests that
Congress intended to preclude others.’” Northstar Fin.
Advisors, 615 F.3d at 1115 (third alteration in original)
(quoting Sandoval, 532 U.S. at 290); see also, e.g., UFCW
Local 1500 Pension Fund v. Mayer, No. 17-15435, — F.3d
—, 2018 WL 3384950, at *4–5 (9th Cir. July 12, 2018)
(holding that section 47(b) of the Investment Company Act
of 1940 does not create an implied private cause of action). 5

5
We reject Segalman’s arguments that Sandoval’s holding (1) is
limited to disparate-impact claims and (2) has been eroded by Texas
Department of Housing and Community Affairs v. Inclusive
10 SEGALMAN V. SOUTHWEST AIRLINES

After Sandoval, four of our sister circuits concluded that
the ACAA does not create an implied private cause of action.
The Second, Fifth, Tenth, and Eleventh Circuits reasoned
that Congress’s express provision of specific administrative
and judicial methods of enforcing the ACAA indicates that
Congress did not also intend to create a private cause of
action. See Stokes v. Southwest Airlines, 887 F.3d 199, 202–
03 (5th Cir. 2018); Lopez v. Jet Blue Airways, 662 F.3d 593,
597 (2d Cir. 2011); Boswell v. Skywest Airlines, Inc.,
361 F.3d 1263, 1270 (10th Cir. 2004); Love v. Delta Air
Lines, 310 F.3d 1347, 1354 (11th Cir. 2002). In addition,
those courts viewed the pre-Sandoval Fifth and Eighth
circuit cases as relying too heavily on the non-dispositive
Cort factors as well as contemporary legal context and
legislative history. The Eleventh Circuit noted that “both
[Tallarico and Shinault] were based on analyses of all four
of the Cort factors; neither focused exclusively on whether
Congress intended to create such a right to sue.” Love,
310 F.3d at 1359. The Tenth Circuit agreed that, after
Sandoval, the “focus on the broad remedial purpose
underlying a statute—to the exclusion of its text and its place
in the legislative scheme at issue—is no longer warranted.”

Communities Project, Inc., 135 S. Ct. 2507 (2015). First, we have
repeatedly applied Sandoval outside the disparate-impact context. See,
e.g., UFCW, 2018 WL 3384950, at *3–5 (applying Sandoval to the
Investment Company Act); Logan, 722 F.3d at 1169 (applying Sandoval
to the Protecting Tenants at Foreclosure Act). Second, Inclusive
Communities Project did not address implied causes of action, let alone
alter the Sandoval framework in favor of a test focused on general
statutory purpose, as Segalman contends. Instead, the Court held that
disparate impact claims are cognizable under the Fair Housing Act,
Inclusive Cmtys., 135 S. Ct. at 2525, which contains an express private
cause of action, see 42 U.S.C. § 3613. The Supreme Court recently
reaffirmed the general applicability of the Sandoval framework in Ziglar
v. Abbasi, 137 S. Ct. 1843, 1855–56 (2017).
 SEGALMAN V. SOUTHWEST AIRLINES 11

Boswell, 361 F.3d at 1269. Similarly, the Second Circuit
declined to follow Tallarico and Shinault, noting that both
“relied significantly on the ACAA’s legislative history to
recognize an implied right.” Lopez, 662 F.3d at 597.
Finally, subsequent to argument in this case, the Fifth Circuit
revisited its decision in Shinault and concluded that
Sandoval “now mandates a different result.” Stokes,
887 F.3d at 200–01; see also id. at 204 (“To say that
Sandoval ‘unequivocally’ abrogated Shinault is, if anything,
an understatement.”). 6 For the reasons that follow, we agree
with the post-Sandoval decisions of our sister circuits and
join them in holding that the ACAA does not create an
implied private cause of action.

B.

