Montgomery v. Delta Air Lines

Case: 22-10692 Document: 00516669327 Page: 1 Date Filed: 03/08/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

March 8, 2023

No. 22-10692

Lyle W. Cayce

Clerk

Leia Montgomery; Kristen Meghan Kelly,

Plaintiffs—Appellants,

versus

Delta Air Lines, Incorporated,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:21-CV-2715

Before Wiener, Stewart, and Engelhardt, Circuit Judges.

Per Curiam:*

This appeal arises from the district court’s dismissal of Leia

Montgomery and Kristen Kelly’s (collectively “Appellants”) lawsuit against

Delta Air Lines (“Delta”) on preemption grounds. Because Appellants’

breach-of-contract claim does not qualify for the Wolens exception and their

remaining state-law claims are preempted by the Airline Deregulation Act

(the “Deregulation Act”), we AFFIRM.

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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I. Background

A. Mandatory Masking During the COVID-19 Pandemic

The effects of the COVID-19 pandemic were widespread, rupturing

through nearly every industry, domestically and abroad. Few industries were

affected more than public transportation and commercial air travel because

they are predicated on close contact for long durations. World health leaders

eventually determined that the spread of COVID-19 could be mitigated by

wearing a mask and maintaining physical distance from others. Soon

thereafter, the President of the United States promulgated an executive order

which required commercial airline companies to implement masking and

social distancing policies in accordance with the Center for Disease Control

and Prevention’s (the “CDC”) guidelines.1

Shortly after the President’s executive order, the CDC issued an order

requiring individuals to “wear masks over the mouth and nose when traveling

on conveyances into and within the United States.”2 The CDC’s order came

on the heels of the Department of Homeland Security’s directive to the

Transportation Security Administration to aid “the CDC in the enforcement

of any orders or other requirements necessary to . . . mitigate the spread of

COVID-19.”3 This string of government decisions serves as the backdrop

for the instant appeal.

1

See Exec. Order 13998, Promoting COVID-19 Safety in Domestic and International

Travel, 86 Fed. Reg. 7205 (Jan. 21, 2021).

2

See CDC, Order Under Section 361 of the Public Health Service Act, Requirement for

Persons to Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025,

8026 (Feb. 3, 2021).

3

See DHS, Determination of a National Emergency Requiring Actions to Protect the

Safety of Americans Using and Employed (Jan. 27, 2021).

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B. Appellants’ Attempt to Board Delta Flights Without Masks4

1. Leia Montgomery

Montgomery carries signed medical documentation showing that she

suffers from post-traumatic stress disorder (“PTSD”) and claustrophobia.

Her documentation explains that her diagnoses comport with the standards

set by the Americans with Disabilities Act. Her disorder renders her unable

to wear a conventional mask, so she instead puts on a face shield, hat, and

scarf when travelling.

On February 20, 2021, Montgomery tried to complete the check-in

process for her flight with Delta. She wore her usual face shield, hat, and scarf

and gave the Delta gate agents medical documents proving her disability. The

gate agents called over an emergency physician to evaluate whether her

documentation entitled her to wear her attire instead of a mask over her

mouth and nose. The physician informed her that her disabilities did not

qualify her for maskless travel, and Delta refused to allow her to board.

Notably, Montgomery alleges that Delta also put her on its no-fly list when

she attempted to accommodate the mask mandate by putting her scarf over

her mask and face, like a veil. She asserts that this added to her

embarrassment and trauma.

2. Kristen Kelly

Kelly is a United States Airforce veteran who carries medical records

explaining how masks cause her body to produce a cardiac arrhythmia

response. Her disability, like Montgomery’s, also stems from a PTSD

diagnosis. Delta preapproved Kelly to fly without a mask before her March

4

While Appellants sue Delta together in the instant appeal, the events giving rise

to this suit occurred at two different times. Montgomery was denied entry on her flight in

February 2021 and Kelly in March 2021.

3

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2021 flight. Additionally, in preparation for her flight, she provided Delta

with a negative COVID-19 test. Despite all of this, she was greeted with

skepticism by the Delta gate agents at check in and was ushered to a

telemedicine physician for a determination whether her medical disability

permitted maskless travel.

The physician asked Kelly to provide the basis of her PTSD diagnosis,

which required her to share details of a sexual assault she suffered while

serving overseas. This disclosure occurred in front of the other passengers on

her intended flight because Delta deboarded the plane to resolve her masking

situation. She maintains that this invasion of privacy led to great

embarrassment and added to her traumatic experience.

C. District Court Proceedings

Appellants sued Delta for multiple violations of state law, including

breach of contract, public disclosure of private facts, and intentional infliction

of emotional distress (“IIED”) or negligent infliction of emotional distress

(“NIED”). They also sought declaratory relief under the Air Carrier and

Access Act (“ACAA”). Delta moved to dismiss the suit under Rule 12(b)(6).

Appellants then filed an amended complaint, which prompted Delta to file

another motion to dismiss. Ultimately, the district court dismissed

Appellants’ claims with prejudice.

