Petition for Writ of Certiorari — Gee v. Southwest Airlines Co.

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Supreme Court, U.S.

97-306 AUS 18 1997

N@eitd- ur lnhE Clerk

Supreme Court of the Anited States

OCTOBER TERM, 1996

SHIRLEY GEE; RYAN JEFFREY GEE; SEAN

PAUL FONG, a minor by and through his

guardian ad litem, Shirley Gee; PATRICIA

SETO; SAMANTHA SETO; and COREY SETO,

Petitioners,

SOUTHWEST AIRLINES CO.,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN L. BURRIS CORNISH F. HITCHCOCK

LAW OFFICES OF JOHN (Counsel of record)

L. BURRIS ALAN B. MORRISON

1212 Broadway PUBLIC CITIZEN

Suite 1200 LITIGATION GROUP

Oakland, CA 94612 1600 20th Street, N.W.

(510) 839-5200 Washington, D.C. 20009

- (202) 588-1000

Attorneys for Petitioners

August 1997

QUESTION PRESENTED

Section 105 of the Federal Aviation Act, 49 U.S.C. §

41713(b)(1), preempts state laws that are "related to a price,

route or service of an air carrier." In American Airlines, Inc. v.

Wolens, 513 U.S. 219 (1995), this Court held that section 105

does not preempt breach of contract claims arising under state

law that are brought by passengers against an airline. The

question presented by this petition is:

Does section 105 preempt tort claims arising under state

law for negligence, intentional or negligent infliction of emo-

tional distress and the like that are brought by passengers

against an airline, on the theory that such claims are "related to"

an airline’s "service"?

iil

TABLE OF CONTENTS

QUESTION PRESENTED .......................

PETITION FOR A WRIT OF CERTIORARI .........

RE cece e eee eace

ees cy ee ck cbs eeceuss

RELEVANT STATUTES AND REGULATIONS ......

pememernn OF IMECASE ....................

EE ay re a

B. Proceedings in the District Court ................

C. Proceedings in the Court of Appeals .............

REASONS FOR GRANTING THE WRIT ..........

THIS CASE PRESENTS IMPORTANT

QUESTIONS REGARDING THE PREEMPTION

OF STATE TORT CLAIMS BY SECTION 105

ON WHICH THE COURTS BELOW HAVE

TAKEN DIFFERENT APPROACHES. ...........

A. The Scope of "Services" in Section 105 ........

B. The Scope of "Related to" in Section 105 .......

C. There Is No Reason to Believe That Congress

Intended to Preempt State Tort Claims .........

Ns gle ees eek nes

APPENDIX

Opinion of the United States Court of Appeals

Opinion of the United States District Court for

the Northern District of California .................

TABLE OF AUTHORITIES

Cases:

American Airlines, Inc. v. Wolens,

DEST. BIR, oo ik oa Ou eas RSS passim

California Div. of Labor Standards Enforcement v.

Dillingham Construction, N.A., Inc.,

Ee Oe ee re I oo he eo A a ed 9-10, 20

Chrissafis v. Continental Airlines,

940 F. Supp. 1292 (N.D. Ill. 1996) ............... 17

Cipollone v. Liggett Group, Inc.,

Pr re. rik ck 8 oo eo ers es 18, 21

Continental Airlines, Inc. v. Kiefer,

920 S.W.2d 274 (Tex. 1996) .............. 15, 16, 18

DiBuono v. NYSA-ISA Medical and Clinical

Services Fund, 117 S. Ct. 1747 (1997) ............ 20

Doricent v. American Airlines, Inc.,

1993 U.S. Dist. LEXIS 15143 (D.Mass.) .......... 17

Haavistola v. Delta Air Lines, Inc.,

1997 Thal. Bee Ree OF .w. 6. ee cee ee i?

Harris v. American Airlines, Inc.,

$5 F.36 1472 (Sta Cw. 1995)... 2 ee ees passim

Hodges v. Delta Airlines, Inc.,

44 F.3d 334 (Sth Cir. 1995)(in banc)........... passim

Khan v. American Airlines, 1994 Ill. App. LEXIS 1167 .. 17

Lathigra v. British Airways PLC,

41 F.3d 535 (9th Cir. 1994) .................. 15-16

Miller v. Northwest Airlines, 1992 N.J. Super. LEXIS 43 17

Morales v. Trans World Airlines, Inc.,

Pe EF, SRO ec kek hele ewe we eee passim

Nader v. Allegheny Airlines, Inc., 426 U.S. 290 (1976) . 13

New York State Conf. of Blue Cross & Blue Shield

v. Travelers Ins.Co., 115 S. Ct. 1671 (1995) . 7-8, 19-20

Pearson v. Lake Forest Country Day School,

1994 Ill. App. LEXIS 640 ..................... 17

Romano v. American Trans Air,

56 Cal. Rptr. 2d 428 (2d App. Dist. 1996) ....... 16-17

Sedigh v. Delta Airlines, Inc..,

850 F. Supp. 197 (E.D.N.Y. 1994) ............... 17

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) ...... 19

West v. Northwest Airlines, Inc., 995 F.2d 148

(9th Cir. 1993), cert. denied, 510 U.S. 1111 (1994) .. 16

Statutes and Legislative Materials:

2eU.SL GTTME) 2... ccc cceces..e.., 2

49 U.S.C. § 40101 ef seg.

(formerly 49 U.S.C. § 1301 ef seg.) ................ 2

49 U.S.C. § 40102fa10) ........................ 23

49 U.S.C. § 40120(c),

(formerly 49 U.S.C. App. § 1506) ............... 13

49 U.S.C. § 41112(a)

(formerly 49 U.S.C. App. § 1371(q)(1) ....... 8, 13-14

49 U.S.C. § 41713(b)(1)

(formerly 49 U.S.C. App. § 1305) .......... .. passim

49 U.S.C. App. § 1374(a) ..0 00. 23

Pub. L. No. 103-272, § 6, 108 Stat. 745(1994) ........ 2

S. Rep. No. 96-631, 95th Cong., 2d Sess. (1978) ...... 13

ARK. CODE § 16-62-102 ......................... 15

CAL. CIV. PROC. CODE §377.60 ................... 15

740 ILL. Comp. STAT. 180/0.01 ef seg................ 15

OHIO REV. CODE ANN. §2125.01 (Baldwin 1994) ...... 15

Regulations:

49 C.F.R. § 121.575(b)(1) and (c) (1997) ............. 3

44 Fed. Reg.. 9948 (15 February 1979) ............. 23

Other Authorities:

E. McDowell, The Arrival of Uncivil Aeronautics:

Airlines Must Grapple with Hostile Passengers,

THE NEW YORK TIMES, at D1, col. 2 (30 May 1997) . 18

No. 97-

Supreme Court af the United States

OCTOBER TERM, 1996

SHIRLEY GEE; RYAN JEFFREY GEE; SEAN

PAUL FONG, a minor by and through his

guardian ad litem, Shirley Gee, PATRICIA

SETO; SAMANTHA SETO; and COREY SETO,

Petitioners,

SOUTHWEST AIRLINES CO.,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully ask the Court to issue a writ of

certiorari for the reasons set forth herein.

OPINIONS BELOW

The opinion of the court of appeals is reported at 110 F.3d

1400 (9th Cir. 1997)(Pet. App. 1-24). The order denying re-

hearing and rejecting a suggestion of in banc review is not re-

ported (Pet. App. 4-5). The opinion of the district court is not

reported (Pet. App. 25-37).

JURISDICTION

The court of appeals issued its opinion and judgment on 4

April 1997. By an order dated 28 May 1997, the court denied

a petition for rehearing and rejected a suggestion of rehearing in

banc.' The Court has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT STATUTES AND REGULATIONS

Section 105(a)(1) of the Federal Aviation Act ("section

105") is codified at 49 U.S.C. § 41713(b)(1) and states in

relevant part:

[A] State, political subdivision of a State, or polliti-

cal authority of at least 2 States may not enact or

enforce a law, regulation, or other provision having

the force and effect of law related to a price, route

or service of an air carrier that may provide air

transportation under this subpart.’

Petitioners contend that respondent Southwest Airlines

Co. violated the following regulations of the Federal Aviation

' The order denying rehearing also made some minor editorial

changes in Judge O’Scannlain’s concurrence, j.e., making the text after

the first sentence of that opinion a new section I and renumbering

existing sections I and II as II and III (Pet. App. 4-5). That order was

accompanied by what the court termed an "Amended Opinion" that

incorporated those changes to the concurrence, but did not alter the

opinion of the court. That amended opinion is reproduced in the

appendix to this petition (Pet. App. 1-25).

> The Federal Aviation Act was recodified in 1994 without

substantive change at 49 U.S.C. § 40101 et seg. Pub. L. No. 103-272,

§ 6, 108 Stat. 745, 1378-79. Before then, the Act was codified at 49

U.S.C. App. § 1301 et seg. Section 105, which was added by the Air-

line Deregulation Act of 1978, was codified at 49 U.S.C. App. § 1305

and, as originally enacted, preempted state laws "relating to rates,

routes, or services." Because Congress did not intend this wording

change to affect the substantive meaning of section 105, the petition

will quote this "relating to" and "related to" language interchangeably.

Administration, which appear at 49 C.F.R. § 121.575(b)(1) and

(b) No certificate holder may serve any alcoholic

beverage to any person aboard any of its aircraft

who (1) Appears to be intoxicated;

board any of its aircraft if that person appears to be

intoxicated.

STATEMENT OF THE CASE

A. Material Facts.

Petitioners Shirley Gee, Patricia Seto (her sister) and their

four young children are Asian-Americans who were traveling on

a Southwest flight from Los Angeles to Oakland on 24 August

1994. Also on the flight was a wedding party of approximately

20 people, some of whom had been consuming alcoholic

beverages before the flight (Pet. App. 6).

Petitioners were seated in the six seats comprising row 19,

and the wedding party was seated in the three rows in front of

them. The group was noisy before entering the aircraft, during

take-off and during the flight. Shortly after take-off, Ms. Gee

asked them to refrain from making so much noise, and she toid

a flight attendant that the noise was frightening the children, two

of whom were suffering from asthma attacks (Pet. App. 25-26).

The flight attendant checked with his supervisor, who in-

structed the attendant to "top off" the wedding party’s current

mixed drinks and otherwise to limit orders to one beer per

person. Over Ms. Gee’s complaint, the attendant gave one beer

apiece to the three people sitting immediately in front of her.

One of the passengers sitting in front of Ms. Gee then took her

photograph and cursed at her, drawing a reprimand from the

attendant (Pet. App. 25-27).

Petitioners alleged that after Ms. Gee complained, mem

bers of the wedding party responded with a steady stream of

"insults, threats, intimidation, profanity, harassment, and racial

slurs that continued for the entire flight.". For example, their

amended complaint alleged that the passenger in front of Ms.

Gee called her and her sister "gooks," "bitches" and similar

epithets and that another passenger pantomimed cocking a gun

and shooting her. Southwest and three individual passengers

who were named as defendants denied these allegations (Pet.

App. 6).

When the flight landed in Oakland, everyone in the wed-

ding party stayed in their seats, even after the other passengers

had deplaned. Petitioners also remained seated (Pet. App. 26-

27). Ms. Gee alleged that one member of this group said he was

going to "get them" when they deplaned; another was heard

saying "let’s trip them as they leave the plane . . . remember

what we did to those people in Denver?" (Pet. App. 6).

Two police officers boarded the aircraft, and Ms. Gee

pointed out three people who had threatened her and other

family members and intimidated them with racial epithets. The

police detained these individuals, who were later released (Pet.

App. 27).

B. Proceedings in the District Court.

Petitioners filed suit against Southwest and certain passen-

gers in California state court. The amended complaint alleged

several tort claims against Southwest, including negligence for

having served intoxicated passengers, in violation of FAA

regulations (see pp. 2-3, supra); negligent training and supervi-

sion of flight attendants; intentional or negligent infliction of

emotional distress and violations of California Code provisions

protecting people from threats, harassment, intimidation, or

assault, including those based on race. Southwest removed the

case to the United States District Court for the Northern District

of California, citing diversity of citizenship.

