Hodges v. Delta Airlines, Inc.

HODGES, Plaintiff-Appellant, Frances S. AIRLINES, INC.,

DELTA

Defendant-Appellee. 91-6037.

No. Appeals, Court of

United States

Fifth Circuit.

Feb.

335 Showalter, Bellaire, TX, DISCUSSION Stuart David W. Grayson, Fleming, Hovenhamp & Starry,

J. summary judgment The awarded Houston, TX, appellant. for appeal. district court is reviewed de novo on DC, White, Washington, Jeffrey Robert Co., Hanson v. Continental Ins. 940 F.2d Weiner, Dallas, TX, amici curiae for David R. (5th Cir.1991). 971, 975 appellant. in favor of 1305(a)(1) provides pertinent Section Boyce, Hogan, Bruch William J. Jennifer part: Jaworski, Houston, TX, ap- Fulbright & any state ... shall enact or enforce [N]o pellee. law, rule, standard, regulation, or other Walker, Moran, & Dal- David T. Jackson having the force and effect of law las, TX, appellee. amicus curiae favor rates, relating routes or-services of having authority

air carrier under Title IV provide transportation. of this Act to air U.S.CApp. 49 POLITZ, Judge, Before Chief provision originated in the an HIGGINBOTHAM, GARWOOD, JOLLY, deregulation economic statute. The Federal DUHÉ, DAVIS, JONES, SMITH, (FAA), 731, Aviation Act of 1958 72 Stat. 49 BARKSDALE, WIENER, EMILIO M. (as amended), seq. 1301 et con- BENAVIDES, GARZA, DeMOSS, ferred on the Civil Aeronautics Board eco- PARKER, STEWART, Judges. Circuit authority regulatory nomic over interstate FAA transportation. air The did not ex- JONES, Judge: EDITH H. Circuit regulation of pressly preempt state intrastate 1978, transportation. Congress air to Mia During a from the Caribbean determining FAA amended the after mi, injured when a Hodges Frances innovation, variety, efficiency, prices, low com passenger opened an overhead fellow quality promoted by reliance on containing would be dislodged a case partment and competitive perva- market forces rather than rum. fell and cut several bottles of The box regulation. Congress federal enacted sive wrist. In her lawsuit her arm and regu- Airlines, the ADA to dismantle federal economic Hodges alleged that the air Delta prevent the states from frustrat- injury lation. To negligence her and medi line’s caused goals deregulation by establishing ing the this court expenses. question The before cal maintaining regulations of their economic state law tort claim en banc is whether her 1305(a)(1), own, Congress enacted injury alleged negligent physical based on enforcing any law preempts the states from the aircraft operation of rates, 1805(a)(1) or services” of “relating to routes Deregulation Act of the Airline Airlines, (ADA), carrier. Morales v. Trans World U.S.CApp. seq. §§ 1301 et of 1978 49 — 2031, Inc., -, (codified 119 S.Ct. at various sections 92 Stat. (1992). U.S.CApp.). that it is not Title 49 We hold Baugh Trans overrule and therefore question in this case is the 915 F.2d 693 Cir.

World that, express preemption of state 1990), unpublished opinion breadth of that originally statutory lan opposite Interpretation law.1 precedent, compelled the as circuit construing preemptive guage key to panel opinion is the in the herein. result 2371, 2375, (1985); (1) Shaw v. displaced by S.Ct. 85 L.Ed.2d federal law where 1. State law is law; (2) 85, 95, Airlines, Congress expressly preempts Con 463 U.S. Delta gressional preempt 2890, 2899, (1983); intent to is inferred from see also Rice 218, 77 L.Ed.2d scheme; pervasive regulatory existence of a Corp., Elevator 331 U.S. v. Santa Fe with federal law or inter state law conflicts 1146, 1152, (1947); 91 L.Ed. 1447 Silk S.Ct. objectives. feres with the achievement of 238, 248, Corp., 464 U.S. wood v. Kerr-McGee Hillsborough County, Florida v. Automated Medi L.Ed.2d Laboratories, Inc., cal 471 U.S. (1983)). Morales, exactly Refusing to state where the force. case, line would be drawn a close at 2037. pre- Court observed that the facts before it Supreme Court has twice broached question sented no close of the connection subject in a attempted regulation and air between squarely not way but does re- that informs fares. In the first decision the this case. solve 1305(a)(1), provid- in question was whether commands that whatever Morales may law “relat- ing that no state enforce rates, or state laws “relate routes ser rates”, attempts ing of sev- overcame broadly preempted, it not vices” are but does attorneys apply general to state eral state panel opinion in this define “services.” deceptive advertising laws the air- ease concluded that: that it did. Morales held Morales lines. generally represent “Services” a bar- construction of the upon the broad drew gained-for anticipated provision of or labor phrase “relating to” in the ERISA cases.2 party If from one to another. the element Thus, “relating phrase to” means “to bargain agreement incorporated in or is relation; bearing to have or stand some services, understanding of a our leads to refer; concern; bring pertain; to asso- arrangement contractual concern with the Morales, connection with.” ciation with or between the airline and the user of the — at-, (quoting 112 S.Ct. at 2037 U.S. of the air carrier service. Elements ser- (5th Ed.1979)). Dictionary 1158 Black’s Law bargain vice include items such as ticket- Consequently, enforcement actions “[s]tate ing, boarding procedures, provision of food or having a Connection with reference to drink, baggage handling, in and addi- ‘rates, airline routes services’ are transportation tion to the These itself. preempted” Id. under appurtenant matters are all and necessari- necessary consequence ly of its carriage As a included with the contract of rejected interpretation, passenger shipper broad Court between and the 1305(a)(1) argument airline. It is these features [contractual] rates, actually prescribing transportation states from of air that we believe Con- — at-, routes, gress de-regulate or services. U.S. 112 intended to as “services” rejected broadly protect at 2037-38. The Court also regula- S.Ct. from state “only specifically state laws the notions tion. industry airline are addressed Airlines, Inc., 350, Hodges v. Delta 4 F.3d “preemption inappro- is preempted” and that (5th Cir.1993). 354 The court adheres to this

