National Federation of the Blind v. United Airlines Inc.

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NATIONAL FEDERATION OF THE BLIND, on behalf of its members and itself; Michael May; Michael Hingson; Christina Thomas, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. UNITED AIRLINES INC., Defendant-Appellee.

No. 11-16240.

United States Court of Appeals, Ninth Circuit.

Argued Nov. 8, 2012. Submitted and Filed Jan. 19, 2016.

813 F.3d 718

Before: ANDREW J. KLEINFELD and MARSHA S. BERZON, Circuit Judges, and ROGER T. BENITEZ, District Judge.* Opinion by Judge BERZON; Concurrence by Judge KLEINFELD.

* The Honorable Roger T. Benitez, District Judge for the U.S. District Court for the Southern District of California, sitting by designation.

Gregory P. Care (argued) and Daniel F. Goldstein, Brown Goldstein & Levy, Baltimore, MD; Kevin Knestrick and Laurence W. Paradis, Disability Rights Advocates, Berkeley, CA, for Plaintiffs-Appellants.

Jonathan E. Nuechterlein (argued), Bruce H. Rabinovitz, Eric F. Citron, and Eric Paul Winke, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Richard G. Grotch, Coddington, Hicks & Danforth, Redwood City, CA, for Defendant-Appellee.

Christine N. Kohl (argued), Douglas N. Letter, Abby C. Wright and Michael S. Raab, and Tony West and Stuart F. Delery, Assistant Attorneys General, United States Department of Justice, Civil Division, Washington, D.C.; Joy K. Park, Peter J. Plocki, Deputy Assistant General Counsel for Litigation, Paul M. Geier, Assistant General Counsel for Litigation, and Kathryn B. Thomson and Roberty S. Rivkin, General Counsel, United States Department of Transportation, Office of the General Counsel, Washington, D.C., for Amicus Curiae United States.

Robert S. Span, Steinbrecher & Span LLP, Los Angeles, CA, for Amicus Curiae Air Transport Association of America, Inc.

OPINION

BERZON, Circuit Judge:

This case requires us to consider once more the circumstances under which claims brought under state law are preempted by federal statutes governing air transportation. See, e.g., Gilstrap v. United Air Lines, Inc., 709 F.3d 995 (9th Cir. 2013); Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998) (en banc).

Plaintiff-Appellants the National Federation of the Blind¹ and three blind individuals, Michael May, Michael Hingson, and Christina Thomas—collectively, “the Federation“—filed a class lawsuit against Defendant-Appellee United Airlines, Inc. (“United“), alleging that the airline‘s policy of using automatic kiosks inaccessible to blind travelers violates California‘s antidiscrimination laws. The district court dismissed the suit on the grounds that the Federation‘s claims were expressly preempted under the Airline Deregulation Act of 1978 (“ADA“), 49 U.S.C. § 41713, and impliedly field preempted under the Air Carrier Access Act of 1986 (“ACAA“), 49 U.S.C. § 41705, and its implementing regulations, issued by the U.S. Department of Transportation (“DOT“). We affirm the district court on the basis of a regulation promulgated after its decision.

BACKGROUND

United owns and operates over 100 automatic ticketing kiosks in airports throughout California. These kiosks allow passengers to perform various functions relevant to their air travel, including accessing flight information, checking in for flights, printing boarding passes, checking baggage, and selecting and upgrading seats. As now configured, the kiosks require user responses to visual prompts on a computer touchscreen and so cannot be used without assistance by blind travelers. Although United could make its kiosks accessible to blind passengers using commercially available technologies such as audio interfaces and tactile keyboards, it has not.² As a result, blind passengers seeking to use United‘s ticketing kiosks must either rely on the help of sighted relatives, friends, or strangers, or wait for a United agent to assist them. According to the Federation, United thereby “excludes the blind from full and equal access” to its kiosks.

The Federation sued United, seeking declaratory and injunctive relief as well as damages. Its complaint asserted that United‘s policy of using kiosks inaccessible to the blind violates two California antidiscrimination statutes: the Unruh Civil Rights Act (“Unruh Act“) and the Disabled Persons Act (“DPA“). Cal. Civ. Code §§ 51, 54. The Unruh Act provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Id. § 51(b). The DPA guarantees persons with disabilities, including the blind, “full and equal access ... to accommodations, advantages, facilities, ... and privileges of all common carriers, airplanes, ... or any other modes of transportation.” Id. § 54.1(a)(1). These statutes, the Federation argues, require United to “take the steps necessary to make its [k]iosks readily accessible to and usable by blind individuals.”³

United moved to dismiss the Federation‘s claims on three preemption grounds: (1) that the claims were preempted under the ADA‘s express preemption provision, 49 U.S.C. § 41713(b)(1); (2) that the claims were impliedly preempted by the ACAA and its implementing regulations, including in particular an “interim” regulation governing kiosk accessibility, see Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 27,614, 27,619 (May 13, 2008), which, according to United, pervasively regulated airport kiosk accessibility; and (3) that the Federation‘s claims were impliedly preempted by the ACAA because they conflicted with the policy objectives reflected in the implementing regulations.⁴

After United filed its motion to dismiss, the district court requested the input of the United States and the DOT. The Unit-ed States filed a Statement of Interest maintaining that the Federation‘s claims were preempted for all of the reasons cited by United. The district court subsequently issued an order granting United‘s motion to dismiss, holding the Federation‘s claims expressly preempted under the ADA and impliedly field preempted under the ACAA. This appeal followed.