Southwest moved for summary judgment, and many of

the facts vecitet-above were stipulated by the parties. South-

west argued that petitioners’ claims are preempted by section

105 of the Federal Aviation Act, which preempts state laws that

are "related to" an airline’s "price, route or service." South-

west’s motion relied on a Ninth Circuit case that was issued

after this suit had been filed, Harris v. American Airlines, Inc.,

55 F.3d 1472 (1995). In Harris, an African-American woman

alleged that American negligently or intentionally caused her

emotional distress by continuing to serve liquor to an intoxi-

cated passenger who was bombarding her with racial slurs. The

Harris majority deemed the claim preempted, explaining that

section 105 preempts claims that are "related to" an airline’s

"service," and Ms. Harris’s claim "pertain[ed] directly to a

‘service’ the airlines render: the provision of drink," as well as

to the crew’s in-flight conduct in handling intoxicated passen-

gers. /d at 1476. The dissenting judge argued that this reading

of "service" was too expansive and inconsistent with this

Court’s decision in American Airlines, Inc. v. Wolens. Id. at

1477-78. The district court in this case deemed itself bound by

Harris and thus granted summary judgment in favor of South-

west.

C. Proceedings in the Court of Appeals.

Petitioners appealed, and this case was one of four

separate airline preemption cases to reach the Ninth Circuit at

the same time. Two of them involved personal injuries to

passengers, one of whom was hit by a falling suitcase (Costa v.

American Airlines), and the other was injured when his knee

was struck by a metal cart used to pick up waste after in-flight

meal and beverage service (Gadbury v. Delta Air Lines). The

fourth case involved a wheelchair-bound passenger who claimed

emotional distress based on her treatment by airline employees

during boarding (Rowley v. American Airlines).

In each of these cases, the district court concluded that

Harris controlled and that each passenger’s tort claims were

— —_—- +--+ ——-- oe ee - - ——-

preempted because they "relate[ ] to" an airline "service," either

offering alcohol, providing on-board facilities to store luggage,

or the airline’s practices in boarding passengers.

The cases were consolidated for argument, and the Ninth

Circuit issued a single opinion covering all four cases. That

court reversed in the two personal injury cases, finding no

preemption of those tort claims, but upheld the findings of

preemption in this case and the case of the disabled passenger

claiming emotional distress.

The majority began by expressing considerable skepticism

about the soundness of Harris in light of this Court’s recent

preemption cases, as well as other airline preemption cases in

the Ninth Circuit. The court of appeals explained that Harris

relied heavily on Morales v. Trans World Airlines, Inc., 504

U.S. 374 (1992), which held that state attorneys general could

not use their consumer protection statutes to regulate the con-

tent of airline advertising and other marketing practices because

those laws plainly "relat[e] to" airline "rates" and are thus

preempted by section 105. Morales emphasized that Congress

enacted section 105 with the identical "relating to" language

used in the Employee Retirement Income Security Act of 1974

("ERISA"); thus, Morales reasoned, section 105 should be read

broadly with an exception (again borrowed from ERISA cases)

for state laws "too tenuous, remote or peripheral" to have

preemptive effect (Pet. App. 11, citing 504 U.S. at 390).

The court of appeals cited two post-Morales opinions that

it viewed as casting doubt on Harris’s preemption analysis. The

first is American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995),

which (in the court of appeals’ view) "significantly backtracks

from the expansive language of Morales" by allowing a breach

of contract claim to proceed in a case that challenged an airline’s

retroactive change in the mileage levels that frequent fliers must

attain in order to obtain free travel (Pet. App. 11). The court of

appeals cited in particular "dicta throughout the Wolens opinion

that Morates should not be construed so broadly as to preempt ”

personal injury negligence claims, such as those stemming from

a plane crash" (Pet. App. 12).

The court of appeals also viewed the theoretical underpin-

nings of Harris as undercut by New York State Conf. of Blue

Cross & Blue Shield v. Travelers Ins. Co., 115 §. Ct. 1671

(1995), an ERISA case that the court of appeals read as

"essentially reformulat[ing]" this Court’s construction of

"relating to" in the ERISA cases upon which Morales rests.

Travelers emphasized that the traditional presumption against

preemption applies in construing ERISA. No mention of that

presumption appears in Morales, however, and Harris "seems

to operate from precisely the opposite position -- that there is a

presumption of preemption from which exceptions, such as

breach of contract claims, are carved" (Pet. App. 12).

The court of appeals noted that "Travelers may have other

significant implications for § 105," citing this Court’s obser-

vation that its prior efforts to construe the phrase "relating to"

had not provided "much help drawing the line," and that if this

phrase were "taken to extend to the furthest stretch of its inde-

terminance, then for all practical purposes preemption would

never run its course. . . " (Pet. App. 13, quoting Travelers, 115

S. Ct. at 1677). The court of appeals also noted 7ravelers’

comment that in construing the words "relating to," a court

““must go beyond the unhelpful text . . . and look instead to the

objectives of [the statute] as a guide to the scope of the state

law that Congress understood would survive’" (/d., quoting 115

S. Ct. at 1677). Harris, the court of appeals concluded, "seems

to take ‘relates to’ to the furthest stretch of its indeterminacy."

(Pet. App. 13).

Notwithstanding its criticism of Harris, the court ended

this discussion by noting that it was powerless to overturn a

decision by a previous panel, absent an intervening statutory

change or Supreme Court decision. "Since 7ravelers is not

directly on point and Wolens, while verhaps recharacterizing

Morales, did not overrule it, we remain bound to apply the

Harris rationale, however outdated we may find its analysis"

(Pet. App. 13).

Turning to the four cases before it, the court of appeals

concluded that Harris did not preempt the two cases involving

personal injury claims, but it did preempt the claims in this case

and the other case alleging emotional injury. In reaching this

conclusion, the court characterized the claims for emotional

injury as claims involving "negligent rendition of service,"

whereas personal injury claims were characterized as "safety-

related personal injury or death claims concerning airline

operations or maintenance" (Pet. App. 14). The court saw three

reasons for making this distinction.

First, it cited language from the majority, concurring and

dissenting opinions in Wolens indicating that Morales should not

be extended to preempt "personal injury safety-related claims"

(Pet. App. 14).

Second, the court found support for a distinction between

"services" and "operations and maintenance" in 49 U.S.C. §

41112(a), which was enacted as part of the Airline Deregulation

Act and required airlines to buy insurance or self-insure in order

to pay amounts for which "an air carrier may become liable for

bodily injuries to or the death of any person, or for loss of or

damage to property of others, relating from the operation or

maintenance of aircraft." In the court’s view, "Harris is recon-

cilable under this rationale because the insurance requirement

pertains only to bodily injuries or death, not to emotional

injuries such as those involved in Harris" (Pet. App.

15)(emphasis in original).

Third, the court of appeals noted that the distinction was

"harmonious with results reached in other circuit and district

courts," citing four opinions where personal injury claims were

allowed to proceed notwithstanding section 105. One of them,

Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir. 1995)(in

banc), is the progenitor of the service/operations distinction

adopted by the Ninth Circuit here. In Hodges, which involved

luggage falling from an overhead bin, the in banc Fifth Circuit

reversed a panel decision and found no preemption of "state tort

actions for personal physical injuries or property damage caused

by the operation and maintenance of aircraft." Jd. at 336.

Judge O’Scannlain filed a special concurrence in which he

agreed that the personal injury claims were not preempted and

that Harris was “contrary to the weight of authority interpreting

ADA preemption" (Pet. App. 21). He was critical, however, of

the new distinction between airline services and airline opera-

tions as relying "on a few words taken out of context" and

"needlessly muddi{ing] our preemption jurisprudence" (Pet.

App. 21) in a way that will "no doubt yield confusion and

conflicting results in the future" (Pet. App. 21).

In his view, the new distinction found no support in Mo-

rales, Wolens or any other authority, and section 105 should be

construed in the context of the Airline Deregulation Act, which

was enacted to promote competition, with section 105 intended

to prevent states from "impos[ing] their own public policies or

theories of regulation on the operation of air carriers" (Pet. App.

22, quoting Wolens, 513 U.S. at 229 n.5). He thus saw no basis

to preempt state tort claims if they can be characterized as

relating to airline "services," but not to airline "operations and

maintenance."

To buttress this conclusion, he cited this Court’s recent

decision in California Div. of Labor Standards Enforcement v.

Dillingham Construction, N.A., Inc., 117 S. Ct. 832 (1997),

which construed the "relating to" language in ERISA that

guided the Court in Morales. Judge O’Scanniain pointed to the

caveat in Dillingham that the words "relating to" in ERISA

"should not be applied with ‘uncritical literalism,’ but with an

emphasis on the objectives of the statute and its effect on state

law" (Pet. App. 23, citing Dillingham, 117 S. Ct. at 838. He

cited too the concurring opinion in Dillingham by Justice Scalia,

joined by Justice Ginsburg, who argued that it would "greatly

assist our function of clarifying the law if we simply acknowl-

edged that our first take on this statute was wrong" and that

"relating to" should be read not as a fest for preemption, but as

a means of identifying the field being preempted. /d. at 843.

Thus, in Judge O’Scannlain’s view, Dillingham rendered the

services-vs.-operations test for preemption "archaic" (Pet. App.

23).

Finally, Judge O’Scannlain observed that the distinction

between services and operations would be difficult to draw. He

noted that in Hodges, the majority viewed the falling suitcase

claim as plainly relating to airline operations, not services, while

two dissenting judges were convinced that the claim related to

airline services (Pet. App. 23). Citing a Texas Supreme Court

case that also reyected the services-vs.-operations distinction, he

observed that a claim by a passenger who was hit by falling

luggage would be preempted if the attendant dropped the

suitcase, but not if the bin came open because of an improperly

maintained latch or because the plane was jolted by turbulent

weather. Also, a passenger who fell in the aisle could not

recover if he or she slipped on food dropped by a flight atten-

dant, but would have a claim if the accident was caused by a

sudden banking of the aircraft (Pet. App. 24).

Judge O’Scannlain concluded that the majority opinion is

"no more likely than the Harris decision to bring clarity to the

airline preemption field" and that the "proper inquiry" under

section 105 should be “whether the state common law tort

remedies have the effect of frustrating the purpose of deregula-

tion by interfering with the forces of competition. If the state

law does not have the requisite regulatory effect, then it is

simply ‘too tenuous, remote, or peripheral a matter’ to have

preemptive effect" (Pet. App. 24, quoting Morales, 504 U.S. at

- 378-(internal-citation omitted)-Rather than continue to draw”

ever finer lines in this area, he believed that the court of appeals

should "set its house in order" (Pet. App. 24).

Petitioners sought rehearing and suggested rehearing in

banc. Notwithstanding the tensions in the case law and Judge

O’Scannilain’s plea for clarification, rehearing was denied. No

other party to the consolidated cases sought rehearing or has

filed for certiorari.

REASONS FOR GRANTING THE WRIT

THIS CASE PRESENTS IMPORTANT QUESTIONS

REGARDING THE PREEMPTION OF STATE TORT

CLAIMS BY SECTION 105 ON WHICH THE COURTS

BELOW HAVE TAKEN DIFFERENT APPROACHES.

Section 105 preempts state laws that are "related to" an

airline’s "service," and this case presents important issues about

both parts of that formulation. The first involves the scope of

the word "service" in section 105 and whether Congress

intended to recognize the services-vs.-operations dichotomy

adopted by the Ninth Circuit here. The second is whether,

notwithstanding this Court’s heavy reliance on ERISA preemp-

tion cases in Morales, the court of appeals was correct in de-

termining that this Court’s recent ERISA rulings have no

bearing on the interpretation of "related to" in section 105. As

we discuss below, the court of appeals erred in both parts of the

analysis, and review is warranted to clarify the inconsistent ways

in which this statute has been construed by the courts below.

