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OST-03-14808

 


Irvin Rosenfeld v. Delta Airlines, Inc.

OST-03-14808 March 26, 2003 Complaint of Irvin Rosenfeld Violations of 49 U.S.C. Section 41705

Verified Complaint of Irvin Rosenfeld against Delta Airlines, Inc. pursuant to 49 U.S.C. Section 41705, requesting the Department to initiate enforcement proceedings and order Delta (1) to cease and desist from any actions that violate 49 U.S.C. Section 41705 and its implementing regulations; and, to develop a formal, written policy for accommodating otherwise qualified passengers whose disabilities require them to fly with federally prescribed marijuana and to train its employees in the implementation of this policy.

The federal government prescribes Mr. Rosenfeld medical marijuana as part of the "Investigative New Drug Compassionate Access Program," administered by the Food and Drug Administration. In a March 17, 1983 letter, FDA states that, for medical purposes, the federal government has granted Mr. Rosenfeld an exemption from the prohibition against consuming or carrying marijuana. According to the FDA, "Mr. Rosenfeld's use of [medical marijuana] under the terms of the exemption to our knowledge violates no federal law."

By: Irvin Rosenfeld


Irvin Rosenfeld v. Delta Airlines, Inc.

OST-03-14808 April 7, 2003 Correspondence of Delta Airlines Violations of 49 U.S.C. Section 41705

Correspondence of Delta Air Lines, Inc. to confirm that the Department has authorized Delta Air Lines, Inc. to submit an answer to Docket OST-2003-14808, on or before May 1, 2003.

Counsel: Shaw Pittman, Robert Cohn, 202-663-8060, robert.cohn@shawpittman.com


April 30, 2003

OST-03-14808 - Transportation of Marijuana Aboard Civil Aircraft

Answer of Delta Air Lines

Delta denies that its actions were a violation of the Air Carrier Access Act (ACAA) or Part 382, and submits that Mr. Rosenfeld's complaint has no merit and fails to state any legal or factual basis for initiating an enforcement proceeding. Mr. Rosenfeld may have a painful and debilitating disease; however, that illness has not prevented Mr. Rosenfeld, a Delta frequent flyer, from traveling aboard Delta aircraft on numerous occasions without difficulty or incident. The problems encountered at the airport in this instance was caused solely by Mr. Rosenfeld's affirmative declarations and grandstanding regarding his intent to carry marijuana on the Delta flight.

Counsel: Delta and Shaw Pittman, 202-663-8060


OST-03-14808 - Transportation of Marijuana Aboard Civil Aircraft

September 3, 2003

Notice of Substitution of Counsel

Notice informing the Department that Richard McKewen is substituted for Sheila Bedi as counsel for the Complainant, Irvin Rosenfeld, in this proceeding.

Counsel: Richard McKewen, 202-662-9546, rm322@law.georgetown.edu


Irvin Rosenfeld v. Delta Air Lines, Inc.

Order 04-03-27
OST-03-14808 - Rosenfeld v Delta Air Lines

Issued and Served March 26, 2004

Order Dismissing Complaint | Word

Based on a number of circumstances, we do not believe the pursuit of enforcement action to be in the public interest here. The incident stemmed from circumstances that were highly exceptional, particularly since exemptions similar to Mr. Rosenfeld’s are held by fewer than ten individuals in the U.S. In view of the rarity of Mr. Rosenfeld’s exemption, the ambiguity of the legal rights under the exemption, and the nature of the documentation that Mr. Rosenfeld presented to Delta’s agents at the time of his travel, it is understandable that Delta’s employees were reluctant to allow him to board and were unable to confirm promptly that he was entitled to travel with his marijuana. While we advise Delta and other carriers that they must transport disabled passengers who are carrying with them lawfully prescribed medications, this general obligation does not apply to cases in which an individual claims a right to carry a Schedule I controlled substance such as marijuana for reasons ostensibly related to a disabling condition unless, as is pertinent here, the individual can adequately document that he or she is entitled to possess marijuana pursuant to the FDA’s single-patient IND program. It should be emphasized that, as indicated above, fewer than ten individuals in the U.S. are so entitled. When a passenger claims to be among those covered by FDA’s single-patient IND Program, it is the obligation of the passenger to produce at the carrier’s request credible substantiating documentation indicating his or her participation in the program. In this instance, Delta agents made reasonable efforts to confirm Mr. Rosenfeld’s status but were unable to do so, in view of the incomplete and ambiguous documentation offered by Mr. Rosenfeld. In these circumstances, we conclude that enforcement action is not in the public interest.

By: Samuel Podberesky


OST-03-14808

April 12, 2004

Petition for Reconsideration of Complainant Irvin Rosenfeld

Reconsideration is warranted because the Order erroneously concludes that dismissal of Mr. Rosenfeld's complaint is in the public interest. Reconsideration is also warranted because the Order made premature factual findings and failed to take into consideration evidence submitted by Mr. Rosenfeld in support of his complaint. Finally, reconsideration is warranted because the Order premised its conclusion on the insupportable assertion that the law governing Mr. Rosenfeld's Investigational New Drug exemption is ambiguous.

Counsel: Institute for Public Representation, Richard McKewen, 202-662-9546


OST-03-14808

April 13, 2004

Re: Delta Plans to Answer the Petition for Reconsideration

This is to advise the Department that Delta plans to answer the Petition for Reconsideration submitted by counsel for Irvin Rosenfeld in the above-captioned matter. Although the Petition was dated April 9, 2004, it was not docketed until April 12, 2004. Accordingly, Delta intends to submit its answer on April 22, 2004.

Counsel: Shaw Pittman, Robert Cohn


OST-03-14808

April 13, 2004

Re: Erratum Sheet

PLEASE TAKE NOTICE that the Petition for Reconsideration docketed on April 12, 2004, by Complainant Irvin Rosenfeld should be amended as follows: On page six, line five, of the Petition replace the word "thirty" with "twenty."

By: Institute for Public Representation, Richard McKewen and Pamela Hirschman, 202-662-9542


OST-03-14808 - Transportation of Marijuana Aboard Civil Aircraft

April 22, 2004

Answer of Delta Air Lines to Petition for Reconsideration

Delta Air Lines, Inc. hereby answers in opposition to the Petition for Reconsideration.

By Order 2004-3-27, the Department dismissed this third-party enforcement complaint. The Department correctly determined that (i) the incident stemmed from circumstances that were "highly exceptional," (ii) the nature of the documentation and legal rights under Mr. Rosenfeld's marijuana "exemption" were ambiguous, and (iii) that pursuit of legal enforcement action against Delta was not in the public interest. The Petition offers no valid basis to disturb these findings and should be denied.

Counsel: Shaw Pittman, Alexander Van der Bellen, 202-663-8060


Irvin Rosenfeld v. Delta Air Lines, Inc.

Order 04-05-25
OST-03-14808 - Transportation of Marijuana Aboard Civil Aircraft

Issued and Served May 27, 2004

Order Affirming Dismissal of Complaint

I affirm the dismissal of the third-party complaint in this docket; and Order 2004-3-27 is amended to strike the phrase "absent evidence of any state laws prohibiting such possession" on page 3. This order is issued under authority assigned in 14 CFR 385.34(b) and shall be effective as the final action of the Department 30 days after service.

By: Rosalind Knapp


 

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