Delta Air Lines, Inc. and Al Perez v. Robert C. Black

IN THE SUPREME COURT OF TEXAS

════════════

No.

02-0255

════════════

Delta Air Lines, Inc. and Al Perez,

Petitioners

v.

Robert C. Black,

Respondent

════════════════════════════════════════════════════

On Petition

for Review from the

Court of

Appeals for the Tenth District of Texas

════════════════════════════════════════════════════

Argued on January

15, 2003

Justice Jefferson delivered the opinion

of the Court.

We

grant Robert C. Black’s motion for rehearing in part. We withdraw our opinion of

June 26, 2003 and substitute the following in its place.

The

Airline Deregulation Act of 1978 (ADA) provides that states “may not enact or

enforce a law . . . related to a price, route, or service of an air carrier . .

. .” 49 U.S.C. § 41713 (b)(1). This case concerns the scope of this preemption

provision, specifically, its application to state breach of contract and

misrepresentation claims challenging an airline’s ticketing and boarding

procedures. The trial court rendered summary judgment in favor of Delta

Airlines, Inc. and its gate supervisor, Al Perez, without specifying the

grounds. The court of appeals reversed, holding that the ADA did not preempt

Black’s claims, and remanded the case for trial. ___ S.W.3d ___, ___. We granted

Perez and Delta’s petition for review to decide whether the ADA preempts a

passenger’s state law claims for an airline’s alleged failure to honor a

confirmed first-class seat. 46 Tex. Sup. Ct. J. 14 (Oct. 10, 2002). We hold that

it does and accordingly reverse the court of appeals’ judgment in part and

render judgment that Black take nothing on his claims against Delta and Perez.

I

BACKGROUND

On June

23, 1995, Robert Black purchased two Delta airline tickets for travel from

Dallas/Fort Worth to Las Vegas leaving that afternoon and returning on June 25.

The invoice from Black’s travel agent showed two first-class reservations for

Black and his wife. Although the invoice assigned Black first-class seats for

both directions, his wife had an assigned seat only for the return flight.

Black’s travel agent and manager of Smith Travel & Limousine, Melissa Shinn,

suggested that Black ask the Delta gate agent if he and his wife could sit

together in first class for the Dallas to Las Vegas flight.

Upon

arrival at the departure gate, Black requested adjacent seats in first class.

The gate agent said that he would “see what [he] could do.” As other passengers

boarded the plane, a Delta gate supervisor, Al Perez, appeared and informed

Black that he and his wife did not have two confirmed first-class seats for the

flight. While Delta had a confirmed first-class seat for Mr. Black, it only had

a confirmed coach seat for his wife, whom Delta placed on a priority waiting

list for first class. Perez told Black that, unless a first-class passenger

relinquished a seat, Black’s wife would be seated in coach for the three-hour

flight from Dallas to Las Vegas. This would not, however, affect her first-class

seat for the return flight. At Black’s request, Perez spoke by telephone with

Shinn. Shinn told Perez that her computer showed two confirmed first-class seats

from Dallas to Las Vegas. Delta’s computers, however, did not show a confirmed

first-class seat for Black’s wife.

Unable to

provide Black’s wife with first-class accommodations, Delta offered several

alternatives: (1) the Blacks could sit in coach on their scheduled flight, (2)

they could fly separately on the scheduled flight, one in coach and one in first

class, (3) they could fly first class on a later flight to Los Angeles and then

connect to Las Vegas, or (4) they could take a direct flight later that day to

Las Vegas with confirmed first-class seats. Each of these alternatives included

free travel vouchers, which Black asserts could be used only for coach seats.

Black declined Delta’s offers. Instead, the Blacks drove to Love Field airport

and chartered a private jet to and from Las Vegas at a cost of $13,150, which

included the aircrew’s expenses in Las Vegas for two days.

Black

sued Delta for breach of contract and intentional and negligent

misrepresentation, and sued Perez for misrepresentation only.

Delta and Perez moved for summary judgment on four grounds: (1) preemption

under the ADA, (2) Black’s failure to mitigate damages, (3) lack of causation,

and (4) lack of an agency relationship between Smith Travel and Delta. The trial

court granted summary judgment for Delta and Perez, without specifying the

grounds. Black appealed the judgment.

