National Federation of the Blind v. United Airlines Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL FEDERATION OF THE No. 11-16240

BLIND, on behalf of its members and

itself; MICHAEL MAY; MICHAEL D.C. No.

HINGSON; CHRISTINA THOMAS, on 3:10-cv-04816-

behalf of themselves and all others WHA

similarly situated,

Plaintiffs-Appellants,

OPINION

v.

UNITED AIRLINES INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued November 8, 2012

Submitted January 19, 2016

San Francisco, California

Filed January 19, 2016

Before: Andrew J. Kleinfeld and Marsha S. Berzon, Circuit

Judges, and Roger T. Benitez, District Judge.*

*

The Honorable Roger T. Benitez, District Judge for the U.S. District

Court for the Southern District of California, sitting by designation.

2 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

Opinion by Judge Berzon;

Concurrence by Judge Kleinfeld

SUMMARY**

Federal Preemption

The panel affirmed the district court’s dismissal of a

class action lawsuit brought by the National Federation of the

Blind against United Airlines alleging that the airline’s policy

of using automatic kiosks inaccessible to blind travelers

violated California’s antidiscrimination laws.

The panel held that the Federation’s state-law claims were

not expressly preempted under the ADA. Specifically, the

panel held that United’s kiosks did not qualify as a “service”

within the meaning of the Airline Deregulation Act (“ADA”)

§ 41713(b)(1). The panel further held that its holding was

consistent with the ADA’s deregulatory purpose.

The panel held that the Federation’s state-law claims were

impliedly field preempted by the Air Carrier Access Act of

1986 (“ACAA”) and 14 C.F.R. § 382.57. Specifically, the

panel rejected the Federation’s contention that its state-law

claims could not be impliedly field preempted under the

ACAA because of the combined effects of the Federal

Aviation Act’s savings clause and the express preemption

clause of the ADA. The panel concluded that the U.S.

Department of Transportation ACAA regulations covering

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 3

matters other than the use of airline ticketing kiosks were not

pertinent to the field preemption inquiry; that the new

regulation (passed after oral argument in this case, 14 C.F.R.

§ 382.57 (2014)) was pervasive and intended to occupy the

field of kiosk accessibility; and that the Department of

Transportation acted within its delegated authority in

promulgating the new regulation.

Judge Kleinfeld joined in Part II of the majority opinion,

and concurred in the result. Judge Kleinfeld did not join Part

I of the Opinion, concerning express preemption under the

ADA, because Part II, addressing implied preemption of the

field, entirely controlled the outcome of the case.

COUNSEL

Gregory P. Care (argued) and Daniel F. Goldstein, Brown

Goldstein & Levy, Baltimore, Maryland; Kevin Knestrick

and Laurence W. Paradis, Disability Rights Advocates,

Berkeley, California, 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, California,

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

4 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

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,

California, 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

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.

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 5

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.

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.

6 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

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

3

There are no California cases or regulations specifically addressing

whether California law does so require.

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 7

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

United 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, 134 S. Ct. 1422 (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

4

United also argued that the Federation’s complaint failed to state a

claim under California law.

8 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

enacting a statute containing an express preemption

provision.” Arizona v. United States, 132 S. Ct. 2492,

2500–01 (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

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 9

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.

I. Express Preemption under the Airline Deregulation

Act (“ADA”)5

A. Statutory Background

5

We reach the express preemption question because it was a basis for

the district court’s decision and was one of the primary arguments raised

on appeal. It was that issue that prompted us to vacate submission

pending the Supreme Court’s resolution of Northwest, Inc. v. Ginsberg,

134 S. Ct. 1422 (2014). We then directed the parties to file supplemental

briefs addressing the effect on this appeal of the construction of the

express preemption clause of the Airline Deregulation Act adopted in

Northwest. Had we reached the opposite conclusion—that the

Federation’s claims were expressly preempted under the ADA—that

conclusion would have been dispositive, as it would have rendered it

unnecessary to proceed to the issue of implied preemption under the Air

Carrier Access Act. A decision that a hotly contested, potentially

dispositive issue is not dispositive, and a reasoned explanation as to why,

is one function of a considered and informative judicial decision. Whether

such an issue is properly discussed (that is, not “dicta”) should not depend

on which way the court decides it. See, e.g., United States v. Ingham,

486 F.3d 1068, 1078 n.8 (9th Cir. 2007).

According to the concurring opinion, Part I should be disregarded as

non-precedential dicta. For the reasons we have given, we do not believe

that is so. In the end, however, the degree to which Part I has precedential

force in a particular future case will be for the future court to decide. See,

e.g., Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)

(analyzing whether statements in an earlier Ninth Circuit opinion were

precedential or “nonbinding dicta”).

10 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

ADA § 41713(b)(1) provides that “a State . . . 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 that may provide air transportation under this

subpart.” 49 U.S.C. § 41713(b)(1) (previously codified at

49 U.S.C. App. § 1305(a)(1)). It is this provision upon which

United relies for its express preemption argument.

In determining the scope of § 41713(b)(1), we “start with

the assumption that the historic police powers of the States

were not to be superseded by the Federal Act unless that was

the clear and manifest purpose of Congress.” Charas,

160 F.3d at 1265 (quoting Medtronic, 518 U.S. at 485). To

help determine Congress’s “manifest purpose,” we turn to the

ADA’s history.

Before 1978, the Civil Aeronautics Board regulated

interstate air transportation pursuant to the Federal Aviation

Act of 1958 (“FAA”), Pub. L. No. 85-726, 72 Stat. 731

(1958), as amended, 49 U.S.C. App. § 1301 et seq. See

Northwest, 134 S. Ct. at 1428. The FAA did not expressly

preempt state regulation. See Morales v. Trans World

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

contained a “saving clause,” which provided that “[n]othing

. . . in this chapter shall in any way abridge or alter the

remedies now existing at common law or by statute, but the

provisions of this chapter are in addition to such remedies.”

