KELLIE STOKES, Mom and Friend of B.S. v. SOUTHWEST AIRLINES
No. 17-10760
United States Court of Appeals, Fifth Circuit
April 5, 2018
STEPHEN A. HIGGINSON, Circuit Judge
Appeal from the United States District Court for the Northern District of Texas
Before KING, HAYNES, and HIGGINSON, Circuit Judges.
We must decide whether private persons can sue in federal district court to enforce the Air Carrier Access Act of 1986 (“ACAA“),
I
Kellie Stokes sues Southwest Airlines on behalf of her young son with autism. She alleges that Southwest gate agents prevented her family from boarding their flight, allegedly because the agents considered her son‘s behavior disruptive. A Southwest pilot had also allegedly been rude to them the previous day. According to Stokes, her son suffered “great physical emotional and mental pain and anguish” as a result of these experiences.
Stokes originally asserted claims under state law and under the Americans with Disabilities Act (“ADA“). In response to Southwest‘s motion to dismiss, however, Stokes withdrew the ADA claim and substituted a new claim under a different disability-discrimination statute: the ACAA. See
On appeal, Stokes challenges only the district court‘s conclusion that the ACAA supplies no private right of action. “We review this issue of law de novo.” Casas v. Am. Airlines, Inc., 304 F.3d 517, 520 (5th Cir. 2002).
II
A
Whether a given statute should be enforceable through private civil lawsuits is, like any aspect of statutory design, fundamentally up to Congress. E.g., Sandoval, 532 U.S. at 286; Johnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093, 1097 (D.C. Cir. 2017); Delancey v. City of Austin, 570 F.3d 590, 592-93 (5th Cir. 2009). Often, Congress expressly provides for private civil-suit enforcement. Other times, however, Congress specifies only criminal-law enforcement, or leaves civil enforcement in the hands of administrative agencies. Courts are bound to follow Congress‘s choices in this arena, and bound to ascertain those choices through the tools of statutory interpretation. Sandoval, 532 U.S. at 286-87. “If the statute does not itself so provide, a private cause of action will not be created through judicial mandate.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017).
This was not always the case. During the mid-twentieth century, the Supreme Court viewed the fashioning of statutory remedies as within the proper judicial role. Id. at 1855. Under the now-abandoned maxim that “a statutory right implies the existence of all necessary and appropriate remedies,” id. (quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969)), this “ancien regime” routinely inferred private rights of action from silent statutory text, id. The Supreme Court‘s approach has since evolved. Starting in Cort v. Ash, 422 U.S. 66 (1975), affirmative congressional intent became one of four relevant factors (though not always a necessary one), see id. at 78, 82, and the next two decades of cases increasingly focused on congressional intent alone, see, e.g., Love v. Delta Air Lines, 310 F.3d 1347, 1351-52 & n.2 (11th Cir. 2002) (collecting cases). See generally Richard H. Fallon, Jr., et al., The Federal Courts and the Federal System 705-07 (6th ed. 2009).
That trend culminated in Alexander v. Sandoval, 532 U.S. 275, 286-93 (2001), which today defines the method for identifying private rights of action. Sandoval‘s command is clear: “[t]he judicial task is to interpret the statute Congress has passed,” id. at 286 (emphasis added), and to do so by consulting statutory structure and text, id. at 288 & n.7. “Legal context,” such as prevailing law at the time of the statute‘s enactment, matters “only to the extent it clari-fies text.” Id. at 288. And absent “affirmative” evidence of intent to allow private civil suits, there can be no private right of action—“no matter how desirable that might be as a policy matter, or how compatible with the statute.” Id. at 286-87, 293 n.8.
B
Since Sandoval, every federal court to reach the issue has held that the ACAA‘s text and structure preclude a private right of action. See Lopez v. Jet Blue Airways, 662 F.3d 593, 597-98 (2d Cir. 2011); Boswell v. Skywest Airlines, Inc., 361 F.3d 1263, 1269-70 (10th Cir. 2004); Love, 310 F.3d at 1354-59.1 We agree that Sandoval compels this result.
As other circuits have explained, although the ACAA prohibits airlines from discriminating on the basis of disability, it “does not expressly provide a right to sue the air carrier.” Lopez, 662 F.3d at 597 (construing
- Rather than suing airlines directly, aggrieved passengers are to notify the DOT,
49 U.S.C. § 46101(a) , which “shall investigate each [ACAA] complaint,”id. § 41705(c)(1) .2 - If, after an investigation and hearing, the DOT finds an ACAA violation, it must issue an order compelling compliance,
id. § 46101(a)(4) , and may further revoke the airline‘s air carrier certificate,id. § 41110(a)(2)(B) , or impose civil penalties of up to $25,000 for each act of discrimination,id. §§ 41705(b) ,46301(a)(1)(A) &(c)(1)(A) . - The DOT may then enforce these orders by filing its own civil action in district court,
id. § 46106 , or by requesting that the Department of Justice do the same,id. § 46107(b)(1)(A) . - The DOT must also “publish disability-related complaint data” and “report annually to Congress” on “all complaints received.”
