AMERIJET INTERNATIONAL, INC., a Florida corporation, Plaintiff-Appellant, v. MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant-Appellee.
No. 14-11401
United States Court of Appeals, Eleventh Circuit.
Sept. 21, 2015.
627 Fed. Appx. 744
David M. Murray, Eric A. Rodriguez, Miami, FL, Defendant-Appellee.
Before JORDAN, JULIE CARNES, Circuit Judges, and GOLDBERG,* District Judge.
PER CURIAM:
Long before the current debate on minimum wage began, Miami-Dade County joined a growing number of municipalities in the country by enacting a “living wage” ordinance. Such laws typically require city or county contractors to pay their employees wages that are often higher than the applicable federal or state minimum rates, and are designed to help workers meet their basic needs—such as food,
I
A
The County enacted the LWO in 1999 to promote the creation of full-time, permanent jobs that would pay Miami-Dade residents a sustainable wage and thereby ease the burden on local taxpayers who would otherwise be required to pay for social services. By its terms, the LWO requires service contractors (certain individuals or entities that conduct business with the County or that use the facilities of Miami International Airport (“MIA“)) to pay a “living wage” to all employees who perform “covered services.”1
The County sets the living wage rate annually, and that wage is typically higher than the state and federal minimum rates. In addition to setting a higher wage floor, the LWO also imposes several administra-
B
Amerijet is an air carrier which has received a certificate from the United States Department of Transportation, as provided in
In 2005, Amerijet expanded its operations to include a variety of other services, generally referred to as cargo and ground handling services (“cargo handling services“). Such services largely consist of the loading, unloading, and delivery of cargo for other airlines. In 2010, Amerijet executed a lease with the County, the owner and operator of MIA, for warehouse space to regularly provide such cargo handling services at the airport. The lease contained a provision requiring Amerijet to comply with all of the County‘s applicable ordinances, including the LWO.
On June 7, 2010, Miami-Dade‘s Department of Small Business Development (“SBD“) sent a request for information to Amerijet, advising the carrier that it had initiated an investigation into alleged violations of the LWO. The investigation was the result of a complaint filed by one of Amerijet‘s employees alleging that the carrier had begun to provide cargo services for British Airways and other airlines without paying the requisite living wage rate. The SBD informed Amerijet that such cargo handling was a “covered service” under the LWO and advised the carrier that “Amerijet employees providing th[e] service on behalf of Amerijet for other airlines are covered by the living wage and must be paid accordingly.” D.E. 50-2 at 17.
In response to the SBD‘s communication, Amerijet inquired as to whether the LWO applied to air carriers. Although Amerijet agreed that cargo handling was a covered service under the LWO, the airline was under the impression that the LWO did not apply to it. Apparently, Amerijet believed that the LWO only applied to covered service contractors who were not air carriers. After much back and forth with the SBD, and without a favorable resolution, Amerijet determined that it was not financially feasible to pay its cargo handling employees the living wage rate. On April 29, 2011, Amerijet outsourced its cargo handling services for other airlines to an on-airport cargo service contractor and laid off its in-warehouse cargo handlers.
Subsequently, some of Amerijet‘s former employees filed suit in state court for back pay and penalties under the LWO. Amerijet settled that action, but not before it filed the instant suit against the County for declaratory and injunctive relief.
Amerijet appeals the district court‘s order on the following grounds: (1) the district court incorrectly ruled that the ADA and the FAAAA do not preempt the LWO; (2) the district court erred in concluding that the LWO did not unduly burden interstate and international commerce; (3) the district court failed to recognize that there are genuine issues of material fact as to whether the County enforced the LWO against other similarly-situated airlines; and (4) the district court erred in declining to rule on Amerijet‘s state law claims. We address each argument in turn.
II
We exercise plenary review with respect to the district court‘s grant of summary judgment. See Doe v. Drummond Co., Inc., 782 F.3d 576 (11th Cir. 2015). “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and compels judgment as a matter of law.” Fla. Transp. Serv., Inc. v. Miami-Dade Cnty. (FTS), 703 F.3d 1230, 1243 (11th Cir. 2012) (citations omitted). “We also review de novo the constitutionality of a challenged statute.” Fresenius Med. Care Holdings, Inc. v. Tucker, 704 F.3d 935, 939 (11th Cir. 2013).
III
We will first consider Amerijet‘s argument that the LWO is preempted by the ADA and the FAAAA. We agree with the district court, albeit for different reasons, that the LWO is not preempted.
In 1978, Congress enacted the ADA, which largely deregulated domestic air transport. See Koutsouradis v. Delta Air Lines, Inc., 427 F.3d 1339, 1343 (11th Cir. 2005). “To ensure that the States would not undo federal deregulation with regulation of their own,” the ADA included a preemption clause. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992). In relevant part, that clause prohibits states or their political subdivisions from “enact[ing] or enforc[ing] a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under [the ADA].”
