Air Transport Asn of America v. Cuomo, No. 07-5771 (2d Cir. 2008)

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07-5771-cv Air Transport Ass n of America v. Cuomo UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 1 2 3 August Term 2007 4 5 6 7 (Argued: March 5, 2008 Decided: March 25, 2008) 8 Docket No. 07-5771-cv 9 10 _____________________________________ 11 12 AIR TRANSPORT ASSOCIATION OF AMERICA, INC., Plaintiff-Appellant, 13 14 15 -v.- 16 17 ANDREW CUOMO, in his official capacity as Attorney General of the State of New York, MINDY A. BOCKSTEIN, in her official capacity as Chairperson and Executive Director of the New York State Consumer Protection Board, Defendants-Appellees. _____________________________________ 18 19 20 21 22 23 24 25 Before: 26 WESLEY, LIVINGSTON, Circuit Judges, and COGAN, District Judge.* 27 28 The Air Transport Association of America appeals from a final judgment 29 of the United States District Court for the Northern District of New York (Kahn, 30 J.) granting summary judgment to defendants and dismissing plaintiff s com- 31 plaint seeking declaratory and injunctive relief against New York State s 32 Passenger Bill of Rights, codified at section 553(2)(b)-(d) of the New York * The Honorable Brian M. Cogan, District Judge, United States District Court for the Eastern District of New York, sitting by designation. 1 Executive Law and sections 251-f to 251-j of the New York General Business 2 Law. We reverse and hold that the substantive provisions of the law, N.Y. Gen. 3 Bus. Law § 251-g(1), are preempted by the Airline Deregulation Act of 1978. 4 Reversed and remanded. SETH P. WAXMAN, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC (Bruce H. Rabinowitz, Jonathan E. Nuechterlein, Heather Zachary, Daniel S. Volchok, Chad Golder, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Robert S. Span, John J. Gallagher, Neal D. Mollen, Paul, Hastings, Janofsky & Walker LLP, Washington, DC, on the brief), for Plaintiff-Appellant. 5 6 7 8 9 10 11 12 13 14 BARBARA D. UNDERWOOD, Solicitor General (Andrea Oser, Deputy Solicitor General, Andrew B. Ayers, Assistant Solicitor General, of counsel, Andrew M. Cuomo, Attorney General of the State of New York, on the brief), for Defendants-Appellees. 15 16 17 18 19 20 21 Paul S. Hudson, Sarasota, FL (Burton Jay Rubin, Alexandria, VA, on the brief), for Amici Curiae Aviation Consumer Action Project and Coalition for an Airline Passengers Bill of Rights in Support of Defendants-Appellees. 22 23 24 25 26 27 28 29 PER CURIAM: 30 Appellant Air Transport Association of America ( Air Transport ), the 31 principal trade and service organization of the United States airline industry, 32 appeals from an order of the United States District Court for the Northern 2 1 District of New York (Kahn, J.) granting summary judgment to Appellees and 2 dismissing its complaint seeking declaratory and injunctive relief against 3 enforcement of the New York State Passenger Bill of Rights (the PBR ), 2007 4 N.Y. Sess. Laws, ch. 472 (codified at N.Y. Exec. Law § 553(2)(b)-(d); N.Y. Gen. 5 Bus. Law §§ 251-f to 251-j). Air Transp. Ass n of Am. v. Cuomo, 528 F. Supp. 2d 6 62 (N.D.N.Y. 2007). We hold that the PBR is preempted by the express preemp- 7 tion provision of the Airline Deregulation Act of 1978 (the ADA ) and therefore 8 reverse. 9 10 BACKGROUND 11 Following a series of well-publicized incidents during the winter of 2006- 12 2007 in which airline passengers endured lengthy delays grounded on New York 13 runways, some without being provided water or food, the New York legislature 14 enacted the PBR. The substantive provisions of the PBR state as follows: 15 16 17 18 19 20 21 22 23 24 1. Whenever airline passengers have boarded an aircraft and are delayed more than three hours on the aircraft prior to takeoff, the carrier shall ensure that passengers are provided as needed with: (a) electric generation service to provide temporary power for fresh air and lights; (b) waste removal service in order to service the holding tanks for on-board restrooms; and (c) adequate food and drinking water and other refreshments. 