49 U.S.C. App. § 1506 (1976) (recodified at 49 U.S.C.

§ 40120(c));6 see also Morales, 504 U.S. at 378. Thus, under

the original statutory regime, states “were not prevented from

6

The saving clause currently reads as follows: “A remedy under this

part is in addition to any other remedies provided by law.” 49 U.S.C.

§ 40120(c).

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 11

enforcing their own laws, despite the economic effect on the

airlines.” Charas, 160 F.3d at 1262.

In 1978, Congress, concluding that “efficiency, low

prices, variety, and quality would be furthered by reliance on

competitive market forces rather than pervasive federal

regulation,” enacted the ADA as an amendment to the FAA.

Id. (citing H.R. Conf. Rep. No. 95-1779, 95th Cong., 2d Sess.

53 (1978)). “Congress’s ‘clear and manifest purpose’ . . . was

to achieve . . . the economic deregulation of the airline

industry . . . [and] ‘to promote maximum reliance on

competitive market forces.’” Id. at 1265 (quoting Am.

Airlines, Inc. v. Wolens, 513 U.S. 219, 230 (1995)) (internal

quotation marks omitted). To prevent the states from

“undo[ing] federal deregulation with regulation of their own,”

Northwest, 134 S. Ct. at 1428 (quoting Morales, 504 U.S. at

378) (internal quotation marks omitted), Congress included

§ 41713(b)(1) to expressly preempt state laws “related to a

price, route, or service of an air carrier.” 49 U.S.C.

§ 41713(b)(1).7

7

This clause was originally located at 49 U.S.C. App. § 1305(a)(1) and

preempted state laws “relating to [air carrier] rates, routes, or services.”

In 1994, § 1305(a)(1) was amended and incorporated into the Federal

Aviation Administration Authorization Act of 1994 to prohibit the

enactment or enforcement of state laws “related to price, route, or service

of an air carrier.” 49 U.S.C. § 41713(b)(1) (emphasis added). Congress

intended this amendment “to make no substantive change.” Wolens,

513 U.S. at 238 n.1 (citing Pub. L. No. 103-272, § 1(a), 108 Stat. 745

(1994)).

12 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

B. United’s Kiosks Are Not “Services” under the

ADA

The express preemption question in this case is whether

the Federation’s state law claims are “related to” United’s

“prices, routes, or services.” United contends that its kiosks

are a “service” as that term is used in the ADA, and that the

Federation’s Unruh Act and DPA claims are “related to a . . .

service of an air carrier,” rendering them preempted.8 We

disagree.

To begin, under the ADA as we have interpreted it, the

term “service” “refer[s] to the prices, schedules, origins and

destinations of the point-to-point transportation of passengers,

cargo, or mail.” Charas, 160 F.3d at 1261. “Congress used

‘service’ in [§ 41713(b)(1)] in the public utility sense — i.e.,

the provision of air transportation to and from various

markets at various times,” and did not mean broadly to reach

the various amenities provided by airlines, such as “in-flight

beverages, personal assistance to passengers, the handling of

luggage, and similar amenities.” Id. at 1266, 1261.

Under our interpretation of § 41713(b)(1), the

Federation’s claims do not relate to a “service” provided by

United. First, kiosks are not “prices, schedules, origins [or]

destinations of the point-to-point transportation of passengers,

cargo, or mail.” Id. at 1261. Thus, to the extent they regulate

kiosks, California’s antidiscrimination statutes regulate an

amenity that United has chosen to provide, not “the provision

of air transportation.” Id. at 1266.

8

United does not argue that the Federation’s claims relate to United’s

prices or routes.

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 13

Nor is it significant that kiosks facilitate services that

relate to air transportation. As we noted in Charas, Congress

did not intend “service” to refer to the “assistance to

passengers in need, or like functions.” Id. at 1266. While

they may be convenient for passengers, kiosks are not

“services” in the “public utility sense.” See id.

Finally, Charas’s analysis of the term “service” is equally

applicable to discrimination claims, so that a claim

concerning the “service” of accommodating disabled

passengers (or failing to do so) does not automatically trigger

the express preemption provision. See Newman v. Am.

Airlines, Inc., 176 F.3d 1128, 1131 (9th Cir. 1999). In

Newman, a blind passenger suffering from cancer and a heart

condition was denied passage on the airline until she could

provide a certificate from her doctor stating that it was safe

for her to fly. Id. at 1130. The passenger sued the airline,

alleging, inter alia, discrimination claims under California

law. Id. We held that “[a]s used in a public utility sense, the

term ‘service’ does not refer to alleged discrimination to

passengers due to their disabilities.” Id. at 1131. For the

same reason, the Federation’s accommodation claims do not

come within the preemptive scope of § 41713(b)(1).

United and its supporting amici, the United States and the

Air Transport Association of America (“ATAA”), do not

really contest that, under Charas, the conclusion that the

kiosks do not provide a “service” within the meaning of the

ADA preemption provision is inescapable. Instead, they

dispute Charas’s continuing vitality, maintaining that the

Supreme Court overruled Charas in Rowe v. New Hampshire

Motor Transport Ass’n, 552 U.S. 364 (2008), by adopting a

different and broader definition of “service” than did Charas.

Not so.

14 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

Rowe, applying a provision of the Motor Carrier Act

modeled after § 41713(b)(1), held preempted a Maine statute

that imposed a licensing and recipient-verification regime on

retailers seeking to transport tobacco within the state.

552 U.S. at 370. Rowe concluded that the Maine statute was

sufficiently related to “delivery services” to come within the

scope of the Motor Carrier Act’s preemption provision. Id.

at 371–72. Rowe’s understanding of the term “service” is

entirely consistent with our decision in Charas.