A. The Scope of "Services"in Section 105.

This case presents the issue of whether section 105 pre-

empts tort claims for negligence, intentional or negligent

infliction of emotional distress and the like that petitioners are

asserting against Southwest. The Court has not yet ruled on the

extent to which section 105 preempts state tort law (if at all),

and review should be granted to clarify what is perhaps the

major outstanding issue left open by this Court’s airline preemp-

tion cases. Apart from the importance of this question for its

own sake, it is an issue on which lower courts have taken

different approaches, with the services-vs.-operations distinction

adopted by the Ninth Circuit here having been rejected by one

state supreme court and a California intermediate court.

Morales did not address preemption of tort claims.

Wolens acknowledged the airline’s concession that section 105

does not preempt “personal injury claims relating to airline

operations,” such as “a negligence claim arising out of a plane

crash,” and the Solicitor General likewise deemed it “unlikely

that Section 1305(a)(1) preempts safety-related personal-injury

claims relating to airline operations.” 513 U.S. at 231 n.7

(internal citations omitted). The concurring opinion of Justice

Stevens and dissenting opinion of Justice O’Connor expressed

the view that at least some common-law negligence claims

would not be preempted. /d. at 235, 242.

Despite this discussion in Wolens, the application of

section 105 to tort claims remains unsettled. The Ninth Circuit

in Harris plainly viewed footnote 7 of Wolens as dicta, and

Harris explained its conclusion that petitioners’ tort claims are

preempted by asserting that Wolens involved only breach of

contract claims. 55 F.3d at 1477.

More broadly, the Ninth Circuit’s decision to define “ser-

vice” in a way that excludes claims pertaining to airline opera-

tions and maintenance warrants review for a number of reasons.

First, the distinction is inconsistent with Wolens, which

reasoned that breach of contract claims are not preempted

because such claims generally do not reflect an attempt to

enforce policy-laden state laws in a manner that comes too close

to regulating airline economics or marketing decisions. Foot-

note 7 of Wolens suggests that the same can be said of bodily

injury claims involving a plane crash or other accident. If that

is sO, it is difficult to see why negligence claims for emotional in-

"jury, as opposed to physical injury, are somehow so policy-laden

that Congress would want to preempt them. The Ninth Circuit

never explained its reasoning on this point, and neither did the

Fifth Circuit, which initiated this service-vs.-operations distinc-

tion in Hodges.

As authority, the Ninth Circuit cited a statute cited in

footnote 7 of Wolens, 49 U.S.C. § 41112(a)(formerly 49 U.S.C.

App. § 1371(q)(1), which was enacted as part of the Airline

Deregulation Act and required airlines to obtain insurance (or

self-insure) to cover claims "for bodily injuries to or the death of

any person, or for loss or damage to property of others,

resulting from the operation or maintenance of aircraft"

(emphasis added). There are several problems with reliance on

this statute. In a nutshell, section 41112(a) was a response to a

policy argument made against economic deregulation, namely,

that it would compromise safety. Congress considered and

ultimately rejected that objection. As a precaution, however,

Congress enacted this insurance requirement for all licensed

carriers, a step that had previously been seen as unnecessary in

a regulatory regime that virtually prohibited new air carriers

from entering the industry. S. Rep. No. 96-631, 95th Cong., 2d

Sess. 97 (1978).

Before section 41112(a) was enacted in 1978, airlines

were fully liable to passengers for claims of negligence and other

torts, regardless of whether the injury involved physical or other

types of injury and regardless of whether the tort related to their

"services" or their "operations," however defined. See Nader v.

Allegheny Airlines, Inc., 426 U.S. 290 (1976). See also 49

U.S.C. App. § 1506, recodified as 49 U.S.C. § 40120(c)(Federal

Aviation Act savings clause preserving "remedies now existing

at common law or by statute"). It is difficult to understand why

a provision designed to add an element of protection to the

flying public should be read as limiting liability in cases such as

this one.

— -——-..-Fhere +s-related reascn-why section-41412(a)-cannet .- —- +

support a servives-vs.-operations distinction. Ifthe Ninth Cir-

cuit is correct that footnote 7 of Wolens preserves those bodily

injury claims that relate to airline “operations,” then bodily

injury claims that relate to airline “services” are preempted.

Thus, if a passenger should contract food poisoning from an in-

flight meal, Harris would treat that claim as preempted because

it relates the airline’s meal "service." Indeed, in the falling

luggage case that was decided in tandem with this one (Costa),

American Airlines vigorously urged the Ninth Circuit to find

preemption of that bodily injury claim, (Pet. App. 18 n.5), even

though American conceded in Wo/ens that claims stemming

from a plane crash could proceed.

Whether footnote 7 in Wolens should be read to preempt

bodily injury claims if they can be categorized as relating to

airline "services," rather than airline "operations," is an impor-

tant issue. Moreover, as American’s refusal to concede

preemption in Costa suggests, it is a claim that will continue to

be litigated in future cases. Petitioners do not believe the

Court’s citation of section 41112(a) in Wolens can be read as

supporting a services-vs.-operations distinction that would

operate in this manner, but whatever the correct reading of

Wolens may be on this point, the question is surely significant

and warrants review.” |

* Another facet of footnote 7 that could be clarified if review is

granted involves the applicability of section 105 to statutory tort claims.

Wolens drew a distinction between common law contract claims, which

were allowed to proceed, and statutory claims involving unfair con-

sumer practices, which were held to be preempted. 513 U.S. at 233.

Does this common law/statutory distinction apply to tort claims as well?

Although footnote 7 of Wolens suggests that tort claims arising out of

(continued...)

This brings us to a second reason why the Court sheu!d—- —

— ——~ examine tite-services-vs.-operations distinction, and that is the

fact that it is unworkable and has been rejected by several other

courts. As Judge O’Scannlain’s concurrence noted, and as the

Texas Supreme Court pointed out in Continental Airlines, Inc.

v. Kiefer, 920 S.W.2d 274 (1996), the line drawn here creates

anomalies that Congress could not possibly have intended.

Thus, in Hodges, another falling luggage case, the Fifth Circuit

concluded that this bodily injury claim related to airline “opera-

tions” and was therefore preempted, while two dissenting judges

viewed the claim as relating to airline “services.” 44 F.3d at

343-44 (Higginbotham and E. Garza, JJ., dissenting). Also, the

decision below suggests that a passenger who falls in the aisle

and is injured would have no claim if the cause was spilled food,

but could sue if the cause was the aircraft suddenly banking in

one direction (Pet. App. 24).

That a services-vs.-operations distinction will not work in

practice is also suggested by two Ninth Circuit cases that the

court of appeals cited as being consistent with the decision

below. In Lathigra v. British Airways PLC, 41 F.3d 535 (9th

(...continued)

aircraft accidents are not preempted, recoveries for wrongful death are

often available only by statute. E.g., CAL. Civ. PRoc. CODE § 377.60:

ARK. CODE § 16-62-102 OHIO REV. CODE ANN. § 2125.01 (Baldwin

1994); 740 ILL. Comp. STAT. 180/0.01 ef seq. In the present case.

petitioners raised both common law claims and a Statutory claim for

violating a provision of the California Code that protects people from

threats, harassment, intimidation and assault, including those based on

race (Pet. App. 6). The court of appeals did not address this claim

specifically, though it did hold in Costa that the passenger injured by

falling luggage could not seek to impose tort liability under a California

Statute that imposes a higher standard of care than exists under common

law principles (Pet. App. 18).

Seated

Cir. 1994), the Court of appeals found fhat section 105 did not

preempt a tort claim that the airline had behaved negligently

when it supposedly reconfirmed a reservation, whereas in fact

the flight had been canceled weeks before and the passenger was

stranded for several days as a result. Similarly in West v.

Northwest Airlines, Inc., 995 F.2d 148 (9th Cir. 1993), cert.

denied, 510 U.S. 1111 (1994), the court allowed a bumped

passenger to pursue a tort claim for compensatory damages.

It is difficult to square these two cases with the literalist

approach of Harris. After all, if an airline is not offering a

"service" when it makes passenger reservations (Wes?) or when

it reconfirms those reservations (Lathigra), why is the provision

of in-flight meals and drink an airline "service"? Why, logically,

would Congress expressly intend to preempt one type of claim,

but not the other? Harris offered no answer, nor did any of the

airline defendants below. Indeed, it was this incongruity that

prompted Judge O’Scannlain to state that the Ninth Circuit

should "set its own house in order" in this area (Pet. App. 24),

but petitioners’ suggestion of rehearing in banc was rejected.

Third, other courts have considered and rejected the

services-vs.-operations distinction, thus raising the possibility of

inconsistent decisions depending on the forum in which a given

case is filed. In Kiefer, the Texas Supreme Court disagreed with

the Fifth Circuit’s decision to adopt this distinction, thus raising

the prospect that a case might come out differently if it is

litigated in a Texas state court than a Texas federal court.

Similarly, in Romano v. American Trans Air, 56 Cal. Rptr.

2d 428 (2d App. Dist. 1996), the court of appeals covering Los

Angeles County stated that Harris was “wrong” and would not

be followed in that jurisdiction. /d. at 430. In Romano, the

plaintiff was harassed throughout the flight by a fellow passen-

ger whom the flight attendants did nothing to control and who

ended up punching the plaintiff in the face. The passenger sued

the airline for negligence, as well as intentional or negligent

infliction of emotional distress, among other torts.

In allowing these claims to proceed (which were col-

lectively cited as “personal injury” claims, the court making no

distinction between “bodily” and “emotional” injuries), the

California Court of Appeal conducted a scholarly examination

of the case law in this area and concluded that Congress had no

intention of preempting “personal injury” claims (broadly

defined) when it enacted the Airline Deregulation Act in order

to end economic regulation of the industry. Romano expressly

rejected the argument accepted by the Ninth Circuit here and by

Fifth Circuit in Hodges, namely, that the only type of tort claims

that survive are “those related to operations and maintenance

(for example, a wrongful death action arising out of a crash...).”

Id. at 4316.4

There is a paradox here. If petitioners had filed this case

in state court in Los Angeles (where their flight originated), and

* Other cases have also reached results inconsistent with the Ninth

Circuit’s approach here. In Khan v. American Airlines, 1994 Ill. App.

LEXIS 1167, the court found no preemption of a claim for false im-

prisonment, malicious prosecution and intentional infliction of emo-

tional distress when a passenger was arrested on suspicion of possess-

ing a stolen ticket. In Haavistola v. Delta Air Lines, Inc., 1997 Del.

Super. LEXIS 63, a passenger who was kicked by an intoxicated

passenger was allowed to pursue tort claims, the court deciding to

follow the Texas Supreme Court’s approach in Kiefer. Other cases

where emotional distress claims were allowed to proceed include

Chrissafis v. Continental Airlines, 940 F. Supp. 1292 (N.D. Ill. 1996):

Sedigh v. Delta Airlines, Inc., 850 F. Supp. 197 (E.D.N.Y. 1994):

Miller v. Northwest Airlines, 1992 NJ. Super. LEXIS 43, and

Doricent v. American Airlines, Inc., 1993 U.S. Dist. LEXIS 15143 (D.

Mass.). In addition to this case and Harris, preemption of emotional

distress claims was found in Pearson v. Lake Forest Country Day

School, 1994 Ill. App. LEXIS 640.

if they had made the case removal-proof, Romano suggests that

their claims would have been heard on the merits. Because this

case was litigated in federal court, however, and because the

Ninth Circuit decided that Harris remains the law in that circuit,

their claims are preempted. A similar anomaly is possible in

Texas, given the Fifth Circuit’s decision in Hodges to embrace

the services-vs.-operations distinction that the Texas Supreme

Court rejected in Kiefer.

This Court has granted review in preemption cases where

there is a direct and irreconcilable conflict between decisions of

a state supreme court and the federal circuit court embracing

that state. Indeed, Wolens was such a case, as was Cipollone v.

