Michelle Gilstrap v. United Air Lines, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELLE GILSTRAP , an individual, No. 11-55271

Plaintiff-Appellant,

D.C. No.

v. 2:10-cv-06131-

JHN-JC

UNITED AIR LINES, INC., a Delaware

Corporation,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Jacqueline H. Nguyen, District Judge, Presiding

Argued and Submitted

May 9, 2012—Pasadena, California

Filed March 12, 2013

Before: Harry Pregerson, Susan P. Graber,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

2 GILSTRAP V . UNITED AIR LINES

SUMMARY*

Air Carrier Access Act / Preemption

The panel affirmed in part and reversed in part the district

court’s dismissal of an action alleging causes of action under

California state tort law and Title III of the Americans with

Disabilities Act on the basis that an airline did not provide the

plaintiff with adequate assistance for moving through the

airport.

Reversing in part, and adopting the framework used by

the Third Circuit, the panel held that the Air Carrier Access

Act, an amendment to the Federal Aviation Act, and its

implementing regulations preempt state standards of care

with respect to the circumstances under which airlines must

provide assistance to passengers with disabilities in moving

through the airport but do not preempt any state remedies that

may be available when airlines violate those standards. The

panel held that the ACAA and its implementing regulations

do not preempt state-law personal-injury claims involving

how airline agents interact with passengers with disabilities

who request assistance in moving through the airport.

Affirming the dismissal of the ADA claim, the panel held

that an airport terminal is not a place of public

accommodation.

*

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

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

GILSTRAP V . UNITED AIR LINES 3

COUNSEL

Mark P. Meuser, Meuser Law Group, Inc., Walnut Creek,

California, for Appellant.

Richard G. Grotch, Coddington, Hicks & Danforth, Redwood

City, California, for Appellee.

OPINION

BERZON, Circuit Judge:

Michelle Gilstrap has difficulty walking because of

osteoarthritis and other health problems. She alleges that, on

two airplane trips in 2008 and 2009, United Air Lines

(“United”) did not provide her with adequate assistance

moving through the airport and that she suffered physical and

emotional injuries as a result. Gilstrap sued United, alleging

several causes of action under California state tort law and a

violation of Title III of the Americans with Disabilities Act of

1990 (“ADA”). Our questions are (1) whether Gilstrap’s

state-law claims are preempted by the federal Air Carrier

Access Act (“ACAA”) and, if so, in what respect; and (2)

whether airport terminals are among the “places of public

accommodation” governed by Title III of the ADA.

I. FACTUAL AND PROCEDURAL HISTORY

Michelle Gilstrap has difficulty walking because she has

a collapsed disc in her back, one replaced knee, another knee

4 GILSTRAP V . UNITED AIR LINES

that needs replacing, and osteoarthritis. In August 2008,1 she

flew on United from Los Angeles to Calgary, from Calgary

to Chicago,2 and finally from Milwaukee back to Los Angeles

(via Denver). Gilstrap again flew on United in December

2009, this time from Burbank, California, to Madison,

Wisconsin (via Denver).3 When booking both sets of flights,

Gilstrap requested that United provide her with wheelchair

assistance for moving through the airports.

During both trips, United failed repeatedly to provide

Gilstrap with the assistance that she requested. At one airport,

Gilstrap located a wheelchair on her own; at other airports she

was provided a wheelchair by United only after prolonged

insistence and up to 45 minutes of waiting; and at others she

was never able to locate a wheelchair at all and had to walk.

Gilstrap alleges various physical injuries as a result of having

to walk, including, after the August 2008 trip, severe pain that

was treated with an epidural injection. Gilstrap also alleges

that United agents yelled at her, expressed skepticism that she

actually needed a wheelchair, and twice directed her to stand

in line (which she could not do because of her disabilities). At

one point during her travels, a United agent whom she asked

1

Because we are evaluating a district court’s dismissal pursuant to Rule

12(b)(6), we take the facts alleged in Gilstrap’s complaint as true and

construe them in the light most favorable to her. Cervantes v. United

States, 330 F.3d 1186, 1187 (9th Cir. 2003).

2

Gilstrap was originally scheduled to fly this leg from Calgary to

Milwaukee, but was transferred to a Calgary-Chicago flight in the course

of the interactions at issue in this lawsuit.

3

For one leg of this itinerary, Gilstrap’s United flight was cancelled and

United rebooked her on a Mesa Airlines flight. Because she was still

flying on a United ticket, this fact does not alter our analysis.

GILSTRAP V . UNITED AIR LINES 5

for assistance unilaterally rebooked her onto a later flight,

telling her that “this was what she got for refusing to stand in

line.”

Gilstrap sued United, alleging several counts under

California tort law, including negligence, negligent

misrepresentation, breach of duty of a common carrier,

intentional infliction of emotional distress, and negligent

infliction of emotional distress. In addition, the complaint

maintains that United violated Title III of the ADA. Gilstrap

seeks compensatory damages for physical and emotional

injuries, including reimbursement for her medical bills,

exemplary and punitive damages, and litigation costs.

Gilstrap does not allege a cause of action under the ACAA

itself. Rather, her complaint cites the ACAA as relevant to

establishing her state-law negligence claims. Under the

California evidentiary rule of “negligence per se,” a violation

of “a statute, ordinance, or regulation” can support a

rebuttable presumption of failure to exercise due care. Cal.

Evid. Code § 669(a)(1).

United filed a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6). The district court granted the

motion in its entirety, dismissing Gilstrap’s complaint with

prejudice. The district court held that all of Gilstrap’s

California tort claims were both conflict- and field-preempted

by the ACAA.

