The Ninth Circuit’s recent holding[1] that “the ADA prohibits certification requirements for qualifying service dogs” is a timely reminder for all persons using service animals that certification of a service animal’s task-performing ability by a third party is prohibited under the Americans with Disabilities Act (ADA) for qualification as a service animal. The underlying logic of the Ninth Circuit’s holding may further extend to the U.S. Department of Transportation (“DOT”)’s December 2020 final rule (“Traveling by Air with Service Animals”),[2] which recently updated the definition of “service animal” under the Air Carrier Access Act (ACAA). As summer travel continues to increase, many airline passengers with service animals may encounter the DOT’s updated regulations for the first time, and legal challenges between such passengers and airline carriers may result.

Although the DOT’s updated definition of service animal does not perfectly mirror the Department of Justice (DOJ)’s definition[3] implementing the ADA in all respects, both the DOT and DOJ similarly define a service animal as a dog “that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” However, primarily due to safety concerns related to the close confinement of passengers and crewmembers aboard airplanes, the DOT final rule allows for additional service animal-related requirements by airline carriers under the ACAA beyond those permitted by DOJ service animal regulations related to public accommodations under the ADA.[4]

Importantly, while the DOT’s December 2020 final rule allows an airline carrier to require that passengers traveling with service animals provide advance attestation of their service animal’s task-performing ability, the DOT rule specifically notes that “the rule does not require service animal users to incur the cost of training by third party schools or organizations; service animal users are free to train their own dogs to perform a task for function for them.” Similarly, the Ninth Circuit’s recent holding was specifically premised, in part, on the DOJ’s refusal to impose any third-party certification requirement on service animals under the ADA.[5] The Ninth Circuit emphasized that the DOJ definition of a service animal doesn’t specify “by whom the dog must be trained.”[6] In fact, the Ninth Circuit further found that the DOJ’s regulatory commentary “confirms that persons with disabilities need not secure formal training and may self-train their animals.”[7]  The administrative commentary accompanying the DOT’s December 2020 rule includes similar reasoning.

Although the DOT has authorized airline carriers to require additional attestations by service animal owners prior to travel with their service animals on planes, these additional requirements likely do not extend to a requirement for third-party certification of a service animal’s abilities. As air travel continues to increase, passengers with service animals will continue to encounter new airline carrier operating procedures following the DOT’s December 2020 final rule. The Ninth Circuit’s recent decision in L.M. v. Del Almo is a timely judicial interpretation of the DOJ’s interpretation of the ADA; similar judicial reasoning may well apply to the DOT’s December 2020 revisions interpreting the ACAA.

Jonathan Madara is a Fox Rothschild 2021 summer associate.


[1] C.L. v. Del Amo Animal Hospital, 992 F.3d 901, 910 (9th Cir. 2021).

[2] Traveling by Air with Service Animals, 85 Fed. Reg. 79742 (Dec. 10, 2020) (to be codified at 14 C.F.R. pt. 382).

[3] 28 C.F.R. §§ 35.104, 36.104.

[4] For a detailed discussion of the December 2020 DOT final rule, please see our December 10, 2020 Animal Law Update (

[5] Del Amo, 992 F.3d at 910-13.

[6] Id. at 911.

[7] Id. at 912.