The court

of appeals reversed the trial court’s judgment and remanded the case for trial.

The court of appeals held that fact issues precluded judgment as a matter of law

on the causation, mitigation, and agency issues. __ S.W.3d at ___. As to the key

issue before this Court, the court of appeals held that Black’s claims were not

preempted by the ADA because “federal airline regulations allow passengers whose

reservations are not honored due to overbooking to seek recovery for damages ‘in

a court of law or in some other manner.’” Id . at ___. We granted Perez

and Delta’s petition for review to decide the single issue Perez and Delta

(collectively, Delta) presented—preemption.

II

APPLICABLE LAW--PREEMPTION

Federal

preemption of state law is grounded in the Supremacy Clause of the United States

Constitution, which provides that “the Laws of the United States . . . shall be

the supreme Law of the Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const .,

art. VI, cl. 2. Under the Supremacy Clause, if a state law conflicts with

federal law, the state law is preempted and “without effect.” Maryland v.

Louisiana , 451 U.S. 725, 746 (1981). Preemption can take one of several

forms. A federal law may preempt a state law expressly. Great Dane Trailers,

Inc. v. Estate of Wells , 52 S.W.3d 737, 743 (Tex. 2001). It may also preempt

a state law impliedly, either (i) when the scheme of federal regulation is

sufficiently comprehensive to support a reasonable inference that Congress left

no room for supplementary state regulation or (ii) if the state law actually

conflicts with federal regulations. Id . A state law presents an actual

conflict when a party cannot comply with both state and federal regulations or

when the state law would obstruct Congress’ purposes and objectives. Id .

“The

purpose of Congress is the ultimate touchstone” in every preemption case.

Retail Clerks Int’l Ass’n. v. Schermerhorn , 375 U.S. 96, 103 (1963).

Congressional intent is discerned primarily from the statute’s language and

structure. Medtronic, Inc. v. Lohr , 518 U.S. 470, 486 (1996). Also

relevant is the purpose of the statute as a whole, which is revealed through

“the reviewing court’s reasoned understanding of the way in which Congress

intended the statute and its surrounding regulatory scheme to affect business,

consumers, and the law.” Id .

We begin

our analysis with a discussion of the relevant federal statute and the United

States Supreme Court cases that control this area.

A

Statutory Framework

Before 1978, the Federal Aviation Act of 1958

(FAA) authorized the Civil Aeronautics Board (CAB) to regulate the interstate

airline industry. 49 U.S.C. § 1301 (current version at 49 U.S.C. § 40101 );

Am. Airlines, Inc. v. Wolens , 513 U.S. 219, 222 (1995). The Act provided

that “nothing . . . 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. § 1506 . Thus, before 1978,

states were allowed to regulate intrastate airfare. Morales v. Trans World

Airlines, Inc ., 504 U.S. 374, 378 (1992).

In 1978,

Congress amended the FAA by enacting the Airline Deregulation Act (ADA), which

deregulated the industry. 49 U.S.C. § 40101 (a)(6), (a)(12)(A) (formerly codified

at 49 U.S.C. § 1302 (a)(4), (a)(9)). In enacting the ADA, Congress determined

that “‘maximum reliance on competitive market forces’ would best further

‘efficiency, innovation, and low prices’ as well as ‘variety [and] quality . . .

of air transportation services.’” Morales , 504 U.S. at 378 (quoting 49

U.S.C. § 1302 (a)(4), (a)(9)). Congress included an express preemption provision

in the ADA “[t]o ensure that the States would not undo federal deregulation with

regulation of their own.” Morales , 504 U.S. at 378 . The preemption

clause states:

Except

as provided in this subsection, a State, political subdivision of a State, or

political authority of at least 2 States may not enact or enforce a law,

regulation, or other provision having the force and effect of law related to a

price, route, or service of an air carrier . . . .

49 U.S.C. §

41713 (b)(1)(emphasis added).

Thus, to determine the propriety of the court of appeals’ judgment, we must

ascertain whether Black’s state law claims fall within the ADA’s express

preemption provision. If they do, Black’s claims fail.

B

Morales and Wolens

The

Supreme Court has discussed the scope of the ADA’s express preemption clause on

two occasions. It first considered the ADA’s preemptive scope in Morales .