The primary basis for the district court’s ruling was that

“[t]he ACAA does not expressly provide a private right of

action for violations of the statute or its regulations,” but

instead “provides for administrative investigation of

complaints.” On that ground, the district court concluded that

Congress intended the Federal Aviation Act administrative

6 GILSTRAP V . UNITED AIR LINES

enforcement scheme to be the exclusive remedy for violations

of the ACAA and its regulations and that state personal-injury

lawsuits against airlines would conflict with that

congressional intent. The district court further held that

Gilstrap’s claims were field-preempted by the ACAA

regulations pertaining to wheelchair assistance codified in

14 C.F.R. part 382, subpart G. As to Gilstrap’s ADA claim,

the district court held that Title III of the ADA does not apply

to airport terminals, because the statute applies only to

“places of public accommodation” and expressly excludes

terminals for aircraft from its definition of that phrase.

II. STATUTORY AND REGULATORY

BACKGROUND

A. The Air Carrier Access Act

The ACAA is an amendment to the Federal Aviation Act

(“FAA”).4 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 Airline Deregulation Act of 1978,

49 U.S.C. App. § 1301, repealed by Pub. L. No. 103-272, 108

Stat. 745, 1141 (1994), leaving passengers with disabilities

without express protection against discrimination by

4

The FAA and its various amendments, including the ACAA, are

codified in Title 49, Subtitle VII of the U.S. Code. See 49 U.S.C. § 40101

et seq. For ease of reference, we refer to these provisions collectively as

the FAA, except where we are discussing a specific amendment, such as

the ACAA.

GILSTRAP V . UNITED AIR LINES 7

commercial airlines. 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, the federal agency then in charge of

airline regulation, promulgated regulations applying § 504 to

those commercial airlines that received direct federal

subsidies. Id. at 600–01. Organizations representing

individuals with disabilities (collectively, Paralyzed Veterans

of America, or “PVA”), 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. Id. The

Supreme Court rejected PVA’s arguments, holding that

commercial airlines were “beneficiaries,” not “recipients,” of

federal grants for airport construction and that the air traffic

control system was not “a form of federal financial assistance

to airlines.” Id. at 607, 611.

Congress responded to Paralyzed Veterans by passing the

ACAA. An amendment to the FAA, the ACAA “provide[d]

that prohibitions of discrimination against handicapped

individuals shall apply to air carriers.” Air Carrier Access Act

of 1986, Pub. L. No. 99-435, § 2(a), 100 Stat. 1080; see

Shinault, 936 F.2d at 802. In its original form, the ACAA

prohibited air carriers from “discriminat[ing] against any

otherwise qualified handicapped individual, by reason of such

handicap, in the provision of air transportation,” and directed

the Secretary of Transportation to “promulgate regulations to

8 GILSTRAP V . UNITED AIR LINES

ensure non-discriminatory treatment of qualified handicapped

individuals consistent with safe carriage of all passengers on

air carriers.” Air Carrier Access Act of 1986, Pub. L. No. 99-

435, § 3, 100 Stat. 1080.5

In its current version, effective December 12, 2003, the

pertinent sections of the ACAA read as follows:

§ 41705. Discrimination against handicapped

individuals

(a) In general.–In providing air

transportation, an air carrier, including

(subject to section 40105(b)) any foreign air

carrier, may not discriminate against an

otherwise qualified individual on the

following grounds:

(1) the individual has a physical or mental

impairment that substantially limits one or

more major life activities.

(2) the individual has a record of such an

impairment.

5

Congress has amended the ACAA three times: in 1994, adding

provisions to clarify that “a separate violation occurs under [the statute]

for each individual act of discrimination prohibited” and to require the

Secretary of Transportation to “investigate each complaint of a violation,”

Pub. L. No. 103-272, § 1(e), July 5, 1994, 108 Stat. 1141; in 2000, to

expand its application to foreign air carriers, Pub. L. 106-181, Title VII,

§ 707(a), Apr. 5, 2000, 114 Stat. 61, 158; and in 2003, to make minor

technical changes. See Pub. L. No. 108-176, Title V, § 503(d)(1), Dec. 12,

2003, 117 Stat. 2490, 2559.

GILSTRAP V . UNITED AIR LINES 9

(3) the individual is regarded as having

such an impairment.

(b) Each act constitutes separate

offense.–For purposes of section 46301, a

separate violation occurs under this section

for each individual act of discrimination

prohibited by subsection (a).

(c) Investigation of complaints.--

(1) In general.–The Secretary shall

investigate each complaint of a violation of

subsection (a).

49 U.S.C. § 41705. Although the ACAA itself no longer

includes an express directive that the Secretary of

Transportation promulgate regulations,6 it is 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

conducting investigations, prescribing regulations, standards,

and procedures, and issuing orders.” Id. § 40113(a).

Pursuant to that authorization, the Department of

Transportation (“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

6

That directive was removed when the FAA as a whole was reorganized

in 1994. See Revision of Title 49, United States Code Annotated,

“Transportation,” Pub. L. No. 103-272, July 5, 1994, 108 Stat. 745.

10 GILSTRAP V . UNITED AIR LINES

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).7

With respect to assistance moving through the airport, air

carriers must “provide or ensure the provision of assistance

requested by or on behalf of a passenger with a disability . . .

in transportation between gates to make a connection to

another flight” and “in moving from the terminal entrance (or

a vehicle drop-off point adjacent to the entrance) through the

airport to the gate for a departing flight, or from the gate to

the terminal entrance (or a vehicle pick-up point adjacent to

the entrance after an arriving flight),” including “assistance

in accessing key functional areas of the terminal, such as

ticket counters and baggage claim.” Id. § 382.91(a)–(b). Such

assistance must include, if the passenger requires it,

assistance “with transporting [the passenger’s] gate-checked

or carry-on luggage.” Id. § 382.91(d). Carriers must also

7

The current regulations, effective M ay 20, 2009, replaced the less

detailed 1990 regulations. See Nondiscrimination on the Basis of

Disability in Air Travel, 73 Fed. Reg. 27614-01 (May 13, 2008). W e cite

throughout to the 2009 regulations. Gilstrap’s first trip was covered by the

1990 regulations, and her second by the 2009 regulations. For present

purposes, however, the differences do not matter, although they

conceivably could later in this litigation.