3 1 2 N.Y. Gen. Bus. Law § 251-g(1). The law also requires all carriers to display 3 consumer complaint contact information and an explanation of these rights. Id. 4 § 251-g(2). Section 251-g took effect on January 1, 2008. 2007 N.Y. Sess. Laws, 5 ch. 472, § 5. 6 Air Transport filed suit in the United States District Court for the 7 Northern District of New York seeking declaratory and injunctive relief on the 8 grounds that the PBR is preempted by the ADA and violates the Commerce 9 Clause of the U.S. Constitution. Appellant Air Transport moved for summary 10 judgment, and the district court granted summary judgment sua sponte to the 11 appellees, holding that the PBR was not expressly preempted by the ADA 12 because it is not related to a price, route, or service of an air carrier, Air 13 Transp., 528 F. Supp. 2d at 66-67 (quoting 49 U.S.C. § 41713(b)(1)) (internal 14 quotation mark omitted), and was not impliedly preempted because Congress did 15 not intend for the ADA to occupy the field of airplane safety, id. at 67-68. We 16 granted Air Transport s motion for an expedited appeal. 17 18 DISCUSSION 19 We review the district court s grant of summary judgment de novo. SEC 20 v. Kern, 425 F.3d 143, 147 (2d Cir. 2005); see also Drake v. Lab. Corp. of Am. 21 Holdings, 458 F.3d 48, 56 (2d Cir. 2006) ( [A] determination regarding preemp4 1 tion is a conclusion of law, and we therefore review it de novo. ). 2 The Supremacy Clause, U.S. Const. art VI, cl. 2, invalidates state laws 3 that interfere with, or are contrary to, federal law. Hillsborough County v. 4 Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985) (quoting Gibbons v. Ogden, 5 22 U.S. (9 Wheat.) 1, 211 (1824)). Preemption can be either express or implied. 6 Express preemption arises when a federal statute expressly directs that state 7 law be ousted. Ass n of Int l Auto. Mfrs. v. Abrams, 84 F.3d 602, 607 (2d Cir. 8 1996). Implied preemption arises when, in the absence of explicit statutory 9 language, . . . Congress intended the Federal Government to occupy [a field] 10 exclusively, or when state law actually conflicts with federal law. English v. 11 Gen. Elec. Co., 496 U.S. 72, 79 (1990). More specifically, preemption is implied 12 when the pervasiveness of the federal regulation precludes supplementation by 13 the States, where the federal interest in the field is sufficiently dominant, or 14 where the object sought to be obtained by the federal law and the character of 15 obligations imposed by it . . . reveal the same purpose. Schneidewind v. ANR 16 Pipeline Co., 485 U.S. 293, 300 (1988) (omission in original) (quoting Rice v. 17 Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Congress has enacted two 18 statutes that potentially bear on the subject matter of the PBR: (1) the ADA, 19 Pub. L. No. 95-504, 92 Stat. 1705 (1978); and (2) the Federal Aviation Act of 1958 20 (the FAA ), Pub. L. No. 85-726, 72 Stat. 731. We begin with the former. 5 1 I. 2 3 Since the existence of preemption turns on Congress s intent, we are to 4 begin as we do in any exercise of statutory construction[,] with the text of the 5 provision in question, and move on, as need be, to the structure and purpose of 6 the Act in which it occurs. McNally v. Port Auth. of N.Y. & N.J. (In re WTC 7 Disaster Site), 414 F.3d 352, 371 (2d Cir. 2005) (alteration in original) (quoting 8 N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 9 514 U.S. 645, 655 (1995)). The ADA s express preemption provision states as 10 follows: 16 Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart. 17 49 U.S.C. § 41713(b)(1). The exceptions to which this provision refers are not 18 applicable in this case. Thus, the PBR is preempted if it is related to a price, 19 route, or service of an air carrier. We conclude that it is. 11 12 13 14 15 20 21 A. 22 Air Transport s complaint asserts a claim under the Supremacy Clause 23 and a claim that the PBR violates § 41713(b)(1). Importantly, § 41713(b)(1) does 6 1 not provide an express private right of action, and we have held with regard to 2 its predecessor statute, which is substantively identical, that no private right of 3 action can be implied. W. Air Lines, Inc. v. Port Auth. of N.Y. & N.J., 817 F.2d 4 222, 225 (2d Cir. 1987); Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 5 97 (2d Cir. 1986). Air Transport therefore cannot sue for a violation of the 6 statute. 