U/A and Dr. Dao (2017)

Discussion in 'Flight Following' started by Let'sgoflying!, Apr 9, 2019.

  1. Palmpilot

    Palmpilot Touchdown! Greaser!

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    This reinforces my earlier point that it's unreasonable to claim that the airline should have anticipated what was in reality unprecedented violence.
     
    Last edited: Apr 13, 2019
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  2. Larry in TN

    Larry in TN Cleared for Takeoff

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    It was a 76-seat airplane.

    That would be a violation of 14 CFR 250 which requires each airline to establish, and apply, a procedure for selecting the passenger(s) who will be IDBd. The regulation requires this so that the airline can't pick arbitrarily. The DoT investigated the incident and found that Dao was selected properly for IDB under 14 CFR 250 and the carrier's contract of carriage.

    At that time, if you called for law enforcement at ORD these were the people that would respond.
     
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  3. PeterNSteinmetz

    PeterNSteinmetz Line Up and Wait

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    I am still curious if the airlines even had the legal authority to physically put him off the plane. The regulations don't provide that. Apparently the security people who were called thought they had a legal basis, but they may not have even been LEOs at the time. Trespass law may provide this, but it is possible in this regulated industry it does not.
     
  4. Palmpilot

    Palmpilot Touchdown! Greaser!

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    Maybe that derives from the captain's authority under 14 CFR 91.3(a). :dunno:
     
  5. PeterNSteinmetz

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    Interesting idea, but I don't think that provides legal authority to forcibly put someone off. It is just a regulation. Violating it can result in civil action generally speaking.
     
  6. PeterNSteinmetz

    PeterNSteinmetz Line Up and Wait

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    I read that and the regulation doesn't really seem to deal with this particular situation. It does not appear to me to say anything about putting someone off who has already boarded, or about choosing another person to be denied if an already boarded person refuses to leave. (Please point out if I missed it somehow.)

    UA's actual policies may something about it. But they may not because it may not be clearly covered by the regulations (as are many situations in the real world when they run up against pre-defined regulations.)

    So there may have been no real reason that UA couldn't have simply chosen someone else or denied their own employees transportation (as EdFred, myself, and others have previously noted).

    I would contend that both alternatives could reasonably have been anticipated to be less likely to result in a violent confrontation than calling the police. The fact that UA chose the latter, the violent alternative, in the face of ambiguity, in my opinion indicate the kind of company they were and the type of culture they likely still have.
     
  7. PeterNSteinmetz

    PeterNSteinmetz Line Up and Wait

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    And relating this to my last post. Regardless of previous experience by airlines, is it the serious contention here that you are less likely to have a violent confrontation when dealing with an otherwise peaceful contract dispute by calling the police than by not calling them?

    And in this particular case, of the three alternative available to UA, 1) call the police, 2) ask another passenger to leave, or 3) deny boarding to your own employees, that alternative #1 is the one least likely to result in a violent confrontation? That seems an incorrect ordering of the probabilities of violence to me. I would judge that 1,2,3 is the order of decreasing likelihood of violent confrontation.
     
  8. Larry in TN

    Larry in TN Cleared for Takeoff

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    The boarding process continues until the door is shut and the flight is closed out. A passenger can be "denied boarding" at any point in the process.

    As I posted above, the DoT investigated the incident and found two minor violations unrelated to the selection of Dao. They concluded that Dao was selected for IDB in accordance with 14 CFR 250 and the carrier's CoC. The DoT wrote the regulation and is charged with enforcing it.
     
  9. PeterNSteinmetz

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    Thanks, I had forgotten about the fact that the boarding process continues until the door is shut. Do you think that regulation specifies what to do if a passenger refuses, what physical steps can be taken to ensure compliance, and that another passenger cannot be selected in that event?

    It struck me that the regulations are mute on those points. As a regulatory agency, it appears the DoT does not have law enforcement powers or its own police force.
     
  10. Palmpilot

    Palmpilot Touchdown! Greaser!