First, the district court stated that the Deregulation Act preempted

Appellants’ breach-of-contract claims, and that they failed to establish that

they qualified for the Wolens exception.5 Second, it explained that their IIED

and NIED claims were preempted by the Deregulation Act, Federal Aviation

5

See Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 228–232 (1995) (permitting

plaintiffs to circumvent the Deregulation Act when they identify specific contractual

obligations that create a self-imposed undertaking by the airline carrier).

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Act (“FAA”), and ACAA. Regarding Appellants’ emotional distress claims,

the district court held that it would dismiss them even if they were not

preempted because Appellants failed to state a claim for which relief could be

granted. Appellants timely appealed.

On appeal, Appellants ask this court to consider whether: (1) the

Wolens exception applies to their breach-of-contract claim; (2) the

Deregulation Act preempts their invasion of privacy (public disclosure of

private facts) claim; and (3) the FAA, Deregulation Act, and the ACAA

preempt their IIED and NIED claims, or either of them. They also ask that

we consider any of these claims on their merits if we hold that any of them

are not preempted.

II. Standard of Review

We review a district court’s decision on a Rule 12(b)(6) motion de

novo. Ferguson v. Bank of N.Y. Mellon Corp., 802 F.3d 777, 780 (5th Cir. 2015).

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007).

III. Discussion

A. Appellants Do Not Qualify for the Wolens Exception

Appellants assert that Delta’s contract of carriage6 (“the Contract”)

created a self-imposed obligation by providing that “Delta will make every

effort to accommodate a Person with a Disability and will not refuse to

transport a person solely based on the person’s disability, except as permitted

or required by law.” Appellants maintain that, by denying them entry onto

6

Delta’s contract of carriage stipulates that Georgia law governs all disputes.

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their flights, Delta violated the express terms of the Contract, and that this

violation qualifies them for the Wolens exception.

Delta contends that Appellants simply cherry-picked language from

the Contract without recognizing other potentially contradictory provisions.

It explains that the Contract gives Delta broad discretion to deny passengers

entry on to a flight when it reasonably believes that denial is necessary to

protect the passenger, its crew, or its other passengers. Delta thus, maintains

that the district court correctly dismissed Appellants’ claims. We agree.

The Deregulation Act’s preemption provision prevents States from

enacting or enforcing “a law, regulation, or other provision having the force

and effect of law related to a price, route, or service of an air carrier.” Onoh

v. Nw. Airlines, Inc., 613 F.3d 596, 599 (5th Cir. 2010) (citing 49

U.S.C. § 41713(b)(1)). The Supreme Court has generally interpreted this

provision broadly. Id. To that end, the Court has explained that state

common law actions that have “a connection with or reference to” airline

services are preempted unless the connection is “too tenuous, remote, or

peripheral.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 390

(1992) (citation omitted). This court has had the opportunity to interpret

“services” under the Deregulation Act on multiple occasions:

Elements of the air carrier service bargain include

items such as ticketing, boarding procedures,

provision of food and drink, and baggage handling, in

addition to the transportation itself. These matters are

all appurtenant and necessarily included with the

contract of carriage between the passenger or shipper

and the airline. It is these [contractual] features of air

transportation that we believe Congress intended to

de-regulate as ‘services’ and broadly to protect from

state regulation.

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Onoh, 613 F.3d at 599–600 (alteration in original) (citing Hodges v. Delta

Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc)).

In Wolens, the Supreme Court carved out an exception to the

Deregulation Act’s preemptive effect for the “adjudication of routine

breach-of-contract claims.” 513 U.S. at 232. The Court explained that the

“[Deregulation Act’s] preemption clause . . . stops States from imposing

their own substantive standards with respect to rates, routes, or services, but

not from affording relief to a party who claims and proves that an airline

dishonored a term the airline itself stipulated.” Id. at 232–33. This court

analyzes Wolens claims with a two-pronged test: “1) the claim alleged only

concerns a self-imposed obligation; and 2) no enlargement or enhancement

of the contract occurs based on state laws or policies external to the

agreement.” Onoh, 613 F.3d at 600. When a plaintiff fails to satisfy the first

prong, we need not analyze the second. See id. (declining to reach the second

prong when the “case does not involve the airline’s ‘self-imposed

undertaking’”).

Here, Appellants do not qualify for the Wolens exception because they

have not established that Delta violated a “self-imposed obligation.” On its

face, Appellants’ argument is straightforward: The Contract provides that

Delta will accommodate disabled persons and explains that it would not deny

services to those with qualifying disabilities. Appellants thus claim that Delta

violated the Contract by refusing services to them. This argument, however,

fails to account for other provisions in the Contract that offer context on the

legal permissibility of Delta’s actions. For example, Rule 7 of the Contract,

entitled “Refusal to Transport,” provides that:

Whenever necessary to comply with any law,

regulation or government directive or request; or when

advisable in Delta’s sole discretion due to weather or

other conditions beyond Delta’s control

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...

