[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF
APPEALS
No. 02-10223 ELEVENTH CIRCUIT
________________________ OCT 31 2002
THOMAS K. KAHN
D. C. Docket No. 00-00676-CV-D-N
CYNTHIA LOVE,
Plaintiff-Appellant,
versus
DELTA AIR LINES,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(October 31, 2002)
Before DUBINA, MARCUS and GOODWIN*, Circuit Judges.
MARCUS, Circuit Judge:
*
Honorable Alfred T. Goodwin, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
The Air Carrier Access Act of 1986 (the “ACAA”), 100 Stat. 1080, as
amended, 49 U.S.C. § 41705, prohibits air carriers from discriminating against
disabled individuals. This interlocutory appeal presents a question of first
impression in this circuit: Does the ACAA create by implication a private right of
action in a federal district court for a disabled individual alleging violations of its
provisions? The district court answered this question in the affirmative. However,
after careful review of the ACAA’s text and structure, we can discern no
congressional intent to create such a private right of action. Accordingly, we
reverse.
I.
Love was stricken with polio at the age of three and is paralyzed. She has
the ability to neither stand nor walk, and accordingly uses a wheelchair.
The present dispute arises from events occurring before and during a Delta
Air Lines, Inc. (“Delta”) flight from Montgomery, Alabama to Colorado Springs,
Colorado on May 26, 1998. While making reservations prior to the flight, Love
notified the airline of her “special needs.” During the flight, Love became ill and
had to be carried to the restroom by her son. Love asserts that Delta failed to
provide an accessible “call button” with which she could page a flight attendant;
that Delta failed to provide an aisle chair to assist her in accessing the restroom
2
facilities; that the restroom was too small to accommodate her; that she was not
afforded privacy in the restroom; and that Delta failed to provide adequately
trained flight personnel.
Love filed suit in the United States District Court for the Middle District of
Alabama, asserting claims under the Americans with Disabilities Act of 1990 (the
“ADA”), 42 U.S.C. §§ 12101 et seq., and the ACAA, 49 U.S.C. § 41705.1 In her
1
The ACAA was enacted as § 404(c) of the Federal Aviation Act of 1958, see Pub. L. 99-
435, § 2(a), 100 Stat. 1080 (1986), and was codified at 49 U.S.C. § 1374(c). It was amended and
recodified in 1994 at 49 U.S.C. § 41705. See Pub. L. 103-272, § 1(e), 108 Stat. 1141 (1994).
Subsections (b) and (c) of § 41705 were added by the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century (the “FAIR Act”), Pub. L. No. 106-181, § 707, 114 Stat. 61 (2000).
49 U.S.C. § 41705 provides in full that:
(a) In general. -- In providing air transportation, an air carrier,
including (subject to section 40105(b)) any foreign air carrier, may
not discriminate against an otherwise qualified individual on the
following grounds:
(1) the individual has a physical or mental impairment that
substantially limits one or more major life activities.
(2) the individual has a record of such an impairment.
(3) the individual is regarded as having such an impairment.
(b) Each act constitutes separate offense. -- For purposes of section
46301(a)(3)(E), a separate violation occurs under this section for each
individual act of discrimination prohibited by subsection (a).
(c) Investigation of complaints. --
(1) In general. -- The Secretary shall investigate each
complaint of a violation of subsection (a).
(2) Publication of data. -- The Secretary shall publish
3
complaint, Love sought a declaration that Delta had engaged in discrimination by
not ensuring that its facilities and services were accessible to disabled persons; a
permanent injunction requiring Delta to restructure its facilities and services, train
its employees to provide disabled individuals equal access to those facilities and
services, and avoid future acts of disability-based discrimination; and monetary
relief in the form of compensatory and punitive damages, costs and attorneys’ fees.
On cross-motions for summary judgment, the district court held that Love
could not maintain a claim under the ADA because the relevant portion of that Act
disability-related complaint data in a manner comparable to
other consumer complaint data.
(3) Review and report. -- The Secretary shall regularly review
all complaints received by air carriers alleging discrimination
on the basis of disability and shall report annually to
Congress on the results of such review.
(4) Technical assistance. -- Not later than 180 days after the
date of the enactment of this subsection, the Secretary shall --
(A) implement a plan, in consultation with the
Department of Justice, the United States Architectural
and Transportation Barriers Compliance Board, and
the National Council on Disability, to provide
technical assistance to air carriers and individuals
with disabilities in understanding the rights and
responsibilities set forth in this section; and
(B) ensure the availability and provision of
appropriate technical assistance manuals to
individuals and entities with rights or responsibilities
under this section.
