These consolidated eases cause us to consider once again the circumstances under which the Airline Deregulation Act of 1978, 49 U.S.C. app. § 1305(a)(1) (“ADA”), preempts certain state law claims. Although we have addressed the scope of this statutory preemption before, we have taken these cases en banc sua sponte to rethink our previous decisions.
FACTUAL AND PROCEDURAL BACKGROUND
I.Beverage v. Continental Airlines
Robert A Beverage was a passenger on a Continental Airlines flight. He claims that a flight attendant hit his shoulder with a service cart and caused him serious injuries, including a dislocated shoulder and a cracked and detached scapular prosthesis. Beverage filed a state tort claim against Continental for negligence and breach of contract. The district court concluded that the ADA preempted Beverage’s claims and granted Continental’s motion to dismiss. Beverage timely appealed the district court’s ruling.
II. Jacoby v. Trans World Airlines
Mildred Jacoby was a passenger on Trans World Airlines. After the plane landed, another passenger opened an overhead bin and a large piece of luggage fell on Jacoby’s head, causing her injuries. Jacoby filed suit in state court against TWA; the airline removed the case and filed a motion to dismiss. Finding that the ADA preempted Jacoby’s claims against TWA, the district court granted the motion to dismiss. Jacoby appealed.
III. Charas v. Trans World Airlines
Cherie Charas, a passenger on a TWA flight, tripped over a piece of luggage allegedly left in the aisle by a flight attendant. Due to the fall, Charas claims that she suffered a fractured humerus and required a shoulder joint replacement. Charas sued TWA for negligence. In granting TWA’s motion for summary judgment, the district court concluded that Charas’s claims were preempted by the ADA. Charas timely appealed the district court’s ruling.
IV. Gulley v. American Airlines
Bernice Gulley was a passenger aboard a small commuter airplane operated by American Airlines. Gulley has a bone condition that makes her susceptible to bone fractures. She claims that she advised American of her condition and informed the airline that she needed assistance in disembarking, but that American employees provided no help. Gulley exited the plane, unassisted, on a stairway with only a single, movable chain handhold. She alleges that she fell and sustained injuries.
Gulley brought a state negligence action against American. The district court held that although Gulley’s claim for negligent failure to provide safe equipment involved
V. Newman v. American Airlines, Inc.
Elizabeth Newman’s complaint stems from her attempt to fly from San Diego to Long Island on an American Airlines flight. Newman claims that in making her reservations, she informed American that she was blind, suffered from a heart condition, and required assistance in boarding the plane. She flew from Long Island to San Diego without incident. However, it is alleged that on her return flight to Long Island, a flight attendant attempted to cheek Newman’s carry-on bags due to space constraints. At that time, the flight attendant learned that the bags contained Newman’s medications. The flight attendant then informed the captain that Newman might have a disability that would preclude her from flying. The captain asked the flight attendant to ask Newman about her medication and to ascertain the phone number of Newman’s doctor to verify whether or not Newman was at risk for a heart attack during flight. When Newman could not remember her doctor’s number, American denied her passage until she could provide a letter from her doctor certifying that it was safe for her to fly.
Prior to obtaining the required certificate, Newman was required to stay overnight at a motel and suffered injuries when she fell upon boarding the shuttle bus transporting her there. She filed various claims, including state tort claims and federal statutory claims, against American. The district court granted American’s motion for summary judgment, concluding that Newman’s state law claims were preempted by the ADA and that American had “permissibly refused” boarding to Newman for the purposes of her federal claims. Newman timely appealed.
DISCUSSION
I. Background
Section 1305(a)(1) of the ADA provides: [N]o State or political subdivision thereof and no interstate agency or other political agency of two or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to the rates, routes, or service of any air carrier....
49 U.S.C. app. § 1305(a)(1).
Prior to 1978, the Civil Aeronautics Board had economic regulatory authority over interstate air transportation pursuant to the Federal Aviation Act of 1958, 72 Stat. 731, as amended, 49 U.S.C. app. § 1301 et seq. However, the Act did not expressly preempt state regulation, and further, it contained a “savings clause” providing that “[njothing ... in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” 49 U.S.C. app. § 1506 (recodified at 49 U.S.C. § 40120(c)); see American Airlines, Inc. v. Wolens,
In 1978, Congress determined that efficiency, low prices, variety, and quality would be furthered by reliance on competitive market forces rather than pervasive federal regulation. See H.R. Conf. Rep. No. 95-1779, 95th Cong., 2d Sess. 53 (1978). To prevent states from “undo[ing] federal deregulation with regulation of their own,” Morales v. Trans World Airlines,
However, the scope of this preemption has been a source of considerable dispute since its enactment. In our own circuit, we have addressed the issue on several occasions. Prior to Harris, we held that the ADA did not preempt state law tort claims that were only “tenuously connected” with airline deregulation. See Lathigra v. British Airways PLC,
However, in 1995, we took a different approach. Harris brought a tort suit against American Airlines for continuing to serve alcohol to an intoxicated passenger who was harassing her. In declining to look beyond the bare preemption language to congressional intent, the majority, over Judge Norris’s dissent, concluded that the ADA preempted Harris’s claim because it “relate[d] to [a] service” that the airline rendered, namely the provision of a drink. Harris,
Two years later, we wrestled with this problem again in Gee. There, we expressed doubts about Harris and the validity of its analysis. See Gee,
Judge O’Scannlain noted that the operations-versus-service dichotomy invites nonsensical, inequitable, and inconsistent results, and in any event has nothing to do with the purpose of airline deregulation. See Gee,
In reconsidering our view of the scope of the ADA’s preemption, we conclude that Judge Norris and Judge O’Scannlain got it right and that Harris is contrary to congressional intent. Further, although we recognize that we were bound by Harris when we decided Gee, we now believe that the rule we adopted in Gee was imprecise, difficult to apply, and inadequately reflective of the ADA’s goal of economic deregulation. Accordingly, in defining the “service” that the ADA preempts, we adopt Judge O’Seann-lain’s approach, an approach consistent with Supreme Court precedent and the ADA’s plain language and legislative history.