The United States filed an amicus brief with this court, repeating its position that asserted state law claims are preempted. After oral argument, we vacated submission pending the Supreme Court‘s resolution of Northwest, Inc. v. Ginsberg, — U.S. —, 134 S. Ct. 1422, 188 L. Ed. 2d 538 (2014). While that case was pending, the DOT replaced the interim kiosk regulation with an extensive final rule. See Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports, 78 Fed. Reg. 67,882 (Nov. 12, 2013). We ordered supplemental briefing on both developments, and the United States submitted an additional amicus brief, again maintaining that the claims are preempted.

DISCUSSION

Federal law may preempt state law in three ways. First, “Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision.” Arizona v. United States, — U.S. —, 132 S. Ct. 2492, 2500-01, 183 L. Ed. 2d 351 (2012). Second, “States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Id. at 2501. Finally, “state laws are preempted when they conflict with federal law,” such that “compliance with both federal and state regulations is a physical impossibility, ... [or] the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (internal quotation marks and citation omitted).

Regardless of the type of preemption involved—express, field, or conflict—“[t]he purpose of Congress is the ultimate touchstone of pre-emption analysis.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (alteration in original) (internal quotation marks omitted). In this regard, “we are mindful of the adage that Congress does not cavalierly preempt state law causes of action.” Montalvo v. Spirit Airlines, 508 F.3d 464, 471 (9th Cir. 2007) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). At the same time, we have recognized that “preemptive intent is more readily inferred” in the field of aviation, because it is “an area of the law where the federal interest is dominant.” Id. (citing Fidelity Fed. Sav. & Loan Ass‘n v. de la Cuesta, 458 U.S. 141, 153 (1982)).

In applying these principles to this case, our inquiry is a cabined one. The Federation‘s claims were brought pursuant to California‘s general antidiscrimination statutes. There is no California case law concerning the application of those statutes to airport kiosks. So we do not know at this point to what extent California law requires accessible kiosks or alternatives thereto. The issue at this juncture is thus whether any accessibility requirement for airport kiosks not required by the DOT regulations would be preempted.

With these background principles and caveats in mind, we consider whether the Federation‘s claims are foreclosed by any of the three types of preemption.

3. Regulatory Authority

In its supplemental brief, the Federation argues that its suit does not conflict with the new regulation. In light of our conclusion that DOT has occupied the field, we need not reach that issue. As to field preemption, the Federation offers no argument that the new regulation is not pervasive; indeed, it is hard to see how it could do so.¹⁸ Rather, apart from the argument, which we have already rejected—that implied field preemption is simply inapplicable because of the FAA saving clause—the Federation argues only that the new regulation cannot field preempt its claims because the regulation itself is invalid. We disagree.

Because we have concluded that DOT “meant to pre-empt” the claims at issue here, the question is simply “whether that action [wa]s within the scope of the [agency‘s] delegated authority.” de la Cuesta, 458 U.S. at 154, 102 S.Ct. 3014. “[W]hen an agency administrator promulgates pervasive regulations pursuant to his Congressional authority, we may infer a preemptive intent unless it appears from the underlying statute or its legislative history that Congress would not have sanctioned the preemption.” Montalvo, 508 F.3d at 471.

We conclude that DOT acted within its authority in promulgating the field-preemptive § 382.57. First, regulations under the ACAA, like § 382.57, are “covered by the FAA‘s general authorization that the Secretary ‘may take action ... consider[ed] necessary to carry out’ the FAA‘s ‘Air Commerce and Safety’ provisions, ‘including ... prescribing regulations, standards, and procedures, and issuing orders.‘” Gilstrap, 709 F.3d at 1000 (quoting 49 U.S.C. § 40113(a)) (first alteration in original). As Gilstrap recognized, the ACAA, as part of the broader FAA, regulates “aviation commerce,” including principally “airlines’ interactions with their customers who have disabilities,” as well as “aviation safety.” Id. at 1005 & n. 14. Thus, Congress authorized DOT to promulgate regulations that, like § 382.57, speak to United‘s interactions with its customers with disabilities in the context of its kiosks.