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    A little over an hour ago, you implied that trespass law might not apply because of regulations:

    That's why I quoted a regulation that appears to give the captain wide authority.

    Perhaps even better would be 14 CFR 91.11 and 49 USC 46504, which prohibit interfering with a crew member's performance of his or her duties. Those duties presumably include applying 14 CFR 250. The statute also authorizes a fine and/or imprisonment up to twenty years. I'm pretty sure that a passenger can be arrested if he violates a statute that provides for fines and prison time.

    Of course, I'm not an attorney, so I'm just guessing.
     
  11. Palmpilot

    Palmpilot Touchdown! Greaser!

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    I think those questions are irrelevant to the issue of whether the airline was to blame for the violence that befell Dr. Dao. The change in the airline's policies were necessitated by public expectations and public relations considerations, not any legal, ethical, or moral transgression on the airline's part.
     
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  12. PeterNSteinmetz

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    Well I have to disagree they are irrelevant and would still be curious to hear what your answers are.
     
  13. PeterNSteinmetz

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    A statute could provide the proper authority, but 49 USC 46504, states “who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties...”

    Did Dr. Dao assault or intimidate prior to the police being called? I don’t recall seeing that, but perhaps I missed it.

    So I am still puzzled as to the legal authority to physically remove him, leaving aside the issue of whether these security personnel were even LEOs.
     
  14. PeterNSteinmetz

    PeterNSteinmetz Line Up and Wait

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    Another pair of rank orderings that may be interesting to think about in this case.

    I would submit that the rank ordering of alternatives in terms of decreasing convenience for the flight crew was call the police, refuse boarding to the employees, ask another passenger.

    The rank order in terms of increasing anticipated cost to the airlines was call the police, ask another customer, refuse boarding to the employees.

    The fact that UA chose the policy which could have reasonably been anticipated to have the least cost to the airline, the least inconvenience to the flight crew, and the highest likelihood of resulting in a violent confrontation is what bothers most people I think. And thus leads to the need to change policy and mitigate a public relations and perception disaster, as suggested.
     
  15. TCABM

    TCABM Cleared for Takeoff

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    Are you writing a paper on this?
     
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  16. PeterNSteinmetz

    PeterNSteinmetz Line Up and Wait

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    Good question! At this point I almost could, but have several other scientific papers I need to keep focused on. Also a less formal one about Andrew Wakefield and the MMR/vaccine scare which I’ve been researching for the last few months.

    I do appreciate all of the inputs and perspectives here and have learned a lot so far about this incident. Thanks all for discussing it in further detail.
     
  17. PeterNSteinmetz

    PeterNSteinmetz Line Up and Wait

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  18. PeterNSteinmetz

    PeterNSteinmetz Line Up and Wait

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  19. EdFred

    EdFred Touchdown! Greaser! PoA Supporter

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    Wouldn't the dead headers have paid the lowest fare? ;)
     
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  20. EdFred

    EdFred Touchdown! Greaser! PoA Supporter

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    I'd like to know what the procedure was, as 250 doesn't spell it out. You'd think that a doctor on his way to perform a surgery and won't make it in time if he missed this flight (IIRC that was his reason for not getting off, but IMBM) wouldn't be the only possible person out of 76 that would qualify.

    I can just see it now...

    "Sure you have to get off the plane because our dumbass crew scheduler didn't plan very well and the trolley dolly needs a ride to Paducah"
    "I'm on my way to donate a bone marrow to a kids who will die if I'm not on this flight"
    "F the kids, we have a stewardess that needs to yell at passengers for wanting an entire can soda tomorrow morning at 7am.
     
  21. Palmpilot

    Palmpilot Touchdown! Greaser!

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    I'm not interested in spending time on a subject that I consider to be irrelevant.
     
    Last edited: Apr 14, 2019
  22. Larry in TN

    Larry in TN Cleared for Takeoff

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    14 CFR 250 requires that the airline establish, then adhere to, the procedure. It is available from the airline at the airport or on their website.