Liggett Group, Inc., 50S U.S. 504 (1992). To be sure, Romano

is an intermediate state court, but its ruling is the law in the

second largest metropolitan area in the nation, which is served

by all major airlines. The current tension between the law of the

Ninth Circuit and of this California state court is unlikely to

escape the notice of counsel contemplating where to file tort

claims involving an airline in the future.°

More generally, many flights involve interstate travel, and

thus passengers would understandably have an incentive to seek

* The problems encountered in these cases are not isolated

instances. According to a recent press report, airlines are encounter-

ing a growing number of rowdy passengers, as well as physical

assaults and similar behavior. E. McDowell, The Arrival of Uncivil

Aeronautics: Airlines Must Grapple with Hostile Passengers, THE

NEW YORK TIMES, at D1, col. 2 (30 May 1997). Plaintiffs allege that

Southwest violated FAA regulations against serving intoxicated

passengers that seek to prevent such incidents. In addition, airlines

have procedures designed to discourage passengers from abusive

behavior, including an admonition that the carrier will make an

unscheduled stop or have the offending passenger arrested when the

flight lands. See Harris, 55 F.3d at 1476.

out a favorable forum if they know that a tort suit would be

preempted if it is filed in the city where their flight departed, but

not in the city where their flight arrived. This is an unsatis-

factory state of the law in an area where uniformity is important.

B. The Scope of "Relating to" in Section 105.

A second facet of the Question Presented here is the scope

of the "relating to" language in section 105. In Morales, the

seminal decision in this area, the Court noted that this language

was identical to language in ERISA’s preemption section and

that section 105 should be construed in accordance with ERISA

preemption principles, citing ERISA cases in which the words

“relating to” were read as having an “expansive sweep” and a

“breadth” that “is apparent from [its] language.” 504 US. at

384 (internal citations omitted). The only exception, again

following ERISA, was in situations where state actions would

affect airline routes, rates or services “‘in too tenuous, remote

or peripheral a manner’ to have preemptive effect.” /d. at 390,

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

Morales did not pinpoint where that dividing line fell, noting

that the states’ effort to regulate airline advertising “plainly does

not present a borderline question.” Jd. Nor did Morales state

whether courts should read section 105 in light of the traditional

presumption against preemption. Wolens followed this analyti-

cal model, concluding that breach of contract claims fell within

the “too tenuous” exception to be preempted.

Shortly after Wolens came down, however, 7ravelers

marked a shift in this Court’s construction of “relating to” in the

ERISA preemption context. Rather than treat these words as

having a “breadth that is apparent from [its] language,” Shaw,

463 U.S. at 96, the Court spoke of the need to “go beyond the

unhelpful text” of ERISA’s “relating to” language and “look

instead to the objectives of the ERISA statute as a guide to the

scope of the state law that Congress understood would survive.”

115 S. Ct. at 1677.

This shift in emphasis was noted in two cases decided last

Term. In Dillingham, the Court reiterated 7ravelers* point that

"relating to" should not be construed with "uncritical literalism."

117 S. Ct. at 838 (internal citation omitted). And in DiBuono

v. NYSA-ISA Medical and Clinical Services Fund, 117 S. Ct.

1747 (1997), the Court synthesized this evolution in the case

law, explaining that the Court’s early ERISA preemption cases

(upon which Morales relied) had not found it “necessary to rely

on the expansive character of ERISA’s literal language in order

to find preemption because the state laws at issue in those cases

had a clear connection with or reference to ERISA benefit

plans.” /d. at 1751 (internal citation omitted). 7ravelers, the

Court continued, “confronted directly the question whether

ERISA’s ‘relates to’ language was intended to modify ‘the

starting presumption that Congress does not intend to supplant

state law,”” and the Court “unequivocally conclud[ed] that it did

not.” /d. Travelers evaluated the state law in question by

examining Congress’s intention when it enacted ERISA and

concluded that state law was not preempted, the same conclu-

sion reached in Dillingham and DiBuono.

This shift in emphasis is significant. Morales stressed the

need to read section 105 using the text-based model of this

Court’s pre-7ravelers decisions, which assume that the scope of

“relating to” is “apparent from [its] language.” If review is

granted, the Court will be able to provide guidance on whether

this shift in emphasis is confined to ERISA cases, or whether the

analysis in 7ravelers, Dillingham and DiBuono applies when

courts construe section 105's identical “relating to” language.

This is an important question that the Court should

resolve. Petitioners’ state law tort claims are directly controlled

by Harris, in which the Ninth Circuit applied “uncritical literal-

ism” to hold that such claims “relate[] to” the airline’s “service”

of alcoholic beverages to other passengers. Harris explained

that section 105 has “an expansive reach” after Morales, 55

F.3d at 1474, and nothing in Wolens afford petitioners relief

The case law is thus at a crossroads. Although Morales

instructed courts to construe section 105 in accordance with

ERISA principles, Harris and this case adopted an approach

that diverges from the approach now required in ERISA cases.

There is another aspect to this "related to" issue where

clarification would be important, i.e., whether the traditional

presumption against preemption of state law claims applies in

construing section 105. Morales, again consistent with ERISA

preemption cases up to that time, makes no mention of this

presumption. The omission is striking, particularly since

Morales was issued only three weeks before the Court decided

Cipollone, which held that the presumption does apply in

construing a tobacco preemption statute, a ruling that was

challenged by the dissent as inconsistent with Morales. 505

U.S. at 546 (Scalia, J., dissenting). Although 7ravelers and

subsequent cases have made it clear that the presumption against

preemption does apply in construing ERISA’s preemption

section, the Court has not expressly clarified that point in a

section 105 context.

The Ninth Circuit’s decision here epitomizes the uncer-

tainty in this area, which only this Court can resolve. The

opinions below characterized Harris as “outdated” and “ar-

chaic” in light of 7ravelers and Dillingham (Pet. App. 13, 23).

Nonetheless, because those were ERISA cases, rather than

airline cases, the court of appeals did not view them as directly

controlling and so affirmed the judgment that petitioners’ tort

claims are preempted under Harris (Pet. App. 13).

No useful purpose would be served by letting the issue

percolate further in state and federal appellate courts. Questions

about the scope of section 105 arise in numerous cases each

year, and it is doubtful that additional litigation will clarify this

issue, which is raised directly by this Court’s recent ERISA

decisions and which only this Court can ultimately answer.

C. There Is No Reason to Believe that Congress

Intended to Preempt State Tort Claims.

The Court has thus far ruled on the application of section

105 to contract claims and efforts by states to enforce consumer

protection statutes. Tort cases represent the major remaining

category that the Court has not addressed, and a decision by the

Court on this issue will significantly reduce the likelihood of

future litigation on this topic.°

Certiorari papers are not the place to address the merits,

but it is our position that section 105 does not preempt state tort

claims, both under the analytical approach taken in Morales and

Wolens, as well as the more recent contextual approach fol-

lowed in 7ravelers and later ERISA cases. The reason is that

the airline defendants here, in Harris and in all other tort cases,

are asking courts to construe section 105 as something it plainly

was not intended to be, namely, a "tort reform" statute. The

Airline Deregulation Act was enacted to end the public-utility

form of regulation that had be applied to the airline industry for

the past 40 years, not to eliminate tort liability in cases of airline

negligence or misconduct.

Much of the analytical difficulty in this area stems from

uncertainty about the scope of the scope of the "service" to

which tort claims allegedly "relate." Few decisions have

attempted to define what the word "service" means in section

105. For example, the literalist approach embodied in Harris

assumes that the meaning of "service" is self-evident, while an

° A LEXIS search for tort cases filed against the major airline

companies over the past decade turned up literally hundreds of cases,

with preemption defenses asserted in a significant number of them. The

tort claims asserted in these cases range far and wide, including false

arrest, false imprisonment, fraudulent misrepresentation, assault and

battery, slander, fraud in the inducement of a contract, and damage to

property.

examination of section 105 in the context of the Federal

Aviation Act suggests a different approach.

The Federal Aviation Act, to which section 105 was added

in 1978, uses the word “service” in various places to denote the

type of airline operations being offered, e.g., scheduled passen-

ger “service,” charter cargo “service, etc. E.g., 49 U.S.C. §

40102(a)(10); 49 U.S.C. App. § 1374(a). Applying the rule of

Statutory construction that the same word should generally be

given the same meaning throughout a statute, it seems likely that

section 105 has nothing to do with preempting state tort law,

but sought instead to prevent states from trying to regulate

airline operations or "services," no less than their "routes" and

"rates." Those are the three major areas that the Civil Aeronau-

tics Board had regulated for the 40 years before 1978, those

were the areas being deregulated, and those were the areas the

states were being forbidden to enter.

Another source for construing section 105, which also cuts

against the notion that section 105 preempts tort law, is a 1979

interpretative statement issued by the CAB several months after

the Deregulation Act took effect. The Board there stated that

the word “service” denoted that which a passenger received as

a quid pro quo for his or her fare. 44 Fed. Reg. 9948 (15

February 1979). Under this approach too, tortious behavior is

not part of the quid pro quo that a passenger expects to receive

in return for his or her fare.

We cite these authorities to suggest that the analytical

approach approved by the Ninth Circuit here -- a literal and

expansive reading of both "related to" and "service" -- has

produced anomalous results that are far from what Congress

intended. But regardless of what ultimate conclusion may be

reached regarding the effect of section 105 on state tort claims,

it is apparent that there is currently much confusion and

inconsistency in the way that section 105 is being construed, a

situation that argues strongly for granting the petition.

CONCLUSION

For the foregoing reasons, the petition should be granted.

Respectfully submitted,

CORNISH F. HITCHCOCK

(Counsel of record)

ALAN B. MORRISON

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, N.W.

Washington, D.C. 20009-1001

(202) 588-1000

JOHN L. BURRIS

LAW OFFICES OF JOHN L. BURRIS

1212 Broadway, Suite 1200

Oakland, California 94612

(510) 839-5200

August 1997 Attorneys for Petitioners’

” The assistance of Britt Guerrina, a student at the University

of Chicago Law School, in the preparation of this petition is grate-

fully acknowledged.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHIRLEY GEE; RYAN JEFFREY

GEE; SEAN PAUL FONG, a

minor by and through his

guardian ad litem Shirley Gee;

PATRICIA SETO; SAMANTHA No. 95-17175

SETO; COREY SETO,

Plaintiffs-Appellants, D.C. No.

CV-94-03983-CW

ORDER AND

SOUTHWEST AIRLINES Co., Southwest AMENDED

Airlines Company, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, District Judge, Presiding

HERBERT H. GADBURY,

Plaintiff-Appellant,

V. No. 95-36117

DELTA AIRLINES, INC., D.C. No.

Foreign Corporation CV-95-0336-DCA

doing business in Oregon,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Oregon

Donald C. Ashmanskas, District Judge, Presiding

JAN ROWLEY,

Plaintiff-Appellant,

No. 95-36188

D.C. No.

AMERICAN AIRLINES, INC., CV-94-00433-HJF

Defendant-Appellee.

Appeal from the United States District Court

for the District of Oregon

Helen J. Frye, District Judge, Presiding

DONNA COSTA,

Plaintiff-Appellant,

No. 95-56278

AMERICAN AIRLINES, INC.; ROE D.C. No.

CORPORATION, Inclusive, CV-94-00660-GLT

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Gary L. Taylor, District Judge, Presiding

Argued and Submitted

October 10, 1996--Pasadena, California

Filed: April 4, 1997

Amended May 28, 1997

Before: Diarmuid F. O'Scannlain, Thomas G. Nelson and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins;

Concurrence by Judge O'Scannlain

COUNSEL

No. 95-17175:

Cornish F. Hitchcock, Public Citizen Litigation Group, Wash-

ington, D.C., for the plaintiffs-appellants

Robert J. Stumpf, Jr., Bronson, Bronson & McKinnon, San

Francisco, California, for the defendant-appellee

No. 95-36117:

Cornish F. Hitchcock, Public Citizen Litigation Group, Wash-

ington, D.C., for the plaintiff-appellant

Steven O. Rosen, Miller, Nash, Wiener, Hager & Carlsen,

Portland, Oregon, for the defendant-appellee

No. 95-36188:

Douglas L. Parker and Lisel Loy, Institute for Public Repre-

sentation, Georgetown University Law Center, Washington,

D.C., for the plaintiff-appellant

Steven O. Rosen and James N. Westwood, Miller, Nash, Wie-

ner, Hager & Carlsen, Portland, Oregon, for the defendant-

appellee

Robert N. Herman, Paralyzed Veterans of America, Washing-

ton, D.C., as amicus curiae in support of appellant

No. 95-56278:

Debra E. Allen, Portigal, Hammerton & Allen, Santa Ana,

California, for the plaintiff-appellant

Jeffrey A. Worthe and John R. Hanson, Chase, Rotchford,

Drukker & Bogust, Santa Ana, California, for the defendants-

appellees

ORDER

The Opinion filed on April 4, 1997, slip op. 3809, is

amended as follows:

1, At slip op. 3828, following the first sentence of

the concurring opinoin, create a new paragraph

starting with "The majority concludes that a distinc-

tion between... .". On the line above this new

paragraph, inset the roman numeral "I" (centered).