504 U.S. at 374 . There, the Court examined whether the ADA preempted enforcement

of guidelines concerning regulation of airline fare advertising through Texas’s

consumer protection statutes. Id . at 378. The Court focused on the

preemption clause’s “relating to” language. Id . at 383-86. Relying on its

ERISA line of cases and the ordinary meaning of the statute’s words, the Court

construed the phrase “relating to” broadly to preempt “State enforcement actions

having a connection with, or reference to, airline ‘rates, routes, or

services.’” Id . at 384. Based on this “broad preemptive purpose,” the

Court rejected contentions that section 1305(a)(1)

only preempted states from actually prescribing rates, routes, or services, or

that only state laws specifically aimed at the airline industry were preempted.

Id . at 384-86.

Although

the Court warned that “‘some state actions may affect [airline fares] in too

tenuous, remote, or peripheral a manner’ to have preemptive effect,” it

concluded that the obligations imposed by the guidelines would impact airlines’

ability to market their product and the fares they charged. Id . at 390

(quoting Shaw v. Delta Air Lines , 463 U.S. 85 , 100 n.21 (1983)). Thus,

the guidelines had a “forbidden significant effect” on the airlines’ rates,

routes, and services, primarily because they restricted fare advertising, which

“relates to” price. Id. at 388-89. The Court held that, under these

circumstances, the ADA preempted the fare advertising provisions in the general

state consumer protection statutes at issue. Id . at 391.

The only

other time the Court has addressed the scope of the ADA’s preemption provision

was in American Airlines, Inc. v. Wolens , 513 U.S. 219 . That case

involved state law consumer fraud and breach of contract claims arising from

retroactive changes in an airline’s frequent flyer program. Id . at

224-25. The Court focused on another portion of the ADA’s preemption clause —

the phrase “enact or enforce any laws” — to determine the ADA’s preemptive

scope. Id . at 226. It held that, like the guidelines at issue in

Morales , Illinois’s consumer fraud statute “serve[d] as a means to guide

and police the marketing practices of the airlines.” Id . at 228. Thus,

the ADA preempted the plaintiffs’ consumer fraud claims. Id .

The Court

then turned to the plaintiffs’ breach of contract claims. Id . It held

that the ADA’s preemption clause did not shield airlines from “suits alleging no

violation of state-imposed obligations, but seeking recovery solely for the

airline’s alleged breach of its own, self-imposed undertakings.” Id . at

228. The Court reasoned that some of the terms and conditions airlines offer,

such as frequent flyer programs, are private obligations and do not amount to

State “‘enactment or enforcement [of] any law, rule, regulation, standard, or

other provision having the force and effect of law’ within the meaning of

section 1305(a)(1).” Id . at 228-29. The Court limited its holding,

however, to suits based on the terms of the parties’ bargain “with no

enlargement or enhancement based on state laws or policies external to the

agreement.” Id . at 233. Courts have interpreted this to mean that if a

contract claim cannot be adjudicated without resort to external law, the claim

is preempted by the ADA. See, e.g. , Smith v. Comair, Inc ., 134

F.3d 254, 257 (4th Cir. 1998); Boon Ins. Agency, Inc. v. Am. Airlines,

Inc ., 17 S.W.3d 52, 58-59 (Tex. App.—Austin 2000, pet. denied);

Howell v. Alaska Airlines, Inc ., 994 P.2d 901, 905 (Wash. Ct. App.

2000).

C

Kiefer

In

the wake of the Supreme Court’s decisions in Morales and Wolens ,

lower federal and state courts have struggled with determining when the ADA

preempts state law claims.

This Court considered the scope of the ADA’s preemption clause in

Continental Airlines, Inc. v. Kiefer , 920 S.W.2d 274 (Tex. 1996). In

Kiefer , we decided the extent to which “state common-law personal-injury

negligence actions against airlines are preempted by the [ADA].” Id . at

275. Following Morales and Wolens , we applied a two-part analysis

to determine whether the plaintiffs’ personal injury claims were preempted.

Id . at 281-82; see also 49 U.S.C. § 41713 (b)(1). First, we

examined whether the claims related to airline rates, routes, or services.