II. Supreme Court Precedent
The Supreme Court twice has addressed the scope of § 1305(a)(1). In both decisions,
Restrictions on advertising serv[e] to increase the difficulty of discovering the lowest cost seller ... and [reduce] the incentive to price competitively .... [p]riee advertising surely ‘relates to’ price.
Morales,
[W]e do not ... set out on a road that leads to pre-emption of state laws against gambling and prostitution as applied to airlines ... [s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner to have pre-emptive effect.
Id. at 390,
Likewise, in Wolens, the Court recognized the boundaries of § 1305(a)(1). In Wolens, the Court concluded that plaintiffs’ claims for breach of contract, stemming from the airline’s unilateral decision to devalue plaintiffs’ frequent flier miles were not preempted. See Wolens,
Many eases decided since Morales have allowed personal injury claims to proceed, even though none has said that a State is not “enforcing” its “law” when it imposes tort liability on an airline. In those cases, courts have found the particular tort claims at issue not to “relate” to airline “services,” much as we suggested in Morales that state laws against gambling and prostitution would be too tenuously related to airline services to be preempted.
Id. at 242,
In my opinion, private tort actions based on common-law negligence or fraud ... are not pre-empted_ Presumably, if an airline were negligent in a way that somehow affected its rates, routes, or services ... the majority would not hold all common-law negligence rules to be pre-empted by the ADA.
Id. at 235-36,
Although Morales and Wolens do not directly resolve whether the § 1305(a)(1) preemption encompasses state law tort claims, they certainly suggest that such claims are not within the intended reach of the preemption.
III. Plain Language and Congressional Intent
Of course, in attempting to decipher the dimensions of the ADA’s preemption clause, we must look first to the statute itself. We must attempt to “ascertain and give effect to the plain meaning of the language used,” Hughes Air Corp. v. Public Utils. Comm’n,
two presumptions about the nature of preemption. First, because the States are independent sovereigns in our federal system, [the Supreme Court has] long presumed that Congress does not cavalierly pre-empt state-law causes of action.... Second, [the] analysis of the scope of the statute’s pre-emption is guided by [the Court’s] oft-repeated comment ... that the purpose of Congress is the ultimate touchstone in every pre-emption case.
Medtronic,
[I]n all pre-emption cases, and particularly in those in which Congress has legislated ... in a field which the States have traditionally occupied, ... [the court must] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.
Id. (internal citations and quotations omitted).
It is evident that Congress’s “clear and manifest purpose” in enacting the ADA was to achieve just that — the economic deregulation of the airline industry. Specifically, “the ADA ... was designed to promote ‘maximum reliance on competitive market forces.’ ” Wolens,
Understanding the objective of this legislation is critical to interpreting the extent of its preemption. In a recent case involving the interpretation and preemptive reach of the phrase “relates to” under ERISA, the Supreme Court explained that courts must examine “ ‘the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,’ as well as to the nature of the effect of the state law on ERISA plans.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc.,
In its decisions interpreting § 1305(a)(1), the Supreme Court has not had occasion to define the term “service.” In attempting to deduce its meaning, we are mindful that principles of statutory construction require us to consider the term within its context. See Pension Benefit Guar. Corp. v. Carter & Tillery Enters.,
Nowhere in the legislative history, or in what remains of the federal airline regulatory statutes, does Congress intimate that “service,” in the context of deregulation, includes the dispensing of food and drinks, flight attendant assistance, or the like.
IV. Conclusion
We conclude that when Congress enacted federal economic deregulation of the airlines, it intended to insulate the industry from possible state economic regulation as well. It intended to encourage the forces of competition. It did not intend to immunize the airlines from liability for personal injuries caused by their tortious conduct. Like “rates” and “routes,” Congress used “service” in § 1305(a)(1) in the public utility sense — i.e., the provision of air transportation to and from various markets at various times. In that context, “service” does not refer to the pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or like functions. We expressly overrule our decisions in Harris and Gee to the extent that they are inconsistent with this interpretation. Accordingly, we remand these cases to the panel for resolution consistent with this decision.
REMANDED TO THE PANEL.
Notes
. Because of the need to clarify the law in this area, these cases were taken en banc after they were assigned to a three-judge panel, but prior to the panel's rendering a decision.
. In 1994, section 1305(a)(1) was amended and incorporated into the Federal Aviation Administration Authorization Act of 1994 (“FAAAA'j, 49 U.S.C. § 41713(b), to prohibit the enforcement of any state law "related to price, route, or service of an air carrier."
. In his concurrence, Judge Jolly opined that:
The fact that the majority and the dissent disagree only on the application of this principle reveals that it promises uncertainty and inconsistent results.... I would prefer, instead of erecting these tenuous and uncertain judge-made distinctions, to rely upon the plain language of the provision....
Hodges,
. In their criticism of her "total preemption” approach, the majority implicitly agreed with Justice O’Connor's conclusion that personal injury claims are not preempted by the ADA. See Wolens,
. Our analysis of the preemption question does not touch any federal claims brought by plaintiff-appellants in these cases. The merits of all the claims in issue, federal and state, are left to the panel.