Like Charas, Rowe viewed the term “service” as focused

on “essential details of the carriage itself.” Id. at 373

(emphasis added). Far from being aimed at carriers’

amenities, the Maine tobacco law at issue in Rowe was

“aim[ed] directly at the carriage of goods,” and “directly

regulate[d] a significant aspect of the motor carrier’s package

pickup and delivery service.” Id. at 376, 373. Most notably,

the law mandated “particular delivery procedures” that

affected how and to whom carriers could deliver tobacco. Id.

at 371. In other words, the Maine law regulated “such things

as . . . the selection of markets to or from which

transportation is provided.” Charas, 160 F.3d at 1265–66.

The Supreme Court recently confirmed Rowe’s focus on

transportation services in Dan’s City Used Cars, Inc. v.

Pelkey, 133 S. Ct. 1769, 1779 (2013). In that case, the Court

held that claims brought under New Hampshire’s abandoned

vehicle removal regime were not preempted under the same

express preemption provision at issue in Rowe. Id. The

Court again declined to articulate “an all-purposes definition

of transportation ‘service[s].’” Id. (alteration in original). It

emphasized, however, that unlike the tobacco delivery

restrictions at issue in Rowe, New Hampshire’s abandoned

vehicle laws had no connection to “transportation activities”

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 15

— they merely addressed the “storage” of vehicles. Id. We

conclude that Rowe is not inconsistent with Charas with

respect to the definition of “service.”

We are mindful that some circuit courts have articulated

broader constructions of the word “service” in ADA

§ 41713(b)(1) than the one we adopted in Charas. See, e.g.,

Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.

1995) (en banc) (interpreting “services” to include “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) (noting that the court had adopted the

Hodges definition of “service”); Koutsouradis v. Delta Air

Lines, Inc., 427 F.3d 1339, 1343 (11th Cir. 2005) (same);

Arapahoe Cnty. Pub. Airport Auth. v. F.A.A., 242 F.3d 1213,

1222 (10th Cir. 2001) (citing the Hodges definition); Smith v.

Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998) (same);

Travel All Over The World, Inc. v. Kingdom of Saudi Arabia,

73 F.3d 1423, 1433 (7th Cir. 1996) (adopting the Hodges

definition). But see Taj Mahal Travel, Inc. v. Delta Airlines,

Inc., 164 F.3d 186, 194 (3d Cir. 1998) (adopting the Charas

definition of “service”). And in adopting broader

interpretations of “service,” two Courts of Appeals have

suggested that Rowe is inconsistent with our Charas

definition. See Bower, 731 F.3d at 94 (citing DiFiore v. Am.

Airlines, Inc., 646 F.3d 81, 88 & n.9 (1st Cir. 2011)); Air

Transp. Ass’n of Am., Inc. v. Cuomo, 520 F.3d 218, 223 (2d

Cir. 2008).

We disagree with these other courts for the reasons we

have explained. In any event, Rowe is certainly not so

“clearly irreconcilable” with Charas as to allow a three-judge

panel to overrule a prior en banc decision of this court. See

16 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

banc). As we said in Dilts v. Penske Logistics, LLC: “Rowe

did not represent a significant shift in [Motor Carrier Act]

jurisprudence. Nor did it call into question our past [Motor

Carrier Act] cases.” 769 F.3d 637, 645 (9th Cir. 2014).

Nor is Northwest inconsistent with Charas. In the course

of holding expressly preempted a claim in connection with a

frequent flyer program, Northwest observed that:

Like the frequent flyer program in Wolens, the

Northwest program is connected to the

airline’s “rates” because the program awards

mileage credits that can be redeemed for

tickets and upgrades. See [Wolens,]

513 U.S.[] at 226. When miles are used in

this way, the rate that a customer pays, i.e.,

the price of a particular ticket, is either

eliminated or reduced. The program is also

connected to “services,” i.e., access to flights

and to higher service categories. Ibid.

Northwest, 134 S. Ct. at 1431.

The relevant portion of Northwest was a direct application

of Wolens, not a shift in the Supreme Court’s interpretation

of the ADA preemption provision.9 Like Wolens, Northwest

addressed a frequent-flyer program. Id. Northwest concluded

9

Northwest’s other holdings, that the ADA’s express preemption

provision may apply to common-law rules, 134 S. Ct. at 1429–30, and that

the particular claim for breach of the duty of good faith and fair dealing

at issue did not fall within the Wolens exception to preemption for

contractual claims, id. at 1431–33, have no application to this case.

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 17

that the program was connected to both rates and services for

exactly the same reasons given in Wolens. See id.; Wolens,

513 U.S. at 226. The discussion does not clarify whether

aspects of air travel other than frequent-flyer programs, such

as ticket kiosks, fall within the scope of the preemption

clause.

United and the United States argue, however, that

Northwest “underscores” that “the Supreme Court had

already superseded this Court’s airline ‘services’

interpretation [in Charas] with a controlling classification of

its own.” But Wolens was decided before Charas. So, even

if Charas was wrongly decided, Wolens would not give this

panel the authority to revisit it. Miller, 335 F.3d at 900. And,

since the relevant portion of Northwest simply applies

Wolens, it similarly does not give this panel the authority to

disregard Charas. Id. Accordingly, we hold that United’s

kiosks do not qualify as a “service” within the meaning of

ADA § 41713(b)(1).

Moreover, our conclusion, based on Charas, that United’s

kiosks fall outside the statutory definition of “services” is

consistent with the ADA’s deregulatory purpose. In enacting

the ADA, Congress primarily sought to “utilize competition

and market forces to achieve regulatory goals, such as low-

cost, efficient air transportation.” H.R. Rep. No. 95-1779, at

55 (1978) (Conf. Rep.); see also Charas, 160 F.3d at

1262–63. But, as Charas stated, “[n]othing in the Act itself,

or its legislative history, indicates that Congress had a ‘clear

and manifest purpose’ to displace” state laws “that do not

affect deregulation in more than a ‘peripheral manner.’”