Second, even granting for the sake of argument the Federation‘s argument that, in enacting the ACAA, “Congress did not in any way suggest that” it wanted to preempt state law, this “narrow focus on Congress’ intent to supersede state law [i]s misdirected.” de la Cuesta, 458 U.S. at 154, 102 S.Ct. 3014. “A preemptive regulation‘s force does not depend on express congressional authorization to displace state law.” Id. Rather, as we have explained, “the correct focus is on the federal agency that seeks to displace state law and on the proper bounds of its lawful authority to undertake such action.” City of N.Y. v. F.C.C., 486 U.S. 57, 64 (1988). Nothing in the text or legislative history of the ACAA convinces us that “Congress would not have sanctioned the preemption” intended by the DOT. Montalvo, 508 F.3d at 471; see also Gilstrap, 709 F.3d at 999-1000, 1006-07 (reviewing the legislative history of the ACAA, and concluding that DOT‘s regulation had field-preemptive effect).¹⁹

Third, we reject the Federation‘s argument that the regulation is invalid because the ACAA “is limited to prohibiting discrimination in ‘air transportation,‘” but does not extend to “subsidiary activities” like the operation of airport kiosks that “do not move people or things by aircraft.”²⁰ The ACAA provides that, “[i]n providing air transportation, an air carrier may not discriminate against an otherwise qualified individual” on the basis of current, past, or perceived disability. 49 U.S.C. § 41705(a). But we have understood, and continue to understand, the term “[i]n providing air transportation,” id., broadly, to generally include “airlines’ interactions with their customers who have disabilities.” Gilstrap, 709 F.3d at 1005 n. 14.

In Gilstrap, for example, we held that the ACAA regulations occupied the field implicated by Gilstrap‘s claim that “United did not provide the assistance that Gilstrap requested for moving through the airports.” 709 F.3d at 1007 (emphasis added). Moving through an airport is not air transportation, yet we concluded that the ACAA regulations validly preempted the application of any different or higher state standard of care as to that issue. Id. Consistent with Gilstrap, we conclude that “[t]he ACAA was intended to ensure non-discriminatory treatment of airline passengers,” Elassaad v. Independence Air, Inc., 613 F.3d 119, 133 (3d Cir. 2010), whether on an airplane, in an airport, at a kiosk, or otherwise. DOT thus has authority to promulgate regulations, like the one at issue here, that concern the ability to use devices designed to facilitate the provision of airplane transportation.

Fourth, we also reject the Federation‘s argument that, because Congress did not intend the ACAA to apply to intrastate air transportation, the Federation‘s claims, to the extent they relate to purely intrastate travel, are not preempted.²¹ The Federation is correct that the term “air transportation” is defined in the FAA as “foreign air transportation, interstate air transportation, or the transportation of mail by aircraft,” apparently exclusive of intrastate air transportation. 49 U.S.C. § 40102(a)(5); see also 14 C.F.R. § 298.2 n.1. But DOT‘s authority to promulgate regulations is not so constrained as the Federation suggests. Rather, the Secretary “may take action [he] considers necessary” to effectuate the provisions at issue here. 49 U.S.C. § 40113(a).

United, like most airlines, does not maintain separate kiosks for interstate travel and intrastate travel. Faced with the likelihood of a single set of kiosks, the Secretary could reasonably conclude that a rule governing accessibility of kiosks in general is “necessary” to ensure ACAA compliance with regard to interstate travel. Thus, the Federation‘s argument fails to demonstrate that the regulation is beyond DOT‘s authority.

Finally, the Federation notes that it has, in a different case, challenged the new regulation‘s validity under the Administrative Procedure Act (“APA“), 5 U.S.C. § 551 et seq., and that, if the challenge is successful, “the rulemaking may be invalidated, in which case there would no longer be any basis for implied preemption of the claims that are subject to this appeal.”²² The filing of a case in a different jurisdiction that might lead to the rule‘s invalidation has no pertinence to the preemption question before this court.²³

In sum, § 382.57 pervasively and comprehensively regulates the field of airport kiosk accessibility, and is within DOT‘s delegated authority. We therefore hold that the Federation‘s state-law claims are impliedly field preempted under the ACAA.

CONCLUSION

For the reasons stated above, the Federation‘s state-law claims are not expressly preempted by the ADA. They are, however, impliedly field preempted by the ACAA and 14 C.F.R. § 382.57. Accordingly, we affirm the district court‘s dismissal of the Federation‘s state-law claims.²⁴

AFFIRMED.

APPENDIX

14 C.F.R. § 382.57

§ 382.57 What accessibility requirements apply to automated airport kiosks?

Effective: December 12, 2013

(a) As a carrier, you must comply with the following requirements with respect to any automated airport kiosk you own, lease, or control at a U.S. airport with 10,000 or more enplanements per year.