priate state and federal law are consis- when banc, en definition a definition — at-, Morales, 112 tent.” U.S. S.Ct. inferentially reinforced the Court’s deci- general applicability, at Laws of even 2038. Airlines, Wolens, sion in American Inc. v. law, with federal are those- consistent -U.S.-,-, 817, 823, 115 S.Ct. 130 signif- preempted if have the “forbidden (1995) (describing L.Ed.2d 715 claims con- — rates, routes or services. icant effect” on cerning frequent flyer American Airlines’ at-, 112 S.Ct. U.S. “services,” program related to rates and i.e., acknowledged, flights up- access to and class-of-service The Court ”). Thus, grades ser ... [airline state actions affect federal “[s]ome tenuous, laws, peripheral remote or state certain common law vices] too even actions Morales, carrier, to services” of an air does manner” to be “related (quoting displace personal 112 at 2040 state tort actions for U.S. S.Ct. Shaw Airlines, Inc., 85, 100 21, injuries physical property damage v. Delta n. caused U.S. 21, 2890, n. aircraft. maintenance of 85, Dedeaux, "expansive,” 2. See Shaw v. Delta Pilot Ins. Co. Life 97, 41, 47, 1549, 1552-53, 77 L.Ed.2d 490 107 S.Ct. 95 L.Ed.2d worded,” (a employee plan “broadly Ingersoll-Rand benefit state law relates to an McClendon, 137-40, has a connection with or Co. v. 498 U.S. and is "if it 478, 482-83, plan”). language reference to such a This S.Ct 112 L.Ed.2d 474 with 459 U.S. harmonizes definition (1983).4 regulatory with of airline other sections underlying the intent Congressional Following deregulation, the CAB’s state- understanding regulatory agencies’ strongly sup- ADA implementing ments statute, general principles and with of the the ADA port the view that was concerned preemption. solely deregulation, with economic not with displacing tort law. The Board con- estab- regulatory framework Under cluded that: FAA, the term “service” lished preemption extends to all of the economic definition, con- had an established “services” go into the factors vestige of dictionary usage.3 A sistent with fare, passenger’s quid pro quo for [sic] left- of the remains what is that definition frequency timing, including flight lia- regulatory statutes: airline federal limits, bility boarding reservation and carriage “All-cargo means the air service” insurance, rules, smoking meal practices, air entertainment, in interstate or overseas service, aircraft bonding and [and] mail, or only property of transportation corporate financing.5 both. Agency, The Federal Aviation to which powers some of the Civil Aeronautics Board’s 1301(11) (“Definitions” § sec U.S.C.App. were transferred see 49 tion). at the time of “Air referred service” 1551(b), identify § U.S.CApp. continues to point-to-point ADA of the passage regulations “service” or “services” mail, cargo or passengers, of transportation incorporate passen- accoutrements of the transpor of encompassed the business and it ger- shipper- and carrier contract.6 type of tation as well as schedules charter). (common carriage contract analogy A facile to Morales and the embody the interpreted “service” to suggest court pre-emption cases could ERISA a fashion quality aspects of service such airlines’ includes all of the air car- “services” smoking customers, hence, regulation of “utility” authorize federal to its as to rier’s C.A.B., may flights. tort claim “relate to” services as a commercial state on Diefenthal Cir.1982), regulatory impact on the result of its indirect cert. 681 F.2d 1039 (denial boarding), segregation Dictionary bumping of for Third New International 3. Webster’s liability following smoking passengers, for definitions: minimum includes some of the loss, damages delayed baggage, and ancil- purpose; use that furthers some An action or headsets, beverages, lary charges for alcoholic [e.g., vending supply a machine for of needs entertainment, baggage would and excess passersby]; railroads and tele- the service of clearly regulation produce within the phone companies la- be "service" services—useful produce good; provision meaning a 105. bor that does of section utility [e.g., freight conducting public air for Id. ]; public regularly trip scheduled on service ([free services]). transportation air 6.Specific "service” or references to the words Regulations Code of Federal "services” in the supports po- Hodges asserts that 4. Diefenthal incorpo- governing are too numerous to airlines 1305(a)(1), notwithstanding § no state sition that (all examples within 14 Some include rate here. that two held tort suit is Diefenthal (domestic C.F.R.): all-cargo § 14 C.F.R. 201.1 complaining passengers’ were lawsuit (the service); 201.4(d) type of service— air “smoking in the section” of the forced to ride passengers, property to be or mail rendered jurisdiction based was not within federal aircraft to be rendered on such services are whether controversy. amount in on an insufficient 204.3(t) (a operations); charter scheduled or presented and was not court did not decide operated description be if an of the service to preemption, so issue of federal (defining special granted); § application 207.1 is construing inapposite is Diefenthal (terms 207.13(b) "services"); § of service for 207.71(a) (terms trips); § of service for charter 15, 1979). (Feb. Fed.Reg. ground trips those for accommo- charter include 217.4(b) services); opined; (listing CAB also classes dations and including passengers/cargo; of service scheduled may not interfere with the services [A] state all-cargo, ... non-scheduled exchange scheduled their rates carriers offer in for ...) added). damages (emphasis example, liquidated and fares. For too, logical Significantly, practices. Taken to its ex- neither the ADA nor its airline’s treme, legislative history Congress in argument suggest would that a indicates that displace application tended to following airplane a fatal crash could lawsuit personal physical injury tort law to inflicted relate to “services”. operations, Congress aircraft or that even not, however, Congress did in That preemption.8 considered such See American preempt all tend state claims —— Wolens, 7, 115 Airlines v. U.S. at n. injury personal for is evident from at least (American S.Ct. at 825 n. 7 Airlines and remaining one airline other States, curiae, agree United amicus Air regulatory statutes. carriers are re unlikely safety-related personal injury quired to maintain insurance or self-insur arising airplane operations from are prescribed by the Federal Aviation ance as preempted.) “This silence takes on added that covers for Administration “amounts significance light Congress’s failure to ... air carriers become liable provide any remedy persons in bodily injuries any person, or the death of jured by such conduct. It is difficult to damage of or for loss property would, Congress believe that without com others, resulting from the or main ment, judicial all remove means recourse ...” tenance of aircraft injured by illegal for those conduct.”9 The (1994); also, 1371(q) § see 14 C.F.R. Supreme repeatedly Court has cautioned (insurance 205.5(a) (1992) regs.).7 § im- The displace that federal courts should not state understated, § portance 1371(q) of cannot be by police powers federal law unless that was qualify for it can be understood to the purpose the “clear and manifest of Con regu- removed from scope of “services” state gress.” Corp., v. ARC America California by complete preemp- A lation 93, 102, 1661, 1665, 490 U.S. 109 S.Ct. tion law in this area would have of state (1989) (quoting Rice v. Santa Fe any requirement of insurance cov- rendered Corp., Elevator 331 U.S. 67 S.Ct. erage nugatory. (1947)).10 1146, 1152, 91 L.Ed. 1447 “operation agrees among FAA further defines of air- Delta Airlines that the “ser- purpose deregulated craft” as “the use of aircraft for the vices” under the ADA and cov- including] naviga- preemption navigation of air ... the ered clause are the eco- 1301(31) U.S.CApp. transpor- nomic or of tion of aircraft.” contractual features air however, luggage argues, One uses the overhead racks tation. Delta that Mrs. beverages provided Hodges’ in air- or the food and accident arose out of the “services” just cigarette baggage handling boarding, uses the of craft as one not out of compartment “operation in lighter or built-in cooler the and maintenance of aircraft” automobile, 1371(q). are avail- and all these devices covered The “services” that support general purpose regulate of navi- the state not able to under gation. “operation are distinct from the Further, provides replace 7. 