Id . at 281. Second, we explored whether the claims constituted the

enactment or enforcement of a state law, rule, regulation, standard or other

provision. Id . at 281-82. We concluded that, although the plaintiffs’

personal injury claims clearly related to airlines’ services, their claims did

not amount to enforcement of a state law and thus were not preempted. Id .

at 282.

In

reaching this conclusion, we acknowledged the difficulty in differentiating

between claims that are preempted and those that are not. Id . at 281. We

noted that, unlike the state consumer protection legislation at issue in

Morales , negligence actions do not “carry the same ‘potential for

intrusive regulation of airline business practices . . . .’” Id . at 282

(quoting Wolens , 513 U.S. at 227 ). We were careful to state, however,

that certain tort actions, such as negligent misrepresentation, may be

indistinguishable from the statutory consumer protection actions in

Morales and Wolens . Id . at 283. And depending on the nature

and extent of damages sought, even simple negligence actions may constitute an

impermissible regulation of the airline industry through state tort law.

Id . at 282.

Rather

than declare categorically that personal injury claims are always

excepted from preemption, we focused on the extent to which the claims in

Kiefer threatened to encroach on the congressional objective of airline

deregulation. Id. Because preemption depends on the nature of the

particular claim, we observed that the ADA’s preemptive effect on other state

law claims would require a “closer working out.” Id . at 281. With respect

to breach of contract claims, we noted that the “very strict limitation”

Wolens puts on permissible contract claims “demonstrates the breadth of

ADA preemption.” Id . Like Wolens , we recognized that the ADA

allows breach of contract claims only if they involve contract terms voluntarily

undertaken by the parties. Id . at 281-82. And we noted that voluntary

contractual undertakings do not “effectuate purposes that could have a

prohibited regulatory effect on airlines.” Id . at 282.

With this

framework in mind, we turn to a “closer working out” of the ADA preemption

clause with respect to Black’s claims. Wolens , 513 U.S. at 235 ;

Kiefer , 920 S.W.2d at 281 .

III

ANALYSIS

Black

contends that Wolens and Kiefer shield his breach of contract

claim from preemption. He argues that, by refusing to provide his wife a

first-class seat on the flight from Dallas to Las Vegas, Delta breached a

self-imposed contractual obligation. Because his claims arise from Delta’s own

undertakings, as opposed to an obligation imposed by state law, Black argues

that there is little risk similar state claims would undo federal deregulation.

Thus, according to Black, his claims are not subject to preemption under the

ADA.

Delta, on

the other hand, contends that Black’s claims are preempted by the ADA because

they relate directly to the airline services Delta provides. Delta argues that

ticketing and boarding procedures are fundamental to airline services and are

far removed in character from the voluntary frequent flyer program at issue in

Wolens . Specifically, Delta contends that because Department of

Transportation (DOT) regulations define and control the procedures for denied

boarding, Black’s state law claims are preempted. For the reasons discussed

below, we agree with Delta.

A

Related to an Airline’s Services

To

answer whether a claim is preempted by the ADA, we first determine whether the

claim is related to an airline’s prices or services within the meaning of the

ADA’s preemption provision. Kiefer , 920 S.W.2d at 281 . The ADA does not

specify, and the United States Supreme Court has not determined, what activities

constitute airline services. It is not surprising, then, that courts have

fashioned inconsistent tests for determining whether a state law action is

related to an airline’s services. Compare Charas v. Trans World

Airlines , Inc., 160 F.3d 1259, 1261 (9th Cir. 1998), with Hodges

v. Delta Airlines, Inc. , 44 F.3d 334, 336 (5th Cir. 1995). The United States

Court of Appeals for the Ninth Circuit has narrowly defined services as “the

prices, schedules, origins and destinations of the point-to-point transportation

of passengers, cargo, or mail.” Charas , 160 F.3d at 1261 . That court

reasoned that because the word services appears next to the words rates and

routes in section 41713(b)(1), “services” must refer to “the provision of air

transportation to and from various markets at various times.” Id . at

1266. Under this interpretation, in-flight beverages, personal assistance to

passengers, handling luggage, keeping aisles clear, and other amenities are not

included in the definition of services. Id . at 1261.

The Fifth

Circuit’s more expansive interpretation of airline services includes “ticketing,

boarding procedures, provision of food and drink, and baggage handling, in

addition to the transportation itself.” Hodges, 44 F.3d at 336 .