GILSTRAP V . UNITED AIR LINES 11

“promptly provide or ensure the provision of assistance

requested by or on behalf of passengers with a disability . . .

in enplaning and deplaning,” including, “as needed, the

services of personnel and the use of ground wheelchairs,

accessible motorized carts, boarding wheelchairs, and/or on-

board wheelchairs . . . and ramps or mechanical lifts.” Id.

§ 382.95(a).

The DOT regulations also explain the training

requirements that air carriers must meet: Carriers must, for

example, train “all personnel who deal with the traveling

public, as appropriate to the duties of each employee,” in,

among other topics, the requirements of the ACAA

regulations; the airline’s procedures regarding passengers

with disabilities; “appropriate boarding and deplaning

assistance procedures that safeguard the safety and dignity of

passengers”; and “awareness and appropriate responses to

passengers with a disability.” Id. § 382.141(a).

The ACAA is enforced through three administrative

mechanisms. First, the Act directs the Secretary of

Transportation to collect and publish data on disability-

related complaints and to report annually to Congress on all

complaints received. 49 U.S.C. § 41705(c)(2)–(3). Second,

the implementing regulations require that each airline

maintain an internal dispute resolution program for

collecting, responding to, and reporting passenger complaints

of discrimination on the basis of a disability. See 14 C.F.R.

§ 382.151 et seq.

Finally, the FAA provides a general administrative

enforcement scheme for all its “Air Commerce and Safety”

provisions, which include the ACAA. Under this scheme, any

person may file a complaint with the Secretary of

12 GILSTRAP V . UNITED AIR LINES

Transportation about an alleged regulatory violation.

49 U.S.C. § 46101(a)(1). After investigation,8 notice, and an

opportunity for a hearing, the Secretary “shall issue an order

to compel compliance” if a violation is found. Id.

§ 46101(a)(4). The DOT may also impose civil penalties

upon air carriers of up to $25,000 per violation. Id.

§ 46301(a). Pursuant to certain procedural requirements, any

person “disclosing a substantial interest in an order issued by

the Secretary of Transportation” may petition for judicial

review of that order in a U.S. court of appeals. Id. § 46110.

These remedies are not exclusive, however: The FAA

provision cautions that “[a] remedy under this part is in

addition to any other remedies provided by law,” id.

§ 40120(c), and requires DOT-certified air carriers to

maintain liability insurance sufficient to pay for bodily injury,

death, loss of property, or damage to property “resulting from

the operation or maintenance of the aircraft,” id. § 41112.

We have not squarely decided in this circuit whether, in

addition to these administrative enforcement mechanisms, the

ACAA may be enforced through private lawsuits.9 Shortly

after its enactment, two circuits interpreted the ACAA to

8

Although the general FAA enforcement scheme provides for an

investigation only “if a reasonable ground appears,” 49 U.S.C.

§ 46101(a)(1)–(2), the ACAA itself requires the Secretary to investigate

all complaints of an ACAA violation, see id. § 41705(c)(1).

9

W ithout deciding the question, we addressed the merits of claims

brought under the ACAA in Newman v. American Airlines, Inc., 176 F.3d

1128 (9th Cir. 1999). Also, we held that the ACAA includes an implied

private cause of action in a non-precedential memorandum disposition.

See Adiutori v. Sky Harbor Int’l Airport, 103 F.3d 137 (9th Cir. 1996)

(unpublished), at *3. Both cases predate Alexander, 532 U.S. 275.

GILSTRAP V . UNITED AIR LINES 13

imply a private cause of action. Shinault, 936 F.2d at 800;

Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 570

(8th Cir. 1989). After those cases were decided, however,

Alexander v. Sandoval, 532 U.S. 275 (2001), narrowed the

framework for evaluating whether a statute implies a private

cause of action. All three circuits to consider the question

since Sandoval have concluded that the ACAA does not

imply a private cause of action. See Lopez v. Jet Blue

Airways, 662 F.3d 593, 596–97 (2d Cir. 2011); Boswell v.

Skywest Airlines, Inc., 361 F.3d 1263, 1269–71 (10th Cir.

2004); Love v. Delta Air Lines, 310 F.3d 1347, 1354–59 (11th

Cir. 2002). We need not, and do not, reach that question in

this opinion, because Gilstrap does not allege a cause of

action under the ACAA.

B. The Americans with Disabilities Act

Congress passed the ADA in 1990 “to provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.” Pub. L.

No. 101-336, 104 Stat. 327 (July 26, 1990), codified at

42 U.S.C. § 12101(b)(2). The ADA includes three main

sections — Title I, which concerns employment

discrimination, 42 U.S.C. § 12111 et seq.; Title II, which

governs access to public services, id. § 12131 et seq.; and

Title III, which governs access to privately operated public

accommodations, such as restaurants and movie theaters, id.

§ 12181 et seq.

Title III prohibits discrimination against people with

disabilities in “public accommodations” and includes an

express list of the “private entities [that] are considered public

accommodations” for purposes of the statute. Id. § 12181(7).

The list includes “a terminal, depot, or other station used for

14 GILSTRAP V . UNITED AIR LINES

specified public transportation.” Id. § 12181(7)(G). The term

“specified public transportation” is defined, in turn, as

“transportation by bus, rail, or any other conveyance (other

than by aircraft) that provides the general public with general

or special service (including charter service) on a regular and

continuing basis.” Id. § 12181(10) (emphasis added).