1. You must ensure that all automated airport kiosks installed on or after December 12, 2016, are models that meet the design specifications set forth in paragraph (c) of this section until at least 25 percent of automated kiosks provided in each location at the airport (i.e., each cluster of kiosks and all stand-alone kiosks at the airport) meets this specification.
2. You must ensure that at least 25 percent of automated kiosks you own, lease, or control in each location at a U.S. airport meet the design specifications in paragraph (c) of this section by December 12, 2022.
3. When the kiosks provided in a location at the airport perform more than one function (e.g., print boarding passes/bag tags, accept payment for flight amenities such as seating upgrades/meals/WiFi access, rebook tickets, etc.), you must ensure that the accessible kiosks provide all the same functions as the inaccessible kiosks in that location.
4. You must ensure that a passenger with a disability who requests an accessible automated kiosk is given priority access to any available accessible kiosk you own, lease, or control in that location at the airport.
5. You must ensure that each automated airport kiosk that meets the design specifications in paragraph (c) of this section is:
   1. Visually and tactilely identifiable to users as accessible (e.g., an international symbol of accessibility affixed to the front of the device).
   2. Maintained in proper working condition.

(b) As a carrier, you must comply with the following requirements for any shared-use automated airport kiosks you jointly own, lease, or control at a U.S. airport with 10,000 or more enplanements per year.

1. You must ensure that all shared-use automated airport kiosks you jointly own, lease, or control installed on or after December 12, 2016, meet the design specifications in paragraph (c) of this section until at least 25 percent of automated kiosks provided in each location at the airport (i.e., each cluster of kiosks and all stand-alone kiosks at an airport) meet this specification.
2. You must ensure that at least 25 percent of shared-use automated kiosks you own, lease, or control in each location at the airport meet the design specifications in paragraph (c) of this section by December 12, 2022.
3. When shared-use automated kiosks provided in a location at the airport perform more than one function (e.g., print boarding passes/bag tags, accept payment for flight amenities such as seating upgrades/meals/WiFi access, rebook tickets, etc.), you must ensure that the accessible kiosks provide all the same functions as the inaccessible kiosks in that location.
4. You must ensure that each automated airport kiosk that meets the design specifications set forth in paragraph (c) of this section is:
   1. Visually and tactilely identifiable to users as accessible (e.g., an international symbol of accessibility affixed to the front of the device; and
   2. Maintained in proper working condition.
5. As a carrier, you are jointly and severally liable with airport operators and/or other participating carriers for ensuring that shared-use automated airport kiosks are compliant with the requirements of paragraphs (b) and (c) of this section.

(c) You must ensure that the automated airport kiosks provided in accordance with this section conform to the following technical accessibility standards with respect to their physical design and the functions they perform:

1. Self contained. Except for personal headsets and audio loops, automated kiosks must be operable without requiring the user to attach assistive technology.
2. Clear floor or ground space. A clear floor or ground space complying with section 305 of the U.S. Department of Justice‘s 2010 ADA Standards for Accessible Design, 28 CFR 35.104 (defining the “2010 Standards” for title II as the requirements set forth in appendices B and D to 36 CFR part 1191 and the requirements contained in 28 CFR 35.151) (hereinafter 2010 ADA Standards) must be provided.
3. Operable parts. Operable parts must comply with section 309 of the 2010 ADA Standards, and the following requirements:
   1. Identification. Operable parts must be tactilely discernible without activation;
   2. Timing. Where a timed response is required, the user must be alerted visually and by touch or sound and must be given the opportunity to indicate that more time is required;
   3. Status indicators. Status indicators, including all locking or toggle controls or keys (e.g., Caps Lock and Num Lock keys), must be discernible visually and by touch or sound; and
   4. Color. Color coding must not be used as the only means of conveying information, indicating an action, prompting a response, or distinguishing a visual element.
4. Privacy. Automated airport kiosks must provide the opportunity for the same degree of privacy of input and output available to all individuals. However, if an option is provided to blank the screen in the speech output mode, the screen must blank when activated by the user, not automatically.
5. Output. Automated airport kiosks must comply with paragraphs (c)(5)(i) through (iv) of this section.
   1. Speech output enabled. Automated airport kiosks must provide an option for speech output. Operating instructions and orientation, visible transaction prompts, user input verification, error messages, and all other visual information for full use must be accessible to and independently usable by individuals with vision impairments. Speech output must be delivered through a mechanism that is readily available to all users, including but not limited to, an industry standard connector or a telephone handset. Speech output must be recorded or digitized human, or synthesized. Speech output must be coordinated with information displayed on the screen. Speech output must comply with paragraphs (c)(5)(i)(A) through (F) of this section.
      1. When asterisks or other masking characters are used to represent personal identification numbers or other visual output that is not displayed for security purposes, the masking characters must be spoken (“*” spoken as “asterisk“) rather than presented as beep tones or speech representing the concealed information.
      2. Advertisements and other similar information are not required to be audible unless they convey information that can be used in the transaction being conducted.
      3. Speech for any single function must be automatically interrupted when a transaction is selected or navigation controls are used. Speech must be capable of being repeated and paused by the user.
      4. Where receipts, tickets, or other outputs are provided as a result of a transaction, speech output must include all information necessary to complete or verify the transaction, except that—
         1. Automated airport kiosk location, date and time of transaction, customer account numbers, and the kiosk identifier are not required to be audible;
         2. Information that duplicates information available on-screen and already presented audibly is not required to be repeated; and
         3. Printed copies of a carrier‘s contract of carriage, applicable fare rules, itineraries and other similar supplemental information that may be included with a boarding pass are not required to be audible.
   2. Volume control. Automated airport kiosks must provide volume control complying with paragraphs (c)(5)(ii)(A) and (B) of this section.
      1. Private listening. Where speech required by paragraph (c)(5)(i) of this section is delivered through a mechanism for private listening, the automated kiosk must provide a means for the user to control the volume. A function must be provided to automatically reset the volume to the default level after every use.
      2. Speaker volume. Where sound is delivered through speakers on the automated kiosk, incremental volume control must be provided with output amplification up to a level of at least 65 dB SPL. Where the ambient noise level of the environment is above 45 dB SPL, a volume gain of at least 20 dB above the ambient level must be user selectable. A function must be provided to automatically reset the volume to the default level after every use.
   3. Captioning. Multimedia content that contains speech or other audio information necessary for the comprehension of the content must be open or closed captioned. Advertisements and other similar information are not required to be captioned unless they convey information that can be used in the transaction being conducted.
   4. Tickets and boarding passes. Where tickets or boarding passes are provided, tickets and boarding passes must have an orientation that is tactilely discernible if orientation is important to further use of the ticket or boarding pass.
6. Input. Input devices must comply with paragraphs (c)(6)(i) through (iv) of this section.
   1. Input controls. At least one input control that is tactilely discernible without activation must be provided for each function. Where provided, key surfaces not on active areas of display screens, must be raised above surrounding surfaces. Where touch or membrane keys are the only method of input, each must be tactilely discernible from surrounding surfaces and adjacent keys.
   2. Alphabetic keys. Alphabetic keys must be arranged in a QWERTY keyboard layout. The “F” and “J” keys must be tactilely distinct from the other keys.
   3. Numeric keys. Numeric keys must be arranged in a 12-key ascending or descending keypad layout or must be arranged in a row above the alphabetic keys on a QWERTY keyboard. The “5” key must be tactilely distinct from the other keys.
   4. Function keys. Function keys must comply with paragraphs (c)(6)(iv)(A) and (B) of this section.
      1. Contrast. Function keys must contrast visually from background surfaces. Characters and symbols on key surfaces must contrast visually from key surfaces. Visual contrast must be either light-on-dark or dark-on-light. However, tactile symbols required by (c)(6)(iv)(B) are not required to comply with (c)(6)(iv)(A) of this section.
      2. Tactile symbols. Function key surfaces must have tactile symbols as follows: Enter or Proceed key: raised circle; Clear or Correct key: raised left arrow; Cancel key: raised letter ex; Add Value key: raised plus sign; Decrease Value key: raised minus sign.
7. Display screen. The display screen must comply with paragraphs (c)(7)(i) and (ii) of this section.
   1. Visibility. The display screen must be visible from a point located 40 inches (1015 mm) above the center of the clear floor space in front of the automated kiosk.
   2. Characters. Characters displayed on the screen must be in a sans serif font. Characters must be 3/16 inch (4.8 mm) high minimum based on the uppercase letter “I.” Characters must contrast with their background with a minimum luminosity contrast ratio of 3:1.
8. Braille instructions. Braille instructions for initiating the speech mode must be provided. Braille must comply with section 703.3 of the 2010 ADA Standards.
9. Biometrics. Biometrics must not be the only means for user identification or control, unless at least two biometric options that use different biological characteristics are provided.

(d) You must provide equivalent service upon request to passengers with a disability who cannot readily use your automated airport kiosks (e.g., by directing a passenger who is blind to an accessible automated kiosk, assisting a passenger in using an inaccessible automated kiosk, assisting a passenger who due to his or her disability cannot use an accessible automated kiosk by allowing the passenger to come to the front of the line at the check-in counter).

KLEINFELD, Senior Circuit Judge, concurring:

I join Part II of the majority opinion, and concur in the result.

I do not join in Part I of the opinion, because Part II, addressing implied preemption of the field, entirely controls the outcome of this case. The field is preempted by the forty pages in the Federal Register in which the Department of Transportation has addressed service to disabled passengers.¹ Nothing needs to be said about express preemption, so noth-

ing should be said. I cannot think of a good reason for us to speak at considerable length about a subject that does not in the slightest affect the decision of the case before us.