The term “related to” has a “broad scope” and an “expansive sweep.” Morales, 504 U.S. at 384. Consequently, the Supreme Court has held that “a claim ‘relat[es] to rates, routes, or services,’ within the meaning of the ADA,
A
At first glance, it may seem that the ADA‘s broad scope preempts the application of this subsection of the LWO to Amerijet. Amerijet is a certificated air carrier, and cargo handling is a service that Amerijet provides. “Were this the true extent of the ... wage law‘s reach, [Amerijet‘s] ‘reference to’ argument might be more persuasive.” Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325-26 (1997). But a closer look reveals something altogether different.
As an initial matter, we note that the LWO is not targeted at, and does not single out, airlines or carriers such as Amerijet. It applies to those entities which have certain contracts worth over $100,000 with the County, as well as numerous service contractors at MIA or the Aviation Department. See
In addition, the “services” at issue in this case—the provision of cargo handling services for other airlines—are not the type that implicate the ADA‘s preemption provision. In Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003), a “connection with” case, we adopted the Fifth Circuit‘s definition of the term “service” in
Recognizing that the term “service” could include many facets of an air carrier‘s operations, we emphasized that the bargained-for aspect of the definition “largely mitigate[d] the concern with overexpanding the reach of the ADA‘s preemption provision.” Id. at 1258. We also noted that this limiting principle was “perfectly consistent with the ADA‘s purpose of promoting competition within the airline industry [because] air carriers compete in only a limited range of contexts, e.g., fares, routes, timing, etc., which constitute the bargained-for elements of its service.” Id. at 1255-56.
Accordingly, three elements must be present for a particular service to be deemed a “service” for purposes of the
Amerijet, pointing to the fact that in Hodges the Fifth Circuit expressly included baggage handling as a “service,” argues that its cargo handling for other airlines clearly satisfies that definition. But cargo handling, when performed by one airline for another (as is the case here), fatally lacks the third factor articulated in Branche. Any negotiations regarding such cargo handling occur between Amerijet and other airlines and do not in any way involve the “airline-consumer” or “airline-end user relationship.”3
Indeed, the County has never construed the LWO as applying to an airline when it handles cargo for its own consumers, and has consistently stated that the LWO is not applicable in such circumstances. The County has interpreted the LWO in this manner in several communications to Amerijet, and we accept the County‘s interpretation of the ordinance. See Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 131 (1992) (“In evaluating the [Appellant‘s] facial challenge, we must consider the county‘s authoritative constructions of the ordinance, including its own implementation and interpretation of it.“). We note, as well, that the County interpreted the LWO in this manner prior to initiating the enforcement proceeding against Amerijet and before Amerijet filed the instant action.
We acknowledge that Amerijet provides cargo handling services for other airlines, such as British Airways, which ultimately will offer those services to consumers. It cannot be said, however, that the provision of such services implicates the carrier-end user relationship. Amerijet‘s arrangement with other airlines is more akin to that of a subcontractor and a general contractor, and a contract between such parties would be secondary (and thus wholly separate and distinct) to any contract with the ultimate consumer. See Webster‘s New World College Dictionary 1425 (4th ed. 2000) (defining subcontractor as “a person or company who assumes by secondary contract some or all of the obligations of the original contractor“); Black‘s Law Dictionary 373 (9th ed. 2009) (defining subcontract as “a secondary contract made by
In sum, the cargo handling work Amerijet performs for other airlines at MIA does not constitute a “service” within the meaning of the ADA‘s preemption provision. We therefore affirm the district court‘s ruling that the LWO, as applied to such cargo handling services, is not preempted by the ADA.
B
The ADA‘s preemptive scope is broad enough to invalidate a statute even when it does not explicitly reference an air carrier‘s services. See Morales, 504 U.S. at 386 (A “state law may ‘relate to’ a [service], and thereby be preempted, even if the law is not specifically designed to affect such [services], or the effect is only indirect.“) (citations omitted). A law that has a “significant impact” on the services of an air carrier might also be preempted, but we must be careful not to extend the ADA‘s preemptive reach to state laws that are “too tenuous, remote, or peripheral ... to have pre-emptive effect.” Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 224 (1995) (citations omitted).
Amerijet argues that the LWO has a significant impact on air carriers’ services in two ways. First, Amerijet says that the LWO‘s recordkeeping, inspection, and reporting requirements create a substantial burden in the form of additional labor and costs. Second, Amerijet argues that the LWO alters the manner in which it provides services by compelling it to undertake the “infeasible” task of segregating its workforce into two groups—employees who handle cargo transported by Amerijet and employees who handle cargo for other airlines.
