Civil Rights

By Gallagher, John A. | Suffolk University Law Review, Spring 2009 | Go to article overview

Civil Rights


Gallagher, John A., Suffolk University Law Review


First Circuit Incorrectly Adopts Arbitrary-or-Capricious Standard for Reviewing Airliner's Decision to Remove Passengers--Cerqueira v. American Airlines, Inc., 520 F.3d 1 (1st Cir. 2008), cert. denied, 129 S. Ct. 111 (2008)

In response to increasing acts of piracy on commercial airlines, Congress enacted the Federal Aviation Act (FAA), which established regulations to improve and maintain safety standards in commercial aviation. (1) Although the FAA includes an anti-discrimination provision, section 44902(b) of the Act grants air carriers broad discretion to refuse transportation to any passenger a "carrier decides is, or might be inimical to safety." (2) In Cerqueira v. American Airlines, Inc., (3) the Court of Appeals for the First Circuit, in a case of first impression, considered the proper standard for a passenger's discrimination claim against an air carrier that relies on the protection under section 44902(b) to refuse passengers transportation. (4) The First Circuit held that the plaintiff passenger must show the air carrier's decision to refuse transportation and rebooking is arbitrary or capricious based on the information known to the decision-maker at the time of the refusal. (5)

On December 28, 2003, John D. Cerqueira planned to fly from Boston to Fort Lauderdale on American Airlines (AA) flight 2237. (6) Prior to boarding, the captain had a disturbing conversation in the terminal with an Israeli passenger, who later appeared to be Cerqueira's flying companion. (7) Later, in the gate area, Cerqueira showed hostility toward a flight attendant while requesting an exit-row seat, then boarded the plane early, going immediately to the restroom for an extended period of time. (8) In addition, the two Israeli passengers who appeared to be traveling with Cerqueira acted suspiciously during the safety presentation. (9) Based on these events, along with other passengers' discomfort with these men, the captain decided to remove Cerqueira and the two Israeli passengers from the plane. (10)

After removal, the state police questioned Cerqueira and the two Israeli passengers for over two hours. (11) During this time, the captain called the AA's systems operations control (SOC) manager in Dallas and gave him a full report of the morning's events. (12) After the police released him, Cerqueira attempted to rebook a later AA flight, but the SOC manager denied Cerqueira's rebooking. (13) In the fall of 2004, Cerqueira filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), and after the MCAD determined he had a valid claim, he brought suit in the United States District Court for the District of Massachusetts in 2005. (14)

After trial in district court, the jury returned a verdict for Cerqueira and awarded him compensatory damages of $130,000 and punitive damages of $270,000. (15) AA then filed a motion for judgment notwithstanding the verdict and a motion for a new trial. (16) The district court denied both motions and rejected AA's argument that Cerqueira failed to produce sufficient evidence of intentional discrimination pursuant to 49 U.S.C. [section] 44902(b). (17) Although the district court found the arbitrary-or-capricious standard applied to claims involving section 49902(b), the court also held that the failure to give an explicit instruction respecting this standard was not a prejudicial error. (18) On appeal, however, the First Circuit reversed and remanded the case with instructions to vacate the judgment after concluding that no properly instructed jury could return a verdict against AA. (19)

For more than seven decades, terrorist attacks have wreaked havoc on commercial aviation throughout the world. (20) Since the first hijacking of a U.S. commercial aircraft in 1961, the federal government has passed a surplus of laws designed to combat aerial terrorism. (21) Unfortunately, as a result of the terrorist attacks on September 11, 2001, air carriers increasingly rely upon authority derived from 49 U. …

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