Federal preemption under the Airline Deregulation Act is a complex and nuanced body of law. I do not express agreement or disagreement with anything in the majority‘s unnecessary discussion of express preemption. By adding many words to the Federal Reporter about it, we have made the subject even more complex.

The reason why express preemption is a complex and delicate subject is that the Airline Deregulation Act preempts state laws “related to a price, route, or service of an air carrier,”² and we and our sister circuits have read “service” in differing ways.³ Since we need not further complexify the meaning of “service,” we should not. Much can be said, and need not be said in this case, about whether our con-

struction of “service” in Charas v. Trans World Airlines, Inc. is consistent with, or qualified or overruled by, the Supreme Court decision in Rowe v. New Hampshire Motor Transport Ass‘n.⁴ We should not address that question in a decision on which it has no bearing.

Because the lengthy first section of the majority opinion is an entirely unnecessary disquisition on a subject of no significance to the outcome, it should be regarded as dicta of no precedential force. That too is a complex issue in our circuit because of our court‘s departure from the common law tradition regarding dicta and holding. That oddity in our circuit law generates more complexity into the question of whether the agency and subsequent panels are bound by Part I of today‘s opinion.

Our circuit, unlike traditional common law courts, the Supreme Court,⁵ and our

sister circuits,⁶ purports in Barapind v. Enomoto⁷ to treat all our considered pronouncements, whether necessary to the decision or not, as binding law. Our anomalous language in Barapind says that if “[w]e addressed the issue and decided it in an opinion joined in relevant part by a majority of the panel[,] ... [it] became law of the circuit, regardless of whether it was in some technical sense ‘necessary’ to our disposition of the case.”⁸ The good and traditional reasons for stare decisis are that like cases ought as a matter of justice to be treated alike, and that stability in the law benefits those who wish to conduct their activities in compliance with and reliance on it. When cases are not alike, the common law method is to determine whether to extend or distinguish and limit pronouncements in prior cases, not to treat all the pronouncements like statutes. Part I of the majority opinion appears to be an attempt to write a binding gloss on what is a “service,” but confusion about whether, in our circuit, it has any precedential force undermines whatever value it might have as guidance.

There are good reasons why courts write dicta. Often dicta make the discussion of the law easier to understand, such as by discussing hypothetical and analogous cases. Language in a decision unnecessary to the decision often has value, for making the decision easier to understand, courts easier to predict, and decisions whether to expand or restrict holdings easier to make. Much dicta is written accidentally, because a judge explaining why the court reaches its outcome in one case will not be able to perceive every factual circumstance that will arise in the future, and potentially be covered by an accidentally overbroad rule articulated in the instant case. Part I of today‘s opinion is dicta for no such good reason.

Instead, it is a prime example of what Judge Rymer, in her dissent in Barapind, called overwriting invited by the Barapind majority opinion.⁹ The Constitution gives us authority to decide only “Cases and Controversies.”¹⁰ The federal courts do not have authority to issue advisory opinions.¹¹ Yet that is what Part I is. The judicial power we wield is “to determine actual controversies arising between adverse litigants,” not to make law on issues that do not determine the parties’ controversy.¹²

Barapind claims authority to bind subsequent panels and district courts by dicta as part of our “supervisory function.”¹³ But it is doubtful that there is any such authority, particularly when a three-judge panel purports to exercise it.¹⁴ Congress located supervisory power in the Judicial Conference of the United States¹⁵ and the Judicial Council of the Ninth Circuit.¹⁶ We make general rules for our court by Local Rules pursuant to Rule 47 of the Federal Rules of Appellate procedure. While we claim more authority for our en banc panels of eleven judges in our twenty-nine-judge court,¹⁷ we have not claimed it for three-judge panels.

“Everything that ends up in F.3d cannot possibly be the law of the circuit.”¹⁸ Since Part I of the majority opinion is entirely unnecessary to the decision in this case, I see no reason why future panels or anyone else would be bound by it. Writing what purports to be law of the circuit entirely outside the necessity of deciding the case before us increases the risk of troublesome error, and of exercising power beyond our authority. Judge Leval of the Second Circuit attacked Barapind as “announcing a rule, irrespective of whether the rule plays any functional role in the court‘s decision of the case—a very considerable power, and without constitutional justification.”¹⁹ He suggests a “blatant” hypothetical:

What if we in the Second Circuit, without any filed dispute between parties, were to publish a tract entitled In re Securities Litigation, in which we promulgated a compendium of rules to govern securities cases? I think all would agree that we lack constitutional authority to establish binding law in this fashion.