In making these arguments, Amerijet places great reliance on Metropolitan Milwaukee Association of Commerce v. Milwaukee County, 431 F.3d 277 (7th Cir. 2005), and Rowe v. New Hampshire Motor Transport Association, 552 U.S. 364 (2008). Those cases, however, are distinguishable on their facts.
Starting with Milwaukee County, that case did not involve the ADA‘s preemption clause. Instead, it examined whether the National Labor Relations Act,
Turning to Rowe, the LWO does not have the sort of significant effect on an air carrier‘s services contemplated in that case. There, several transport motor carriers alleged that the FAAAA (as applied to motor carriers) preempted a Maine law that effectively required such carriers to provide a “special kind of recipient-verification service” if they delivered tobacco
The LWO, however, has no such effect. It does not interfere with competitive market forces by dictating the types of services Amerijet (or any other carrier) must provide. Nor does it prevent a carrier from providing cargo handling services, as Amerijet contends. If Amerijet‘s argument is that the LWO precludes an air carrier, in its capacity as a covered service contractor, from providing cargo handling services to other airlines, we have already concluded that such services do not trigger ADA preemption. If, on the other hand, Amerijet is suggesting that an increase in an air carrier‘s costs will in turn raise the prices of that carrier‘s services (i.e., an increase in baggage handling fees), such “indirect economic influences” are insufficient to trigger preemption. See N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 659-660 (1995) (holding that a statute that applied a surcharge on certain commercial insurance plans only indirectly influenced insurance buyers because it did not “bind plan administrators to any particular choice and thus [did not] function as a regulation of the ERISA plan itself.“).
The LWO‘s requirements do not “bind” air carriers to “any particular choice and thus function as a regulation of [air carriers’ services]” ... Nor does the indirect influence of the [ordinance‘s requirements] preclude” air carriers from offering services that they wish to provide. Id. The LWO merely “alters the incentives” facing an air carrier. Dillingham, 519 U.S. at 334. “In this regard, it is ‘no different from myriad state laws in areas traditionally subject to local regulation, which Congress could not possibly have intended to eliminate.‘” Id.
Moreover, there is nothing prohibitive about requiring Amerijet to pay a portion of its workforce a different wage. Employers routinely pay their employees different wage rates, even to those whose duties fall within the same job description. Because any effect the LWO may have on an air carrier‘s services would be no more than indirect, remote, and tenuous, we conclude that the ordinance does not have the requisite “significant impact” to bring it within the ambit of the ADA‘s preemption clause.4
III
The Commerce Clause endows Congress with the power to regulate commerce
We examine challenges under the dormant Commerce Clause using a two-tiered analysis. We first determine whether a law “directly regulates or discriminates against interstate commerce, or has the effect of favoring ‘in-state economic interests[.]‘” Island Silver & Spice, Inc. v. Islamorada, 542 F.3d 844, 846 (11th Cir. 2008). If it does, the law would be per se invalid unless it “advance[s] a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” Id. A nondiscriminatory law, however, can also violate the dormant Commerce Clause. Thus, under the second tier, we apply the so-called undue burden test of Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), to determine whether the state‘s interest in enacting the law “is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.” Islamorada, 542 F.3d at 846 (citations omitted). “There is, however, no clear line between these two strands of analysis, and several cases that have purported to apply the undue burden test (including Pike itself) arguably turned in whole or in part on the discriminatory character of the challenged state regulations.” Gen. Motors Corp. v. Tracy, 519 U.S. 278, 299 n. 12 (1997) (citations omitted).
Amerijet primarily bases its arguments on the second tier of this analysis. It contends that the County‘s sole purpose in applying the LWO to air carriers is to protect incumbent covered non-airline service contractors, such as general aviation service providers (“GASPers“) which only provide general aviation services and do not engage in airline operations, from competition from out-of-state airlines. Amerijet argues that, under our decision in Florida Transportation Services v. Miami-Dade County, 703 F.3d 1230 (11th Cir. 2012), this protectionist purpose warrants an invalidation of the LWO.
In FTS, we had occasion to consider whether Miami-Dade County‘s stevedore permit ordinance, as applied, violated the dormant Commerce Clause. Florida Transportation filed suit against the County, alleging that the Miami-Dade Port Director applied the ordinance in a manner that was designed to protect incumbent stevedores from competition by keeping new entrants out of the stevedore market. FTS, 703 F.3d at 1234. FTS complained that the Port Director did not observe the ordinance‘s requirements but instead “automatically renew[ed] permits for all existing stevedore permit holders at the Port and automatically den[ied] all new applicants[.]” Id.