    Passengers with status go to the bottom of the list in reverse order of status. Passengers without status are sorted by the amount paid for the fare; lowest fare at the top. Ties are broken by check-in time with the latest check-in time being bumped first. This is how most US airlines do it. LCC/ULCCs would be the ones most likely to have different systems.

    Dao had no status and a discounted ticket which is how he ended up at the top of the list. I know of no airline which attempts to rank the relative importance of the plans each passenger has at the destination.
     
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  23. PeterNSteinmetz

    PeterNSteinmetz Line Up and Wait

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    Then let me check if I understand the thrust of the argument here. Basically it boils down to the argument that UA should not be held responsible for the violent confrontation which resulted in Dr. Dao’s injury because no reasonable person could have anticipated that calling the police would result in such a violent confrontation. (Please correct me if I am mistaken.)

    The counter argument is that a reasonable person would anticipate that calling the police is more likely to result in a violent confrontation than not calling the police when other alternatives are available and so UA should have chosen one of the other alternatives. Therefore UA bears some responsibility for the violent confrontation which resulted in injury.

    I see two possible differences between these. The first is the reasonableness of the estimates of violence ensuing if one calls the police (essentially an empirical question). The second is a theoretical difference in whether one can assign blame based on relative risks and partial causation (beliefs about human agency).

    With my questions I was trying to probe the differences between these two. In the first case, for a discussion to go forward, it is likely most productive to discuss data relating to the relative probabilities of police use of excessive force. In the second case it is likely most productive to discuss beliefs about human agency and causation.

    I find it is often useful to understand the cause of differences of opinion amongst reasonable people, at least to sharpen one’s own understanding. Thanks for the inputs on this.
     
  24. PeterNSteinmetz

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    I gather the dead-headers aren’t placed in the list with the passengers and so so effectively in this case were treated as being on the very top priority ahead of everyone else?

    I gather the change in policy at UA essentially says now that the police will no longer be called in to enforce that.
     
  25. Larry in TN

    Larry in TN Cleared for Takeoff

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    Of course. There are types of positive space bookings that will be removed for an oversale but that doesn't apply to crew movements.

    There were several policy changes.

    The cap for voluntary denied boarding compensation was raised to just short of $10,000. I've personally seen $5,000 paid and heard of situations were they approached the new limit.

    Positive space travelers can no longer be added to a flight within 60 minutes of departure unless there are seats available for them. This prevents the problem that they had with the Dao flight where the four PS crewmembers were moved to that flight after the flight had begun boarding.

    Law enforcement will no longer be used to aid in the removal of passengers due to an oversale.

    There may have been others but those are the primary changes.
     
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  26. Hacker

    Hacker Pre-takeoff checklist

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    Wait, who owns the seat again?
     
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  27. Palmpilot

    Palmpilot Touchdown! Greaser!

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    Too much hair-splitting. I've said what I have to say on the subject, so the discussion can go forward without me.
     
  28. PeterNSteinmetz

    PeterNSteinmetz Line Up and Wait

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    The complaint by agent Long (link in prior post) is notable for several items relative to this discussion. Some of the allegations:

    Agent Long was an LEO who was called in by other security officers.

    Long did not receive training on the use of force continuum or how to deal with airline passengers.

    Dr. Dao attempted to shake his arm free from Long’s grasp and after succeeding lost his balance and then fell.

    United should have reasonably anticipated that calling the police would require the use of physical force.

    United admitted that it was at fault and that the agents were not.

    These are of course allegations which I don’t believe have yet been adjudicated. There is also reference to several exhibits, including the admission by United, which would be particularly interesting in the context of this discussion.
     
  29. PeterNSteinmetz

    PeterNSteinmetz Line Up and Wait

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    The article linked by the OP and the other news article I previously linked also contain some interesting statements pertinent to the discussion of use of force. From the first :

    “Oscar Munoz, the CEO of United Airlines, said he felt "shame" when he saw the video.

    "This will never happen again," Munoz told ABC News' "Good Morning America" in an interview three days after the incident. "We are not going to put a law enforcement official onto a plane to take them off … to remove a booked, paid, seated passenger. We can't do that."