Delta may refuse to transport any passenger, or may

remove any passenger from its aircraft, when refusal to

transport or removal of the passenger is reasonably

necessary in Delta’s sole discretion for the passenger’s

comfort or safety, for the comfort or safety of other

passengers or Delta employees[.]

By its terms, nothing in the Refusal to Transport clause prevents its

enforcement against those with disabilities. Instead, Delta expressly

broadened Rule 7’s enforcement to instances when it is “reasonably

necessary in [its] sole discretion.” As to them, Appellants do not challenge

Rule 7’s validity, although they do take issue with inconsistencies in its

application.7 Rather, they assert that the mere inclusion of the

Accommodation clause allows them to benefit from the Wolens exception

because that language—in a vacuum—proves Delta violated its own terms.

Essentially, Appellants ask this court to only pay attention to the

language they identified in support of their claim. However, prevailing

contract law principles and Georgia state law require us to look to the entire

contract when discerning whether a party has breached it. See Horwitz v.

Weil, 569 S.E.2d 515, 516 (Ga. 2002) (explaining that Georgia law requires

contracts to be considered as a whole, giving effect to each provision to

harmonize them, and rejecting any construction that renders portions of the

contractual language meaningless). After considering both the

Accommodation and Refusal to Transport provisions, we conclude that

Delta did not breach the Contract by merely exercising its discretion to

enforce one clause over another. On that point, Appellants do not cite any

7

Appellants highlight Delta’s inconsistency in applying Rule 7 as grounds for

holding in their favor. But Rule 7 is discretionary and depends on the circumstances of each

individual flight.

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law or language in the Contract compelling Delta to defer to the

Accommodation clause over the Refusal to Transport provision.

Absent legal support that enforcing one section of a contract over

another constitutes a breach, Appellants fail to prove that Delta breached the

Contract. This is especially true when, as here, they have provided no other

evidence that Delta prevented entry “solely based on” Appellants’

respective disabilities. Because Appellants have not demonstrated that Delta

breached a self-imposed obligation, they do not qualify for the Wolens

exception, and the Deregulation Act preempts their breach-of-contract

claim. See Onoh, 613 F.3d at 600.

B. Appellants’ Remaining Claims are Preempted

Appellants also assert that the district court incorrectly held that their

invasion of privacy and IIED and/or NIED claims were preempted by the

Deregulation Act, FAA, and ACAA. They assert that these statutes do not

preempt state tort claims unrelated to “services.” They contend that Delta’s

harassing behavior is the basis for their causes of action and aver that Delta’s

behavior does not fall under “services” as contemplated by the Deregulation

Act. We disagree.

In Onoh we provided a non-exhaustive list of what qualifies as

“services” under the Deregulation Act: “ticketing, boarding procedures,

provision of food and drink, and baggage handling, in addition to the

transportation itself.” Onoh, 613 F.3d at 599 (quoting Hodges, 44 F.3d at 336).

In addition to providing that list, Onoh is especially relevant here because, the

plaintiff in that case, also brought a state-law IIED claim against an airline

provider. This court determined that the Deregulation Act preempted that

claim because the “question of whether Onoh suffered an IIED when a

Northwest agent prohibited her from boarding a flight on the grounds that

the State Department would not permit Onoh to travel clearly [fell] within

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this definition of airline services.” Id. at 600. The panel in that case also

rejected Onoh’s argument that her claim was too “tenuous, remote, or

peripheral” to Northwest’s provision of services because it only addressed

“the manner in which she was refused service rather than the fact that service

was refused.” Id. We explained that “Northwest’s decision to deny Onoh

boarding cannot be divorced from its stated reasons for denying her

boarding.” Id.

Here, Appellants’ IIED and invasion-of-privacy claims are preempted

by the Deregulation Act because they clearly fall within the statute’s

definition of “services.” Montgomery allegedly suffered IIED during the

boarding process as she attempted to convince the Delta gate agents that she

was exempt from wearing a mask. Likewise, Kelly alleged that Delta agents

invaded her privacy when she was forced to deboard the plane and explain

the basis of her PTSD in front of the Delta flight crew and her fellow

passengers. To the extent Kelly suffered a potential IIED claim, it would also

have stemmed from the same incident. Each of these events transpired

during the boarding process and both Appellants were ultimately denied

transportation by Delta. Like in Onoh, Delta’s decision not to provide

transportation to Appellants is enough for us to hold that the Deregulation

Act preempts their claims. Our precedent makes clear that boarding and

transportation are undeniably “services” under the Deregulation Act. Onoh,

613 F.3d at 599. Moreover, Appellants’ interactions with the Delta gate

agents are not substitutes for “the fact that service was refused.” Id. at 600.

Therefore, the district court correctly dismissed Appellants’ claims on

preemption grounds.

Because the Deregulation Act preempts all of Appellants’ state-law

tort claims, we need not address whether the FAA and ACAA do the same.

Furthermore, we decline to reach the merits of Appellants’ IIED and

invasion-of-privacy claims because of their preempted status.

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IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s dismissal

of Appellants’ claims as preempted by the Deregulation Act.

11