Charas, 160 F.3d at 1265 (quoting Morales, 504 U.S. at 390).

Instead, “when Congress enacted federal economic

deregulation of the airlines, it intended to insulate the

18 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

industry from possible state economic regulation as well.”

Id. at 1266.

United does not argue that the Federation’s claims, if

accepted, would frustrate the goals of airline deregulation.

Nor has it demonstrated that the claims would have a

significant effect on any of those airline services that are

covered by the ADA preemption provision. See Montalvo,

508 F.3d at 475; Martin ex rel. Heckman v. Midwest Exp.

Holdings, Inc., 555 F.3d 806, 810 (9th Cir. 2009).

For all these reasons, the Federation’s claims are not

expressly preempted under the ADA.

II. Implied Preemption under the Air Carrier Access Act

(“ACAA”)

A. Statutory and Regulatory Background

We recently explained the background of the ACAA:

The ACAA is an amendment to the

[FAA]. The original FAA, passed in 1958,

included a requirement that air carriers not

“subject any particular person . . . to any

unjust discrimination or any undue or

unreasonable prejudice or disadvantage in any

respect whatsoever.” 49 U.S.C. App. § 1374

(1982), repealed by Pub. L. No. 103-272, 108

Stat. 745, 1141 (1994). This requirement was

repealed by the [ADA], leaving passengers

with disabilities without express protection

against discrimination by commercial airlines.

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 19

See Shinault v. Am. Airlines, Inc., 936 F.2d

796, 802 (5th Cir. 1991).

A different statute, § 504 of the

Rehabilitation Act of 1973[,] provides

generally that individuals with disabilities

may not be excluded from or discriminated

against by federally-funded programs. See

U.S. Dep’t of Transp. v. Paralyzed Veterans

of Am., 477 U.S. 597, 599 (1986). In 1979,

the Civil Aeronautics Board . . . promulgated

regulations applying § 504 to those

commercial airlines that received direct

federal subsidies. Organizations representing

individuals with disabilities . . . challenged

those regulations, seeking to apply § 504 to

all commercial airlines, on the ground that

airlines not receiving direct federal subsidies

were indirect recipients of federal funding for

airport construction and for the federally

operated air traffic control system. The

Supreme Court rejected [that] argument[],

holding that commercial airlines were . . . not

“recipients[]” of federal [financial assistance].

Id. at 607, 611.

Gilstrap, 709 F.3d at 999 (some alterations in original)

(footnote and some citations omitted).

Congress responded to Paralyzed Veterans by passing the

ACAA as an amendment to the FAA. Id. at 1000. The

current version of the ACAA provides that “an air carrier . . .

may not discriminate against an otherwise qualified

individual” on the ground that “the individual has a physical

20 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

or mental impairment that substantially limits one or more

major life activities.” 49 U.S.C. § 41705(a)(1). The

Secretary of Transportation is authorized to promulgate

regulations implementing the ACAA under § 40113(a) of the

FAA, id. § 40113(a), and:

Pursuant to that authorization, the [DOT]

issued regulations, codified at 14 C.F.R. Part

382, specifying the detailed requirements that

airlines must meet to comply with the ACAA.

The regulations impose four general duties on

air carriers: “not [to] discriminate against any

qualified individual with a disability, by

reason of such disability, in the provision of

air transportation”; “not [to] require a

qualified individual with a disability to accept

special services . . . that the individual does

not request”; “not [to] exclude a qualified

individual with a disability from or deny the

person the benefit of any air transportation or

related services that are available to other

persons,” with certain limited exceptions; and

“not [to] take any adverse action against an

individual (e.g., refusing to provide

transportation) because the individual asserts,

on his or her own behalf or through or on

behalf of others, rights protected” by the

regulations or the ACAA. 14 C.F.R.

§ 382.11(a).

Gilstrap, 709 F.3d at 1000–01 (all but first alteration in the

original).

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 21

B. Implied Field Preemption

1. The Federal Aviation Act’s Saving Clause

Before we consider whether the Federation’s claims are

impliedly field preempted by the ACAA and its implementing

regulations, we must first address the Federation’s assertion

that implied field preemption is “not permitted” under the

ACAA. Specifically, the Federation argues that its state-law

claims cannot be impliedly field preempted under the ACAA

because of the combined effect of the FAA’s saving clause

and the express preemption clause of the ADA. According to

the Federation, any state-law claims that fall outside the

scope of the ADA express preemption provision are

necessarily preserved by the FAA’s saving clause. That is

not so.

The saving clause provides that “[a] remedy under this

part is in addition to any other remedies provided by law.”

49 U.S.C. § 40120(c).10 The clause was enacted as part of the

original Federal Aviation Act of 1958; it remained unchanged

when Congress enacted the ADA in 1978 and the ACAA in

1986. Congress retained once more the saving clause when

it reorganized the FAA in 1994. See Revision of Title 49,

United States Code Annotated, “Transportation,” Pub. L. No.

103-272, 108 Stat. 745 (1994).

The Federation maintains that if Congress had wanted to

preempt state discrimination claims, it could have done so

explicitly in the ADA express preemption provision,

10

As noted, the ACAA is contained within the same “part” of the FAA,

which is Part A of Title 49, Subtitle VII. See 49 U.S.C. Subtit. VII, Part

A.

22 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

49 U.S.C. § 41713(b)(1). Because Congress did not do so,

the Federation’s argument goes, “the [FAA] savings clause

springs into operation once it is determined that a claim is not

expressly preempted . . . [and] preserves those claims from

field preemption.”

We are unpersuaded, for several reasons. First, by its

terms, the FAA’s saving clause preserves only “other

remedies provided by law,” 49 U.S.C. § 40120(c) (emphasis

added), not claims brought under state statutes prescribing

substantive standards of care. See Northwest, 134 S. Ct. at

1428 (describing § 40120(c) as “a saving provision

preserving pre-existing statutory and common-law remedies”)

(emphasis added); Morales, 504 U.S. at 385 (describing

§ 40120(c) as a “general ‘remedies’ saving clause”)

(emphasis added); Ventress v. Japan Airlines, 747 F.3d 716,

723 n.7 (9th Cir. 2014) (“The FAA’s savings clause . . .

establish[es] that state law remedies remain available . . . .”)