Applying Sandoval, we conclude that Congress did not
intend to create an implied private cause of action to remedy
violations of the ACAA. First, Congress’s express provision
of multiple methods of enforcing the ACAA other than
through a private cause of action indicates that Congress did
not intend to create one. Second, to the extent legislative
history is relevant, it does not sufficiently express a contrary
intent.

1.

We first consider the text and structure of the ACAA.
See Logan, 722 F.3d at 1171. It is undisputed that the ACAA

6
Although the Eighth Circuit has not revisited its pre-Sandoval
decision in Tallarico, a district court in that circuit concluded that
Tallarico is no longer binding and declined to follow it. See Wright ex
rel. D.W. v. American Airlines, Inc., 249 F.R.D. 572, 574–75 (E.D. Mo.
2008).
12 SEGALMAN V. SOUTHWEST AIRLINES

does not expressly provide for a private cause of action.
Thus, in our search for legislative intent, we turn to the
statute’s structure. 7 See Sandoval, 532 U.S. at 290; UFCW,
2018 WL 3384950, at *4–5.

At this step, Sandoval instructs that “[t]he express
provision of one method of enforcing a substantive rule
suggests that Congress intended to preclude others.”
532 U.S. at 290. “Sometimes the suggestion is so strong that
it precludes a finding of congressional intent to create a
private right of action, even though other aspects of the
statute . . . suggest the contrary.” Id. (quoting Massachusetts
Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145 (1985)). As
relevant here, a statute’s remedial scheme may foreclose a
private cause of action even where the scheme does not
provide a method for aggrieved individuals to recover
compensatory relief otherwise. See Transamerica Mortg.

7
We have at times started an implied cause of action analysis by
determining whether the statute speaks in terms of “rights-creating
language.” See, e.g., Northstar Fin. Advisors, 615 F.3d at 1115; In re
Digimarc, 549 F.3d at 1231–32. That approach, however, is not
necessary in this case. As the Supreme Court has clarified, “even where
a statute is phrased in such explicit rights-creating terms, a plaintiff suing
under an implied right of action still must show that the statute manifests
an intent to create not just a private right but also a private remedy.”
Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (internal quotation
marks omitted); see also Pittman v. Or., Emp’t Dep’t, 509 F.3d 1065,
1074 (9th Cir. 2007) (noting “the clarity of the Supreme Court’s recent
command in Gonzaga regarding the insufficiency of rights-creating
language with regard to the implication of a private cause of action”).
Here, regardless of whether the ACAA contains rights-creating
language, we conclude that Congress did not intend to create a private
cause of action. See Sandoval, 532 U.S. at 290 (“[S]ome remedial
schemes foreclose a private cause of action to enforce even those statutes
that admittedly create substantive private rights.”).
 SEGALMAN V. SOUTHWEST AIRLINES 13

Advisors, Inc. v. Lewis, 444 U.S. 11, 19–21 (1979) (cited
approvingly by Sandoval, 532 U.S. at 290).

In Transamerica, the Supreme Court held that the
remedial scheme of the Investment Advisers Act of 1940
foreclosed a private cause of action for damages even though
there was no other means by which individuals could recover
such relief. Id. The Court reasoned that Congress’s express
provision of certain remedies and enforcement methods—
administrative penalties, an agency cause of action to enjoin
statutory violations, and criminal penalties for willful
violators—made it “highly improbable that Congress
absentmindedly forgot to mention an intended private
action.” Id. at 20 (internal quotation marks omitted).

We subsequently applied this reasoning in Northstar
Financial Advisors and UFCW to hold that certain sections
of the Investment Company Act of 1940 (“ICA”) did not
imply a private cause of action. In Northstar Financial
Advisors, we stated that “Congress expressly authorized the
[Securities and Exchange Commission] to enforce all of the
provisions of the Act by granting the Commission broad
authority to investigate suspected violations; initiate actions
in federal court for injunctive relief or civil penalties; and
create exemptions from compliance with any ICA provision,
consistent with the statutory purpose and the public interest.”
615 F.3d at 1116. “This thorough delegation of authority,”
we concluded, “strongly suggests Congress intended to
preclude other methods of enforcement.” Id. at 1116–17.
Most recently, in UFCW we held that a different section of
the ICA similarly did not imply a private cause of action in
light of the ICA’s “detailed statutory scheme.” 2018 WL
3384950, at *4–5.