1506 of the FAA that of action to state causes. 43-44, Life, "[njothing chapter any way in See Pilot 481 U.S. at 107 S.Ct. at ... in this shall abridge existing now at 1551. or alter the remedies statute, provisions common law or but the of chapter are in addition to such remedies.” this Silkwood, 9. at U.S. 104 S.Ct. at 623 U.S.C.App. § 1506. Before enactment of the (citing United Workersv. Construction Laburnum permitted this section limited economic 656, 663-64, Corp., Construction 347 U.S. regulation flights of intrastate and enabled the 833, 836-38, (1954)). 98 L.Ed. 1025 general states to enforce their laws Supreme pro- airlines. Court accounted this "[s]tate 10. The Seventh Circuit noted that courts Morales, marginal significance vision de- of in cases, damages every day award in air crash scribing general "saving it as a clause” that notwithstanding that federal law supersede provi- specific preemption cannot travel,” regulation safety confidently of in air - sion. 2037. adding "[t]he Federal Aviation Act does not expressly damages preempt remedies." Compare legislation, City Chicago, 8. the ADA with ERISA 864 F.2d Bieneman (7th Cir.1988). Congress provided several federal causes aircraft”, significant on airlines’ Id. and all claims effect services. maintenance part on Morales relied the fact that the preempted.11 are “services” related to advertising state restrictions on airfare had First, if fails on two levels. argument significant economic effect on fares. Gener- a strict di- statutory provisions created however, ally, concerning state tort laws operation or chotomy between services operation and maintenance of aircraft can be aircraft, Hodges’ injury more maintenance consistently distinctly with and enforced’ operations. at the door of properly is laid Congress deregulated. from the services luggage may placed be certain Whether pose question Most cases will not as close a flight attend- and whether overhead bins as one. compliance over- monitor properly ants general But this vindication of state tort per- regulations are matters head rack arising oper from the maintenance flight. “Bag- operation of a tain to the safe to all con ation of aircraft does extend “boarding”, referred handling” gage examples of ceivable state tort claims. Two statement, con- above-quoted CAB to in the scope the continued are illus permitting bag- policy airline’s cern the Airlines, trative. In O’Carroll v. American per- passengers to be gage to be carried Cir.), F.2d 11 cert. aspects These are mitted to board. 3158, 104 L.Ed.2d 1021 offered; directly they do not refer “service” plaintiff and his cousin were re operated.12 way in aircraft is which the moved from a commercial airline be shows, Second, prov- example as this loud, boisterous, and intoxi cause were “operation and main- of “services” and inces sued, alleg cated. 863 F.2d at O’Carroll overlap somewhat con- of aircraft” tenance ing wrongfully from the he was evicted dichotomy There ceptually; no strict exists. flight. This court vacated O’Carroll’s sizea- inconsistency not, a fundamental verdict, jury holding ble that his state law By provisions. means of the two between 1305(a)(1). by § preempted claims were 1305(a)(1), prevent Congress intended to scope of did not discuss the O’Carroll regressing on economic de- the states from the state law claims because by applying their own laws or regulation alleged wrongful arising from the exclusion “services,” concerning 1371(q), in but rules undeniably only pro related the services duty Congress explicitly preserved airlines’ claim was made vided the airline. No actions, inferentially state respond to tort safety-related the airline breached actions, injury property physical law duty by bumping Enforce tort O’Carroll. damage. state law claims would ment of O’Carroll’s regulation of the significant in de result facto in Finally, NAAG Guidelines unlike the moreover, and, boarding practices airlines’ Morales, of tort remedies for enforcement granting the interfere with federal law would injury ordinarily no personal physical has discretion to refuse airlines substantial “express reference” to services as defined 1511(a). carry passengers. 49 — Morales, See above. plain- Similarly, claims asserted of such tort at 2039. Enforcement Airlines, 995 F.2d tiff in v. Northwest normally not have “the forbidden West duties will J., (Blackmun, -, position again. 112 S.Ct. at 2625 its id. 11. Delta has thus refined years ago, injury Only Supreme it defended an case concurring), a few Court held that when hinting very at a to this one without similar explicit preemption Congress enacted an has preemption Delta defense. Schwamb v. usually imply provision, broad- should not courts (La.Ct.App.1987). So.2d 452 - Cipollone, preemption of state law. See er U.S.-, opinion); (plurality at 2618 112 S.Ct. by contending argument confuses its 12. Delta J., --, (Blackmun, at 2625 id. at 112 S.Ct. permitted to tort suit should not be that this state Therefore, concurring). of our this decision impose proceed duties that con- because it could preemptive possible address the court does not regula- Aviation Administration flict with Federal safety Administration effect of Federal Aviation governing carry-on baggage. are no There tions See regulations governing aircraft and carriers. the basis for in the record that intimate facts Moreover, Cipollone Liggett Cty., in v. Fla. v. Luke such a conflict. Trust Dade Public Health Inc.,-U.S.-,-, Cir.1993). Group, Aircraft, 992 F.2d 291 (1992) (plurality opinion); — (9th Cir.1993), judgment cert. The of the district court is RE- VERSED, and the case is REMANDED for 1053, 127 -, proceedings. further interpretation our preempted under would be sued because he Plaintiff West “services”. JOLLY, specially concurring: E. GRADY “bumped” from the overbooked airline judgment in concur this case and a Af he had reserved seat. for which companion, Smith America West Air light for reconsideration ter remand (5th Cir.). lines, ap 44 F.3d 344 I cannot Morales, held, Ninth Circuit over a dis prove, used to rationale de sent, that state law claims were too West’s majority cide these cases. The and the dis “rates, tenuously connected to routes and agree principle sent on the that a claim is by § to be services” preempted by express preemption ADA majority punitive did find West’s dam if provision1 the claim relates to age claim Under either Morales part opera are not a of the maintenance or here, analysis or the advanced it is difficult to airline; only application tion of an of this overbooking see how a lawsuit for would not prompts rule the dissent. fact that the majority “relate to” the airline’s contract for “ser disagree and the dissent on the application principle of this reveals that it passenger.13 vices” with its