(emphasis added); Gilstrap, 709 F.3d at 1005–06; see also US

Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1326 (10th Cir.

2010). In this case, the Federation seeks relief under

“prescriptive” state statutes that “control[] the primary

conduct of those falling within [their] governance.” Wolens,

513 U.S. at 227. It does not, as in Gilstrap, seek to use a

state-law remedy for a breach of a federally prescribed

standard of behavior. See Gilstrap, 709 F.3d at 1007.

The Federation relies on the statement in Brown v. United

Airlines, Inc., a First Circuit case, that “when the [ADA]

saving clause is juxtaposed with the [ADA express]

preemption provision it ‘ought properly be read to carve out

all common law or statutory claims not related to an airline’s

prices, routes or services.’” 720 F.3d 60, 69 (1st Cir. 2013)

(quoting Mitchell v. U.S. Airways, Inc., 858 F. Supp. 2d 137,

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 23

154 (D. Mass. 2012)). But Brown held, in relevant part, only

that common-law claims could be preempted by the ADA’s

express preemption provision, and that the plaintiffs’ claims

were in fact preempted. Id. at 69; 71. Implied preemption

was not at issue in Brown at all. Nor is there any reason to

think that Brown’s statement that claims not falling within the

express clause are carved out by the saving clause was

intended to refer to implied preemption.

Moreover, in general, the inclusion of either a saving

clause or an express preemption clause within a statutory

scheme does not foreclose the application of ordinary implied

preemption principles. “[T]he existence of an ‘express

pre-emption provisio[n] does not bar the ordinary working of

conflict pre-emption principles’ or impose a ‘special burden’

that would make it more difficult to establish the preemption

of laws falling outside the clause.” Arizona, 132 S. Ct. at

2504-05 (quoting Geier v. Am. Honda Motor Co., 529 U.S.

861, 869–72 (2000)). That the Federation’s claims are not

expressly preempted under the ADA, therefore, does not

“categorical[ly] . . . preclude” implied preemption under the

ACAA. Freightliner Corp. v. Myrick, 514 U.S. 280, 288

(1995).

The presence of a saving clause does not necessarily limit

the operation of ordinary implied preemption principles

either. Geier is instructive in this regard. That case

concerned preemption under the National Traffic and Motor

Vehicle Safety Act of 1966 (“Safety Act”), 15 U.S.C. § 1381

(1988), repealed by Pub. L. No. 103-272, § 7(b), 108 Stat.

1379 (1994). 529 U.S. at 867. The Safety Act had a saving

clause, which provided that “[c]ompliance with’ a federal

safety standard ‘does not exempt any person from any

liability under common law.” Id. at 868 (quoting 15 U.S.C.

24 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

§ 1397(k) (1988)). Geier explained that neither the Safety

Act’s saving clause nor its express preemption clause11

“foreclose[d] or limit[ed] the operation of ordinary pre-

emption principles insofar as those principles instruct us to

read statutes as pre-empting state laws . . . that ‘actually

conflict’ with the statute or federal standards promulgated

thereunder.” Id. at 869; see also Williamson v. Mazda Motor

of Am., Inc., 131 S. Ct. 1131, 1136 (2011) (holding that a

statute’s saving clause did not “foreclose or limit the

operation of ordinary conflict preemption principles”). Geier

emphasized that the Court “ha[d] repeatedly ‘decline[d] to

give broad effect to saving clauses where doing so would

upset the careful regulatory scheme established by federal

law.’” Id. at 870 (quoting United States v. Locke, 529 U.S.

89, 106 (2000)).

As Geier then went on to explain, the presence of both a

saving clause and an express preemption clause in the Safety

Act does not “create some kind of ‘special burden’ beyond

that inherent in ordinary pre-emption principles.” Id. at 870.

Although the saving and preemption clauses reflected

11

The Safety Act’s express preemption clause provided that

Whenever a Federal motor vehicle safety standard

established under this subchapter is in effect, no State

or political subdivision of a State shall have any

authority either to establish, or to continue in effect,

with respect to any motor vehicle or item of motor

vehicle equipment[,] any safety standard applicable to

the same aspect of performance of such vehicle or item

of equipment which is not identical to the Federal

standard.

15 U.S.C. § 1392(d) (1988), repealed by Pub. L. No. 103-272, § 7(b),

108 Stat. 1379 (1994).

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 25

seemingly conflicting congressional objectives, Geier

declined to interpret the Safety Act’s saving clause as

preserving all claims brought under state law that did not fall

within the preemption provision’s scope, noting that “[t]o the

extent that such an interpretation of the saving provision

reads into a particular federal law toleration of a conflict that

[ordinary conflict preemption] principles would otherwise

forbid, it permits that law to defeat its own objectives.” Id. at

872. Permitting common-law actions that “actually conflict”

with federal regulations “would take from those who would

enforce a federal law the very ability to achieve the law’s

congressionally mandated objectives that the Constitution,

through the operation of ordinary pre-emption principles,

seeks to protect.” Id.

Geier concerned only the operation of ordinary implied

conflict preemption principles. But the same logic applies to

the operation of implied field preemption principles.