Hodges relied in part on the CAB’s statements implementing the ADA, which

made clear that reservation and boarding practices are services within the

meaning of the ADA. See id. at 337 (citing 44 Fed. Reg. 9948 , 9951 (Feb.

15, 1979)); see also Smith v. Am. W. Airlines, Inc ., 44 F.3d 344,

347 (5th Cir. 1995) (limiting services to “economic decisions concerning

boarding, e.g., overbooking or charter arrangements, and contractual decisions

whether to board particular ticketed passengers”). The Hodges court

reasoned that, because these “matters are all appurtenant and necessarily

included with the contract of carriage between the passenger or shipper and the

airline,” Congress intended them to be services protected from state regulation.

44 F.3d at 336.

In this

case, Black’s claims relate to Delta’s boarding procedures and seating policies.

Although several courts have fashioned different tests to determine whether a

state law action relates to an airline’s services, most courts generally agree

that state law claims involving seating and boarding procedures relate to

services.

This approach is consistent with both the Fifth and Ninth Circuit Court of

Appeals’ conclusions that an airline’s boarding procedures are an integral part

of the services that an airline provides. See, e.g. , Somes v. United

Airlines, Inc ., 33 F. Supp. 2d 78, 85 (D. Mass. 1999) (noting that both the

Fifth and Ninth Circuits’ definitions of services would include boarding). The

mere fact that Black’s claims relate to the denial of first-class status, rather

than point-to-point transportation, does not remove his claims from the

definition of “services.” See Wolens , 513 U.S. at 226 (noting that the

term “services” includes “access to flights and class-of-service upgrades”).

Unlike the

frequent flyer program in Wolens , seating policies and boarding

procedures are not peripheral to the operation of an airline, but are

inextricably linked to the contract of carriage between a passenger and the

airline and have a definite “connection with, or reference to” airline services.

Morales , 504 U.S. at 384 . Given Morales’ broad interpretation of

the words “relating to,” and the generally accepted understanding of the word

“services,” we conclude that an airline’s boarding procedures and seating

policies “relate to” the services an airline provides to its customers.

We next

consider whether the ADA prohibits enforcement of Black’s claims.

B

State Enactment or Enforcement

The second

step in the preemption analysis involves determining whether Black’s claims, if

allowed, would constitute enactment or enforcement of a state law within the

meaning of the ADA’s preemption clause. Kiefer , 920 S.W.2d at 281 . In

deciding whether contract claims are preempted, we distinguish between

obligations dictated by the State and those voluntarily undertaken by the

airline. Wolens , 513 U.S. at 233 . When parties privately negotiate a

contract’s terms and then sue in state court for breach of those terms, there is

generally no specter of state-imposed regulation. Id . at 228-29. Thus, as

we noted in Kiefer , the enforcement of a contractual commitment

voluntarily undertaken does not amount to state enactment or enforcement of a

law that the ADA’s preemption provision forbids. 920 S.W.2d at 281-82 .

In

Wolens , the Supreme Court determined that a frequent flyer program was a

self-imposed undertaking between private parties and was therefore too tenuous

or peripheral to constitute state enforcement. 513 U.S. at 228-29 . Unlike

Wolens’ claims that related to a self-imposed frequent flyer program, Black’s

claims relating to Delta’s ticketing and boarding procedures implicate directly

the federal interest in deregulated air transportation. See Somes ,

33 F. Supp. 2d at 85 ; Rockwell v. UPS , No. 2:99-CV-57, 1999 U.S. Dist.

LEXIS 22036 , at *6 (D. Vt. July 7, 1999) (noting that “preemption applies to

services which are ‘regular, recurrent, or necessary features of actual flight

or airline operations’ (as opposed to beverage services and similar amenities)”)

(quoting Somes , 33 F. Supp. 2d at 83 ); Smith , 134 F.3d at 259 ;

Chukwu v. Bd. of Dirs. British Airways , 889 F. Supp. 12, 13 (D. Mass.

1995). Thus, contrary to the ADA’s purpose, Black’s claims have the potential

for “intrusive regulation of airline business practices.” Kiefer , 920

S.W.2d at 282 .

