Lentz v. Sky King, Inc., 2001-AIR-1 (ALJ Feb. 14, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Issue date: 14Feb2002

In the Matter of:

Case No.: 2001-AIR-1

STEPHEN J. LENTZ,
    Complainant,

    v.

SKY KING, INC.,
    Respondent

   Complainant filed a complaint with the Department of Labor ("DOL"), alleging that Respondent discriminated against him in violation of Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121. ("Act") The Secretary found no violation had occurred, and Claimant filed a motion pursuant to 49 U.S.C. § 42121(b)(4)(a), requesting a hearing on his complaint. Respondent filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction on January 9, 2002. Complainant filed its response on January 29, 2002.

   Respondent has challenged this court's subject matter jurisdiction by filing a motion to dismiss. The Respondent argues that this court lacks jurisdiction over Respondent because Respondent is not an "air carrier" under the Act.

   The determinative issue is whether Respondent qualifies as an "air carrier" under 49 U.S.C. § 42121. The DOL has not promulgated any regulations pertaining to this section of the Act and no case has been decided to provide some guidance. 49 U.S.C. § 40102(a)(2) defines "air carrier" as "a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation." Air transportation is defined as "foreign air transportation, interstate air transportation, or the transportation of mail by aircraft." 49 U.S.C. § 40102(a)(5) Foreign air transportation is defined as "the transportation of passengers or property by aircraft as a common carrier for compensation..." (emphasis added) 49 U.S.C. § 40102(a)(23). Interstate air transportation is defined by statute as "the transportation of passengers or property by aircraft as a common carrier for compensation..." (emphasis added) 49 U.S.C. § 40102(a)(25).

   Respondent claims that in order to be an "air carrier" under § 42121, a party must also be a "common carrier." Respondent argues that it is a "private carrier" and as a private carrier it is not subject to the regulations under § 42121. Respondent bases this argument on the fact that the term "common carrier" is used in the definition of "foreign air transportation" and "interstate air transportation" under § 40102. Respondent also cites to case law that uses the terms "air carrier" and "common carrier" interchangeably. Professional Pilots Federation v. FAA, (D.C. App. 1997) 118 F.3d 758, 767. Respondent also cites to Sea Air v. City of New York, (DCT N.Y. 2000) 2000 U.S. Dist. Lexis 12115, a case that Respondent argues includes language defining an air carrier as a common carrier. Having made this assumption, Respondent then goes on to list the many reasons why it should not be considered a common carrier.

   It is not necessary for me to determine whether Respondent is a common carrier because I find that the term "air carrier" under 49 U.S.C. § 42121 is a general term that includes both common carriers and private carriers. The term common carrier is used throughout case law to describe entities involved in transportation for the public. It is not limited to air travel but is also used for travel by bus and railway. In Woolsey v. National Transportation Safety Board, 993 F.2d 516, 521 (Tex.. 1993), the court discusses common carries that provide air travel. The court subtitles part of its discussion as "DEFINITION OF COMMON CARRIAGE' WITH RESPECT TO AIR CARRIERS." It is apparent in the court's use of the two terms in this title that "air carrier" defines a general class of "carriers" and common carriage is a subpart of that class. The court goes on to state:

    "[t]he term common carrier' is not defined in the Federal Aviation Act or the Federal Aviation Regulations. Hence, we must look to other sources (the most important of which is the common law relating to air carriers) in order to determine whether PTI was a common carrier with respect to the flights in question in this case." (emphasis added) Id.

Again, the court uses the term "air carrier" in an all encompassing manner to describe all carries traveling by air. In a separate section of the opinion, the court again uses the two terms in a way that clearly conflicts with Respondent's proposed definition. The court states:

    Mr. Woolsey seeks to narrow the definition in a manner inconsistent with the case law. He would have us hold that an air carrier engages in common carriage only when it transports all members of the public at the same price whenever it has room on its airplanes. (emphasis added) Id. at 523.

By using the two terms in this fashion, the court has made it clear that an air carriers are not synonymous with common carriers but are instead a type of carriers that may qualify as a common carrier when certain conditions are met.

   The FAA flyer that Respondent relies so heavily upon supports this interpretation. The language in the flyer uses the general term "carrier." Under No. 4 Guidelines, the flyer states, "A carrier becomes a common carrier when it holds itself out...'" The FAA's use of the term "carrier" in a manner in which a carrier can qualify as a "common carrier" or alternatively as a "private carrier"clearly supports a finding that the term "carrier" is a general term that includes both private and common types.

   Respondent states in its brief that it is a private carrier. Having found private carriers to be covered under 49 U.S.C. §42121, I find this court has subject matter jurisdiction in this case. Accordingly;

   Respondent's Motion to Dismiss is DENIED.

       THOMAS BURKE
       Associate Chief Administrative Law Judge