Recognizing that aircraft are expressly excluded from the

statutory definition of “specified public transportation” whose

terminals are governed by Title III, the Department of Justice

(“DOJ”), which implements the ADA, interprets Title III as

not covering “[t]he operations of any portion of any airport

that are under the control of an air carrier,” and specifies that

such areas “are covered by the Air Carrier Access Act,” not

the ADA, and thus under the regulatory jurisdiction of the

DOT, not the DOJ. See 28 C.F.R. pt. 36 app. C.10

Concomitantly, “[p]laces of public accommodation located

within airports,” but not under the control of air carriers,

“such as restaurants, shops, lounges, or conference centers,”

are covered by Title III. Id.11

10

In turn, the DOT’s ACAA-implementing regulations provide that air

carriers shall be “deemed to comply” with their ACAA obligation to make

air terminals accessible

if the facilities meet requirements applying to places of

public accommodation under Department of Justice

(DOJ) regulations implementing Title III of the

Americans with Disabilities Act (ADA).

14 C.F.R. § 382.51(a)(1).

11

The ADA regulations do note that airports operated by public entities

are covered by Title II of the ADA. 28 C.F.R. pt. 36 app. C. Gilstrap does

not make any claims under Title II, and the complaint does not allege that

any of the airports through which she traveled was publicly operated.

GILSTRAP V . UNITED AIR LINES 15

III. ANALYSIS

This case was dismissed at the pleading stage, for failure

to state a claim. Accepting the facts in the complaint as true

and in the light most favorable to the plaintiff, we must

determine whether the complaint’s factual allegations, taken

as true, state a claim for relief that is plausible on its face.

United States v. Corinthian Colls., 655 F.3d 984, 991 (9th

Cir. 2011).

A. ACAA preemption and Gilstrap’s state-law claims

Federal law may preempt state law in three ways. First,

“Congress may withdraw specified powers from the States by

enacting a statute containing an express preemption

provision.” Arizona v. United States, 567 U.S. —, 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.” Id.

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) (internal quotation

marks omitted).

The ACAA does not contain an express preemption

provision.12 We therefore analyze whether it implies a

12

There are two limited preemption provisions in the FAA as a whole,

neither of which is implicated in this appeal. The Airline Deregulation Act

of 1978 preempts state regulations “related to a price, route, or service” of

airlines, 49 U.S.C. § 41713(b)(1), while the General Aviation

16 GILSTRAP V . UNITED AIR LINES

congressional intent to preempt state personal-injury lawsuits

under either field or conflict preemption and, if so, in what

respect.

1. Field preemption

Before analyzing whether the ACAA has any field-

preemptive effect upon state personal-injury lawsuits, we first

review our case law on field preemption under the FAA more

generally. The FAA includes two important statements

indicating a general congressional intent not to preempt state-

law tort suits against airlines: the savings clause providing

that “[a] remedy under this part is in addition to any other

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

requirement that airlines maintain liability insurance for

injuries and property damage, id. § 41112. The latter

requirement is important as to the statute’s preemptive status,

because “the FAA doesn’t create a federal cause of action for

personal injury suits”; the liability insurance clause therefore

“can only contemplate tort suits brought under state law.”

Martin ex rel. Heckman v. Midwest Express Holdings, Inc.,

555 F.3d 806, 808 (9th Cir. 2009).

Reflecting these provisions, we have in several instances

held that state-law personal-injury claims are not displaced by

the FAA. For instance, we held in Charas v. Trans World

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

that the Airline Deregulation Act of 1978, which amended the

FAA to include an express preemption provision applicable

Revitalization Act of 1994 provides an eighteen-year statute of repose for

product liability claims against airplane manufacturers, 49 U.S.C. § 40101

note §§ 2(a)(2), 3(3).

GILSTRAP V . UNITED AIR LINES 17

to certain state regulations,13 was “intended to preempt only

state laws and lawsuits that would adversely affect the

economic deregulation of the airlines” and not “to preempt

passengers’ run-of-the-mill personal injury claims.”

“Although Charas did not consider FAA preemption” in

general, its clear implication is that the FAA is not broadly

field-preemptive of state tort suits: Charas “reversed several

district court and panel decisions for interpreting [Airline

Deregulation Act] preemption too broadly,” a holding that

would have been unnecessary “if all the claims at issue were

preempted anyway by the FAA.” Martin, 555 F.3d at 811.

Later, in Martin, we developed with more precision than

in Charas the overall principles of FAA field preemption.

First, Martin considered whether an earlier case, Montalvo v.

Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), had determined

that all state-law personal injury claims related to aviation are

broadly field-preempted by the FAA. In Montalvo, we had

concluded that the plaintiffs’ negligence claims, premised on

a failure-to-warn theory, were preempted by the FAA. Id. at

470–74. Noting that the FAA’s implementing regulations

required certain warnings, we held in Montalvo that the

plaintiffs’ state-law failure-to-warn tort theory was

preempted, because it would have established through state

tort liability a more stringent warning requirement for airlines

than that established by federal law. Id. In the course of so

deciding, Montalvo, relying on Abdullah v. American

Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), contained some

broad language concerning the reach of FAA preemption. See

Montalvo, 508 F.3d at 473.

13

The Airline Deregulation Act preempts state regulations “related to a

price, route, or service” of airlines. 49 U.S.C. § 41713(b)(1).

18 GILSTRAP V . UNITED AIR LINES

Martin clarified that Montalvo should not be read as

expansively holding “that the FAA preempts all state law

personal injury claims.” Martin, 555 F.3d at 810. Rather,

Martin held that where there are “‘pervasive regulations’ in

an area, like passenger warnings, the FAA preempts all state

law claims in that area.” Id. at 811. “In areas without

pervasive regulations or other grounds for preemption,”

however, “the state standard of care remains applicable.” Id.

In so concluding, Martin relied in part on the FAA non-

preemption and insurance provisions quoted earlier; in part on

a second aspect of Montalvo, remanding for further

consideration other tort claims that would have been

preempted had the FAA preempted all airline-related personal

injury claims; and in part on the observation that the Charas

holding could not coexist with a holding that all airline-safety

related state tort claims are preempted. See id. at 808, 809–11.