2. At slip op. 3830, change "I" to "II"

3. At slip op. 3832, change "II" to "III"

With these amendments, a majority of the panel has voted

to deny the petition and to-reject the suggestion for rehearing en

banc.

The full court has been advised of the suggestion for

rehearing en banc and no judge has requested a vote on the

suggestion for rehearing en banc. Fed. R. App. P. 35.

The petition for rehearing is denied and the suggestion for

rehearing en banc is rejected.

OPINION

HAWKINS, Circuit Judge:

In these actions, consolidated for argument, appellants

sought damages against various airlines based on in-flight events

ranging from loathsome behavior by fellow passengers to

objects dropping on them from overhead bins. They appeal

summary judgment grants to defendant airlines based on the

preemption of the appellants’ state tort claims by § 105 of the

Federal Aviation Act (commonly referred to as the Airline

Deregulation Act and referred to herein as the "ADA").' In

addition, appellant Rowley also appeals the district court's denial

of a motion in limine regarding the availability of punitive

damages under the Air Carrier Access Act (the "ACAA"). We

affirm the district courts' preemption decisions as to Gee and

' Section 105 of the ADA, as recodified, reads as follows:

[A] State, political subdivision of a State, or political

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

law, regulation, or other provision having the force and ef-

fect of law related to a price, route or service of an air car-

ner that may provide air transportation under this subpart.

49 U.S.C. § 41713(b)(1).

Rowley, but we find that Gadbury's and Costa's tort claims are

not preempted, and we therefore reverse and remand to their

respective district courts. We also hold that even if punitive

damages were available under ACAA, Rowley has not alleged

the type of wanton or malicious conduct necessary to support a

claim for punitive damages, and we therefore affirm the district

court's decision on this issue.

FACTS AND PROCEDURAL HISTORY

A) Gee v. Southwest Airlines

On August 22, 1994, Shirley Gee ("Gee") and her fellow

Asian-American appellants boarded a Southwest Airlines

("Southwest") flight from Los Angeles to Oakland and sat

behind a wedding party (the "Travis group"). The Travis group

was noisy, and Gee asked some of the members to stop making

so much noise. She also complained to a flight attendant and

asked the attendant not to serve the group any more alcohol be-

cause they appeared to be intoxicated. Nevertheless, the atten-

dant served one beer apiece to three members of the Travis

group. Gee claims that after her complaint, the Travis group

harassed her with racial slurs, pantomimed cocking and shooting

a gun at Gee and her companions, and threatened to "get them"

upon landing.

Appellants filed suit in California state court against

Southwest for a variety of tort actions, including negligence per

se for violation of FAA regulations against boarding or serving

intoxicated passengers; negligence, negligent training and super-

vision, intentional and negligent infliction of emotional distress;

respondeat superior, and violating California Code provisions

protecting people from threats, harassment, intimi-dation or

assault, including those based on race. Southwest removed the

i a a ae

case to federal court on diversity grounds. The district court

granted Southwest's motion for summary judgment on the

grounds that the claims were preempted by § 105 of the ADA.

B) Gadbury v. Delta Air Lines

Gadbury was a passenger on a 1993 Delta Air Lines, Inc.

("Delta") flight who alleges that during takeoff acceleration and

banking, a door on a service cart swung open and struck his

knee. Gadbury brought suit in Oregon state court alleging

common law negligence, and Delta removed to federal district

court. Delta admitted that the door opened after takeoff and that

it "was not correctly latched by the flight attendants just prior to

takeoff." The district court granted summary judgment for

Delta, upholding a magistrate's finding that Gadbury's claim was

preempted by § 105 of the ADA.

C) Rowley v. American Airlines

Rowley is paralyzed from the chest down and requires a

motorized scooter for mobility. Prior to a flight on American in

August of 1993, she advised American that she would need an

aisle chair (a narrow wheelchair which can be rolled between

seats) to assist her in moving from the door of the plane to her

seat. American assured her that such assistance would be

available. American failed to provide the aisle chair in either

Dallas or Portland, in violation of the ACAA. As a result,

Rowley claims she was forced to make an arduous journey to

and from her seat by holding on to seats and overhead compart-

ments while American employees watched. Rowley also

requested American to return her motorized scooter to the door

of the plane in Dallas and Portland, but it failed to do so. In

Portland, American also failed to reassemble the scooter for her

after it had been disassembled for stowage.

ee —_ ———————

Rowley filed suit in district court for compensatory and

punitive damages under the ACAA, and asserted several state

tort claims for intentional and negligent infliction of emotional

distress. The district judge granted American's motion for

summary judgment with respect to the tort claims, finding them

to be expressly preempted by the ADA. Rowley also filed a

motion in limine regarding the availability of damages under the

ACAA, and the district court held that "federal law permits

recovery cf compensatory damages for violation of the ACAA,

but not punitive damages."

The remaining compensatory damage claim under the

ACAA was tried to a jury, which found that American did

violate the ACAA by failing to provide the aisle chair and failing

to return the motorized scooter to Rowley. The jury, however,

awarded zero compensatory damages. Rowley appeals the

summary judgment grant and the pretrial disallowance of

Rowley's punitive damage claim.’

D) Costa v. American Airlines

Costa was a passenger on a 1993 American Airlines

("American") flight who claims injuries from another passenger

who opened the overhead bin upon landing, causing a suitcase

to fall onto her head. The identity of the other passenger was

never discovered, since American, pursuant to its routine policy,

destroyed the passenger list 48 hours later. Costa brought suit

in California state court against American and the "John Doe"

passenger, alleging that American had violated its duty of care

> The district court granted American's motion in limine to

prevent the introduction of evidence relating to punitive damages.

See n.5 infra.

as a common carrier under California law, and that American's

negligence in the maintenance and operation of the airplane and

negligent management caused Costa's injuries. American

removed the action to federal court and filed a motion for

summary judgment, which the district court granted on the basis

that Costa's claims were preempted by the ADA.

DISCUSSION

I. Preemption under the ADA

A. Standard of Review

We review a district court's decision regarding preemption

de novo. Espinal v. Northwest Airlines, 90 F.3d 1452, 1455

(9th Cir. 1996). A grant of summary judgment is reviewed de

novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996).

B. Background

Each district court felt this court's decision in Harris v.

American Airlines, Inc., 55 F.3d 1472 (9th Cir. 1995), man-

dated preemption of appellants’ claims. While Harris was not

the first decision on the scope of ADA preemption, it was the

most far-reaching. In Harris, an African-American woman

sought damages for emotional distress caused by a drunk

passenger's racial slurs, claiming American was negligent under

state tort law for continuing to serve the inebriated passenger

who was harassing her. Harris also sought recovery for inten-

tional infliction of emotional distress and violation of Oregon's

Public Accommodation Act. A sharply divided Harris court held

all of Harris’ claims preempted by § 105 of the ADA.

In previous decisions on ADA preemption, we considered

the ADA's goals of airline deregulation or looked to FAA

regulations for guidance in determining the scope of preemption.

West v. Northwest Airlines, Inc., 995 F.2d 148 (9th Cir. 1993),

cert. denied, 510 U.S. 1111 (1994), concerned a damage claim

for being "bumped" from a flight. Looking outside the bare

preemption language, we held the claim was not preempted

since an FAA regulation specifically contemplated that "the

passenger may decline the payment and seek to recover damages

in a court of law . . .," and thus any other reading would

eviscerate the FAA regulation. /d at 152-153. We held,

however, that West's right to pursue punitive damages was

preempted, since awarding such damages would punish the

airline for "accepted forms of price competition and reduction

in the deregulation period," which would be contrary to the

purposes of the ADA. /d. at 152.

Lathigra v. British Airways PLC, 41 F.3d 535 (9th Cir.

1994), involved a tort action for negligent reconfirmation of a

reservation. We held the claim was not preempted. Lathigra

notes that even though there are no FAA regulations discussing

remedies for negligent reconfirmation, the case against preemp-

tion is "even stronger than that in West," as the conduct giving

rise to the complaint in no way serves the goals of airline

deregulation as overbooking did in West. Id. at 540.

The Harris majority, however, made no such inquiry.

Rather, it concluded that Harris’ claims "pertain directly to a

‘service’ the airlines render: the provision of drink" and also

relate to the crew's in-flight conduct, i.e., how the airlines treat

intoxicated passengers. Harris, 55 F.3d at 1476. In fact, the

Harris decision did not even mention the Lathigra precedent or

attempt to reconcile the seemingly different analysis.

We recognize that Harris relied significantly on the

-_-_—--——_ — —_+-~—— > ee tiie ee

Supreme Court's broad interpretation of the ADA's "relates to"

language in Morales v. Trans World Airlines, Inc., 504 U.S.

374 (1992). Morales found NAAG guidelines on fare advertis-

ing (established through a state's general consumer protection

laws) preempted by the ADA because the guidelines "relat[ed]

to" airline "rates. " Borrowing heavily from the broad interpreta-

tion of the similarly worded preemption provision of the

Employee Retirement Income Security Act of 1974 ("ERISA"),

Morales acknowledged that there would be situations where the

state action affecting rates, routes or service would be "too

) tenuous, remote or peripheral " to have any preemptive effect.

) Id. at 390. The Court, however, declined to express where it

: would be appropriate to draw the line. Id.

Two post-Morales Supreme Court decisions suggest that

the approach taken in West and Lathigra, as opposed to Harris,

is more appropriate. In American Airlines, Inc. v. Wolens, 115

S. Ct. 817 (1995), the Supreme Court revisited ADA preemp-

tion and held that state law breach of contract claims for

retroactive changes in an airline's frequent flyer program are not

| preempted, even though they "relate to" rates and service.

Wolens saw these claims as an example of state law affording

"recovery solely for the airline's alleged breach of its own, self-

imposed undertakings." Id. at 824. Wolens did, however, find a

related state claim based on the Illinois Consumer Fraud and

Deceptive Business Practices Act preempted by the ADA, as it

involved states “imposing their own substantive standards" with

respect to rates, routes or service. /d. at 826.

Wolens significantly backtracks from the expansive lan-

guage of Morales. Although Morales seemed centered solely on

the "relates to” language of the preemption provision, Wolens

suggests that the outcome of Morales also hinged on the belief

of the Department of Transportation and Federal Trade Com-

-—— —— aus ia ae ee le

mission that the NAAG guidelines were inconsistent with the

ADA's deregulatory purpose, and that the guidelines created

"binding requirements" on airlines that would have a significant

impact on fares. /d. at 821-22. Furthermore, dicta throughout

the Wolens opinion suggests that the Court was concerned that

Morales not be construed so broadly as to preempt personal

injury negligence claims, such as those stemming from a plane

crash. /d. at 825 n.7, 827-28, and 830. Finally, in holding that

the state law claim for breach of contract was not preempted,

the Wolens court notes that this outcome "makes sense of

Congress’ retention of the FAA's savings clause," which

preserved the " ‘remedies now existing at common law or by

statute.'" /d. at 826 (quoting 49 U.S.C. App. § 1506). Morales

had characterized the same savings clause as "a relic of the pre-

ADA/no preemption regime." 112 S. Ct. at 2037.