promises and inconsistent re uncertainty, sults. Hodges’ Claims preferred give I would have that we effect plain language of the ADA Hodges alleged negli that Delta was Plainly, provision. preempts only gent allowing the case of rum to be stowed route, price, “related to a or service” that storage in an overhead bin. This tort claim enact[ing] involve instance of a “state ... personal injury specific has no “reference enforcing] regulation, or other Morales, services, to” airline see U.S. at provision having the force and effect of law.” -, 2039, although 112 S.Ct. at it does view, my unques- while these claims are derive from the of the aircraft. service, tionably related to a simply do signifi Nor would enforcement of her claim provision’s prohibition not run afoul of the services, cantly affect Delta’s defined state-adopted legislation regulation, held, recently above. As other eases have legislation regulation. of enforcement or type this of claim does not relate to Delta’s short, they In are not instances of a state is not preempted “imposing own [its] substantive standards 1305(a)(1). See, e.g., § Public Health Trust routes, services,” respect with to rates or Inc., Cty., Aircraft, v. Lake Dade Fla. 992 of preemption ADA provision plainly which the (11th Cir.1993); Margolis F.2d 291 v. United Wolens, preempts. American Airlines v. (E.D.Mich. F.Supp. 811 318 -U.S.-,-, 115 S.Ct. 130 1993); Express but see Williams v. Airlines Instead, L.Ed.2d 715 in- these suits (W.D.Tenn.1993). I, Inc., F.Supp. by private 825 831 volve efforts individuals to obtain state, state, rejection Hodges’ political polit- 13. We our reiterate of fallback A subdivision of a or position completely authority may even if federal law dis- ical of at 2 least states not enact claim, placed implied private regulation, provision her state law or enforce a or other right having of action be inferred from FAA the force and effect of law related to a CAB, 1374(a). route, supra. price, v. or service of an air carrier ... Diefenthal 1305, provision, U.S.C.App. § The former 49 that, captioned preemption,” provided argued "Federal case 1. A week before this was to the en court, 103-272, here, exceptions purports not relevant banc Public Law which "revise, political codify and enact without no State or subdivision thereof and no substantive change” parts agency political agency or other of title 49 of the United States interstate Code, part any became effective. As a of that two or more States shall enact or enforce law, rule, codifi- cation, standard, preemption provision regulation, provi- the at issue here or other redesignated slightly having relating force rewritten. It is sion the and effect of law rates, routes, pro- any now codified at 49 U.S.C. 41713B and or services of air carrier vides:

341 by private that claims individuals to obtain law tort rules by the common afforded relief an asserted breach of contract remedies for of the state.2 falling sweep preemp as outside principles of stat- According hold, to well-settled similarly, provision. tion would by private individuals to obtain reme construction, must not read the utory we duty for an asserted breach of the dies to render provision “so as preemption ADA traditional, well-settled reasonable care — Forsyth v. [provision] superfluous.” another remedies, in common law tort short —are not (5th Cir.1994). Barr, 1527, In F.3d 1543 19 preemption provision ADA preempted ease, pro- preemption we must read this Compare provisions preemption either. general savings clause3 of the and the vision Dedeaux, v. 41, Pilot Ins. Co. in 481 U.S. Life together “unless there Aviation Act Federal 1549, (1987); Cipol 107 95 L.Ed.2d 39 S.Ct. the two.” ‘positive repugnancy’ between is a — Liggett Group, -, lone v. U.S. Governors, MCorp v. Board Financial 2608, (1992); 120 L.Ed.2d 407 S.Ct. (5th Cir.1990). Indeed, 852, F.2d R. v. American Train & Western Co. Norfolk Airlines Court upon the American 117, 1156, relied Dispatchers, 499 U.S. (1991).4 L.Ed.2d 95 determination general savings clause scheme, quot- comprehensive courts under a Airlines Court 2. In footnote the American legislation.” detailed approval that the word ed with the statement standard, “law, rule, regulation, Construing other the reference to "law” in the ADA series excluding having preemption of law” in the common law provision the force and effect statute Court's construc predecessor connotes “official of a state is consistent with the operate policies ir- tion of the terms “state law” and “all other law” government-imposed ... —Id., preemption Cipollone agreement." statutes at issue in respective any private in the Inc.,-U.S. --, --, Liggett Group, system 112 S.Ct. at 824. The tort 2608, 2620-21, liability "government-imposed”: under the & Western R. Co. v. American Train Dis depend negligence does not common law Norfolk patchers, legislative upon any expression or executive of a (1991), respectively, both of which any agency state. Cipollone, are cited in American Airlines. terms, provision, by its own "Nothing provided: 3. 49 “requirements] prohibitions . .. any way abridge chapter or alter the shall in imposed Court under state law.” The deter existing common law or remedies now prohi "requirement statute, first that the term Chapter mined provisions are in but the of this enough encompass common bition” is broad ánd to such remedies.” As modified addition claims; today, (but, us howev change), law in the cases before again, substantive codified without er, "enactments] the ADAstatute analogous at 49 U.S.C. is found enforce[ment],” legisla plainly 40120(c): refer to part remedy is in "A under this significantly, the executive acts. More provided by tive and law." other remedies addition phrase Cipollone “state Court found that alone, Dedeaux, law,” standing enough to was broad en Insurance Co. v. In Pilot Life particular compass common law claims in preempted certain com- Court held that ERISA newly-minted "super- version of the expressly statute. Even in claims. ERISA mon law tort does not stand the term "law” and defines “states sedes and all state laws” Instead, laws, decisions, rules, provision preemption regulations, the ADA alone. as "all laws” "law[s], provi regulation[s], or other having law.” refers to sion[s],” action the effect of or other state "law[s], predecessor to preemption provision and its referred 29 U.S.C. 1144. The standards, hand, here, provisions.” prohibits regulations, or other the on the other issue Co., "law, preemption the regu- & Western R. a In enforce[ment]” "enact[ment] Norfolk lation, exempts the antitrust laws provision having railroads from the effect of statute or other law, municipal including pre- state and Conspicuously and "all other absent from the ADA law.” general Giving to the term "all provision law.” full effect emption the word "decisions” or law,” preempted that it majority's the Court held law. The inter- other obligations reference to decisional bargaining arising a collective effectively under pretation "decisions” into the reads underlying preempted agreement the provision. because it preemption In addition to the lan- statutes, obligation binding. that the preemption contract law made guage the Pilot of ERISA's plainly preemption does not "comprehensive statute The ADA relied on ERISA's Court Life Instead, preempt law.” give "all other broad effect to civil enforcement scheme" [legislation], regulation, merely and "law preemption provision. American Air- the The having and effect of provision the force points other ADAcontains “[T]he lines Court out preempt does not decisional In law.” It of such a role for the federal courts. no hint obligations a that arise when markedly source of the regard, is the the ADA contrasts ERISA, injured. passenger is channel civil actions into which does language approach plain This does not basis the words of the statute and are not susceptible meaning appli- of clear or certain open door to all tort suits. The other the prefer, I erecting cation. would instead of provisions Federal Aviation Act of the and judge-made these tenuous and uncertain dis- regulations likely im- issued thereunder will tinctions, rely upon plain language the pliedly specifically preempt and sometimes provision Congress as intended6 and en- under certain claims that arise the common other, well-settled, acted it and our fact, light In law of a state.5 preemption principles.. plain language majority’s ascribing a view as mistake the a approach leads to the same result as the sweep preemption provision broader majority, wrestling but without with the admit, language than its will and then en- questions particu- whether the suits fall on a grafting upon interpretation its own broad a arbitrary lar side of and artificial lines drawn n series of narrowing shifting distinctions that lack a sand.7 principle give obligation The well-settled that we must ers of their to exercise reasonable care compels effect to each word of a statute safety passengers. for of their by specifically referring conclusion in the laws, preemption enacting regula- ADA tions, statute by 7.A consideration of two cases referred to laws, provisions, enforcing and other majority reveals the difficulties created regulations, provisions, Congress and other limit- departure plain language pre from the ed the of the ADA statute emption provision. majority today overrules only legislative preempt and executive actions Airlines, Baugh v. Trans World 915 F.2d 693 Thus, thoroughly and enactments. convincing there are Cir.1990), and reaffirms O'Carroll v. American distinguish reasons that the conclu- Airlines, (5th Cir.), 863 F.2d 11 cert. Cipollone reached in sions & Western Norfolk R. Co. the conclusion we from should reach majority’s but as far as I understand the today concerning meaning of the term "law” approach, compel overruling it seems to an preemption provision. in the ADA’s Baugh. O’Carroll and a reaffirmance of These O'Carroll, explained in footnote illustrates my expectation cases bear out that confusion and implied preemption through inconsistency with uncertainty approach will ensue from the out Furthermore, although the Federal Act. Aviation majority's opinions. lined in the the issue is not before us and we do not decide it today, example another of a common law claim Baugh, flight stomped In a attendant on a might impliedly an airline that be passenger's engaged unspeci- foot while in some preempted alleging is a suit breach of contract activity. passenger's fied We held that the claim "bumping” duly-ticketed passenger from a was because it related to the services flight. likely preempted scheduled This claim is passengers afforded to the on an airline. regulations the extensive contained at 14 Hodges, majority specifically "provi- includes C.F.R. open-ended sion of food and drink” in its defini- preempted. tion of services that are As far as the Report accompanying 6. The House the enact- knows, majority Baugh ment of 49 1305 states that the lack attendant juris- engaged of a clear delineation of state and federal in the of food and drink occurred, diction over airlines had created "uncertainties injury when which means that one conflicts, including situations in which carri- majority's opinion would assume under the required charge ers have been different fares Baugh preempted. the cause of action in remains cities, passengers traveling between two de- then, Why, majority Baugh does the assume that pending passengers on whether these were inter- must be reversed? passengers regulated by whose fares are Baugh upon Although relied O’Carroll. both CAB, passengers, reg- or intrastate whose fare is O'Carroll, this case and Smith reaffirm I am ulated a state.” 1978 & U.S.C.C. A.N. 3751- majority’s approach, convinced that under the end, "prevent 52. To that 1305 would con- case, O’Carroll would be overruled. In that regulations by providing flicts inconsistent majority explains, we held that state claims stem- operates authority that when a carrier under ming assertedly wrongful from an exclusion from Act, granted pursuant to ... the Federal Aviation airplane majority were states routes, may regulate no state that carrier's rates today preempted by * that O'Carroll's claims are * * or services. The bill also eliminates Feder- express -preemption provision they the because jurisdiction al over certain service which is es- Smith, “undeniably relate to services.” Under sentially intrastate in nature.” Id. majority's explanation the is not suffi- Similarly, Report the House Conference ex- that, probability although cient because the exists plains "prohibits § that 1305 a state from enact- services, implicated the claim did relate to safety it ing any ing establishing any standard determin- concerns, and thus would fall outside the routes, schedules, rates, fares, charges or answers, preemption provision. of, Smith in an ob- promulgating in tariffs regulations or otherwise economic for, lique way, implicated that O’Carroll’s claims eco- air carrier certified the Nowhere, however, practices opposed safety nomic Board.” Id. at 3804. Congress of the does answer, however, flight. evidence an intent to relieve air carri- That belies the fact that