Applying its nuanced standard, Martin held that the FAA

did not preempt a state tort lawsuit involving aircraft stairs

because, in contrast to the lengthy list of federal regulations

on passenger warnings, “the only [federal] regulation on

airstairs is that they can’t be designed in a way that might

block the emergency exits.” Id. at 812. That stray regulation,

we held, was not enough to deem aircraft stairs “pervasively

regulated.” Id. at 811.

As noted in Martin, the Third Circuit has taken a slightly

different approach to FAA field preemption. See id. The

Third Circuit’s leading FAA field preemption case, Abdullah,

181 F.3d 363, held that “federal law establishes the applicable

standards of care in the field of air safety,” but does not

preempt state remedies. Id. at 367 (emphasis added). In so

holding, Abdullah followed the Supreme Court’s reasoning in

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), which

GILSTRAP V . UNITED AIR LINES 19

established, in the context of atomic energy regulation, that

“[f]ederal preemption of [state and territorial] standards of

care can coexist with state and territorial tort remedies.”

Abdullah, 181 F.3d at 375.

In our own FAA preemption cases, we have cited

Abdullah approvingly, see Montalvo, 508 F.3d at 473, and

neutrally, see Martin, 555 F.3d at 809, 811. We have also

adopted Abdullah’s holding “that federal law generally

establishes the applicable standards of care in the field of

aviation safety.” Montalvo, 508 F.3d at 468 (emphasis added).

But we have not adopted Abdullah’s implicit distinction

between safety and other airline regulations, elaborated in

Elassaad v. Independence Air, Inc., 613 F.3d 119 (3d Cir.

2010). The FAA governs not only aviation safety, but also

aviation commerce. The breadth of the FAA is relevant in this

case, because the ACAA — which is codified under the

“economic regulation,” not the “safety,” subpart of the FAA;

see 49 U.S.C. subt. VII, pt. A, subt. II — is an

antidiscrimination imperative, not a safety regulation.14

Nor, before now, have we clearly indicated whether we

would follow Abdullah’s distinction between the FAA’s

preemptive effect upon standards of care and remedies — i.e.,

whether we would agree that it may sometimes be possible

for state remedies to survive FAA preemption even where the

state standard of care has been preempted. Neither Montalvo

14

T his is not, of course, to imply that airlines’ compliance with the

ACAA does not also have safety implications for passengers with

disabilities, only that the ACAA is not designed primarily to regulate the

safe operation of aircraft. Rather, it is designed primarily to regulate

airlines’ interactions with their customers who have disabilities. On this

point, see generally Elassaad, 613 F.3d at 131–32.

20 GILSTRAP V . UNITED AIR LINES

nor Martin needed to reach this question: In Montalvo, the

plaintiffs sought to impose a higher standard of care than the

federal standard, rather than to combine the federal standard

of care with state remedies as in Abdullah, so their suit was

preempted altogether. And Martin held that the plaintiff’s tort

suit was not preempted at all, either as to the standard of care

or the remedy.15

We find persuasive, and here adopt, Abdullah’s division

of the FAA’s field preemptive effect into two components:

state standards of care, which may be field-preempted by

pervasive regulations, and state remedies, which may survive

even if the standard of care is so preempted. As Abdullah

persuasively reasoned, the Supreme Court has held in other

regulatory contexts that “[f]ederal preemption of [state and

territorial] standards of care can coexist with state and

territorial tort remedies.” 181 F.3d at 375 (citing Silkwood).

Although Abdullah relied upon Silkwood, an atomic energy

case, the same principle emerges from the series of Supreme

Court preemption cases arising under the Medical Device Act

(“MDA”). In those cases, the Supreme Court has established

“that the MDA does not preempt a state-law claim for

violating a state-law duty that parallels a federal-law duty

under the MDA.” Stengel v. Medtronic Inc., 704 F.3d 1224,

—, No. 10-17755, slip op. at *9 (9th Cir. Jan. 10, 2013) (en

banc) (construing Medtronic, Inc. v. Lohr, 518 U.S. 470

15

There are passing indications, however, that Martin may have ascribed

to Abdullah’s distinction. For instance, in construing Montalvo, Martin

states that, “[i]n areas without pervasive regulations or other grounds for

preemption, the state standard of care remains applicable,” Martin,

555 F.3d at 811 (emphasis added). This statement would seem to imply

that, by contrast, “pervasive regulations or other grounds for preemption”

would have a preemptive effect only upon the standard of care and not

upon the remedy. Id.

GILSTRAP V . UNITED AIR LINES 21

(1996), and subsequent cases). The MDA cases are not

precisely on point with those applying the FAA; unlike the

FAA, the MDA contains an express preemption provision

specifying that states may not impose requirements “different

from, or in addition to,” the MDA’s requirements for medical

devices. 21 U.S.C. § 360k(a)(1); see Stengel, slip op. at *8–9.

However, these cases do proceed from the general premise

that states may “‘provide a traditional damages remedy for

violations of common-law duties when those duties parallel

federal requirements,’” Stengel, slip op. at *9–10 (quoting

Lohr, 518 U.S. at 495), absent any express or implied

congressional indication otherwise in the statutory scheme at

issue. Here, not only is there no adverse indication, but the

FAA sections expressly preserving state remedies and

requiring insurance coverage support the conclusion that state

law damages actions remain available even when state

substantive standards are displaced. We therefore so hold.

In sum, then, our cases culminating in Martin, combined

with the division between standards of care and remedies

discussed above, establish a two-part framework for

evaluating field preemption under the FAA. First, we ask

whether the particular area of aviation commerce and safety

implicated by the lawsuit is governed by “pervasive [federal]

regulations.” See Martin, 555 F.3d at 811. If so, then any

applicable state standards of care are preempted. Even in

those areas, however, the scope of field preemption extends

only to the standard of care. “Local law still govern[s] the

other negligence elements (breach, causation, and damages),

as well as the choice and availability of remedies.” Elassaad,

22 GILSTRAP V . UNITED AIR LINES

613 F.3d at 125 (construing Abdullah).16 And because the

ACAA is an amendment to the FAA and includes no

indication that it should be treated independently for

preemption purposes, we apply that framework here.