    Could be just PR back-tracking I suppose - or a genuine feeling recognizing UA had done something wrong.
     
  30. PeterNSteinmetz

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    Looking through the Wikipedia article on this for the exhibits referred to in the Long complaint. Didn’t find them but found this regarding the legal authority to remove Dr. Dao:

    While United has asserted a right to remove passengers after boarding, none of the reasons for doing so specified in the airline's contract of carriage applied in this situation.[153] One attorney pointedly stated United "had absolutely no right to remove that man from the airplane"[154] and described the incident as "assault and battery."[152]
     
  31. MauleSkinner

    MauleSkinner Final Approach

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    I know a lot of people would take Wikipedia as the ultimate authority, but as was previously stated, apparently the FAA doesn’t agree.
     
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  32. dmspilot

    dmspilot En-Route

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    I use Wikipedia a great deal and believe in its usefulness, but it's not infallible. The quoted sentence apparently was written by an overzealous wiki author, as the cited source is from a newspaper article that interviewed a Boston attorney who used words like United "seems" and "may have" violated its contract.

    The claim doesn't hold up to Wikipedia's own standards. Anyone is free to make "corrections."
     
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  33. Larry in TN

    Larry in TN Cleared for Takeoff

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    They base that position on their own interpretation of 14 CFR 250 which concludes that it only applies to passengers who are not yet onboard the airplane.

    The DoT, who wrote and enforces 14 CFR 250, never intended, nor enforced, any such limitation. Such a limitation would undermine one of the intents of the rule which was to establish a policy that would be applied consistently and couldn't be gamed by some passengers as the expense of others.
     
  34. PeterNSteinmetz

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    Yes, Wikipedia is only a starting point for a source and initial references. Thanks for checking that out source.

    I think the DoT did investigate and conclude that UA had followed the regulations. I don’t think that the question of the actual legality of his removal has been investigated.

    Next up would be the allegation that UA admitted it was at fault (would be the exhibit to the Long complaint) and that the officers were not.

    The allegation that UA should have expected the use of violence when calling the police will presumably be adjudicated if the case proceeds.
     
  35. PeterNSteinmetz

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    Well this could get into a sticky area that I have had to deal with. The courts don’t automatically assume the regulatory agency is correct, so the work in Long’s case may be determinative.

    Have there been any prior regulatory rulings regarding this issue of whether the rule applies after boarding but before closing the door?

    I don’t see how saying that once the passengers are on you can’t legally deplane them over a contract dispute would necessarily be inconsistent with the principles of fairness. There might be existing rulings to that effect though.

    Strikes me, from a limited understanding, that this may simply be unresolved regulatory territory. Such gaps almost always exist.

    And I don’t see that any of the regulations provide a legal basis for forced deplanement in these circumstances. They are mute on that point.
     
  36. dmspilot

    dmspilot En-Route

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    What case?
     
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  37. PeterNSteinmetz

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    Sorry if that was ambiguous. The case by Agent Long who is suing for defamation, amongst others. The complaint where he alleges that UA admitted fault is https://www.courthousenews.com/wp-content/uploads/2018/04/Dao.pdf .

    The exhibits to this complaint may be fairly interesting in terms of these issues.
     
  38. PeterNSteinmetz

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    Reviewing all 3 references cited in the Wikipedia article on this issue I am left with the impression that the summary in Wikipedia was reasonable (it is almost a verbatim quote from reference 152) and that there is a serious legal question whether UA was legally within their rights to deplane Dr. Dao. They cite 3 separate attorneys (Wolk, Banzhaf, Tarricone). Consider:

    Ref 152. https://www.philly.com/philly/colum...-Airlines-right-is-wrong-for-passengers-.html

    '...but United had no right to remove Dao, says aviation law expert Arthur Wolk, a Center City attorney who read the 45-page “contract of carriage.”