The same reasoning applies here. As in Transamerica,
Northstar Financial Advisors, and UFCW, Congress has
14 SEGALMAN V. SOUTHWEST AIRLINES

delegated broad authority to the Department of
Transportation (“DOT”) to enforce the ACAA. See
49 U.S.C. § 41705. In addition, Congress has granted
individuals a limited express right to judicial review of
agency adjudications. See id. § 46110.

As for administrative enforcement, the ACAA provides
that the Secretary of Transportation “shall investigate each
complaint of a violation” of the ACAA, “publish disability-
related complaint data in a manner comparable to other
consumer complaint data,” and “regularly review all
complaints received by air carriers alleging discrimination
on the basis of disability and . . . report annually to Congress
on the results of such review.” 8 Id. § 41705(c)(1)–(3). 9
Further, the general FAA enforcement scheme provides that
the Secretary of Transportation may, upon notice of and
opportunity for hearing, issue an order to compel compliance
with the ACAA, see id. § 46101(a)(4), revoke an air carrier’s
8
The ACAA’s implementing regulations explain how such
complaints should be filed, 14 C.F.R. § 382.159, and require that air
carriers designate at least one Complaints Resolution Official (“CRO”)
at every airport, id. § 382.151. In addition, upon receiving a complaint,
a CRO “must promptly take dispositive action,” including the following:
“whatever action is necessary to ensure compliance” with ACAA
regulations; if an alleged violation has already occurred, “provide to the
complainant a written statement setting forth a summary of the facts and
what steps, if any, the carrier proposes to take in response to the
violation”; and “inform the complainant of his or her right to pursue [a]
DOT enforcement action.” Id. § 382.153.

9
Although subsection (c) was only added to the ACAA in 2000, see
supra note 2, the general FAA regulatory scheme previously granted—
and still grants—the Secretary of Transportation authority to investigate
ACAA complaints where a “reasonable ground” appears for doing so.
See Pub. L. No. 103-272, § 46101, 108 Stat. 745, 1226 (1994) (codified
as amended at 49 U.S.C. § 46101); Pub. L. No. 85-726, Title X, § 1002,
72 Stat. 781, 788 (1958) (predecessor statute).
 SEGALMAN V. SOUTHWEST AIRLINES 15

transportation certificate, see id. § 41110(a)(2)(B), and/or
impose a penalty of up to $10,000 per violation, see id.
§ 46301(a)(5)(B). In addition, the Secretary of
Transportation—or, upon request from the Secretary of
Transportation, the Attorney General—has an express cause
of action to enforce the ACAA and its implementing
regulations. Id. §§ 46106, 46107(b).

Finally, individuals who have a “substantial interest” in
DOT’s administrative decision may file a petition for review
of that decision in a United States Court of Appeals. Id.
§ 46110(a). The reviewing court has “exclusive jurisdiction
to affirm, amend, modify, or set aside any part” of the
Secretary’s order; the court may order DOT “to conduct
further proceedings”; and the court “may grant interim relief
by staying the order or taking other appropriate action when
good cause for its action exists.” Id. § 46110(c). In light of
the multiple methods expressly provided for enforcing the
ACAA’s prohibition against disability discrimination, we
must infer that Congress intended to preclude a private cause
of action.