Furthermore, in a case decided a mere month before

Harris, the Supreme Court stressed that interpretation of

preemption provisions must start with the presumption that

preemption is not intended, noting that in cases "where federal

law is said to bar state action in fields of traditional state

regulation .. . we have worked on the ‘assumption that the his-

toric police powers of the States were not to be superseded by

the Federal Act unless that was the clear manifest purpose of

Congress.'" New York State Conf. of Blue Cross & Blue Shield

v. Travelers Ins. Co., 115 S. Ct. 1671, 1676 (1995) (internal

citations omitted) (quoting Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947)). Harris seems to operate from

precisely the opposite position -- that there is a presumption of

preemption from which exceptions, such as breach of contract

claims, are carved. 55 F.3d at 1477. .

Travelers may have other significant implications for § 105

of the ADA. Morales borrows its interpretation of the preemp-

tion clause entirely from a line of ERISA cases that interpreted

"identical" relevant language. Morales, 112 S. Ct. at 2037.

Travelers, however, essentially reformulates the approach to this

"identical" language. In 7ravelers, a unanimous Supreme Court

admitted its prior attempts to construe the phrase "relate to" did

"not give us much help drawing the line," noting that "[i]f ‘relate

to' were taken to extend to the furthest stretch of its indetermi-

nacy, then for all practical purposes preemption would never run

its course... ." 115 S. Ct. at 1677. The Court indicated that in

interpreting "relate to," a court "must go beyond the unhelpful

text .. . and look instead to the objectives of [the statute] as a

guide to the scope of the state law that Congress understood

would survive." Jd. It appears that the latter approach is in

accordance with our precedent in West and Lathigra, while

Harris seems to take "relates to" to the furthest stretch of its

indeterminacy.

In this circuit, a panel cannot overturn a decision of a

previous panel except by en banc review, unless there has been

an intervening statutory change or Supreme Court decision.

United States v. Gay, 967 F.2d 322, 327 (9th Cir), cert. denied,

113 S. Ct. 359 (1992). Since Travelers is not directly on point

and Wolens, while perhaps recharacterizing Morales, did not

overrule it, we remain bound to apply the Harris rationale,

however outdated we may find its analysis.

C. Gee and Rowley

Gee is virtually identical to Harris. Under Harris, Gee's

negligence claim against Southwest for emotional distress is

"related to" the service of alcoholic beverages to passengers and

the crew's in-flight conduct towards unruly passengers. There-

fore, Gee's claims are preempted under the ADA.

Similarly, Rowley's claim of emotional injury is grounded

on the conduct of American employees who failed to provide

assistance with her disability. Harris established that "the

conduct of the flight crew relates to’ service’ under the ADA."

55 F.3d at 1476. We find no real distinction between the Harris

claims based on the "in-flight" conduct of the crew, and Row-

ley's claims based on the pre- and post-flight conduct of the

American employees. If the provision of drink is an airline

"service," then the assistance (or lack thereof) in boarding and

deplaning passengers is also a service. Under Harris, Rowley's

attempt to pursue state tort claims involves activities that "relate

to" service and are thus preempted. We therefore affirm the

decisions of the district courts on this issue with respect to

Rowley and Gee.

D. "Operation and Maintenance" vs."Negligent Rendition

of Service"

The Gadbury and Costa claims, on the other hand, can be

distinguished from Harris. Emotional injury claims stemming

from the "negligent rendition of service " are quite different

from. safety-related personal injury or death claims concerning

airline operations or maintenance. First, we believe the Supreme

Court in Wolens clearly indicated that Morales should not be

extended to preempt personal injury safety-related negligence

claims, as reflected in the majority, concurring, and dissenting

opinions. See Wolens, 115 S. Ct. at 825 n.7 ("American does

not urge that the ADA preempts personal injury claims relating

to airline operations.");’ id. at 827-28 ("Presumably, if an airline

were negligent in a way that somehow affected its rates, routes

* In Costa, American does urge that personal injury claims are

pre-empted.

or services and the victim of the airline's negligence were to sue

in state court, the majority would not hold all common-law

negligence rules to be preempted by the ADA.") (Stevens, J,

concurring); id. at 830 ("[a]s the Court recognizes, my view of

Morales does not mean that personal injury claims against

airlines are always preempted.") (O'Connor, J., dissenting).

Secondly, we believe a distinction between "services" and

"operations and maintenance" is mandated by a provision that

the ADA added in 49 U.S.C. § 1371 (q)(1) (recodified as 49

U.S.C. § 41112(a)). This provision requires airlines to obtain

insurance or self-insure in order to pay amounts for which "an

air carrier may become liable for bodily injuries to or the death

of any person, or for loss of or damage to property of others,

resulting from the operation or maintenance of aircraft... . ."* It

would make little sense for Congress to require insurance to pay

for bodily injury claims if airlines were insulated from such

claims by the ADA's preemption provision. As in West, we

cannot construe the preemption provision in a way that evis-

cerates complementary regulations or provisions that indicate

remedies are available. Harris is reconcilable under this rationale

because the insurance requirement pertains only to bodily

injuries or death, not to emotional injuries such as those

involved in Harris.

Finally, this distinction is harmonious with results reached

in other circuit and district courts. See, e.g., Hodges v. Delta

* There is also a regulation that requires airlines to give pas-

sengers written notice of the time period within which they may bring

an action against the carrier for its acts, and any limitations on the

amount of liability of a carrier. 14 C.F.R. § 253.5(b)(2)(1994).

Again, this regulation would be meaningless if such actions were

preempted by the ADA.

Airlines, 44 F.3d 334 (Sth Cir. 1995) (tort claim arising from

luggage falling from overhead bin found to be related to the safe

operation of a flight); Smith v. America West Airlines, Inc., 44

F.3d 344 (Sth Cir. 1995) (tort claim for negligent boarding of

hijacker found to be "safety" related and not preempted); Stag/

v. Delta Air Lines, Inc., 849 F. Supp. 179 (E.D.N.Y. 1994) (no

preemption of state common law cause of action for injuries

incurred near baggage carousel), rev'd on other grounds, 52

F.3d 463 (2d Cir. 1995); Jn re Air Disaster, 819 F. Supp. 1352

(E.D. Mich. 1993) (finding preemption provisions do not apply

to state negligence action based on injuries suffered in crash).

E. Gadbury and Costa

Having decided to distinguish between claims relating to

service and those pertaining to the operation and maintenance

of the aircraft, we must now determine where the Gadbury and

Costa claims fall. The ADA defines "operation of the aircraft"

as “the use of aircraft, for the purpose of air navigation and

includes the navigation of the aircraft. " 49 US.C. §

40102(a)(32). "Service" is not defined in the act itself, and the

Supreme Court has not attempted to define the scope of the

term. We agree with the Fifth Circuit that there is no strict

dichotomy between "operations and maintenance " and "ser-

vice." Hodges, 44 F.3d at 339. Indeed, it is difficult to imagine

a more critical airline service than aircraft navigation. As noted

above, there is a presumption against preemption, especially

absent the clear intention of Congress to preempt fields of

traditional state regulation. 7ravelers, 115 S. Ct. at 1676. Given

this presumption, a claim fairly characterized as relating both to

"service" and "operations" should not lead to preemption.

In Gadbury, Delta agrees that the service/operations

distinction may be appropriate, but argues that Gadbury's claim

is still preempted because it is more related to "service." Delta

argues that Gadbury was injured by a "serving" cart, and the

primary purpose of the cart is to provide on-board services, such

as waste collection, to passengers. Delta's rationale would lead

to absurd results: if Gadbury had been injured by a loose piece

of safety equipment, rather than a loose piece of serving

equipment, presumably Delta would admit the claim could

proceed. Gadbury's claim stems from Delta's negligence in

failing to properly latch the door during takeoff. We find that

Gadbury's claim does not relate to airline "service" but rather is

connected with the failure to take appropriate safety measures

relating to the operation of the aircraft. Therefore, the claim is

not preempted by the ADA, and we reverse and remand No.

95-36117 to the district court for further proceedings.

Costa's common law tort claims stem from her personal

injury when luggage fell onto her from the overhead compart-

ment. We agree with the Fifth Circuit's opinion in Hodges,

which found that "whether luggage may be placed in overhead

bins and whether the flight attendants properly monitor compli-

ance with overhead rack regulations are matters that pertain to

the safe operation of a flight," and thus are not preempted. 44

F.3d at 339.

Costa also makes a claim for negligent spoliation of

evidence, based on American's destruction of passenger lists

despite its notice of the incident. Although Harris interpreted

"service" broadly enough to encompass the accoutrements of

air travel, such as provision of food and drink, we are not

persuaded that maintaining passenger lists is a "service" typically

provided to passengers. Thus, this is not a claim that relates to

"service" within the meaning of the ADA and is not preempted.

Many of Costa's claims pertain to violations of California

civil code provisions that impose a higher duty of care on

common carriers. The higher duty necessarily pertains to every

action the airline takes. These are not laws of "general applica-

bility" that happen to indirectly relate to airline service. Cf

Medtronic v. Lohr, 116 S. Ct. 2240, 2257 (1996). We believe

this statutorily imposed standard of care, like the NAAG

guidelines in Morales or the Consumer Fraud Act action in

Wolens, is an attempt by California to impose its own substan-

tive standards on airlines.° We therefore find the civil code

standard of care preempted by the ADA. Thus, even though

Costa's tort claims may proceed, they should be evaluated under

the common law standard of care. We reverse and remand No.

95-56278 for further proceedings.

w ee ee ee Ee oe eee

II. Punitive Damages and the ACAA

A. Standard of Review

A district court's ruling on a motion which has the effect

of dismissing a claim based on interpretation of a federal statute

is reviewed de novo. United States v. Bahena-Cardenas, 70

F.3d 1071, 1072 (9th Cir. 1995).

B. Punitive Damages

Enacted in 1986, ACAA is utterly silent on the range of

available remedies. The district court held that ACAA contains

an implied right to compensatory damages, a decision from

which American does not appeal. Rowley urges us to go one

* We also note the dicta in Wolens suggesting that personal

injury claims are not preempted does not address statutory tort

claims. 115 S. Ct. at 825 n.7, 827-28, 830.

step farther and find an implied right to punitive damages as

well. However, we need not reach the issue: we agree with

American that even if punitive damages were available as a

matter of law under ACAA, Rowley does not allege on these

facts the type of wanton or malicious conduct that is required to

recover punitive damages. See, e.g., Shinault v. American Air-

lines, Inc., 936 F.2d 796, 805 (Sth Cir. 1991) (quadriplegic

passenger denied right to board plane due to a time constraint);

Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 571-72

(8th Cir. 1989) (minor with cerebral palsy denied the right to fly

unaccompanied). Under former Section 404 of the Federal

Aviation Act, we confined the availability of punitive damages

to discrimination inflicted "wantonly, or oppressively, or with

such malice as implies a spirit of mischief or criminal indiffer-

ence to civil obligations." Hingson v. Pacific Southwest Airlines,

743 F.2d 1408, 1412 (9th Cir. 1984) (quoting Archibald v. Pan

American World Airways, Inc., 460 F.2d 14, 16 (9th Cir.

1972)).

Rowley claims that American failed to provide her an aisle

chair on four occasions and twice failed to return her motorized

scooter to her at the plane. As a result of American's ACAA

violations, Rowley alleges she had to walk (Rowley is ambula-

tory with concentration), by holding onto seat backs and

overhead compartments, approximately ten feet to and from her

seat. Rowley claims that no crewmember offered to help her,

although one employee did offer her a glass of water and

another told her that what she was holding onto was unstable.

While American's conduct was regrettable and in violation of

ACAA, it simply does not rise to the level of wanton or mali-

TTC OEE

cious conduct that could support punitive damages.° We

therefore affirm the decision of the district court on this issue.

Therefore, the decisions of the district courts in Gee and

Rowley are AFFIRMED, and the decisions of the district courts

in Gadbury and Costa are REVERSED.

O'SCANNLAIN, Circuit Judge, specially concurring:

I concur in the results reached in Part I but write sepa-

rately to express misgivings about the court's preemption analy-

sis under the Airline Deregulation Act ("ADA"); I concur in Part

I] without reservation.