4
expressly excludes aircraft from its coverage. See Love v. Delta Air Lines, 179 F.
Supp. 2d 1313, 1316 (M.D. Ala. 2001). The district court also found that the
ACAA implies a private right of action, see id. at 1321, but determined that the
ACAA permits private litigants only injunctive and declaratory relief. See id. at
1326. The district court granted summary judgment to Delta on Love’s claims
concerning the call button and the size and privacy of the on-board restroom, see
id. at 1330-31, but concluded that genuine issues of material fact precluded the
entry of summary judgment on Love’s claims regarding the on-board aisle chair
and the adequacy of the training received by Delta’s flight personnel. See id. at
1329-30.
Pursuant to 28 U.S.C. § 1292(b), we granted Love’s petition to
interlocutorily appeal two questions: (1) Does the ACAA imply a private cause of
action?; and, if so, (2) What remedies are available to private litigants? Because
we answer the first question in the negative, we do not reach the second one.
II.
The issue of whether a statute creates by implication a private right of action
is a “question of statutory construction,” Cannon v. Univ. of Chicago, 441 U.S.
677, 688, 99 S. Ct. 1946, 1953, 60 L. Ed. 2d 560 (1979), which we review de novo.
See Pharmaceutical Research and Mfrs. of Am. v. Meadows, 304 F.3d 1197, 1199
5
(11th Cir. 2002). As we discussed extensively in Jackson v. Birmingham Bd. of
Educ., 11th Cir., 2002, -- F.3d --, (No. 02-11303, October 21, 2002), our present
analysis of this issue in the context of the ACAA is informed most significantly by
the Supreme Court’s recent decision in Alexander v. Sandoval, which distills and
clarifies the approach we are obliged to follow. See 532 U.S. 275, 121 S. Ct. 1511,
149 L. Ed. 2d 517 (2001).
Until its decision in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d
26 (1975), the Supreme Court implied a private right of action from a statute if it
concluded that doing so would advance what it perceived to be the congressional
purpose in enacting the statute. See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426,
433, 84 S. Ct. 1555, 1560, 12 L. Ed. 2d 423 (1964) (“[I]t is the duty of the courts to
be alert to provide such remedies as are necessary to make effective the
congressional purpose.”). In Cort, however, the Court lent a more discernible
shape to this inquiry, as it articulated four factors that must be considered before a
private right of action may be implied:
First, is 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? Second, is there any indication of legislative
intent, explicit or implicit, either to create such a remedy or to deny
one? Third, is it consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the plaintiff? And
finally, is the cause of action one traditionally relegated to state law,
6
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?
422 U.S. at 78, 95 S. Ct. at 2088 (quoting Texas & Pac. Ry. Co. v. Rigsby, 241
U.S. 33, 39, 36 S. Ct. 482, 484, 60 L. Ed. 874 (1916)) (additional citations
omitted).
Since the late 1970s, the Supreme Court has gradually receded from its
reliance on three of these four factors, focusing exclusively on legislative intent to
create a private right of action as the touchstone of its analysis.2 Sandoval is the
culmination of this trend, announcing that:
Like substantive federal law itself, private rights of action to enforce
federal law must be created by Congress. 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. Raising up causes of action where a
2
See, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S. Ct. 2479, 2489, 61 L.
Ed. 2d 82 (1979) (“The central inquiry [is] whether Congress intended to create, either expressly or
by implication, a private cause of action.”); Transamerica Mortgage Advisors, Inc. v. Lewis, 444
U.S. 11, 15-16, 100 S. Ct. 242, 245, 62 L. Ed. 2d 146 (1979) (“While some opinions of the Court
have placed considerable emphasis upon the desirability of implying private rights of action in order
to provide remedies thought to effectuate the purposes of a given statute, what must ultimately be
determined is whether Congress intended to create the private remedy asserted . . . .”) (citation
omitted); Universities Research Ass’n, Inc. v. Coutu, 450 U.S. 754, 771, 101 S. Ct. 1451, 1462, 67
L. Ed. 2d 662 (1981) (“[I]t must . . . be asked whether the language of the statute indicates that
Congress intended that it be enforced through private litigation.”); Thompson v. Thompson, 484
U.S. 174, 179, 108 S. Ct. 513, 516, 98 L. Ed. 2d 512 (1988) (“The intent of Congress remains the
ultimate issue . . . .”).
7
statute has not created them may be a proper function for common-
law courts, but not for federal tribunals.