Compare Arizona, 132 S. Ct. at 2504-05 (relying on Geier)

with id. at 2520 (Scalia, J., concurring in part and dissenting

in part) (arguing that Geier was inapplicable because it

applied conflict preemption principles, while the majority

relied on field preemption). To interpret § 40120(c) as

preserving any state-law claim not preempted under the ADA

— including claims involving areas pervasively regulated by

the DOT, such that Congressional intent to “occupy a field

exclusively” would otherwise be inferred, Freightliner,

514 U.S. at 287 — would allow the FAA to “defeat its own

objectives.” Geier, 529 U.S. at 872. The FAA expressly

authorizes the DOT to promulgate “necessary” regulations to

carry out the ACAA. 49 U.S.C. §§ 40101, 40113. In fact, it

was the need for a “uniform and exclusive system of federal

regulation” that led Congress to enact the FAA in the first

place. See Montalvo, 508 F.3d at 471. Under the

26 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

Federation’s reading of § 40120(c), however, a passenger

could sue an airline for violating any state standard of care

not expressly preempted by the ADA, notwithstanding federal

regulations covering in depth the particular field at issue. The

result would be chaotic. A federal regulatory scheme

designed to determine entirely the rights and obligations of

affected parties as to particular issues could then coexist with

another set of comprehensive regulations covering the same

area, as long as there was no direct conflict between the two.

Yet, comprehensive regulatory schemes often represent

considered decisions to refrain from mandating certain

actions or protections, while at the same time allowing those

same actions or protections if undertaken voluntarily.

There is little reason to think Congress, in retaining the

FAA’s saving clause, intended to create “such a complex type

of state/federal relationship” as would result if two sets of

comprehensive schemes of this sort were allowed to coexist.

Geier, 529 U.S. at 872. Absent any specific indication that

Congress sought to preserve all state-law claims not expressly

preempted under the ADA, we adopt the Geier approach and

so apply ordinary implied field preemption principles to the

Federation’s claims.

2. The Regulatory Field

Under those principles, “state law is pre-empted . . . if

federal law so thoroughly occupies a legislative field ‘as to

make reasonable the inference that Congress left no room for

the States to supplement it.’” Cipollone, 505 U.S. at 516

(quoting de la Cuesta, 458 U.S. at 153); see also Freightliner,

514 U.S. at 287. In determining field preemption, “[f]ederal

regulations have no less pre-emptive effect than federal

statutes.” de la Cuesta, 458 U.S. at 153. Accordingly,

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 27

“[w]here . . . Congress has entrusted an agency with the task

of promulgating regulations to carry out the purposes of a

statute, as part of the preemption analysis we must consider

whether the regulations evidence a desire to occupy a field

completely.” Montalvo, 508 F.3d at 470–71 (quoting R.J.

Reynolds Tobacco Co. v. Durham Cnty., 479 U.S. 130, 149

(1986)) (alteration in original). In particular, we “look[] to

the pervasiveness of federal regulations in the specific area

covered by the . . . state law at issue.” Martin, 555 F.3d at

809; see also Ventress, 747 F.3d at 721. If the pervasiveness

of the regulations indicate that the agency sought to occupy

the field, we ask only “whether that action [wa]s within the

scope of the [agency’s] delegated authority.” de la Cuesta,

458 U.S. at 154.

With respect to accessibility of airport kiosks, DOT has

promulgated two regulations. First, on May 13, 2008, DOT

promulgated an “interim” rule, requiring, without significant

further elaboration, that if kiosks are inaccessible, the airline

must provide “equivalent service.” 14 C.F.R. § 382.57

(2008); see also 73 Fed. Reg. at 27,619–20.12 After oral

argument in this case, DOT replaced that brief interim rule

with a much more extensive and detailed one, addressing a

wide variety of accessibility, technical, and timing

requirements specifically applicable to airport kiosks (the

“new regulation”). See 14 C.F.R. § 382.57 (2014); 78 Fed.

Reg. at 67,900–11.

12

The interim rule provided, in its entirety: “As a carrier, if your

automated kiosks in airport terminals cannot readily be used by a

passenger with a disability for such functions as ticketing and obtaining

boarding passes that the kiosks make available to other passengers, you

must provide equivalent service to the passenger (e.g., by assistance from

your personnel in using the kiosk or allowing the passenger to come to the

front of the line at the check-in counter).” 14 C.F.R. § 382.57 (2008).

28 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

Applying our precedents concerning field preemption, we

conclude, first, that the DOT ACAA regulations covering

matters other than the use of airline ticketing kiosks are not

pertinent to our field preemption inquiry; second, that the new

regulation is pervasive and intended to occupy the field of

kiosk accessibility; and, third, that DOT acted within its

delegated authority in promulgating the new regulation.

The essential field preemption inquiry is whether the

density and detail of federal regulation merits the inference

that any state regulation within the same field will necessarily

interfere with the federal regulatory scheme. The first step in

determining whether that situation exists is to delineate the

pertinent regulatory field; the second is to survey the scope of

the federal regulation within that field.

In Martin, 555 F.3d 806, for example, a pregnant

passenger who had fallen on an airplane’s stairway, injuring

herself and her fetus, alleged that the airstairs were

“defectively designed because they had only one handrail.”

Id. at 808. The “only [DOT] regulation on airstairs,” we

noted, provided that “they can’t be designed in way that

might block the emergency exits”; the regulation had

“nothing to say about handrails, or even stairs at all, except in

emergency landings.” Id. at 812. We concluded that

“[b]ecause the agency [had] not comprehensively regulated

airstairs, the FAA [had] not preempted state law claims that

the stairs are defective.” Id. In so ruling, we emphasized the

importance of delineating the pertinent area of regulation

with specificity before proceeding with the field preemption

inquiry: “[W]hen [an] agency issues ‘pervasive regulations’

in an area . . . the [statute] preempts all state law claims in

that area.” Id. at 811. But, “[i]n areas without pervasive

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 29

regulations . . . the state standard of care remains applicable.”

