September 26, 2021
Flyers to Seek Injunction Blocking Delta’s Conspiracy with Other Airlines to Ban Maskless Passengers
Plaintiffs in First Class-Action Lawsuit to Stop Airline
Mask Mandates Condemn Discrimination Plan
Sept. 26, 2021
By LUCAS WALL
THE VILLAGES, Florida – A group of 13 flyers from seven states, the District of Columbia, and Israel plan to file a motion for preliminary injunction this week asking a federal court in Orlando to stop Delta Air Lines from illegally conspiring with other carriers to share their no-fly lists of passengers who can’t or won’t wear masks.
Delta last week urged airlines to come together and form a national no-fly list of customers with disabilities who remove their masks in flight to be able to breathe freely. Plaintiffs, who Sept. 13 filed an amended civil complaint against Delta and six other major airlines in the nation’s first class-action lawsuit challenging their mask mandates, express outrage at Delta’s conduct.
“We condemn Delta Air Lines for continuing its illegal conspiracy with other carriers to ban passengers who medically can’t — or simply don’t — want to obstruct their breathing,” said lead plaintiff Lucas Wall, 44, of Washington, D.C., who has been stuck in Florida since early June because he was prohibited from flying due to his inability to cover his face. “We will be asking the court this week for a preliminary injunction to immediately halt this ongoing conspiracy to interfere with the civil rights of passengers like us who can’t tolerate masks due to our medical conditions.”
Delta has added more than 1,600 people to its forbidden list since it illegally began requiring customers to wear masks in Spring 2020 in violation of the federal Food, Drug, & Cosmetic Act, which requires airlines and other businesses to give customers “the option to accept or refuse administration” of any medical device such as face coverings approved by the U.S. Food & Drug Administration under an Emergency Use Authorization. Also, many mask types used by airline passengers are not authorized at all by FDA.
“Having a medical disability is unpleasant enough; being treated with disdain and being punished for it, is just horrible,” said plaintiff Aaron Abadi, a New York City businessman who has had to drive more than 25,000 miles during the pandemic because airlines won’t let him fly.
The federal lawsuit charges Alaska, Allegiant, Delta, Frontier, JetBlue, Southwest, and Spirit with conspiring to ban millions of Americans with medical conditions who can’t tolerate wearing face coverings from using the nation’s aviation system as well as unlawfully mandating that all passengers use EUA or unapproved face masks without their informed, written consent. Plaintiffs submitted into evidence 223 studies and articles explaining that face coverings do nothing to stop COVID-19 transmission but are harmful to our health in dozens of ways.
“We’ve also asked other airlines to share their ‘no fly’ list to further protect airline employees across the industry,” Kristen Taylor, Delta’s senior vice president of in-flight services, wrote in a recent memo to flight attendants, alleging the conspiracy concerns “unruly passenger behavior.”
But the airlines themselves have caused chaos in the sky, dangerously depriving passengers of oxygen at the equivalent of 8,000 feet altitude (plane cabins are typically pressurized at this level), where oxygen is already greatly reduced compared to sea level. Oxygen-starved flyers have ripped off their masks to be able to breathe, which has led to threatening and physical behavior by flight attendants and other passengers. The Federal Aviation Administration has received reports of 3,123 mask-related incidents aboard aircraft this year due to the airlines’ policies and the Federal Transportation Mask Mandate, which Wall is challenging in a separate lawsuit.
Plaintiffs charge Delta and the other six airlines with reckless endangerment, conspiracy to interfere with the civil rights of the disabled, and 28 other violations of the Constitution, federal laws and regulations, contract and tort laws, and international treaties. They have named Delta CEO Ed Bastian as a likely personal defendant for showing animus toward the disabled, relegating them to second-class citizenship by telling them they can’t travel.
“Plaintiffs are a group of disabled (and one nondisabled) airline passengers who have been restricted from flying by the defendants for more than a year because of their enforcement of mask mandates that violate numerous provisions of federal and international laws, plus breach their contracts and violate tort law and the Constitution,” according to the 227-page amended complaint filed Sept. 13 in the U.S. District Court in Orlando. “The one plaintiff who does not have a disability represents a class of flyers who strongly object to forced masking as a violation of their rights under federal law and the contracts of carriage.”
Wall imitated the airline lawsuit, Wall v. Southwest Airlines, after Southwest refused to grant him a medical mask exemption for a June 2 flight from Orlando to Fort Lauderdale. Wall also had tickets for summer travel on Alaska Airlines, Allegiant Air, Delta Air Lines, Frontier Airlines, JetBlue Airways, and Spirit Airlines that he wasn’t able to use because of their discriminatory policies. Wall can’t wear a mask because he suffers from Generalized Anxiety Disorder, which gives him panic attacks and hyperventilation if his sources of oxygen are obstructed.
The dozen additional plaintiffs include a worker in Alaska who has to fly regularly on Alaska Airlines to the remote North Slope oilfields, a Missouri veteran who was removed from a Southwest flight for not masking, a family from Maine who couldn’t use Southwest tickets because of the carrier’s ban on medical exemptions, and an American couple who reside in Israel and regularly fly back and forth to California to visit family.
“We’ve been steadily and rather aggressively stepping up our enforcement of the mask policy. You cannot board a Delta plane unless you have a mask on. If you board the plane and insist on not wearing a mask, we insist that you do not fly Delta,” Bastian said last year. Plaintiffs contend Bastian showed his animus for the disabled when he “urged people who are considering flying without a mask to consider traveling with other airlines that have fewer restrictions, to figure out other means of traveling, or to simply not travel at all.”
“The evidence plaintiffs present in this Amended Complaint – supported by 525 exhibits attached hereto – is indisputable that all defendants since Summer 2020 during the COVID-19 pandemic have illegally discriminated against millions of flyers with disabilities in refusing to grant any mask exemptions and/or requiring such an onerous exemption process that travelers with a medical condition that makes it impossible for them to cover their face are essentially banned from using the nation’s commercial aviation system,” according to the complaint. “The defendants have also illegally failed to give all passengers – whether disabled or not – the legally guaranteed option under the Food, Drug, & Cosmetic Act to refuse to use a medical device (face mask) not approved by the Food & Drug Administration or allowed only under an Emergency Use Authorization.”
Plaintiffs argue these airlines aren’t going to avoid legal culpability for stopping millions of Americans who can’t tolerate wearing face coverings from using the nation’s aviation system.
“We’ve offered to work with all seven carriers on a consent decree to halt their illegal behavior, but they have refused,” Wall said. “They must obey the Air Carrier Access Act and, at minimum, offer mask exemptions without mandating numerous illegal steps such as advance notice, COVID-19 testing, and producing a doctor’s letter. They shall not further conspire with each other to bar the disabled from flying.”
View: Wall v. Southwest Airlines docket
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I too was banned to fly – for no reason except that I “Disresrected” the Flight Attendant – I never refused to wear my mask….Dept of Homeland Sec sent me a letter and I was given a STERN WARNING…. Shape up or it will get WORSE. We are in a COMMUNIST COUNTRY.