Then what if, when a securities dispute comes before us, after giving judgment on the disputed issue, we go on to say, “Having focused our attention on the subject of securities litigation, we will go beyond the particular issue in dispute and proclaim a set of rules to be followed.” Is this meaningfully different from the previous example?²⁰

That is what Part I of the majority opinion is, and, as Judge Leval says of his hypothetical case, “It is beyond our authority.”²¹ As Judge Rymer wrote, “Views of two or three judges in an opinion on matters that are not necessarily dispositive of the case are no different from the same views expressed in a law review article; neither should be treated as a judicial act that is entitled to binding effect.”²²

Part I of the majority opinion does not use dicta as an explanatory aid, an often useful practice. It is not important to the decision in this case, just discussion that might arguably be useful in some other case. But when we purport to articulate law not affecting the decision of a case, our likelihood of error increases. Practicing lawyers, district judges, and subsequent appellate panels often experience difficulty reaching what they agree is a sensible result, because of excess language in a case resolved on a different ground. We should police our opinions to prevent that kind of surplus language. Part II of the majority opinion fully resolves this case. Part I has no bearing on its resolution, so, right or wrong, it raises a question of whether it really is circuit law, even as it attempts to articulate circuit law.

UNITED STATES of America, Plaintiff-Appellee,
v.
Xochitl CISNEROS-RODRIGUEZ, Defendant-Appellant.

No. 13-10645.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2015.
Filed Dec. 23, 2015.

Notes

1

The National Federation of the Blind is a non-profit advocacy group on behalf of the blind. The majority of its 50,000 members are blind persons, a protected class under California disability anti-discrimination law. See Cal. Gov. Code § 12926; Cal. Civ. Code §§ 51, 54. See Nondiscrimination on the Basis of Disability in Air Travel, 78 Fed. Reg. 67,882-924 (Nov. 12, 2013) (codified at 14 C.F.R. pts. 382, 388, 399, and 49 C.F.R. pts. 27, 382).

2

Automatic Teller Machines (“ATMs“) are required to be equipped with such technologies. See 2010 Americans with Disabilities Act Standards for Accessible Design, § 707, available at http://www.ada.gov/regs2010/2010ADAStandards/2010ADAstandards.htm# pgfId-1006537. 49 U.S.C. § 41713(b)(1).

3

There are no California cases or regulations specifically addressing whether California law does so require. See Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1266 (9th Cir. 1998) (en banc) (“Congress used the word ‘service’ in the phrase ‘rates, routes, or service’ in the ADA‘s preemption clause to refer to the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail.“); Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 193-94 (3d Cir. 1998) (adopting the Charas definition). But see Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc) (holding that “Congress intended to de-regulate as ‘services‘” “‘items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself‘“); see also Bower v. Egyptair Airlines Co., 731 F.3d 85, 94 (1st Cir. 2013) (adopting the Hodges definition); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1257 (11th Cir. 2003) (same); Arapahoe Cnty. Pub. Airport Auth. v. F.A.A., 242 F.3d 1213, 1222 (10th Cir. 2001) (quoting Hodges); Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998) (citing Hodges); Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996) (adopting the Hodges definition).

4

United also argued that the Federation‘s complaint failed to state a claim under California law. See Dilts v. Penske Logistics, LLC, 769 F.3d 637, 645 (9th Cir. 2014) (arguing that, in regards to a statute analogous to the ADA, “Rowe did not ... call into question our past FAAAA cases“). But see Air Transp. Ass‘n of Am., Inc. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008) (per curiam) (“Charas‘s approach, we believe, is inconsistent with the Supreme Court‘s recent decision in Rowe. There, the Court necessarily defined ‘service’ to extend beyond prices, schedules, origins, and destinations.“); see also Bower v. Egyptair Airlines Co., 731 F.3d 85, 94 (1st Cir. 2013) (“Rowe forecloses the Charas interpretation of ‘service’ as a term closely related to prices and routes.“).

5

Carroll v. Carroll‘s Lessee, 57 U.S. 275, 287, 16 How. 275, 14 L.Ed. 936 (1853) (“[T]his court and other courts organized under the common law, has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right or title in question between the parties.“).

6

See United States v. Matchett, 802 F.3d 1185, 1195 (11th Cir. 2015); Arcam Pharm. Corp. v. Faria, 513 F.3d 1, 3 (1st Cir. 2007); Hearn v. Dretke (In re Hearn), 376 F.3d 447, 453 (5th Cir. 2004); Cal. Pub. Employees’ Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 106 n. 19 (2d Cir. 2004); DaimlerChrysler Corp. v. United States, 361 F.3d 1378, 1384 (Fed. Cir. 2004); Figg v. Schroeder, 312 F.3d 625, 643 n. 14 (4th Cir. 2002); PDV Midwest Ref., L.L.C. v. Armada Oil & Gas Co., 305 F.3d 498, 510 (6th Cir. 2002); Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998); Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir. 1995); Robinson v. Norris, 60 F.3d 457, 460 (8th Cir. 1995); United States v. Ricks, 5 F.3d 48, 50 (3d Cir. 1993) (per curiam); Noel v. Olds, 138 F.2d 581, 586 (D.C. Cir. 1943).