The Port Director, in prior litigation with FTS, conceded the point, and argued that the practice was intended “to prevent ‘economic hardship to the entire local stevedoring industry’ that would result from ‘dilut[ing] the market’ with excessive stevedore permits.” Id. at 1258. We concluded that the practices served a protectionist purpose and “plainly burdened
Unlike Florida Transportation in FTS, Amerijet has failed to demonstrate that the County‘s underlying motivation in enacting the LWO was protectionist. The County has not conceded that it enacted the ordinance to protect the local market. To the contrary, it asserts that the LWO‘s purpose is to prevent an undue burden on taxpayers by eliminating the need to subsidize social programs. Amerijet has not proven otherwise. The only evidence proffered by Amerijet to support its assertion is a memorandum explaining the County‘s reasons for adopting Resolution No. R-1180-95—a policy that is wholly separate and distinct from the LWO. As we explain, that evidence does not create an issue of fact.
In 1995, due to the increase in inter-airline marketing agreements and equity ownership arrangements, several airlines lobbied the Miami-Dade Aviation Department to allow air carriers to provide cargo handling services to other airlines with which they had relationships. The Aviation Department agreed, so long as the airlines met certain conditions. Acknowledging that this change to the cargo policy would negatively impact the revenues of other covered service contractors such as GASPers, the County adopted Resolution No. R-1180-95 to eliminate a contractual provision from the GASPers permits that required workforces to consist of no less than 80% of full-time employees. This was done to prevent GASPers from suffering “a competitive disadvantage to airlines that w[ould] be able to provide [cargo handling] services without such a restriction.” D.E. 45-2 at 13.
We find nothing inherently discriminatory regarding the adoption of Resolution R-1150-95, as it only authorized GASPers to compete on the same terms as airlines that were entering into the cargo handling market. Indeed, we have stressed that there is “no cause for constitutional concern” when “in-state and out-of-state [providers] are allowed to compete freely on a level playing field.” S. Waste Sys., LLC v. City of Delray Beach, Fla., 420 F.3d 1288, 1291 (11th Cir. 2005).
Alternatively, Amerijet argues that, if we decline to grant it summary judgment on its dormant Commerce Clause claim, we should also deny the County‘s cross motion. It contends that there is a genuine issue of material fact because the County failed to put forth any evidence to support its contention that the stated purpose of the LWO was sincere. But Amerijet misunderstands the mechanics of a summary judgment motion.
When the nonmoving party bears the burden of proof at trial, the moving party may discharge its burden on a summary judgment motion “by ‘showing‘—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party‘s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under the Pike undue burden test, “[t]he burden to show discrimination rests on the party challenging the validity of the statute[.]” Hughes v. Okla., 441 U.S. 322, 336 (1979). It is only “[w]hen discrimination against commerce ... is demonstrated, [that] the bur-
IV
As its final challenge to the LWO, Amerijet asserts a “class of one” equal protection argument. Specifically, Amerijet claims that it was not treated equally because Centurion Air Cargo, another airline service contractor, was subject to the LWO but was not required to comply with the LWO‘s dictates. To be successful on this claim, Amerijet has to show “(1) that [it] was treated differently from other similarly situated [covered airline service contractors] and (2) that [the County] unequally applied [the] facially neutral ordinance for the purpose of discriminating against [it].” Leib v. Hillsborough Cnty. Pub. Transp. Comm‘n, 558 F.3d 1301, 1307 (11th Cir. 2009) (citations omitted).
In support of its equal protection claim, Amerijet submitted a brief email exchange between two county officials in 2007 and a letter dated February 5, 2008, from Centurion to the County. The 2007 emails establish three things: (1) that the County received complaints that Centurion had not complied with the LWO; (2) that Centurion performed cargo services at the airport; and (3) that Centurion is an air carrier. For its part, the 2008 letter simply informs the County that Centurion had6 begun performing cargo handling services for Alitalia Airlines.
Even considered in the light most favorable to Amerijet, these documents are insufficient to create a genuine issue of material fact as to whether the County enforced the LWO in a discriminatory manner. First, the 2007 emails are silent as to whether Centurion was providing cargo handling services for itself or for other airlines, making it unclear whether the LWO even applied to Centurion in 2007. Second, although the letter certainly acknowledges that Centurion began providing cargo handling services for Alitalia in 2008, there is no evidence that Centurion violated the LWO at that time. In addition, there is no mention one way or the other as to whether the County failed to enforce the LWO against Centurion once it was informed that the air carrier had begun to operate as a covered service contractor. As the district court correctly noted, one “can hardly infer that Centurion is exempt from complying with the LWO based upon [the] scant language” of the documents. D.E. 59 at 13.
Furthermore, the record is bereft of evidence showing that the County intentionally applied the LWO in an uneven manner for the purpose of discriminating against Amerijet. Accordingly, we conclude that the district court properly granted summary judgment in the County‘s favor.
V
For the foregoing reasons, we affirm the district court‘s grant of summary judgment in favor of the County and its denial of Amerijet‘s summary judgment motion.7