532 U.S. at 286-87, 121 S. Ct. at 1519-1520 (citations and internal quotations
omitted, emphasis added); see also Gonzaga Univ. v. Doe, -- U.S. --, 122 S. Ct.
2268, 2276, 153 L. Ed. 2d 309 (2002) (The inquiry “simply require[s] a
determination as to whether or not Congress intended to confer individual rights
upon a class of beneficiaries.”) (emphasis added). The other three Cort factors
remain relevant only insofar as they provide evidence of whether Congress
intended to create a private cause of action.
Sandoval also clearly delimits the sources that are relevant to our search for
legislative intent. First and foremost, we look to the statutory text for “‘rights-
creating’ language.” Sandoval, 532 U.S. at 288, 121 S. Ct. at 1521 (citation
omitted); see also Gonzaga Univ., 122 S. Ct. at 2276 n.3 (“Where a statute does not
include this sort of explicit ‘right- or duty-creating language’ we rarely impute to
Congress an intent to create a private right of action.”); Cannon, 441 U.S. at 690
n.13, 99 S. Ct. at 1954 n.13 (“Not surprisingly, the right- or duty-creating language
of the statute has generally been the most accurate indicator of the propriety of
implication of a cause of action.”). “Rights-creating language” is language
“explicitly confer[ing] a right directly on a class of persons that include[s] the
8
plaintiff in [a] case,” Cannon, 441 U.S. at 690 n.13, 99 S. Ct. at 1954 n.13, or
language identifying “the class for whose especial benefit the statute was enacted.”
Rigsby, 241 U.S. at 39, 36 S. Ct. at 484, 60 L. Ed. 874 (1916), quoted in Cannon,
441 U.S. at 688 n.9, 99 S. Ct. at 1953 n.9. By contrast, “statutory language
customarily found in criminal statutes . . . and other laws enacted for the protection
of the general public,” or a statute written “simply as a ban on discriminatory
conduct by recipients of federal funds,” provides “far less reason to infer a private
remedy in favor of individual persons.” Cannon, 441 U.S. at 690-93, 99 S. Ct. at
1954-55; see also Sandoval, 532 U.S. at 289, 121 S. Ct. at 1521 (“Statutes that
focus on the person regulated rather than the individuals protected create ‘no
implication of an intent to confer rights on a particular class of persons.’”) (quoting
California v. Sierra Club, 451 U.S. 287, 294, 101 S. Ct.1775, 1779, 68 L. Ed. 2d
101 (1981)); Touche Ross & Co. v. Redington, 442 U.S. 560, 576, 99 S. Ct. 2479,
2489, 61 L. Ed. 2d 82 (1979) (“The question whether Congress . . . intended to
create a private right of action [is] definitely answered in the negative” where a
“statute by its terms grants no private rights to any identifiable class[.]”).
Second, we examine the statutory structure within which the provision in
question is embedded. If that statutory structure provides a discernible
enforcement mechanism, Sandoval teaches that we ought not imply a private right
9
of action because “[t]he express provision of one method of enforcing a substantive
rule suggests that Congress intended to preclude others.” Sandoval, 532 U.S. at
290, 121 S. Ct. at 1521-22. Indeed, Sandoval observes that this suggestion is
“[s]ometimes . . . so strong that it precludes a finding of congressional intent to
create a private right of action, even though other aspects of the statute (such as
language making the would-be plaintiff ‘a member of the class for whose benefit
the statute was enacted’) suggest the contrary.” 523 U.S. at 290, 121 S. Ct. at 1522
(quoting Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145, 105 S. Ct.
3085, 3092, 87 L. Ed. 2d 96 (1985)).
Third, if -- and only if -- statutory text and structure have not conclusively
resolved whether a private right of action should be implied, we turn to the
legislative history and context within which a statute was passed. See Sandoval,
532 U.S. at 288, 121 S. Ct. at 1520 (“In determining whether statutes create private
rights of action, as in interpreting statutes generally, legal context matters only to
the extent it clarifies text.”) (citation omitted). We examine legislative history with
a skeptical eye, however, because “[t]he bar for showing legislative intent is high.
‘Congressional intent to create a private right of action will not be presumed.
There must be clear evidence of Congress’s intent to create a cause of action.’”
McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 723 (11th Cir. 2002)
10
(quoting Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1345 (11th Cir.
1997)). Moreover, the legislative history of a statute that is itself unclear about
whether a private right of action is implied is unlikely to provide much useful
guidance. See Cannon, 441 U.S. at 694, 99 S. Ct. at 1956 (“[T]he legislative
history of a statute that does not expressly create or deny a private remedy will
typically be equally silent or ambiguous on the question.”).