    Wolk says Dao “absolutely” had the right to the seat, and this was not a case of “overbooking,” he says, because all the passengers had seats. What happened to Dao was “assault and battery,” he says.'

    '"Is there any question that Dao is going to sue? John Banzhaf, a professor at the George Washington University Law School, agrees with Wolk’s analysis. He says United is “citing the wrong federal rule to justify its illegal request to force a passenger already boarded and seated to disembark.”"'


    Ref 153. http://www.bostonherald.com/news/lo...aces_rough_landing_in_court_if_passenger_sues

    "United Airlines — embroiled in controversy after it forcibly removed a doctor from an overbooked flight — could be in for a legal beatdown if the passenger takes the beleaguered carrier to court, according to legal experts.

    “I think they are going to have a serious legal issue on their hands,” said Anthony Tarricone, a Boston attorney who has handled cases involving aircraft accidents and disasters. “United might say they didn’t hurt him, and that it was security, but United set that situation in motion.”'

    Should Dao, 69, choose to take United to court, he could come away victorious, according to Tarricone, who reviewed the airliner’s terms and conditions for its contract of carriage before speaking to the Herald.

    He said United may have violated the contract when they attempted to remove Dao after he had already boarded the plane. Tarricone said the airline may have been relying on language that allows them to prevent someone from boarding when they called on authorities to remove him from the plane.

    “I think they not only breached the contract, but they could also be facing a viable tort claim for allowing excessive force to remove a passenger when they had no right to,” he said.

    Tarricone added that United can remove passengers from a plane under its terms, but “none of those seem to apply here.”


    Ref 154. http://philadelphia.cbslocal.com/2017/04/11/aviation-attorney-on-united/

    Aviation attorney Arthur Wolk says he read all 45 pages of United’s Contract of Carriage and he believes the airline violated its own contract.

    “I want to assure United Airlines they had absolutely no right to remove that man from the airplane. Absolutely no right to forcibly remove him from an airplane. They’re in trouble.”

    "According to Wolk, airlines can deny you a seat, but once you’re on board that’s a different story."
     
  39. Larry in TN

    Larry in TN Cleared for Takeoff

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    They found two minor violations that were unrelated to the selection, or removal, of Dao. I've posted this several times already.

    The DoT found that the carrier had selected Dao for IDB in accordance with 14 CFR 250 and the carrier's CoC. If Dao was no longer eligible for IDB because he was on board the aircraft then they would not have found that he was properly selected. I've posted this several times already.

    In Chevron v. NRDC, decided in 1984, the Supreme Court held that courts should generally defer to reasonable agency interpretations of statutory provisions.

    It would allow a passenger at the top of the list for being IDBd to "jump the line", so to speak, by boarding the flight early. It would, in affect, change the priority order from that established under 14 CFR 250 to first-come, first-served.

    This isn't groundbreaking legal territory. Contact the DoT and ask them. Going around in circles on the forum is accomplishing nothing.
     
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  40. PeterNSteinmetz

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    Well, I believe Chevron deference applies to cases arising from regulatory matters.

    However, I see nothing in the regulation permitting them to physically remove him from the flight.

    Are you maintaining the regulations permitted them to physically remove him from the flight? Did the DoT adjudicate that?

    I think the only thing that would really have decided this would have been the lawsuit. But UA short circuited that by settling. Indeed it is possible that the exhibits in the Long case may be the settlement agreement. They may be sealed.

    Long alleges in the complaint that UA has admitted that they could have reasonably anticipated violence would arise and that it was not the LEOs responsibility. If that is true, it is certainly important in terms of the issues here and would seem to place responsibility, by their own admission, squarely in UAs lap.

    I think the next step would have to be to read the DoT decision and investigation as well as the contract for carriage.
    We know that at least 3 attorneys, not party to the lawsuit, were of the opinion that UA violated its contract for carriage, but I presume that was prior to the DoT decision.

    I don’t think taking with the DoT is likely to be informative, but if you have links to the investigation/decision that might be useful. I agree no reason to repeat the summary of it - I have read all the posts here.