Applying that framework, then, we first look to the area

of aviation commerce and safety at issue in this case —

assistance for passengers with disabilities — and determine

whether, and in what respects, it is pervasively regulated.

Taking Gilstrap’s allegations as true and in the light most

favorable to her, as we are required to do given the procedural

posture, her claims concern two aspects of the service

provided by United. First, United did not provide the

assistance that Gilstrap requested for moving through the

airports. Second, United agents were hostile to Gilstrap

throughout her travels. We consider the ACAA regulations’

preemptive effect, if any, upon each theory of liability in

turn.17

First, as to assistance in moving through the airport: The

ACAA regulations are pervasive as to when and where air

carriers must provide such assistance. The regulations spell

out in detail that air carriers must provide assistance when a

passenger with a disability requests it for moving “between

gates to make a connection to another flight,” 14 C.F.R.

16

W e cite Elassaad here only for its helpful restatement of the Third

Circuit’s Abdullah holding. In Elassaad, the Third Circuit also considered

the question of ACAA preemption but, as noted earlier, we do not fully

adopt Elassaad’s analysis on that question.

17

Again, Gilstrap’s first set of flights took place in August 2008, under

the 1990 regulations, while her second set of flights took place in

December 2009, after the 2009 regulations became effective. As noted, the

difference is not material, at least at this stage of the litigation.

GILSTRAP V . UNITED AIR LINES 23

§ 382.91(a); “moving from the terminal entrance (or a vehicle

drop-off point adjacent to the entrance) through the airport to

the gate for a departing flight, or from the gate to the terminal

entrance (or a vehicle pick-up point adjacent to the entrance

after arriving flight),” including “accessing key functional

areas of the terminal, such as ticket counters and baggage

claim,” id. § 382.91(b); and for “enplaning and deplaning,”

id. § 382.95(a). “This assistance must include, as needed, the

services of personnel and the use of ground wheelchairs,

accessible motorized carts, boarding wheelchairs, and/or on-

board wheelchairs . . . , and ramps or mechanical lifts.” Id.18

Gilstrap’s negligence and breach-of-duty-of-a-common-

carrier claims challenge United’s failure to provide her with

assistance at all in traversing the air terminal before, between,

and after flights. The ACAA and its implementing regulations

establish the standard of care — or duty — that United owed

to Gilstrap regarding that activity, and so preempt any

different or higher standard of care that may exist under

California tort law.

But Gilstrap may still rely on California tort law to prove

the other elements of her claims — breach, causation,

damages, and remedies. In other words, if the evidence at trial

shows that United provided Gilstrap with all the assistance

required under the ACAA and its implementing regulations,

then United cannot be held liable under state law for failing

to do anything further. If the evidence at trial shows that

United fell short of compliance with the ACAA and its

18

Similarly, but in less detail, the 1990 regulations required air carriers

to provide such assistance when a passenger with a disability requested it

for “enplaning and deplaning” as well as for “making flight connections

and transportation between gates.” 14 C.F.R. § 382.39 (2008).

24 GILSTRAP V . UNITED AIR LINES

implementing regulations, then whether Gilstrap may recover

for any injuries that she may be able to prove were caused by

United’s breach will depend upon the degree to which

California tort law recognizes the ACAA standard of care as

applicable in negligence and common carrier claims premised

on duties to disabled passengers.

Second, Gilstrap alleges that United agents were

repeatedly hostile to her throughout her travels. To the extent

that Gilstrap challenges the manner in which United agents

responded to her requests for assistance, as in her negligent

infliction of emotional distress and intentional infliction of

emotional distress claims, field preemption is not implicated.

The ACAA regulations say nothing about how airline agents

should interact with passengers.19 Whether Gilstrap’s

complaint makes out a prima facie case of either negligent or

intentional infliction of emotional distress under California

law is, of course, a separate matter.

Because the district court held Gilstrap’s claims entirely

preempted, it did not determine whether the California causes

of action would survive under California tort law,

incorporating the ACAA standards as to negligence and duty

of common carriers but not as to negligent and intentional

infliction of emotional distress. We leave those issues to be

determined in the first instance on remand.

19

The regulations do require that airlines train employees in appropriate

responses to passengers with disabilities, see, e.g., 14 C.F.R. § 382.141(a),

but, at least at this juncture, Gilstrap’s theory of liability is not that the

airline failed to train the employees whom she encountered.

GILSTRAP V . UNITED AIR LINES 25

2. Conflict preemption

Even if state remedies are not field-preempted by the

ACAA, they may still be barred if they would create an

“actual[] conflict[]” between state and federal law. Cipollone,

505 U.S. at 516. Conflict preemption occurs when “it is

impossible for a private party to comply with both state and

federal requirements, or where state law stands as an obstacle

to the accomplishment and execution of the full purposes and

objectives of Congress.” English v. Gen. Elec. Co., 496 U.S.

72, 79 (1990) (citation and internal quotation marks omitted).

It is certainly not impossible for an airline both to comply

with federal regulations and to pay damages in state tort suits.

The question is whether allowing state tort remedies would

pose an obstacle to the achievement of the ACAA’s

objectives. United argues, and the district court agreed, that

Gilstrap’s claims are conflict-preempted because Congress

did not provide a private cause of action to enforce the

ACAA. Therefore, United argues, and the district court

concluded, allowing state tort litigation against airlines would

pose an obstacle to Congress’s objective of making the FAA

administrative enforcement scheme the exclusive remedy for

ACAA violations.