Finally, if examination of a statute’s text, structure, and history does not
yield the conclusion that Congress intended it to confer a private right and a private
remedy, Sandoval instructs that such a right may not be created or conferred by
regulations promulgated to interpret and enforce it:
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. Thus, when a statute has provided a general
authorization for private enforcement of regulations, it may perhaps
be correct that the intent displayed in each regulation can determine
whether or not it is privately enforceable. But it is most certainly
incorrect to say that language in a regulation can conjure up a private
cause of action that has not been authorized by Congress. Agencies
may play the sorcerer’s apprentice but not the sorcerer himself.
532 U.S. at 291, 121 S. Ct. at 1522 (citations and quotations omitted); see also
Touche Ross, 442 U.S. at 577 n.18, 99 S. Ct. at 2489 n.18 (“[T]he language of the
statute and not the rules must control.”) (citation omitted). Thus, while regulations
that merely interpret a statute may provide evidence of what private rights
11
Congress intended to create, see Sandoval, 532 U.S. at 284, 121 S. Ct. at 1518 (“A
Congress that intends the statute to be enforced through a private cause of action
intends the authoritative interpretation of the statute to be so enforced as well.”),
“regulations that go beyond what the statute itself requires” are not enforceable
through a private right of action. Id. at 293 n.8, 121 S. Ct. at 1523 n.8.
III.
We measure whether the ACAA creates by implication a private right of
action in a federal district court against the template laid out in Sandoval. It is
indisputable that the ACAA does not expressly provide a private entitlement to sue
in district court. See Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 568
(8th Cir. 1989) (“The ACAA does not expressly provide for a cause of action to
enable private citizens to seek a remedy for a violation of the Act.”); Shinault v.
Am. Airlines, Inc., 936 F.2d 796, 800 (5th Cir. 1991) (“The ACAA does not
provide for a private cause of action.”). Moreover, taken together, the text of the
ACAA itself -- as codified at 49 U.S.C. § 41705 -- and the surrounding statutory
and regulatory structure create an elaborate and comprehensive enforcement
scheme that belies any congressional intent to create a private remedy. Notably
absent from that scheme is a private right to sue in a federal district court.
12
Subsection (c) of 49 U.S.C. § 41705 itself mandates that the Department of
Transportation (the “DOT”) “shall investigate each complaint of a violation of
subsection (a).” 49 U.S.C. § 41705(c)(1) (emphasis added). Subsection (c) further
mandates that the DOT “shall publish disability-related complaint data in a manner
comparable to other consumer complaint data,” and that it “shall 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.” 49
U.S.C. § 41705(c)(2)-(3).
This requirement that the DOT investigate each complaint of an ACAA
violation is augmented by a comprehensive administrative enforcement
mechanism. A disabled individual may file a complaint directly with the DOT: “A
person may file a complaint in writing with the Secretary of Transportation . . .
about a person violating” the ACAA. 49 U.S.C. § 46101(a)(1). After notice and
an opportunity for a hearing, the DOT may enter an order compelling compliance
with the ACAA, see 49 U.S.C. § 46101(a)(4);3 may revoke a carrier’s air carrier
3
49 U.S.C. § 46101(a)(4) provides that “[a]fter notice and an opportunity for a hearing . . .
, the Secretary of Transportation, Under Secretary, or Administrator shall issue an order to compel
compliance with this part if the Secretary, Under Secretary, or Administrator finds in an
investigation under this subsection that a person is violating this part.”
13
certificate, see 49 U.S.C. § 41110(a)(2)(B);4 or may impose up to a $10,000 fine
for each violation, see 49 U.S.C. § 46301(a)(3)(E).5 The DOT may also initiate an
action in a federal district court to enforce the ACAA, see 49 U.S.C. § 46106,6 or
may ask the Department of Justice to bring a civil action. See 49 U.S.C. §
46107(b)(1)(A)-(B).7
In addition to this administrative enforcement regime established by the
ACAA itself, the regulations promulgated by the DOT mandate that each air carrier
establish procedures to resolve ACAA disputes.8 Air carriers are required to
“implement a complaint resolution mechanism, including designating one or more
4
49 U.S.C. § 41110(a)(2)(B) provides that “after notice and an opportunity for a hearing . .
. the Secretary may . . . revoke any part of a certificate if the Secretary finds that the holder of the
certificate intentionally does not comply with . . . section[] . . . 41705 . . ., a regulation or order of
the Secretary under [that] provision[], or a term of its certificate.” See also 14 C.F.R. § 383.2
(same).