Id. § 41705(c)(2) –(3) . - Finally, persons with a “substantial interest” in a DOT enforcement order may seek judicial review by petitioning a federal court of appeals, see
id.
This detailed statutory structure evinces none of the requisite “affirmative” intent. See Sandoval, 532 U.S. at 289-91, 293 n.8. Quite the opposite: “Congress‘s creation of specific means of enforcing the statute indicates that it did not intend to allow an additional remedy—a private right of action—that it did not expressly mention at all.” Boswell, 361 F.3d 1270 (emphasis added); see also Sandoval, 532 U.S. at 290 (“The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.“); Lopez, 662 F.3d 598 (“[T]he text and structure of the [ACAA] show that Congress chose to accomplish [its] goal through means other than private enforcement actions in the district courts.“); Love, 310 F.3d at 1354 (“[T]he text of the ACAA . . . and the surrounding statutory structure . . . belie[] any congressional intent to create a private remedy.“); cf. Casas, 304 F.3d at 522-23 (holding that this same administrative scheme precludes a private right to enforce a similar aviation statute). The ACAA confers no private right to sue in federal district court.
C
The difficulty, of course, is that our circuit previously has held otherwise. See Shinault v. Am. Airlines, Inc., 936 F.2d 796, 800 (5th Cir. 1991). Our analysis would usually stop there. “This circuit abides by the rule of orderliness, under which a panel of the court cannot overturn a prior panel decision ‘absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court or by our en banc court.‘” United States v. Boche-Perez, 755F.3d 327, 334 (5th Cir. 2014) (quoting Tech. Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012)).
But when the Supreme Court “‘expressly or implicitly’ overrules one of our precedents, we have the authority and obligation to declare and implement this change in the law.” United States v. Tanksley, 848 F.3d 347, 350 (5th Cir.) (emphasis added) (quoting United States v. Kirk, 528 F.2d 1057, 1063 (5th Cir. 1976)), as supplemented, 854 F.3d 284 (5th Cir. 2017). Such a change occurs, for example, when the Supreme Court disavows the mode of analysis on which our precedent relied. See, e.g., id. at 350-52 (finding precedent abrogated where a recent Supreme Court opinion “instructed courts on how to” perform the relevant analysis in a way that “unequivocally resolve[d]” the case); Hoskins v. Bekins Van Lines, 343 F.3d 769, 775-76 (5th Cir. 2003) (finding precedent abrogated where an intervening Supreme Court case “shift[ed] [the] focus” of the applicable test). “[A] mere ‘hint’ of how the [Supreme] Court might rule in the future,” however, will not suffice; the intervening change “must be unequivocal.” United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013).
To say that Sandoval “unequivocally” abrogated Shinault is, if anything, an understatement. In Shinault, our court inferred a private right of action from the ACAA notwithstanding that “[t]he [the statute] does not provide for [one].” 936 F.2d at 800. Instead, we justified our holding by citing legislative history, historical congressional practice, and the fact that the ACAA‘s language does not expressly prohibit courts from creating a private right. See id. Then, acknowledging the dearth of guidance from Congress and relying on cases from the “ancien regime,” we determined what remedies were “necessary and appropriate,” ultimately settling on compensatory and emotional damages but not injunctions. Id. at 804 (quoting Little Hunting Park, 396 U.S. at 239, abrogation recognized in Ziglar, 137 S. Ct. at 1855). Sandoval could hardly be clearer that courts cannot take this approach. See, e.g., 532 U.S. at 286-87
(“[S]tatutory intent [to create a private remedy] is determinative. Without it, a cause of action does not exist and courts may not create one, no matter . . . how compatible with the statute [it might be]. Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.” (citations omitted)); id. at 288 (“In determining whether statutes create private rights of action, . . . legal context matters only to the extent it clarifies text.“); id. at 293 n.8 (“‘[A]ffirmative’ evidence of congressional intent must be provided for an implied remedy, not against it . . . .“). We cannot adhere to Shinault without disregarding Sandoval.3
In response, Stokes contends that our caselaw has reaffirmed Shinault even after Sandoval issued. If that were true, that would control: the determination whether a given precedent has been abrogated is itself a determination subject to the rule of orderliness. See United States v. Reyes-Contreras, 882 F.3d 113, 123 (5th Cir. 2018). But the case on which Stokes relies—Bynum v. American Airlines, Inc., 166 F. App‘x 730 (5th Cir. 2006)—held no such thing: it held, without reference to or discussion of Sandoval, that attempting to sue under the ACAA was not sanctionably frivolous with Shinault on the books. See id. at 733 (applying
III
In light of “the unambiguous teachings of Sandoval,” Love, 310 F.3d at 1358, we join the Second, Tenth, and Eleventh Circuits and hold that, with the limited exceptions described above, the ACAA “is enforceable only by the agency charged with administering it,” Horne v. Flores, 557 U.S. 433, 456 n.6 (2009). No private right of action exists to enforce the ACAA in district court. Shinault‘s contrary holding did not survive Sandoval. The district court‘s judgment is AFFIRMED.