We need not, and do not, reach here the question of

whether the ACAA provides a private cause of action

because, as a general matter, we do not agree that conflict-

preemption analysis turns on whether a statute provides a

federal cause of action. That Congress has not chosen to

provide a federal cause of action to enforce a statute does not

necessarily mean that all conceivably related state personal-

injury claims are displaced.

26 GILSTRAP V . UNITED AIR LINES

The district court relied on Aetna Health Inc. v. Davila,

542 U.S. 200 (2004), to connect the absence of a federal

cause of action to conflict preemption of state remedies.

Davila, however, interpreted the Employee Retirement

Income Security Act. That statute expresses “clear

congressional intent to make [its] remedy exclusive,” Davila,

542 U.S. at 209, and so is not an apt comparison to the FAA

statutory scheme, which, as noted, states precisely the

opposite — that “[a] remedy under this part is in addition to

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

The determination whether state remedies conflict with the

objectives of a federal enforcement scheme must always be

tailored to the specific statutory and regulatory context at

issue.

Two Supreme Court cases, read together, provide some

guidance in identifying the federal regulatory schemes with

which state tort remedies would necessarily impermissibly

conflict: Silkwood, 464 U.S. 238, and Buckman Co. v.

Plaintiffs’ Legal Comm., 531 U.S. 341 (2001). Silkwood

considered the preemptive effect of federal nuclear safety

regulations, holding that the federal government had

preempted the field of nuclear safety with respect to the

substantive standard of care. But Silkwood added that state

remedies are foreclosed only if “there is an irreconcilable

conflict between the federal and state [liability] standards or

. . . the imposition of a state standard in a damages action

would frustrate the objectives of the federal law.” See

464 U.S. at 256. In Silkwood, there was no such conflict:

Congress’s stated purpose was to promote atomic energy only

“to the extent it is consistent with the health and safety of the

public.” Id. at 257 (internal quotation marks omitted).

Awarding state damages for plaintiffs injured through nuclear

development would not frustrate that cabined purpose. Id.

GILSTRAP V . UNITED AIR LINES 27

Buckman, by contrast, did find a conflict between federal

regulations and any state tort liability, where the tort claim at

issue was uniquely dependent on the federal regulatory

regime. Alleging that a regulatory consulting company had

defrauded the Federal Drug Administration (“FDA”) in the

course of obtaining pre-market approval for its client’s

medical device, the Buckman plaintiffs brought a state-law

“fraud-on-the-FDA” claim. 531 U.S. at 343–44, 347.

The Buckman Court distinguished Silkwood in two ways.

First, the state claims in Silkwood were based “on traditional

state tort law principles.” Buckman, 531 U.S. at 352. In

contrast, the very “existence” of the relevant federal

enactments was “a critical element” of the Buckman

plaintiffs’ fraud-on-the-agency claim. Id. at 353; see also

Stengel, slip op. at *24 (Watford, J., concurring) (“Central to

the Court’s reasoning in Buckman was that the state law claim

asserted there ‘exist[ed] solely by virtue’ of the federal

enactments[.]” (quoting Buckman, 531 U.S. at 353 (first

alteration and emphasis in original))). Second, the federal

statute at issue in Silkwood provided “specific statutory

evidence” that Congress did not intend to preclude state-law

remedies. Buckman, 531 U.S. at 352. The federal statute at

issue in Buckman, however, provided “clear evidence that

Congress intended that [it] be enforced exclusively by the

Federal Government.” Id. (citing 21 U.S.C. § 337(a)).

Applying these distinctions, our case is considerably

closer to Silkwood than to Buckman, on both fronts. First,

here as in Silkwood, the plaintiff’s claims rely on traditional

state tort law. Under California law, proving that United

violated the ACAA regulations may help Gilstrap to establish

certain rebuttable presumptions regarding the scope of an

airline’s duty to individuals in Gilstrap’s circumstances. But

28 GILSTRAP V . UNITED AIR LINES

if the ACAA and its implementing regulations did not exist,

she could still have alleged the same claims, albeit with state

law supplying the entirety of the applicable standard of care.

The existence of the ACAA is not a critical element of

Gilstrap’s claims in the way that the existence of the FDA is

a logical sine qua non of a fraud-on-the-FDA claim.

Second, here as in Silkwood, there is statutory evidence

that Congress did not intend to achieve the objectives of the

ACAA through methods that would preclude personal-injury

suits. The FAA’s savings clause and its liability insurance

requirement, both of which cover the ACAA, suggest that

Congress did not intend any of the FAA administrative

enforcement schemes to be exclusive of state-law remedies.

While a savings clause is not a per se bar to conflict

preemption, see Geier v. Am. Honda Motor Co., 529 U.S.

861, 869 (2000), the FAA’s longstanding savings clause and

its liability insurance requirement for air carriers, taken

together, express a congressional intent not to preempt state

tort remedies in the fields of aviation operation covered by

the statutory scheme.

Finally, we note one additional distinction between

Buckman and our case: The FDA itself is “amply

empower[ed] . . . to punish and deter fraud.” Buckman,

531 U.S. at 348. By pressing a “fraud-on-the-FDA” claim,

then, the Buckman plaintiffs were superimposing their own

efforts on top of the FDA’s own fraud deterrence efforts. As

a result, “complying with the FDA’s detailed regulatory

regime in the shadow of 50 States’ tort regimes [would]

dramatically increase the burdens facing potential applicants”

for FDA approval. Id. at 350. By contrast, Gilstrap’s claims

would not duplicate or interfere with the relevant agency’s

own enforcement procedures. The FAA administrative

GILSTRAP V . UNITED AIR LINES 29

enforcement scheme provides only for the investigation of

ACAA violations per se and civil fines against the airlines,

paid to the DOT; it does not provide any mechanism for

resolving or compensating individual personal-injury claims.