5
49 U.S.C. § 46301(a)(3)(E) provides that “[a] civil penalty of not more than $10,000 may
be imposed for each violation . . . of section 41705, relating to discrimination against handicapped
individuals.”
6
49 U.S.C. § 46106 provides that “[t]he Secretary of Transportation . . . may bring a civil
action against a person in a district court of the United States to enforce this part or a requirement
or regulation prescribed, or an order or any term of a certificate or permit issued, under this part.”
7
49 U.S.C. § 46107(b)(1)(A)-(B) provide that “[o]n request of the Secretary of
Transportation . . . , the Attorney General may bring a civil action in an appropriate court . . . (A)
to enforce this part . . . ; and (B) to prosecute a person violating this part . . . .”
8
The complaint resolution procedures created by individual carrier need not be exhausted
before an individual may seek administrative enforcement. An aggrieved individual may seek
administrative action immediately by “fil[ing] a formal complaint” directly with the DOT. 14 C.F.R.
§ 382.65(d); see also 14 C.F.R. § 302.
14
complaints resolution official(s) (CRO) to be available at each airport which the
carrier serves.” 14 C.F.R. § 382.65(a). These CROs “shall have the authority to
make dispositive resolution of complaints on behalf of the carrier.” 14 C.F.R. §
382.65(a)(4). When a complaint is made to a CRO about a prospective violation of
the ACAA, the CRO “shall take or direct other carrier personnel to take action, as
necessary, to ensure compliance with” the ACAA and its attendant regulations. 14
C.F.R. § 382.65(a)(5)(i). If a complaint is made to a CRO regarding an alleged
violation of the ACAA that already has occurred, the CRO “shall provide to the
complainant a written statement” setting forth the reasons for her determination
and, if she finds that a violation has in fact occurred, “what steps, if any, the carrier
proposes to take in response to the violation.” 14 C.F.R. § 382.65(a)(5)(ii)-(iii).
This statement must include language “inform[ing] the complainant of his or her
right to pursue DOT enforcement action.” 14 C.F.R. § 382.65(a)(5)(iv).
In addition to providing a CRO, each carrier must also “establish a
procedure for resolving written complaints alleging violation of” the ACAA and
the regulations implementing it. 14 C.F.R. § 382.65(b). As with complaints made
to a CRO, the carrier must answer written complaints with a statement outlining its
response that includes both “a summary of the facts” and language “inform[ing]
15
the complainant of his or her right to pursue DOT enforcement action.” 14 C.F.R.
§382.65(b)(3).
Although certainly extensive, the measures described above do not exhaust
the remedial avenues provided by Congress in the ACAA. Indeed, the legislature
also has expressly created a limited private right to seek judicial review of a DOT
enforcement decision.9 In particular, an individual with “a substantial interest” in a
DOT enforcement action may petition for review in a United States Court of
Appeals. See 49 U.S.C. § 46110(a).10 The court of appeals “has exclusive
9
This right to judicial review of the DOT’s actions is plainly distinct from a private right to
bring an ACAA claim in federal district court ab initio.
10
49 U.S.C. § 46110 provides:
(a) Filing and venue.-- . . . [A] person disclosing a substantial interest in an order
issued by the Secretary of Transportation . . . under this part may apply for
review of the order by filing a petition for review in the United States Court of
Appeals for the District of Columbia Circuit or in the court of appeals of the
United States for the circuit in which the person resides or has its principal place
of business. The petition must be filed not later than 60 days after the order is
issued. The court may allow the petition to be filed after the 60th day only if
there are reasonable grounds for not filing by the 60th day.
(b) Judicial procedures.--When a petition is filed under subsection (a) of this
section, the clerk of the court immediately shall send a copy of the petition to the
Secretary, Under Secretary, or Administrator, as appropriate. The Secretary . .
. shall file with the court a record of any proceeding in which the order was
issued, as provided in section 2112 of title 28.
(c) Authority of court.--When the petition is sent to the Secretary . . . , the court
has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the
order and may order the Secretary . . . to conduct further proceedings. After
reasonable notice to the Secretary . . . , the court may grant interim relief by
staying the order or taking other appropriate action when good cause for its
16
jurisdiction to affirm, amend, modify, or set aside any part of the [DOT’s] order
and may order the Secretary, Under Secretary, or Administrator to conduct further
proceedings.” 49 U.S.C. § 46110(c). The court of appeals may also “grant interim
relief by staying the order or taking other appropriate action when good cause for
its action exists.” Id. The only statutorily-imposed limitation on the court’s broad
ability to “affirm, amend, modify, or set aside” an agency order is a mandated
deference to an agency’s factual findings: “Findings of fact by the Secretary,
Under Secretary, or Administrator, if supported by substantial evidence, are
conclusive.”11 Id.
action exists. Findings of fact by the Secretary . . . , if supported by substantial
evidence, are conclusive.