When Black

purchased the airline tickets, a binding contract of carriage was created

between Black and Delta. See Woodward v. Tex. & P. Ry. Co ., 86

S.W.2d 38, 39 (Tex. 1935); Boon , 17 S.W.3d at 55 . Pursuant to the

regulatory authority conferred by Congress under the ADA, the DOT promulgated

comprehensive regulations interpreting the ADA. Black and Delta’s contract for

carriage incorporates these regulations. See 14 C.F.R. §§ 253.4 , .5;

Wolens , 513 U.S. at 230 (authorizing airlines to incorporate the federal

regulations into their contracts of carriage). In particular, part 250 permits

the DOT to regulate “oversales” in air carrier service. 14 C.F.R. §§ 250.1 -.9.

These regulations require every air carrier to “establish priority rules and

criteria for determining which passengers holding confirmed reserved space shall

be denied boarding on an oversold flight in the event that an insufficient

number of volunteers” agree to relinquish their seat. Id . § 250.3.

Section

250.5 requires airlines to pay compensation to any passenger who is

involuntarily denied boarding caused by an oversold flight. Id . § 250.5.

A passenger who is involuntarily denied boarding, however, is not required to

accept this compensation and can instead “decline the payment and seek to

recover damages in a court of law or in some other manner.” Id . § 250.9.

The federal regulations also provide that under certain circumstances, a

passenger denied boarding involuntarily from an oversold flight is not entitled

to receive compensation from the airline. Id . § 250.6. In particular, if

a passenger “is offered accommodations or is seated in a section of the aircraft

other than that specified on the ticket at no extra charge,” then that passenger

is not eligible for denied boarding compensation. Id . § 250.6(c).

Black

contends that, pursuant to section 250.9, he had the option to decline

compensation under the federal scheme and instead “seek to recover damages in a

court of law.” Id . § 250.9(b). The court of appeals agreed and held that,

although Black was not entitled to denied boarding compensation, he could forego

the remedies provided by the DOT regulations and seek damages in court. __

S.W.3d at __. The court of appeals based its decision on the DOT regulations

relating to passengers that are involuntarily denied boarding.

Id .; see also 14 C.F.R. § 250.9 . But Black and the court of

appeals misread these regulations. Black was not denied boarding, as that term

relates to section 250.9.

The

passenger option of declining payment from the airline and instead seeking

recovery in a court of law is reserved for those passengers who are

involuntarily denied boarding and thus eligible for denied boarding

compensation. 14 C.F.R. § 250.9 . Because Delta offered Black’s wife another seat

on the same flight, she was not denied boarding. Even if we considered Black’s

wife to have been involuntarily denied first-class boarding, the Blacks do not

have a valid claim for “denied boarding compensation.” This is so because they

fall within one of the eligibility exceptions to qualify for compensation — a

passenger is not eligible for denied boarding compensation if the airline offers

the passenger accommodations in another section of the aircraft at no charge.

Id . § 250.6. Because Delta offered Black and his wife various

accommodations, including coach seats, Black and his wife were ineligible for

denied boarding compensation. Id . And because Black and his wife were not

eligible to receive the denied boarding compensation from Delta, they could not

possibly decline this compensation and “seek to recover damages in a court of

law.” Id . § 250.9. Accordingly, Black cannot rely on section 250.9,

which, as a prerequisite to recover, requires the party to be eligible to

receive denied boarding compensation.

As

discussed above, the parties’ contract incorporated the DOT regulations on

denied boarding compensation. Black, however, seeks to enlarge Delta’s

obligations to him. He attempts to modify the contract terms to allow him and

his wife to forego the regulatory remedies and instead sue in court. This Court,

however, is confined, “in breach-of-contract actions, to the parties’ bargain.”

Wolens , 513 U.S. at 233 . We cannot enlarge or enhance that bargain based

on state law or policies external to the agreement. Id . Nothing in the

contract entitles Black to the external remedy of reimbursement for the cost of

a private chartered jet. The regulations promulgated under the ADA, which are

incorporated as part of the contract, provide the procedure and remedy in the

event a passenger is denied boarding but offered specified accommodations, and

therefore preclude the additional remedies Black has pursued in state court.

See 14 C.F.R. §§ 250.1 -.9.