Nor would state damages liability premised in part on ACAA

violations increase the burdens facing airlines, as they already

must plan for and comply with state tort law for negligence

in the operation of airlines. “Like contract principles, the

standard of ordinary care is a general background rule against

which all individuals order their affairs.” Am. Airlines, Inc. v.

Wolens, 513 U.S. 219, 236–37 (Stevens, J., concurring in part

and dissenting in part).

3. Conclusion

In sum, we hold, first, that the ACAA and its

implementing regulations preempt state and territorial

standards of care with respect to the circumstances under

which airlines must provide assistance to passengers with

disabilities in moving through the airport. The ACAA does

not, however, preempt any state remedies that may be

available when airlines violate those standards. For instance

— but only insofar as state law allows it — tort plaintiffs may

incorporate the ACAA regulations as describing the duty

element of negligence, and rely on state law for “the other

negligence elements (breach, causation, and damages), as

well as the choice and availability of remedies.” Elassaad,

613 F.3d at 125 (construing Abdullah). Second, we hold that

the ACAA and its implementing regulations do not preempt

state-law personal-injury claims involving how airline agents

interact with passengers with disabilities who request

assistance in moving through the airport.

30 GILSTRAP V . UNITED AIR LINES

At this early stage of the litigation, we are limited to the

face of the complaint. There is no record evidence of the

severity of Gilstrap’s injuries. Taking the complaint as true

and in the light most favorable to Gilstrap, her most serious

injury was pain, and much of the alleged injury was due to

insensitive treatment. We do not know whether a court

applying California law will hold that state law provides a tort

remedy for such largely dignitary injuries, rooted in

important, but statutorily grounded, anti-discrimination

norms.

We note, however, that the likely availability of a state

tort remedy may be more evident in other circumstances. In

Elassaad, for instance, a passenger with an amputated leg fell

and suffered “severe injuries, including torn cartilage in his

shoulder that required surgical repair,” when flight attendants

did not provide him the necessary assistance deplaning. Id. at

122. Reading the ACAA in light of the FAA’s savings clause

and liability insurance requirement, we cannot conclude that

Congress intended to strip such passengers of available state

remedies for their injuries. As Justice Stevens observed when

construing another FAA-amending statute, “[s]urely Congress

did not intend to give airlines free rein to commit negligent

acts subject only to the supervision of the Department of

Transportation, any more than it meant to allow airlines to

breach contracts with impunity.” Wolens, 513 U.S. at 237

(Stevens, J., dissenting in part and concurring in part).

B. Gilstrap’s ADA claim

The district court dismissed Gilstrap’s ADA claim on the

ground that airport terminals are not “places of public

accommodation” under Title III of the ADA. In evaluating

whether dismissal of Gilstrap’s ADA claim was proper, we

GILSTRAP V . UNITED AIR LINES 31

begin with the text of Title III, which prohibits discrimination

“on the basis of disability in the full and equal enjoyment of

the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by

any person who owns, leases (or leases to), or operates a

place of public accommodation.” 42 U.S.C. § 12182(a). The

statutory definition of “public accommodation” includes “a

terminal, depot, or other station used for specified public

transportation.” Id. 12181(7)(G) (emphasis added).

“Specified public transportation” is, in turn, defined as

“transportation by bus, rail, or any other conveyance (other

than by aircraft).” Id. § 12181(10) (emphasis added).

Fitting these statutory pieces together, the result is that “a

terminal . . . used for . . . transportation” “by aircraft” is

excluded from definition as a Title III-covered “place of

public accommodation.” Accord Lopez v. Jet Blue Airways,

662 F.3d 593, 599 (2d Cir. 2011); Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004). The

statute is unambiguous on this point, so we need not turn to

agency interpretations for clarification. See Chevron, U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842

(1984) (“If the intent of Congress is clear, that is the end of

the matter[.]”). We note, however, that our reading of the

statute is confirmed by the complementary regulatory

frameworks established by the DOJ, which implements the

ADA, and the DOT, which implements the ACAA. The

DOJ’s ADA-implementing regulations state that “[t]he

operations of any portion of any airport that are under the

control of an air carrier are covered by the Air Carrier Access

Act,” not the ADA. 28 C.F.R. § 36 app. C. Similarly, the

32 GILSTRAP V . UNITED AIR LINES

DOT’s ACAA-implementing regulations provide that air

carriers are “deemed to comply” with their ACAA obligation

to make air terminals accessible

if the facilities meet requirements applying to

places of public accommodation under

Department of Justice (DOJ) regulations

implementing Title III of the Americans with

Disabilities Act (ADA).

14 C.F.R. § 382.51(a)(1). There would be no need for the

DOT to incorporate the DOJ’s Title III regulations by

reference here if Title III already applied to air terminals

directly.

Therefore, Gilstrap’s ADA claim was properly dismissed.

In so holding, we need not decide the extent of the ADA’s

applicability in airports generally. Title III of the ADA

applies to many types of public accommodations, including

restaurants and stores. See 42 U.S.C. § 12181(7). There is no

indication in the statute — and United does not argue — that

a restaurant or other non-air-carrier-affiliated facility located

within an airport would not be covered by Title III. Nor need

we decide here whether an air carrier might be liable under

the ADA if it owned, leased, or operated a public

accommodation other than an airport terminal. See Lopez,

662 F.3d at 599 n.8.

IV. CONCLUSION

For the reasons above, we affirm the district court’s

dismissal of Gilstrap’s ADA claim. We reverse the district

court’s dismissal of Gilstrap’s state-law claims and remand to

the district court for further proceedings on those claims

GILSTRAP V . UNITED AIR LINES 33

consistent with this opinion. The district court evaluated only

whether the state-law claims were preempted. We, therefore,

express no opinion on whether Gilstrap’s state-law claims

would survive dismissal on other grounds.

AFFIRMED in part; REVERSED and REMANDED

in part. Parties to bear their own costs on appeal.