(d) Requirement for prior objection.--In reviewing an order under this section,
the court may consider an objection to an order of the Secretary . . . only if the
objection was made in the proceeding conducted by the Secretary . . . or if there
was a reasonable ground for not making the objection in the proceeding.
(e) Supreme Court review.--A decision by a court under this section may be
reviewed only by the Supreme Court under section 1254 of title 28.
11
Love argues that no individual may challenge a decision by the DOT not to investigate an
ACAA complaint. This is so, she contends, because the Supreme Court held in Heckler v. Cheney,
470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985), that an agency’s decision not to take
investigative or enforcement action falls solely within its discretion and is presumptively
unreviewable. See id. at 832, 105 S. Ct. at 1656 (“[A]n agency’s decision not to take enforcement
action should be presumed immune from judicial review under [5 U.S.C.] § 701(a)(2).”). Heckler
emphasizes, however, that Congress may abrogate this presumption:
[A]n agency’s decision not to take enforcement action . . . is only presumptively
unreviewable; the presumption may be rebutted where the substantive statute has
provided guidelines for the agency to follow in exercising its enforcement powers.
17
The fact that Congress has expressly provided private litigants with one right
of action -- the right to review of administrative action in the courts of appeals --
powerfully suggests that Congress did not intend to provide other private rights of
action. See Sandoval, 532 U.S. at 290, 121 S. Ct. at 1521-22 (“The express
provision of one method of enforcing a substantive rule suggests that Congress
intended to preclude others.”); Touche Ross, 442 U.S. at 572, 99 S. Ct. at 2487
(“Obviously . . . when Congress wished to provide a private damage remedy, it
Thus, in establishing this presumption in the APA, Congress did not set agencies free
to disregard legislative direction in the statutory scheme that the agency administers.
Congress may limit an agency’s exercise of enforcement power if it wishes, either
by setting substantive priorities, or by otherwise circumscribing an agency’s power
to discriminate among issues or cases it will pursue.
470 U.S. at 832-33, 105 S. Ct. at 1656 (citations and footnote omitted) (emphasis added). Here,
subsection (c) of § 41705 imposes a mandatory obligation upon the DOT to investigate every
complaint of a violation of the ACAA. The decision whether to investigate is thus not discretionary
and is subject to judicial review outlined above.
In supplemental briefing, Love also argues that she lacks standing to assert the right of action
for review in a court of appeals explicitly provided by § 46110, because, in the absence of
compensatory damages, her injuries will not be redressable by the imposition of a civil fine or
injunction against Delta. This argument is plainly wrong. To reiterate, the DOT may provide any
individual with a “substantial interest” in a DOT proceeding with both declaratory and injunctive
relief. Because the courts of appeals have the power “to affirm, amend, modify, or set aside” any
part of a DOT order, they too have the power to provide equitable remedies. 49 U.S.C. § 46110(c).
Accordingly, an individual with a substantial interest is potentially entitled to multiple forms of
relief. The fact that injuries suffered are not redressable by compensatory damages does not
establish that they are not redressable at all. See generally Booth v. Churner, 532 U.S. 731, 740-41,
121 S. Ct. 1819, 1824-25, 149 L. Ed. 2d 958 (2001) (rejecting the argument that exhaustion was not
required under the Prison Litigation Reform Act where the administrative grievance process was
capable of affording the would-be plaintiff relief, but not relief of the variety that he preferred, i.e.,
compensatory damages).
18
knew how to do so and did so expressly.”) (citation omitted); cf. Keene Corp. v.
United States, 508 U.S. 200, 208, 113 S. Ct. 2035, 2040, 124 L. Ed. 2d 118 (1993)
(“[W]here Congress includes particular language in one section of a statute but
omits it in another . . . , it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”) (alterations in original)
(quoting Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300, 78 L. Ed.
2d 17 (1983)).
Thus, the ACAA and its attendant regulations provide three separate
enforcement mechanisms. First, the DOT is required to investigate ACAA claims
and is given broad powers to sanction air carriers for ACAA violations. Second,
air carriers themselves are required to establish ACAA dispute resolution
mechanisms. Finally, once the DOT has acted in response to an alleged ACAA
violation, an individual “with a substantial interest” in that action may seek review
in a court of appeals.
