Monday, April 30, 2007

First Circuit Rejects Assertion that Consumer Protection Provision of the Airline Deregulation Act Implies Private Right of Action

Per Buck v. Am. Airlines, Inc., 476 F.3d 29 (1st Cir. Feb. 7, 2007):

We begin our analysis with the plaintiffs' lone federal-law claim: their claim of an implied right of action under 14 C.F.R. § 253.4 and § 253.7. These provisions govern the disclosure of terms in contracts for air travel. . . .

. . .

. . . The plaintiffs maintain that the regulations' goal is to protect consumers and, thus, that it is appropriate to imply a private right of action.

This argument cannot withstand scrutiny. In the first place, the plaintiffs misapprehend the relevant unit of analysis. Regulations alone cannot create private rights of action; the source of the right must be a statute. . . . We recently rejected an entreaty to imply a private cause of action pursuant to other regulations implementing the [Airline Deregulation Act] ADA. See Bonano v. E. Carib. Airline Corp., 365 F.3d 81, 84-85 (1st Cir.2004). In the process, we made clear that, for the purpose of implying private rights of action, the Federal Aviation Act (and, hence, the ADA, see supra note 5) is barren soil. See id. There is nothing about the case at bar that shakes our confidence in that assessment.

To cinch matters, “[e]very court faced with the question of whether a consumer protection provision of the ADA allows the implication of a private right of action against an airline has answered the question in the negative.” Casas v. Am. Airlines, Inc., 304 F.3d 517, 522 n. 7 (5th Cir.2002). We see no justification for creating a circuit split. Thus, we hold that the consumer protection provisions of the ADA do not permit the imputation of a private right of action against an airline and that, therefore, the plaintiffs do not have an implied right of action under 14 C.F.R. § 253.4 or § 253.7.


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