The majority concludes that a distinction between "ser-

vices" and "operations and maintenance" is mandated by a

provision which Congress added to the ADA in 49 U.S.C. §

1371 (q)(1) (recodified as 49 U.S.C. § 41112(a)). In light of this

statutory provision and this court's decision in Harris vy.

American Airlines, Inc., 55 F.3d 1472 (9th Cir. 1995), the

majority constructs a seemingly simple rule: while the regulation

of "services" is preempted by the ADA, the regulation of

“operations and maintenance" is not. Although this rule is

consistent with the result reached by the only federal appellate

court to have yet addressed this issue, Hodges v. Delta Airlines,

Inc., 44 F.3d 334 (Sth Cir. 1995) (en banc), I regret that the

* In fact, although the jury found American had violated

ACAA, the jury did not even find Rowley to be deserving of compen-

satory damages.

rule's emphasis on a few words taken out of context needlessly

muddles our preemption jurisprudence.

I agree with the majority that the Harris decision is

contrary to the weight of authority interpreting ADA preemp-

tion; nonetheless, this court is bound by the Harris holding that

a common law negligence action constitutes a state's enactment

or enforcement of a law, and is therefore preempted if it relates

to the "price, route, or service of an air carrier." However, this

court is not bound by the Hodges distinction that actions pre-

empted because they "related to services" did not include "state

tort actions for personal physical injuries or property damage

caused by the operation and maintenance of aircraft." Hodges,

44 F.3d at 336 (emphasis added). The Fifth Circuit's distinction

between services and operations is problematic.

Because the majority's rule will no doubt yield confusing

and conflicting results in the future, I write separately to

emphasize that the only proper framework for evaluating

' See Romano v. American Trans Air, 56 Cal. Rptr. 2d 428

(2d App. Dist. 1996) ("|{F]ocus on a few words taken out of context

may lead to anomalous results, and it is our view that a more

thoughtful, less quixotic rule emerges when the analytical framework

is placed on the foundation of Congressional intent. This way, we do

not parse the language of the statute but consider the economic

motivation behind the ADA and look to whether the plaintiff's claim

is ‘related to a price, route or service.’ From this perspective, we see

that where the airlines have a legitimate interest to protect (the right

to advertise their rates, set their routes, determine whether to provide

food service on a particular flight), the states cannot interfere. But

where there is no legitimate interest needing protection --as is the

case when the issue is negligence -- there is no preemption.") (inter-

nal citations omitted).

preemption claims is Congressional intent. See, e.g., Cipollone

v. Liggett Group, Inc., 50S U.S. 504 (1992) (holding that the

purpose of Congress is the "ultimate touchstone " of the pre-

emption analysis).

The majority's distinction between airline services and

aircraft operations and maintenance is misguided for two

reasons. First, it is not supported by the Supreme Court's two

airline preemption cases: American Airlines, Inc. v. Wolens, 115

S. Ct. 817 (1995) and Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992). In Wolens, the Supreme Court concluded

that courts confronting this issue must determine whether the

particular tort claims would interfere with the purpose of the

ADA. The purpose of the statute, which includes § 1305(a)(1),

was to “promote maximum reliance on competitive market

forces,'" Wolens, 115 S. Ct. at 824 (quoting Morales, 504 U.S.

at 378), and § 1305(a)(1) itself was intended to ensure that

states did not re-impose public utility-style regulation on

airlines. Indeed, Congress enacted the ADA "[t]o ensure that the

States would not undo federal deregulation with regulation of

their own." Wolens, 115 S. Ct. at 821 (quoting Morales, 504

U.S. at 378). Section 1305(a)({1) prohibits states from “im-

pos[ing] their own public policies or theories of regulation on

the operation of air carriers." Jd. at 824 n.5 (quoting brief of

United States as amicus curiae). I do not read these two cases

to suggest that a state common law tort claim is preempted if it

is related to airline services, but it is not preempted if it is related

to aircraft operations or maintenance.

In California Div. of Labor Standards Enforcement v.

Dillingham Constr., N.A., Inc., 117 §. Ct. 832 (1997), the

Supreme Court construed the scope of the "relating to" lan-

guage in ERISA's preemption provision, to which the Supreme

Court looked for guidance in interpreting section 105 in

Morales. In finding no preemption of a state law mandating

prevailing wages for apprentice employees, Dillingham unani-

mously emphasized that the words "relating to" should not be

applied with “uncritical literalism," but with an emphasis on the

objectives of the statute and its effect on state law. /d. at 838

(internal citation omitted). Of note is a concurring opinion by

Justice Scalia (the author of Morales), who was joined by

Justice Ginsburg (the author of Wolens ). After citing statements

from earlier decisions to the effect that ERISA's "relating to"

language has an expansive sweep, Justice Scalia wrote that it

would "greatly assist our function of clarifying the law if we

simply acknowledged that our first take on this statute was

wrong." /d. at 843. In his view, "the ‘relate to' clause of the pre-

emption provision is meant, not to set forth a fest for pre-

emption, but rather to identify the field in which ordinary field

pre-emption applies -- namely, the field of laws regulating

‘employee benefit plan{s]' " described in ERISA. /d. (emphasis

in original). In light of the Supreme Court's preemption analysis

in this recent case, this court's (and the Fifth Circuit's) fest for

airline preemption is archaic.

Second, a distinction between airline services and aircraft

operations and maintenance is difficult to draw. For instance, the

majority in Hodges had no difficulty viewing Hodges' claim as

related to operations rather than services, while two dissenting

judges concluded that the opposite view was equally clear.

Because the ADA offers no definition for the term "services,"

courts are left to decide whether providing alcoholic beverages

to intoxicated persons or warning passengers of the dangers of

items falling from overhead compartments are related to an

airline's "services" or "operations." As many an amateur philoso-

pher has observed, everything is at least theoretically related to

everything else."For example, a damage claim by an airplane

passenger hit by an article falling from an overhead bin would be

preempted if the flight attendant dropped the article but not if

the bin came open because of a latch that had not been properly

maintained, or because the plane was jolted by turbulent

weather. An airplane passenger who fell in an aisle would be

prohibited from suing if the accident occurred when the passen-

ger slipped on food dropped by a flight attendant, but not if the

accident was caused by a sudden banking of the plane."

Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 284 (Tex.

Sup. Ct. 1996).I can find nothing in the history of the ADA or

in Morales and Wolens to suggest that Congress intended such

a hodgepodge of results.

Ill

Today's opinion is no more likely than the Harris decision

to bring clarity to the airline preemption field. We can avoid

anomalous results, however, if the analytical framework rests on

the regulatory effect of the state tort claim. The proper inquiry

then is whether the state common law tort remedies have the

effect of frustrating the purpose of deregulation by interfering

with the forces of competition. If the state law does not have the

requisite regulatory effect, then it is simply "too tenuous,

remote, or peripheral a matter’ to have pre-emptive effect."

Morales, 504 U.S. at 378.

Because we should have set our own house in order, I

decline to embrace the majority's distinction between airline

services and aircraft operations and maintenance.

FILED OCT 31, 1995

RICHARD W. WIEKING

CLERK, U.S. DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SHIRLEY GEE, et al., No. C 94-03983 CW

Plaintiffs, ORDER GRANTING

SOUTHWEST AIRLINE

V. CO.’S MOTION FOR

SUMMARY JUDGMENT

SOUTHWEST AIRLINES CO.,

ROGER TRAVIS, JAMES

SCALES, and CARLY TRAVIS,

and Does | through 50,

inclusive,

Defendants.

BACKGROUND

The parties have submitted a Stipulated Separate State-

ment of Undisputed Facts for the purposes of this motion for

summary judgment. The undisputed facts are as follows:

On August 22, 1994, Plaintiffs Shirley Gee and her two

minor sons, Ryan Gee and Sean Fong, Patricia Seto and her

minor children, Samantha Seto and Corey Seto, traveled from

Los Angeles to Oakland aboard Southwest Airlines Flight 824.

Defendants James Scales, Roger Travis, and Mr. Travis’ minor

daughter Carly Travis were also travelling aboard Flight 824.

James Scales and Roger and Carly Travis were travelling as part

of a larger group of approximately 20 people. Some members

of Defendants’ group had consumed alcoholic beverages prior

to boarding the aircraft.

Members of Defendant's group were seated in several

rows, either alongside or immediately in front of Plaintiffs. The

group was loud pnor to entering the aircraft, during takeoff, and

during the flight. During takeoff, Ms. Gee asked some members

of the group to refrain from making so much noise. Several

minutes after takeoff, Ms. Gee informed John Owens, a flight

attendant, that the noise was frightening the children in her party

and that two of the children were suffering from asthma attacks.

Mr. Owens informed the senior flight attendant, Cat

Sullivan, of a potential problem involving rowdy passengers.

Mr. Owens then asked Ms. Sullivan whether these passengers

should be served alcoholic beverages. Ms. Sullivan instructed

Mr. Owens to limit the group's alcoholic beverage service to one

beer per person and a partial refill of any cocktails already

served. As Mr. Owens was following these instructions, he was

stopped by Ms. Gee in the aisle. Ms. Gee requested that he not

serve the group any more alcoholic beverages because she

believed that the group was already intoxicated. Nonetheless,

Mr. Owens proceeded to serve one beer each to three members

of the group, including Roger Travis and James Scales.

Ms. Gee then approached Mr. Owens at the back of the

plane and again requested that he quiet the group. Members of

the group, including Mr. Travis, his minor daughter Carly

Travis-and Mr. Scales, were aware of Ms. Gee's complaints.

Members of the group repeatedly turned around and stared at

the Plaintiffs.

At some point during the flight, Ms. Travis took a

photograph while standing in the aisle in front of Plaintiffs' rows

of seats. Ms. Gee summoned Mr. Owens to complain about the

photograph being taken. Ms. Sullivan responded to Ms. Gee's

summon, and reprimanded one member of the group for cursing

at Ms. Gee.

Upon arriving in Oakland, the other passengers exited the

plane. The group, including Mr. Travis, Ms. Travis, and Mr.

Scales, remained in the plane. Plaintiffs, still seated behind the

group, also remained in the plane. Two Oakland police officers

were then summoned to the plane by Ms. Gee's friend and

fellow passenger, Julie Yim.

The officers boarded the plane and asked Ms. Gee to

identify the individuals who had been harassing her. Ms. Gee

identified Ms. Travis, Mr. Travis, and Mr. Scales, and told the

officers that these three members of the group had threatened

and intimidated the Plaintiffs with racial epithets. The officers

detained Mr. Scales, Mr. Travis, and Ms. Travis, identified

them, prepared a police report, and then released them.

Ms. Gee registered a complaint with the Federal Aviation

Administration. Federal regulations prohibit an airline from

boarding passengers who appear to be intoxicated. 14 C.F.R.

§ 121.575(c). The regulations also prohibit an airline from

serving any alcoholic beverage to any person aboard the aircraft

if that person appears to be intoxicated. 14 CFR.

§ 121.575(6)(1). Pursuant to Ms. Gee's complaint, the Federal

Aviation Administration conducted two separate investigations

into charges that Southwest Airlines Co. boarded and served

alcohol to intoxicated persons on Flight 824. At the conclusion

of each investigation, the Federal Aviation Administration

determined that there was insufficient evidence of noncompli-

ance by Southwest. Both investigations were closed with no

further action being taken.

Plaintiffs brought an action in state court against Roger

Travis, Carly Travis, James Scales, and Southwest. Plaintiffs’

complaint alleged federal and state law claims. Plaintiffs alleged

six causes of action against Southwest: negligence per se for

violation of federal regulations; intentional infliction of emo-

tional distress; negligent infliction of emotional distress;

respondeat superior, negligence, and negligent training and

supervision.

Southwest removed the action to federal court on the basis

of diversity of citizenship. Southwest moves for summary

judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure. Southwest asserts that there is no genuine issue as

to any material fact and that Southwest is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56.

DISCUSSION

I. Standard for Granting Summary Judgment.

Summary judgment is properly granted when no genuine

and disputed issues of material fact remain; or, when viewing the

evidence most favorably to the non-moving party, the movant

is Clearly entitled to prevail as a matter of law. Fed. R. Civ. P.