The explicit provision of these elaborate enforcement mechanisms strongly
undermines the suggestion that Congress also intended to create by implication a
private right of action in a federal district court but declined to say so expressly.
19
See Sandoval, 532 U.S. at 290, 121 S. Ct. at 1521-22.12 Indeed, the enforcement
scheme created by Congress and augmented by the DOT creates so strong a
suggestion that Congress did not intend to create a private right of action “that it
precludes a finding of congressional intent to create a private right of action, even
though other aspects of the statute (such as language making the would-be plaintiff
‘a member of the class for whose benefit the statute was enacted’) suggest the
contrary.” Id. at 290, 121 S. Ct. at 1522 (quoting Russell, 473 U.S. at 145, 105 S.
Ct. at 3092, 87 L. Ed. 2d 96 (1985)).
This conclusion is further reinforced, we believe, by an examination of the
circumstances that led up to the ACAA’s enactment. The apparent congressional
purpose in passing the ACAA was to respond to the Supreme Court’s restrictive
reading of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, in Department
of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 106 S. Ct. 2705, 91 L. Ed.
12
See also Karahalios v. Nat'l Fed'n of Fed. Employees, 489 U.S. 527, 533, 109 S. Ct. 1282,
1286-87, 103 L. Ed. 2d 539 (1989) (“[I]t is . . . an ‘elemental canon’ of statutory construction that
where a statute expressly provides a remedy, courts must be especially reluctant to provide
additional remedies.”) (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19,
100 S. Ct. 242, 247, 62 L. Ed. 2d 146 (1979)); Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R.
Passengers, 414 U.S. 453, 458, 94 S. Ct. 690, 693, 38 L. Ed. 2d 646 (1974) (“[W]hen legislation
expressly provides a particular remedy or remedies, courts should not expand the coverage of the
statute to subsume other remedies.”); McDonald, 291 F.3d at 725 (“When Congress creates certain
remedial procedures, we are, ‘in the absence of strong indicia of contrary congressional intent, . .
. compelled to conclude that Congress provided precisely the remedies it considered appropriate.’”)
(alteration in original) (quoting Karahalios, 489 U.S. at 533, 109 S. Ct. at 1286-87 (quoting
Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 15, 101 S. Ct. 2615,
2623, 69 L. Ed. 2d 435 (1981))).
20
2d 494 (1986), by creating protection for disabled individuals against
discrimination by commercial air carriers. In Paralyzed Veterans, the Supreme
Court held that § 504 did not apply to commercial airlines because “[n]ot a single
penny of [federal funding] is given to the airlines.” 477 U.S. at 605, 106 S. Ct. at
2711. The legislative history reveals that Congress was concerned that “the
practical effect of DOT v. PVA is to leave handicapped air travelers subject to the
possibility of discriminatory, inconsistent and unpredictable treatment on the part
of air carriers,” S. Rep. No. 400, at 2329 (1986),13 and that it passed the ACAA to
protect disabled individuals.
Plainly, Congress could have afforded this protection through numerous
means, including the provision of a private right to sue in the federal district courts.
Yet the legislature instead opted to create an elaborate administrative enforcement
scheme, augmented only by a limited form of judicial review of the DOT’s actions
in the courts of appeals. Thus, were we to imply a private right of action in district
court, we would do so not only in the face of Congress’s creation of various other
remedial mechanisms under the ACAA, but, in particular, despite its provision of a
13
See also 132 Cong. Rec. S11,784 (daily ed. Aug. 15, 1986) (statement of Sens. Dole and
Cranston); S. Rep. No. 400, at 2329 (“S. 2703 was introduced in response to the U.S. Supreme
Court’s decision in U.S. Department of Transportation v. Paralyzed Veterans of America”); 132
Cong. Rec. H7057 (daily ed. Sept. 17, 1986) (statement of Rep. Sundquist); 132 Cong.Rec. H7193
(daily ed. Sept. 18, 1986) (statements of Reps. Mineta, Hammerschmidt, Ackerman, Edgar, and
Snyder).
21
judicial right of action of a different form and in a different forum. So far as we
can discern from the ACAA’s text and structure, then, Congress did not intend to
create a private cause of action in a federal district court, and we cannot do so and
remain faithful to the unambiguous teachings of Sandoval.
