The obvious follow-up question to, Does an airline pilot have the right to refuse to let you fly?, is “What can you do if an airline pilot won’t let you fly?”
Arijit Guha, one of the victims (his wife was also barred from the flight, merely for her association with her husband) in the incident that prompted our previous article, has said that he’s filing complaints with the airline (probably a waste of time, unless his case generates enough bad press and costs Delta enough customers that the airline decides it’s worth paying off the Guhas to get them to shut up), the local police (who detained and harassed the Guhas but don’t seem to have been directly responsible for preventing them from traveling), and the U.S. Department of Transportation (more likely than the police to at least conduct a pro forma investigation and provide a pro forma response to the complaint).
We suspect, however, that these complaints will be unavailing as long as Delta Air Lines, the cops, and the TSA checkpoint staff stick to their story that sole responsibility for denying the Guhas boarding on Delta Flight 1176 from Buffalo to Atlanta on August 18, 2012, rests with the pilot of that flight in the exercise of his or her “discretion”.
The only way to hold that pilot responsible for his or her actions, short of a civil lawsuit against the pilot (something the Guhas should consider), is a complaint to the Federal Aviation Administration against the pilot for violating Federal aviation regulations or rules for “airmen” [sic].
How would this work? We consulted several pilots, but none of them wanted to talk about how a passenger (or would-be passenger) could get a pilot in trouble with the FAA. Some pilots simply demurred. Others suggested that the real responsibility for denial of transportation rests with airline and/or government policies for which the pilot shouldn’t be blamed.
In practice, though, the “pilot’s discretion” for denial of transportation is likely to be a fallback rationalization on the part of the airline (unfairly putting the blame on a pilot who may not be at fault and almost certainly would prefer not to get involved) offered only when there is no other available legal excuse for the airline’s denial of transport.
If you are told that you are being kept off a flight on the pilot’s orders, that probably means that (1) there is no legal basis for the airline, the local police, or the TSA (all of whom are likely to have a go at you before the “pilot’s discretion” is invoked) to keep you off the flight, and (2) you can, and should, hold the pilot personally responsible for either rescinding his or her order against you or justifying that order to the authorities responsible for licensing and oversight of pilots’ actions.
The reluctance to help us of the pilots we consulted suggests that we are on the right track. No pilot wants to face an FAA investigation or to have to respond to a safety complaint that could result in a black mark on his or her safety record and jeopardize his or her pilot’s license and job. Pilots regard a complaint to the FAA as a “nuclear option” for safety violations, and are extremely reluctant to rat a fellow pilot out to FAA safety inspectors or help anyone else do so.
That’s precisely why complaining to the FAA may be one of the most effective responses to an airline’s threat to ban you from a flight on the pilot’s say-so, piercing the pilot’s immunity and making him or her defend his or herself against a regulatory investigation that will cost him or her time, lost income, and in the worst case loss or suspension of his or her license to fly.
Statistics on reported safety “incidents” also affect airlines’ reputations. Federal regulations define a safety incident as “an occurrence other than an accident, associated with the operation of an aircraft, which affects or could affect the safety of operations.” So by definition, a pilot’s denial of transportation to a would-be passenger on the basis of the pilot’s belief that the passenger is a threat to the safety of the flight is a “safety incident.”
As we discussed in the preceding article, a pilot’s authority to deny transportation to an otherwise-qualified would-be passenger on a common-carrier flight is limited to cases in which the pilot has a genuine belief that the person poses a threat to the safety of the flight.
If the pilot really believes that there is such a safety threat, he or she should report it and record it in his or her log. Failure to log and report it promptly as a safety incident would cast serious doubt, in any later proceedings, on the sincerity of the pilot’s claim to have believed that you posed an actual threat to flight safety.
On the other hand, knowingly making false statements in a report to the FAA is a Federal crime for which pilots have been prosecuted and convicted.
So if you are denied boarding, and you are told that it’s the pilot’s decision, what can you do?
- Ask to speak to the pilot directly. If the airline won’t get the pilot to come talk to you, ask for a written statement on airline letterhead, with a legible name and title of the responsible airline employee — ask to have it signed by the airline’s “station manager” for that airport if not the pilot — stating (a) that you held a valid ticket and reservation on the specified flight, (b) that you were involuntarily denied boarding by the airline, and (c) the reason for the denial of boarding. Insist that you need this to establish your entitlement to a refund or compensation.
- Ask the pilot why he or she won’t let you on the flight. Ask them to put their reasons(s) in writing (see above). Remind the pilot that his or her authority to deny transportation is limited to those would-be passengers who he or she actually believes pose a threat to safety. If the airline allows the pilot to keep you off the plane for some (purported) reason other than safety, you can use that in a later lawsuit against the airline for breach of your contract of carriage and refusal to transport you, and in a complaint to the US Department of Transportation against the airline for failure to honor its tariff and breach of its license as a common carrier.
- If the pilot says he or she believes that you pose a threat to the safety of the flight, request that he or she record the incident in his or her log, and report it as a safety incident. Let the pilot know that, if there is no actual reason to think that your presence on board would endanger the flight, you will also file a report that the pilot has made a knowingly false safety incident report.
- If the pilot says he or she thinks you pose a danger to the flight, but the pilot refuses to call the FAA, call the FAA yourself and report the pilot for failing to report a safety incident. You can also make a report to the FAA later, online, which could be especially useful in documenting your complaint if the FAA is reluctant to log your telephone complaint.
Some of the pilots among our readers may not like it that we offer this advice to travelers. But the point of all this is not to make life hard for airline pilots. The point is to force a pilot who wants to discriminate against you — because he or she doesn’t like your looks, doesn’t like what you are wearing, doesn’t agree with what you say, or thinks you are being a jerk — to choose either to let you on the plane, or to face a time-consuming FAA safety investigation which will put the pilot’s license and career at risk.
If a pilot doesn’t want these hassles, he or she don’t have to get involved in ordering anyone off the plane. On the ground, a pilot who genuinely believes that someone poses a threat to the safety of the flight can report his or her suspicions to appropriate law enforcement officers, and allow them to deal with the situation.
If the police can’t find any basis for arresting you, the pilot should let you fly.