Id.13

The current version of § 382.57 does pervasively regulate

the accessibility of airport kiosks. That regulation, appended

to this opinion, is exhaustive. With regard to blind travelers,

the rule specifies, among many other matters, the following

technical and design requirements for accessible airport

kiosks:

(1) “Automated airport kiosks must provide

an option for speech output,” and meet

specified requirements concerning the

content, volume, and privacy restrictions on

that output, id. § 382.57(c)(5)(i)–(ii);14 and (2)

13

As Gilstrap explained, while our earlier decision in Montalvo,

508 F.3d at 473, had “contained some broad language concerning the

reach of FAA preemption[,] . . . Martin clarified that Montalvo should not

be read . . . expansively” with regard to the relevant field for preemption

purposes. Gilstrap, 709 F.3d at 1004.

14

With regard to speech output, as for other matters, the current

regulation provides an extremely fine-cut level of detail. The regulation

provides, for example, that, “[w]hen 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.” 14 C.F.R.

§ 382.57(c)(5)(i)(A). As to the volume of speech output, the regulation

instructs:

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

30 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

“[a]t least one input control that is tactilely

discernible without activation must be

provided for each function,” and meet

specified requirements regarding the

arrangement and tactile indication required,

id. § 382.57(c)(6).15

The regulation also requires that the kiosk’s “[o]perable parts

must be tactilely discernible without activation,” id.

§ 382.57(c)(3)(i) and that “Braille instructions for initiating

the speech mode must be provided.” Id. § 382.57(c)(8).

Finally, the regulation imposes a backup requirement of

“equivalent service,” similar to the general accommodation

language that appeared in the interim rule. Id. § 382.57(d).16

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.

Id. § 382.57(c)(5)(ii)(B).

15

Again demonstrating its extreme precision, the regulation specifies the

particular symbols to be used for “function keys”: “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.” 14 C.F.R. § 382.57(c)(6)(iv)(B).

16

“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).” Id. § 382.57(d).

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 31

The new regulation thus informs airlines with striking

precision about the attributes their accessible kiosks must

have. In doing so, the new regulation speaks directly to the

concerns raised by the Federation’s suit.

In its complaint, the Federation alleged that, because

United’s kiosks “use exclusively visual computer screen

prompts and touch-screen navigation to guide a customer

through a transaction without translating the prompts into a

medium accessible to the blind, such as audio output[,] . . .

vision is required to successfully use” the kiosks.

Furthermore, the Federation alleged, “[t]echnology exists for

United’s [k]iosks to be accessible to the blind, including but

not limited to an audio interface, a tactile keyboard, and/or

interactive screen reader technology for use with touch

screens.”

The new regulation instructs United exactly what it must

do to address this problem, from the general — namely that

its accessible kiosks must, as the Federation suggests,

incorporate both speech output and at least one tactile input

method — to the granularly specific, including the specific

decibel levels for speech output and the particular tactile

symbols to be used. Thus, “a number of specific federal

[regulatory provisions] govern” the particular standards at

issue here, namely what level of accessability for blind

individuals is required for airport kiosks. Montalvo, 508 F.3d

at 472 (emphasis added). Further, the regulation is

unmistakably pervasive in the pertinent sense, in that it

exhaustively regulates the relevant attributes of accessible

kiosks. Given its great detail and pervasive extent, the new

regulation preempts any state regulation of that same field.

See id.

32 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

As the Federation notes, the regulation does not require

that airlines make such accessible kiosks immediately

available. Rather, the regulation establishes a timeline,

gradually increasing the availability of accessible kiosks.

First, all kiosks installed on or after December 12, 2016, must

meet the accessibility specifications defined by the

regulation, until 25% of the kiosks at each location at an

airport are accessible. 14 C.F.R. § 382.57(a)(1). Second,

airlines must ensure that at least 25% of kiosks at each

location meet the regulation’s accessibility specifications by

December 12, 2022. Id. § 382.57(a)(2).17 In other words, the

regulation envisions that 25% of kiosks at each location will

be accessible by the end of 2022, and requires in the mean

time only that any new kiosks installed after December 12,

2016, be accessible until that 25% goal is reached.

That federal and state regulatory schemes “may require

different . . . deadlines” for compliance does not always

establish a conflict between those schemes. Greater L.A.

Agency on Deafness, Inc. v. Cable News Network, Inc.,

742 F.3d 414, 430 (9th Cir. 2014). Here, however, DOT has

very precisely dictated not only the substance of the

accessible kiosk requirement, but also when airlines must

come into full compliance with those substantive

requirements, and what steps the airlines must take in the

interim. The detail concerning timing demonstrates that the

17

Both rules apply only to kiosks at airports with “10,000 or more

enplanements per year.” 14 C.F.R. § 382.57(a). The regulation specifies

that “location” refers to “each cluster of kiosks and all stand-alone kiosks

at the airport.” Id. § 382.57(a)(1). Finally, the regulation imposes these

requirements both as to kiosks a particular airline owns, leases, or

controls, id. § 382.57(a), and as to “shared-use” kiosks that an airline

jointly owns, leases, or controls, id. § 382.57(b).

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 33

regulation is pervasive not only as to what standards apply,

but also as to when compliance is required.

Moreover, DOT carefully calibrated the phase-in period

for kiosk accessibility. First, while DOT initially considered

a compliance deadline of only 60 days, it ultimately decided

that such a short timeline would not be “feasible” given the

time that would be required to develop, test, and market new

accessible kiosks. 78 Fed. Reg. at 67,907. Second, DOT

settled on the ultimate 10-year deadline for airlines to ensure

that 25% of kiosks are accessible at every location after

considering the average life span of kiosks, indicating that “it

is reasonable to conclude that well before the end of the

10-year period after the effective date of this rule virtually all

airport kiosks will have reached the end of their life span”

and will be replaced with accessible kiosks until the 25%

threshold is reached. Id. at 67,908. Third, DOT initially

raised the possibility of requiring airlines to retrofit existing

kiosks as an interim measure, but ultimately rejected the idea

as “an expensive, and in some cases, technically infeasible

means to accomplish” the “more rapid near-term availability

of accessible machines.” Id. at 67,909.