343 others, HIGGINBOTHAM, resulting operation or the Circuit E. PATRICK from GARZA, M. maintenance EMILIO Judge, with whom of aircraft.” added). dissenting: 1374(q)(l) (emphasis § We cannot joins, Judge, Circuit 1305(a)(l)’s § use of the term services read a difficult given the courts Congress has operation or maintenance of an to include task, agree with but cannot interpretation § give meaning 1371(q)(l). to aircraft and my colleagues. We must adopted by test the questions the tort suit claim, this decide whether inquiry with The first is whether the the aircraft. It maintenance of operation or effect, “rates, regulatory relates to routes or unless state law maintained under 1305(a)(1). cannot be If 49 U.S.C.App. services.” it does. services, claim to then it the relates results from “the preempted unless also 1305(a)(1) part, that provides, Section of Id. operation or maintenance aircraft.” enforce law ... enact or shall “no State 1371(q)(l). If doubt as to whether there is rates, or services of relating to routes ... operation from or main- the claim results the U.S.CApp. any air carrier.” aircraft, that doubt is to be tenance of the “relating identify what The statute does operation in favor of the or mainte- resolved means, the nor does it define to ... services” Cipollone Liggett category. See v. nance v. Trans World In term “services.” Morales —Inc., U.S.-,-, Group, U.S.-, (applying 120 L.Ed.2d Supreme Court the the of state “presumption accord- the words of interpreted Thus, powers”). preemption turns on police meanings and found ordinary ing to their judicial of a claim enforcement whether “relating a “connection to” means regulation the regulate and whether would at Id. reference to.” maintenance of an of the omitted). was (internal marks quotation aircraft. approach, Applying ordinary-meaning the produce labor that does not is “useful