We are aware that two federal courts of appeals have interpreted the ACAA
as conferring a private right of action in federal district court. See Shinault, 936
F.2d at 800; Tallarico, 881 F.2d at 570.14 Yet both of these decisions antedated
Sandoval, and both 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.
Following Sandoval, we may not engage in a similarly wide-ranging interpretive
inquiry.
14
In addition to the Fifth and Eighth Circuits, the Ninth Circuit ruled (prior to Sandoval) on
the merits of a private cause of action brought under the ACAA without addressing whether the
cause of action exists. See Newman v. Am. Airlines, Inc., 176 F.3d 1128 (9th Cir. 1999). Also, in
an unpublished opinion, the Ninth Circuit found an implied private right of action under the ACAA.
See Adiutori v. Sky Harbor Int’l Airport, 103 F.3d 137 (9th Cir. 1996) (unpublished table
disposition) (“Although [the ACAA] does not expressly provide for a private cause of action . . . ,
we are persuaded by the reasoning of other circuits which have held that [it] implies a private right
of action . . . under the test enunciated in Cort v. Ash . . . .”). The D.C. and Sixth Circuits have
expressly reserved the question whether the ACAA implies a private right of action. See Tunison
v. Cont’l Airlines Corp., 162 F.3d 1187, 1188 n.1 (D.C. Cir. 1998) (“This court has not previously
addressed whether there is an implied private right of action under the ACAA, and the issue is not
before us in this case. The court below ‘presumed’ there was a private right of action under the
ACAA given holdings to that effect in the 5th and 8th Circuits and Continental’s failure to argue to
the contrary.”); Bower v. Fed. Express Corp., 96 F.3d 200, 204 n.9 (6th Cir. 1996) (“We do not
address the question of whether a private right of action exists under the ACAA.”).
22
In sum, our review of the text and structure of the ACAA compels the
conclusion that Congress did not intend to create a private right of action in a
federal district court to vindicate the ACAA’s prohibition against disability-based
discrimination on the part of air carriers. Under Sandoval, our inquiry is therefore
at an end. See 532 U.S. at 288, 121 S. Ct. at 1520 (“We . . . begin (and find that
we can end) our search for Congress’s intent with the text and structure of [the
statute in question].”). The ACAA’s legislative history, on which the Shinault and
Tallarico courts focused in significant part, cannot alter our conclusion because
“[i]n determining whether statutes create private rights of action, as in interpreting
statutes generally, legal context matters only to the extent it clarifies text.”15
Sandoval, 532 U.S. at 288, 121 S. Ct. at 1520 (internal citation omitted). Where,
as here, the text and structure are not in need of clarification, legislative history
cannot be used to refashion their clear mandate.
15
The district court in this case also relied on the legislative history of the FAIR Act to infer
that Congress had intended the ACAA to imply a private of action. See Love, 179 F. Supp. 2d at
1324. The proposed bill that initially came out of the Senate included a subsection (7)(B) that
observed that “[n]othing in subparagraph (A) precludes or affects the right of persons with
disabilities to file private rights of action under section 41705.” Id. (quoting 145 Cong. Rec.
S12,115-02, S12,121 (daily ed., Oct. 6, 1999)). This proposed subsection (7)(B) was omitted from
the final version of the FAIR Act and was never adopted by Congress. See id. Plainly we may not
rely on language proposed by one house of Congress and rejected by the full Congress to support
the implication of a private right of action. See Thompson, 484 U.S. at 191-92, 108 S. Ct. at 522
(Scalia, J., concurring in the judgment) (“An enactment by implication cannot realistically be
regarded as the product of the difficult lawmaking process our Constitution has prescribed.
Committee reports, floor speeches, and even colloquies between Congressmen, . . . are frail
substitutes for bicameral vote upon the text of a law and its presentment to the President.”).
23
IV.
Statutory intent must be the touchstone of our analysis. Without it -- and,
again, the mandate of Sandoval is crystal clear on this point -- we simply cannot
create by implication a private right of action, no matter how socially desirable or
otherwise warranted the result may be. And our review of the text and structure of
the ACAA yields no congressional intent to create a private cause of action in a
federal district court.
Congress is, of course, free to protect disabled air passengers by virtually
any means it chooses. It certainly may provide them with the right to sue in a
district court for ACAA violations. Yet the legislature has not done so, and has
instead created an elaborate administrative enforcement regime with subsequent,
limited judicial review of the DOT’s actions. Under these circumstances, the
teachings of Sandoval plainly preclude a federal court from implying such a right
of action. The district court therefore erred in so doing. Accordingly, we reverse
and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
24