7

Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir. 2005) (en banc) (per curiam).

8

Id. at 751 (footnote omitted).

9

Id. at 759 (Rymer, J., concurring in the judgment in part and dissenting in part) (“[T]he majority‘s approach ... invites overwriting that may be difficult or impossible to cure.“).

10

Chafin v. Chafin, — U.S. —, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013) (quotations omitted); see U.S. Const. art. III.

11

United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961).

12

Muskrat v. United States, 219 U.S. 346, 361, 31 S.Ct. 250, 55 L.Ed. 246 (1911).

13

Barapind, 400 F.3d at 751 n. 8.

14

But see Miller v. Gammie, 335 F.3d 889, 902-04 (9th Cir. 2003) (en banc) (Tashima, J., concurring).

15

28 U.S.C. § 331.

16

See id. § 332.

17

See Barapind, 400 F.3d at 751 n. 8.

18

In its opening brief, filed before the current regulation became final, the Federation argued that the interim regulation was not pervasive. It noted that:

“Federal agencies have shown that they are capable of pervasive regulation of self-service terminals similar to air carrier kiosks, and that type of regulation is absent here. For example, the comprehensive standards for ATMs and fare machines in the 2010 Americans with Disabilities Act Standards for Accessible Design address such details as clear ground or floor space around machine; speech output for instructions, orientation, transaction prompts, error messages, and all information displayed on the machine‘s screen; privacy of input and output; the need for tactile input controls for all functions; the layout of numeric and function keys; visibility and characters used on the display screen; and volume control.”

DOT‘s final kiosk regulation addresses all or nearly all of these topics. Indeed, the technical specifications in the final regulation were based on the very same 2010 ATM accessibility standards to which the Federation pointed as an example of pervasive regulation. See 78 Fed. Reg. at 67,902-03; Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports, 76 Fed. Reg. 59,307-01 (Sept. 26, 2011). Id. at 759 (Rymer, J., concurring in the judgment in part and dissenting in part).

19

The Federation points to legislative history indicating that the ACAA was modeled after § 504 of the Rehabilitation Act, argues that the latter Act permits concurrent state regulation, and asks us to infer that Congress therefore intended the same as to the ACAA. United and the United States point to countervailing indications in the legislative history, including a desire that disabled persons have the benefit of consistent accessibility practices. See 55 Fed. Reg. at 8012 (citing legislative history). Taken together, we are not persuaded that the legislative history establishes Congressional intent to foreclose field-preemptive regulations like the one at issue here. Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1251 (2006).

20

This argument appears to have been raised for the first time in the Federation‘s reply brief. We assume for the sake of argument that it has not been waived. Id. at 1260.

21

Again, although the issue was not raised in the district court, we assume for the sake of argument that it has not been waived. Id.

22

The Federation initially filed that suit in the U.S. District Court for the District of Columbia, but that court ruled that it lacked jurisdiction over that case, transferring it to the D.C. Circuit in lieu of dismissal. See Nat‘l Fed‘n of the Blind v. U.S. Dep‘t of Transp., No. 14-CV-85 (TSC), 78 F.Supp.3d 407, 2015 WL 349156 (D.D.C. Jan. 28, 2015). The case remains pending. Barapind, 400 F.3d at 759 (Rymer, J., concurring in the judgment in part and dissenting in part).

23

We do not understand the Federation to have argued in this case that the regulation is invalid under the APA, notwithstanding its statement that it “adopt[s]” the challenge to the rulemaking. To the extent that the Federation has gestured at such an argument, we decline to address it, both because the Federation has not “specifically and distinctly argue[d]” it, United States v. Marcia-Acosta, 780 F.3d 1244, 1250 (9th Cir. 2015) (internal quotation marks omitted), and because it raises an issue essentially different from the one the Federation has heretofore presented on appeal.

24

The parties have never suggested that a different result with regard to field preemption is warranted as between the Federation‘s damages claims and its claims for declaratory and injunctive relief, despite the additional opportunity to do so afforded by our supplemental briefing order. We generally do not reach issues that the parties have not raised. See, e.g., Eid v. Alaska Airlines, Inc., 621 F.3d 858, 875 (9th Cir. 2010) (“Because plaintiffs don‘t make a [potentially dispositive] argument, we say nothing on that score.“). Particularly in light of the lack of any California authority addressing whether that State‘s law does impose a different standard for kiosk accessibility, we decline to do so in this case.

Case Details

Case Name: National Federation of the Blind v. United Airlines Inc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 19, 2016

Citation: 813 F.3d 718

Docket Number: 11-16240

Court Abbreviation: 9th Cir.