service practical of a Reflecting upon the reach commodity.” Third Webster’s tangible inquiries. A light on both tort claim sheds Dictionary 2075 International New makes the case from Louisiana minerun tort Lines, Air point. In Schwamb Delta given must be the term While (La.Ct.App.1987), writ Congress clear that So.2d ordinary meaning, it is (La.1988), in- was Schwamb of 520 So.2d operation or maintenance not intend did fell out of an over- jured a briefcase defini- when the statute’s an aircraft to fall within him on the head. bin and struck services, sense head despite its common tion Miller, testimony of introduced the of services. Section Schwamb relationship provision engineering, avia- expert in aeronautical earner to main- 1371(q)(l) requires each air investigation and reconstruc- tion accident for which to cover “amounts tain insurance factors, survivability, tion, safe- human crash become hable ... such air carrier safety management. ty engineering, and any person, injuries death of bodily to or the following steps could testified that damage property of Miller of or or for loss might senger be inimicable if it "would companion were excluded O’Carroll and his Clearly, safety flight.” F.2d at 11-12. disorderly jailed flight, from the and later condition threatened conduct, transporting Carroll in his had intoxicated and because were flight. thus safety O’Cairoll’s claims boisterously point behaving at one so been preempted by separate federal impliedly pilot were his one of them offered assistance indepen- convincing wholly reason A statute. flying plane. Id. at 12. O'Carroll’s express preemption thus safety flight. dent implicated As a plainly that O'Carroll's claim justified our determination consequence, suit should not be O’Carroll’s light, in this our concluso- Seen preempted approach announced under is no need ry "[T]here statement in O'Carroll majority today. upon 1305 ... rely inference as section alone can be reconciled with result in O'Carroll law,” “[i]n and that expressly approach suggested plain language O'Carroll, congression- explicit view of this manifestation concurring opinion. deter- we. intent, we conclude O’Carroll’s al for two common that the claims were mined 1305,” First, 1511(a) preempted under id. granted are U.S.C.App. § law claims reasons. properly regarded as obiter dictum. transport any pas- to to broad discretion refuse passenger’s Hodges’ preempted, judg- have been taken to minimize claim is and the objects falling from being risk of struck ment of the district court should be affirmed. bins: overhead