Even

were the contract silent about the federal regulations, other courts have

applied similar reasoning to preempt breach of contract claims that relate to

price or service and seek to impose state laws or policies.

As the court of appeals in this case correctly noted:

[W]e

cannot overlook the fact that the alleged contractual violation at issue in this

appeal involves a common condition unique to the airline industry - the failure

to seat an allegedly confirmed ticket holder because of overbooking - and that

unlike the frequent-flier agreements at issue in Wolens , specific federal

regulations govern compensation for air passengers who are involuntarily

prevented from boarding a flight due to overbooking.

__ S.W.3d at__. These

“specific federal regulations” have a national purpose in that they provide a

uniform system of compensation to passengers. If passengers were permitted to

challenge airlines’ boarding procedures under state common law, the airline

industry would potentially be subject to regulation by fifty different states.

Smith , 134 F.3d at 258-59 (allowing passengers to challenge boarding

procedures would permit “the fifty states to regulate an area of unique federal

concern -- airlines’ boarding practices.”); see also John W. Freeman,

State Regulation of Airlines and the Airline Deregulation Act of 1978 , 44

J. Air L. & Com . 747, 755

(1979) (noting that “the effect of the provision was to ‘prevent conflicts and

inconsistent regulations’”) (quoting H.R.

Rep. No . 1211, 95th Cong., 2d Sess. 16 (1978)). The fact that federal

regulations expressly address airline boarding procedures strengthens our

conclusion that Black’s breach of contract claims resulting from Delta’s

boarding and seating procedures are preempted by the ADA. To hold otherwise

could create extensive multi-state litigation, launching inconsistent assaults

on federal deregulation in the airline industry, every time an airline

reassigned a passenger’s seat.

We

conclude that Delta’s boarding and seating policies relate to the services it

provided to Black, and that Black’s claims can only be adjudicated by reference

to laws and policies external to its contract with Delta. Accordingly, we hold

that 49 U.S.C. section 41713 (b) preempts Black’s contract claims.

We now

turn to Black’s remaining claims for misrepresentation and fraud, which he

argues survive ADA preemption. We disagree. Because Black’s misrepresentation

and fraud claims are premised on Delta’s ticketing and boarding procedure, they

are directly related to Delta’s services. See discussion supra

Part III.A. The court of appeals concluded, however, that because Black’s

misrepresentation claims did not turn on any requirement imposed by a Texas

legislative body, they were not preempted. ___ S.W.3d at __. To the contrary,

state tort actions can be state enforcement under 49 U.S.C. section 41713 (b)(1).

See, e.g. , Buckman Co. v. Plaintiff’s Legal Comm. , 531 U.S.

341, 351 (2001); San Diego Bldg. Trades Council v. Garmon , 359 U.S. 236,

247 (1959) (recognizing the regulatory effect of state law damage claims and

their potential for frustrating congressional objectives); Kiefer , 920

S.W.2d at 282 .

Moreover,

both Wolens and Kiefer suggest that state misrepresentation and

fraud claims are preempted by the ADA. Wolens , 513 U.S. at 228 ;

Kiefer , 920 S.W.2d at 283 . Wolens held that state law claims under

a state consumer fraud act were preempted by the ADA. Wolens , 513 U.S at

228. Claims under a consumer fraud statute are comparable to claims for

misrepresentation. In Kiefer , we indicated that “an action for negligent

misrepresentation might be . . . indistinguishable from the statutory consumer

protection actions in Morales and Wolens .” Kiefer , 920

S.W.2d at 283 . Both would impose state policies on the operation of air carriers

that are external to the parties’ agreement. Wolens , 513 U.S. at 229 n.5;

Kiefer , 920 S.W.2d at 282 . A state’s common law cannot operate against an

airline in this context when it would constitute state enforcement of a law

relating to airline services. See Morales , 504 U.S. at 383 . Accordingly,

because Black’s misrepresentation and fraud claims relate to the services Delta

provides and if allowed would amount to enactment or enforcement of state law,

they are preempted.

IV

CONCLUSION

For

these reasons, we reverse the court of appeals’ judgment in part and render

judgment that Black take nothing on his claims against Delta Airlines, Inc. and

Al Perez.

______________________________

Wallace B. Jefferson

Justice

OPINION DELIVERED: September 11,

2003