In this regard, the regulation resembles the airbag

standard at issue in Geier. Rejecting the view, urged in that

case, that DOT had “set[] a minimum airbag standard” but

allowed state regulation to accelerate requirements because

“the more airbags, and the sooner, the better,” Geier observed

that DOT’s view was to the contrary:

The [DOT’s] comments, which accompanied

the promulgation of [the rule], make clear that

the standard deliberately provided the

manufacturer with a range of choices among

34 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

different passive restraint devices. Those

choices would bring about a mix of different

devices introduced gradually over time; and

[the rule] would thereby lower costs,

overcome technical safety problems,

encourage technological development, and

win widespread consumer acceptance–all of

which would promote [the rule’s] safety

objectives.

529 U.S. at 874–75. Because the rule “deliberately sought a

gradual phase-in of passive restraints,” id. at 879, a rule

requiring more immediate implementation would conflict

with federal law and was therefore preempted, id. at 881.

Here, we consider not conflict preemption but field

preemption. But the essential point is the same regarding

phasing in the accessibility requirements: In promulgating its

regulation, the DOT made deliberate choices and devised

nuanced, detailed phase-in requirements, thereby occupying

the field of airport kiosk accessibility for the blind with

regard to timing as well as substantively. Any accelerated

state-law requirement is therefore preempted.

Finally, our conclusion that the new regulation occupies

the field of kiosk accessability is bolstered, but only

marginally, by DOT’s assertions that it does. As a general

matter, although we may give “‘some weight’” to “an

agency’s explanation of how state law affects the [relevant]

regulatory scheme,” we do “not defer[] to an agency’s

conclusion that state law is pre-empted.” Wyeth v. Levine,

555 U.S. 555, 576 (2009). “The weight we accord the

agency’s explanation of state law’s impact on the federal

scheme depends on its thoroughness, consistency, and

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 35

persuasiveness.” Id. (citing United States v. Mead Corp.,

533 U.S. 218, 234–35 (2001) and Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944)).

Here, we give DOT’s statements minimal weight. DOT’s

position is that, even before the current kiosk regulation was

promulgated, “States [we]re already preempted from

regulating in the area of disability civil rights in air

transportation under the [ADA] and the ACAA.” 78 Fed.

Reg. at 67,910 (emphasis added). The government has

echoed that view before us, filing a supplemental amicus brief

in this case maintaining that the DOT’s new regulation

“further demonstrates that the federal government’s

regulation of the accessibility of air transportation is so

pervasive as to ‘occupy the field.’”

The government’s view that the field of air carrier

accessibility is broadly preempted has the virtue of being

consistent over time. See Nondiscrimination on the Basis of

Handicap in Air Travel, 55 Fed. Reg. 8008, 8014 (Mar. 6,

1990); cf. Wyeth, 555 U.S. at 579–80 (rejecting the agency’s

“newfound opinion” in part because it represented “a

dramatic change in position”). As noted, however, under our

precedents, the pertinent field for purposes of field

preemption analysis is not “air carrier accessibility” in

general; it is airport kiosk accessibility for the blind. DOT’s

statements do not, as our case law requires, delineate the

specific field within which the federal ACAA regulations are

preemptive, or explain why § 382.57 in particular occupies

the field at issue here. We therefore find them unpersuasive.

Nevertheless, we do give some weight to DOT’s specific

rejection of a saving provision in adopting the final kiosk

regulation. In its regulatory commentary, DOT considered

36 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

comments, including one submitted by the Federation, urging

it to include a saving clause in 14 C.F.R. Pt. 382 to ensure the

viability of concurrent state-law claims. 78 Fed. Reg. at

67,910. The comments had pointed out two district court

decisions, including the decision on review in this case,

holding preempted certain state law suits challenging

inaccessible kiosks. Id. DOT refused to adopt a saving

provision, concluding that “the detrimental impacts resulting

from the concurrent operation of State/local disability

non-discrimination laws on passengers with disabilities and

on air transportation overall are serious and foreseeable.” Id.

DOT’s rejection of the saving provision, which was proposed

and rejected in the context of the exact issue raised here,

confirms that DOT meant to leave no space for concurrent

regulation of kiosk accessibility by the states. To that extent,

DOT’s regulatory discussion bolsters our conclusion that the

agency occupied the field of kiosk accessability.

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

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

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 37

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. “[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.

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).

38 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

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. “A pre-emptive 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

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 39

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

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.

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.

40 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

(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 nondiscriminatory 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

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.

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 41

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

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 Blid v. U.S. Dep’t of Transp., No. 14-CV-85 (TSC),

— F.Supp.3d —, 2015 WL 349156 (D.D.C. Jan. 28, 2015). The case

remains pending.

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.

42 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

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.

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

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 dispostive] 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 accessability, we decline to do so in this case.

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 43

Transportation has addressed service to disabled passengers.1

Nothing needs to be said about express preemption, so

nothing 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

1

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

49 U.S.C. § 41713(b)(1).

3

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

44 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

meaning of “service,” we should not. Much can be said, and

need not be said in this case, about whether our construction

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.

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

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.”).

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 45

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

5

Carroll v. Carroll’s Lessee, 57 U.S. 275, 287 (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).

46 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

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

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 (2013) (quotations

omitted); see U.S. Const. art. III.

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 47

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.

11

United States v. Fruehauf, 365 U.S. 146, 157 (1961).

12

Muskrat v. United States, 219 U.S. 346, 361 (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.

48 NAT’L FED. OF THE BLIND V. UNITED AIRLINES

“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

18

Id. at 759 (Rymer, J., concurring in the judgment in part and

dissenting in part).

19

Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta,

81 N.Y.U. L. Rev. 1249, 1251 (2006).

NAT’L FED. OF THE BLIND V. UNITED AIRLINES 49

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.

20

Id. at 1260.

21

Id.

22

Barapind, 400 F.3d at 759 (Rymer, J., concurring in the judgment in

part and dissenting in part).