(1) pre-boarding pas- announcement to A baggage; how to load the

sengers about bottom,

e.g. heavy things on “Put the (2) things top.” pre- A lighter on

boarding passengers to announcement baggage their but not to close the

stow open, flight doors. If the doors were at- Smith, E. Charles Gene SMITH and Joan tendants could come down the aisle before al., Plaintiffs-Appellants, et every takeoff and cheek each and one of having the bins without to take the time to (3) open pre-boarding AIRLINES, A in- closed bins. AMERICA WEST INC. Lynn spection carry-on baggage, Weaver, in which and Connie flight Defendants-Appellees. attendants check the volume of the (4) weight. An luggage as well as its on- No. 91-6070. board announcement attend- conjunction passengers, e.g., in ant to Appeals, United States Court of safety briefing concerning oxygen Fifth Circuit. (5) émergency masks and exits. A warn- Feb. ing plastic safety says on the card which careful; something such as: “Be don’t ov- you

erload bins and use caution when use (6) warning

them.” A or illustration de- way

picting proper pack an over- (7) pre-landing A

head bin. announcement passengers concerning the removal of

baggage from the overhead bins. An warning taxiing

announcement while gate majority arrival vast when the seated,

passengers are still to the effect passengers need to be cautious when

opening the bins.

Id. at 463. The placement baggage compartment plainly relates air-

overhead

line services. enforcement of the claim State

plainly regulates.

Hodges’ claim is then unless activity complains op- she of constitutes “Op-

eration or of an aircraft. maintenance

eration of aircraft” means “the air- use of

craft, purpose navigation for the of air navigation

includes the of aircraft.” 1301(31).

U.S.CApp. § The statute does not

define “maintenance of aircraft.” Nonethe-

less, difficulty concluding have little carry-on

stowing items in an com- overhead

partment provide ais service airlines

passengers who do not wish to check their

baggage. any way It does not relate to navigation or maintenance of aircraft.

Case Details

Case Name: Hodges v. Delta Airlines, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 15, 1995

Citation: 44 F.3d 334

Docket Number: 91-06037

Court Abbreviation: 5th Cir.