We reject Segalman’s invitation to discount the ACAA
remedial scheme on the ground that it is ineffectual as a
practical matter. In support of this argument, he cites the
Secretary of Transportation’s annual reports to Congress
between 2005 and 2012. Despite the statutory mandate that
“[t]he Secretary shall investigate each complaint,” id.
§ 41705(c)(1) (emphasis added), most of those reports state
that “[t]he substance of the complaints filed with the [air]
carriers has not been reviewed to determine whether the
incidents constituted violations of the [ACAA] or [its
implementing regulations]” because “[s]uch an undertaking
would require resources well beyond [DOT’s] investigative
16 SEGALMAN V. SOUTHWEST AIRLINES

capabilities.” 10 Segalman’s argument falls short because
DOT’s limited enforcement capabilities and efforts,
however concerning, do not shed light on Congress’s intent
when setting out the ACAA remedial scheme. Nor may we
infer a private cause of action under a statute simply because
the agency tasked with enforcement does not live up to its
mandate. See Ziglar, 137 S. Ct. at 1855–56; Sandoval,
532 U.S. at 287. Although any alleged administrative
neglect may be challenged separately, 11 it may not be relied
upon by courts to infer the creation of a private cause of
action. 12

10
The Secretary’s annual reports are publicly accessible at Annual
Report on Disability-Related Air Travel Complaints, U.S. Dep’t of
Transp., https://www.transportation.gov/airconsumer/annual-report-
disability-related-air-travel-complaints (last updated Sep. 26, 2017).
11
Segalman is mistaken in asserting that the Secretary of
Transportation’s decision not to investigate complaints is unreviewable
under Heckler v. Chaney, 470 U.S. 821 (1985). As we noted in Gilstrap,
“[a]lthough the general FAA enforcement scheme provides for an
investigation only ‘if a reasonable ground appears,’ 49 U.S.C.
§ 46101(a)(1)–(2), the ACAA itself requires the Secretary to investigate
all complaints of an ACAA violation.” 709 F.3d at 1001 n.8. Thus, we
agree with the Eleventh Circuit that “[t]he decision whether to
investigate is . . . not discretionary and is subject to judicial review.”
Love, 310 F.3d at 1356 n.11.

12
We also reject Segalman’s argument that a DOT webpage
indicates that Congress intended to create a private cause of action. The
webpage, which is still publicly accessible, states in relevant part: “To
obtain a personal monetary award of damages, a[n] [ACAA]
complainant would have to institute a private legal action.” Complaints
Alleging Discriminatory Treatment against Disabled Travelers under
the Air Carrier Access Act and 14 CFR Part 382, U.S. Dep’t of Transp.,
https://www.transportation.gov/airconsumer/complaints-alleging-
discriminatory-treatment-against-disabled-travelers (last updated Jan. 7,
2015). As an initial matter, that statement may be referring, accurately,
 SEGALMAN V. SOUTHWEST AIRLINES 17

2.

Segalman argues that, like the Fifth and Eighth Circuits
prior to Sandoval, we should rely on the ACAA’s legislative
history to recognize an implied private cause of action.
Although the legislative history does not expressly mention
a private cause of action, Segalman points to a senate report
stating that Congress enacted the ACAA in response to the
Supreme Court’s holding that the Rehabilitation Act of 1973
does not apply to private air carriers unless they receive
direct federal subsidies. See S. Rep. No. 99-400, at 1–2. At
the time of the ACAA’s enactment, a number of circuits—
including this one—had held that the Rehabilitation Act
creates an implied private cause of action. See Three Rivers
Ctr. for Indep. Living v. Hous. Auth. of Pittsburgh, 382 F.3d
412, 425 (3d Cir. 2004) (collecting cases). Thus, Segalman
argues, Congress also intended that the ACAA create an
implied private cause of action. See Tallarico, 881 F.2d at
570.