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

Eisenberg v. Insurance Co. of N. Am., 815 F.2d 1285, 1288-89

(9th Cir. 1987).

The moving party bears the burden of showing that there

is no material factual dispute. Therefore, the Court must regard

as true the opposing party's evidence, if supported by affidavits

or other evidentiary material. Celotex, 477 U.S. at 324;

Eisenberg, 815 F.2d at 1289. Here, the parties have submitted

a Stipulated Separate Statement of Undisputed Facts. The

Court will therefore regard the stipulated facts as being both

material and true in ruling upon Southwest's motion. However,

the Court must draw all reasonable inferences in favor of the

Plaintiffs. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford

Accident and Ins. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).

II. The Record Reveals No Material Factual Dispute.

Material facts which would preclude entry of summary

judgment are those which, under applicable substantive law, may

affect the outcome of the case. The substantive law identifies

which facts are material. Anderson v. Liberty Lobby, Inc., 47

U.S. 242, 248 (1986). To a large extent, the parties; Stipulated

Separate Statement of Undisputed Facts obviates the Court's

inquiry as to whether any genuine and disputed issues of

material fact remain.

Having considered the record, and oral argument on the

motion, the Court concludes that this action presents no genuine

or disputed issues as to material facts. Thus the Court's ruling

on the motion must turn upon whether Southwest is entitled to

summary judgment as a matter of law.

III. Plaintiffs' State Law Claims Against Southwest Are

Preempted By The Airline Deregulation Act.

Southwest contends that Plaintiffs' state law claims are

preempted by the Airline Deregulation Act ("ADA") in that they

relate "routes, rates, or _ services." 49 USC.

§ 1305(a)(1)(1994).? Southwest cites Harris v. American

? Section 1305(a)(1) pertains to federal preemption of state

(continued...)

Airlines, Inc., 55 F.3d 1472 (9th Cir. 1995), for the proposition

that Plaintiffs' state law claims are preempted by Section 1305.

The factual distinctions between Harris and the instant case are

nominal. In Harris, the individual defendant made no physically

threatening gestures, whereas here the Defendants’ statements

allegedly included physical threats. Harris involved an interstate

flight; here, the action arose from an intrastate flight. "The

[ADA's] preemption provision preempts states from regulating

the intrastate activities of any carrier ‘having authority under

Title IV." Hughes Air Corp. v. Public Util. Comm'n, 644 F.2d

1334, 1337 (9th Cir. 1981) (citing 49 U.S.C. § 1305(a)(1),

emphasis added). As such, Section 1305 clearly applies to

Southwest, and Plaintiffs' argument to the contrary is without

merit.

Plaintiffs urge the Court to disregard Harris on the

grounds that it was improperly decided. In arguing that the

*(...continued)

law claims against airlines and provides that:

(1) Except as provided in paragraph (2) of this subsec-

tion, no State or political subdivision thereof and no in-

terstate agency or other political agency of two or more

States shall enact or enforce any law, rule, regulation,

standard, or other provision having the force and effect

of law relating to rates, routes, or services of any air

carrier having authority under subchapter IV of this

chapter to provide air transportation.

49 U.S.C. § 1305(a)(1) (Supp. 1994).

> "Air carrier’ means any citizen of the United States, who

undertakes . . . to engage in air transportation." 49 U.S.C. § 1301(3)

(1994).

Ninth Circuit erred in Harris. Plaintiffs rely upon two compan-

ion cases from the Fifth Circuit which held that state law tort

claims arising from in-flight treatment of airline passengers were

not preempted by Section 1305(a)(1): Hodges v. Delta Air-

lines, Inc., 44 F.3d 334 (Sth Cir. 1995); Smith v. America West

Airlines, Inc., 44 F.3d 344 (5th Cir. 1995). Neither Smith nor

Hodges, however, is binding on this Court, whereas Harris

Clearly is. "District courts are, of course, bound by the law of

their own circuit, and ‘are not to resolve splits between circuits

no matter how egregiously in error they may feel their own

circuit to be." Zuniga v. United Can Co., 812 F.2d 443, 450,

(9th Cir. 1987) (quoting Hasbrouck vy. Texaco, Inc., 663 F.2d

930, 933 (9th Cir. 1981), cert. denied 459 US. 828 (1982).

Plaintiffs also contend that their claims are not sufficiently

related to "services" to warrant preemption under Section

1305(a)(1). Certain state law claims can be too tenuously

connected to "rates, routes or services" to fall within the scope

of Section 1305(a)(1). Certain state law claims can be too

tenuously connected to "rates, routes or services" to fall within

the scope of Section 1305(a)(1). West v. Northwest Airlines,

995 F.2d 148, 151 (9th Cir. 1993). However, the Ninth Circuit

considered this same argument in Harris and rejected it. 55

F.3d at 1474. As in Harris, Plaintiffs’ allegations fall within the

preemptive scope of Section 1305(a)(1 ).

In seeking summary judgment, Southwest contends that

Harris is factually and substantively indistinguishable from the

instant case. The Court finds this argument persuasive, in that

the factual distinctions between Harris and the instant case are

insignificant. More importantly, Harris directly addressed the

scope of the ADA's preemption under Section 1305(a)(1), and

is binding upon this Court.

Plaintiffs' state law claims against Southwest directly

pertain to Southwest's treatment of its passengers. As such,

Plaintiffs’ state law claims fall within the realm of "services"

contemplated by Section 1305(a)(1). The Court therefore

concludes that Plaintiffs’ state law claims relating to Southwest's

treatment of passengers are preempted by Section 1305(a)(1).

IV. The Alleged Violations Of Federal Regulations Do Not

Provide The Plaintiffs With A Private Remedy.

Plaintiffs contend that Southwest's alleged violations of

federal regulations provide them with a private cause of action.

However, a private right of action does not exist unless Con-

gress has demonstrated an unequivocal intent to devise such a

right. See Cort v. Ash, 422 U.S. 66, 78 (1975).

The Ninth Circuit has addressed the question of whether

Section 1305 creates a private right of action and has unequivo-

cally answered in the negative. Air Transp. Ass'n of Am. v.

Public Util. Comm'n of the State of Cal., 833 F.2d 200, 207

(9th Cir. 1987); see also Montauk-Caribbean Airways, Inc. v.

Hope, 784 F.2d 91, 97 (2d Cir.), cert. denied, 479 U.S. 872

(1986). Thus Plaintiffs may not state a private cause of action

under Section 1305.

Plaintiffs also attempt to state a private cause of action for

Southwest's alleged violations of the Federal Aviation Act and

its corresponding regulations. However, the Ninth Circuit has

found that the Federal Aviation Act does not provide plaintiffs

with an implied private cause of action. /n Re Mexico City

Aircrash of October 31, 1979, 708 F.2d 400, 407-08 (9th Cir.

1983). In Hingson v. Pacific Southwest Airlines, 743 F.2d

1408, 1413-14 (9th Cir. 1984), the Ninth Circuit did find a

private right of action with respect to discrimination in boarding

practices, pursuant to 49 USC § 1374(b).* However, the

Ninth Circuit found no implied private cause of action with

Plaintiffs contend that the preemptive scope of Section

1305(a)(1) was narrowed in American Airlines, Inc. y. Wolens,

_ U.S. __, 115 S.Ct. 817 (1995). Wolens created a narrow

exception to Section 1305(a)(1) for state law claims arising out

of contractual agreements between an airline and a passenger.°

115 S.Ct. at 823.

In Harris, the Ninth Circuit considered, and rejected, the

plaintiffs argument that her claims fell within the Wolens

exception. 55 F.3d at 1475° "The Court in Wolens only

excluded private contract terms from the wide scope of preemp-

tion, and Harris’ claims do not come within this exclusion. Her

Claims are preempted by [S]ection 130S(a)(1)." Id As such,

Plaintiffs claims cannot be deemed to fall within Wolens' narrow

* Section 1374 was repealed on July 5. 1994. Pub.L. 103-

272, § 7(b).

* "A remedy confined to a contract's terms simply holds

Parties to their agreements -- in this instance, to business Judgments

an airline made public about its rates and services." Wolens, 115

S.Ct. at 823.

° "The [Wolens} Court specifically distinguished between

enforcing a state law and enforcing agreements between individuals

and airlines... ." Jd (citing Wolens, 115 S. Ct at 823).

exception to Section 1305(a)(1).

Plaintiffs’ final argument is that they will be left without a

remedy against Southwest if the Court adheres to the Supreme

Court's interpretation of Section 1305(a)(1) in Morales v. Trans

World Airlines, Inc., 504 U.S. 374 (1992). Plaintiffs necessarily

concede that in Morales, the Supreme Court found a "broad

preemptive purpose" in Section 1305(a)(1). 504 U.S. at 383.

Nonetheless, Plaintiffs urge the Court to recognize a private

right of action. Plaintiffs’ arguments are unpersuasive. The

reality that a litigant may be left without a remedy or a federal

cause of action must not factor into an analysis of the scope of

preemption. Caterpillar, Inc. v. Williams, 482 U.S. 386, 394

(1987).

V. The Remaining Claims Are Remanded To State Court.

Plaintiffs’ original complaint named Southwest and a

number of Doe defendants, and contained both federal and state

law claims. Southwest removed the action to federal court

based upon diversity jurisdiction under 28 U.S.C. 1332.

Following Southwest's removal to federal court, Plaintiffs were

granted leave to amend their complaint to name Defendants

James Scales, Carly Travis, and Roger Travis, all of whom are

California residents. Jurisdiction remained in this Court due to

the federal questions in the case.

Summary judgment having been granted with respect to all

of the federal law claims against Southwest, there is no longer

diversity or a federal question and remand is appropriate under”

28 U.S.C. § 1447(c). See also Yniques v. Cabral, 985 F.2d

1031, 1036 (9th Cir. 1993) (holding that under 28 U.S.C.

§1447(e) only remand, not dismissal, is proper after a district

court has allowed the joinder of a non-diverse party). Thus,

remand of the Plaintiffs’ remaining state law claims against Carly

Travis, Roger Travis, and James Scales is appropriate.

CONCLUSION

The Court finds that this case presents no material factual

dispute. Likewise, even assuming all of Plaintiffs’ factual

allegations to be true, and examining the evidence in the light

most favorable to Plaintiffs, Plaintiffs’ state law claims against

Southwest are preempted. Finally, a private cause of action

does not lie against Southwest for its alleged violatioas of

federal statutes and regulations.

Having reviewed the papers submitted in support of and

in Opposition to the motion for summary judgment, and having

heard counsel's comments on the motion, and good cause

appearing, Southwest's motion for summary judgment is hereby

GRANTED with respect to all claims against Southwest.

Judgment for Southwest shall enter in accordance with this

order; Southwest shall recover its costs of Plaintiffs. Plaintiffs'

remaining state law claims against Defendants Roger Travis,

Carly Travis, and James Scales are hereby REMANDED to the

Superior Court of California, Alameda County.

IT IS SO ORDERED.

Dated: Oct. 31, 1995 /s/ Claudia Wilken

CLAUDIA WILKEN

United States District Judge

FILED OCT 31, 1995

RICHARD W. WIEKING

CLERK, U.S. DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SHIRLEY GEE, et al., No. C-94-3983 CW

Plaintiffs, JUDGMENT

SOUTHWEST AIRLINES, CO.,

ROGER TRAVIS, JAMES

SCALES, and CARLY TRAVIS,

and Does | through 50 inclusive

Defendants.

This action came on for hearing before the Court, the

Honorable Claudia Wilken, United States District Judge,

presiding, and the issues having been duly heard and the Court

having duly rendered its decision,

IT IS HEREBY ORDERED AND ADJUDGED:

That Plaintiffs take nothing, that the action be dismissed

on the merits against Defendant Southwest Airlines, and that

Defendant Southwest Airlines recover of Plaintiff its costs of

action.

Dated: Oct. 31. 1995 /s/ Claudia Wilken

CLAUDIA WILKEN

United States District Judge

Entered in Civil Docket Oct 31, 1995

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.