At one time such reasoning may have carried the day, but
that time has passed. In light of the suggestion of legislative

to private tort actions that exist under state law and in which the ACAA
provides the standard of care. See Gilstrap, 709 F.3d at 1010 (holding
that the ACAA and its implementing regulations preempt state tort law
standards of care “with respect to the circumstances under which airlines
must provide assistance to passengers with disabilities in moving
through the airport”). Moreover, even if the DOT webpage refers to a
purported private legal action directly under the ACAA, this passing
reference cannot, itself, give rise to a private cause of action. Cf.
Sandoval, 532 U.S. at 291 (“Language in a regulation may invoke a
private right of action that Congress through statutory text created, but it
may not create a right that Congress has not.”). In so concluding, we
need not and do not decide whether, and to what extent, an agency’s
express interpretation that a statute implies a private cause of action is
entitled to deference.
18 SEGALMAN V. SOUTHWEST AIRLINES

intent in the ACAA remedial scheme, we “look to legislative
history only . . . if there is a clearly expressed contrary
intention . . . that may overcome the strong presumption that
the statutory language represents congressional intent.”
Logan, 722 F.3d at 1171. Although we also generally
“presume that Congress acts with awareness of relevant
judicial decisions,” United States v. Alvarez-Hernandez,
478 F.3d 1060, 1065 (9th Cir. 2007) (internal quotation
marks omitted), under the post-Sandoval framework such a
presumption alone cannot substitute for a clear expression of
congressional intent. Moreover, even if it could, the
ACAA’s legislative history is equivocal evidence, at best,
that Congress intended to regulate air carriers that do not
receive direct federal subsidies to the same extent as those
that do. 13 Compare 132 Cong. Rec. S9899 (Daily ed. July
30, 1986) (“[T]he purpose of the [ACAA] is quite simple. It
overturns the recent Supreme Court decision in [PVA].”)
(Statement of Sen. Bob Dole), with S. Rep. No. 99-400, at 2
(explaining that the final bill “would mitigate the effect of
. . . PVA” (emphasis added)), and 132 Cong. Rec. S9899
(explaining that the final bill reflected a “compromise”
between the Rehabilitation Act framework and the existing
aviation regulatory scheme). In sum, the ACAA’s
legislative history is insufficient to overcome the strong

13
We further note that Congress’s intent to regulate air carriers that
receive direct federal subsidies differently from air carriers that do not
receive such subsidies is manifested in differences between the
Rehabilitation Act and ACAA statutory frameworks. See Three Rivers
Ctr. for Indep. Living v. Hous. Auth. of Pittsburgh, 382 F.3d 412, 425–
26 (3d Cir. 2004) (discussing the history and structure of the
Rehabilitation Act, and recognizing that the statute creates an implied
private cause of action).
 SEGALMAN V. SOUTHWEST AIRLINES 19

suggestion that the statute’s remedial scheme forecloses an
implied private cause of action.

IV.

In holding that the ACAA does not create an implied
private cause of action, we necessarily do not decide whether
such a cause of action would be wise or desirable as a policy
matter. We must leave such matters for Congress. 14 Nor
may we ground our holding in the legal framework that
prevailed at the time of the ACAA’s enactment or in
preceding decades. We are bound by current Supreme Court
law, and under that law, a private cause of action does not
exist where the statute in question does not manifest
Congress’s intent to create one. Sandoval, 532 U.S. at 286–
87. For all of the above reasons, the ACAA does not
manifest such intent. Thus, the district court did not err in
concluding that the ACAA does not imply a private cause of
action. 15

AFFIRMED.

14
We note, in fact, that the House and Senate have recently
introduced bills that would add an express private cause of action to the
ACAA. See Air Carrier Access Amendments Act of 2018, H.R. 5004,
115th Cong. § 4(a) (as introduced in the House, Feb. 13, 2018); Air
Carrier Access Amendments Act of 2017, S. 1318, 115th Cong. § 4(a)
(as introduced in the Senate, June 8, 2017).

15
Because we conclude that the ACAA does not imply a private
cause of action, we do not reach the district court’s alternative conclusion
that, even if such a cause of action existed, Segalman failed to state a
claim under Rule 12(b)(6) by not pleading exhaustion of administrative
remedies.