7 Nevertheless, Air Transport is entitled to pursue its preemption challenge 8 through its Supremacy Clause claim. The distinction between a statutory claim 9 and a Supremacy Clause claim, although seemingly without a difference in this 10 particular context, is important and is not a trifling formalism: 23 A claim under the Supremacy Clause that a federal law preempts a state regulation is distinct from a claim for enforcement of that federal law. . . . A claim under the Supremacy Clause simply asserts that a federal statute has taken away local authority to regulate a certain activity. In contrast, an implied private right of action is a means of enforcing the substantive provisions of a federal law. It provides remedies, frequently including damages, for violations of federal law by a government entity or by a private party. The mere coincidence that the federal law in question in this case contains its own preemption language does not affect this distinction. 24 W. Air Lines, 817 F.2d at 225-26. Moreover, contrary to amici s suggestion, Air 25 Transport s preenforcement challenge presents no problem of unripeness or 26 other barriers to justiciability. See Morales v. Trans World Airlines, Inc., 504 11 12 13 14 15 16 17 18 19 20 21 22 7 1 U.S. 374, 380-81 (1992) (citing Ex parte Young, 209 U.S. 123, 145-47, 163-65 2 (1908)). 3 4 B. 5 Congress enacted the ADA in 1978, loosening its economic regulation of 6 the airline industry after determining that maximum reliance on competitive 7 market forces would best further efficiency, innovation, and low prices as well 8 as variety [and] quality . . . of air transportation. Id. at 378 (alteration and 9 omission in original) (quoting 49 U.S.C. app. § 1302(a)(4), (9) (1988)). To ensure 10 that the States would not undo [this] deregulation with regulation of their own, 11 Congress included an express preemption provision. Id.; see also id. at 389-91 12 (holding that the ADA expressly preempted the application of state deceptive 13 business practice laws to airline fare advertisements because such regulation 14 related to air carrier prices). Recognizing this goal, the Supreme Court has 15 repeatedly emphasized the breadth of the ADA s preemption provision. See Am. 16 Airlines, Inc. v. Wolens, 513 U.S. 219, 225-26 (1995); id. at 235 (Stevens, J., 17 concurring in part and dissenting in part); Morales, 504 U.S. at 383-84; see also 18 Rowe v. N.H. Motor Transp. Ass n, 552 U.S. ---, 128 S. Ct. 989, 998 (2008) 19 (Ginsburg, J., concurring) (noting the breadth of [the] preemption language in 20 the Federal Aviation Administration Authorization Act of 1994, whose 8 1 preemption provision, 49 U.S.C. § 14501(c)(1), is in pari materia with that of the 2 ADA). 3 Although this Court has not yet defined service as it is used in the ADA, 4 we have little difficulty concluding that requiring airlines to provide food, water, 5 electricity, and restrooms to passengers during lengthy ground delays relates to 6 the service of an air carrier. This conclusion draws considerable support from 7 the Supreme Court s recent unanimous opinion in Rowe construing 49 U.S.C. 8 § 14501(c)(1) s identically worded preemption provision. In Rowe, the Court 9 addressed a Maine law imposing, among other obligations, a requirement that 10 retailers shipping tobacco products to customers within the State use a delivery 11 service that provides certain forms of recipient verification a law enacted, 12 according to the State, to further its interest in preventing minors from 13 obtaining cigarettes. The Rowe Court reiterated its conclusions from Morales in 14 construing the ADA: 24 (1) that [s]tate enforcement actions having a connection with, or reference to carrier rates, routes, or services are pre-empted ; (2) that such pre-emption may occur even if a state law s effect on rates, routes or services is only indirect ; (3) that, in respect to pre-emption, it makes no difference whether a state law is consistent or inconsistent with federal regulation; and (4) that pre-emption occurs at least where state laws have a significant impact related to Congress deregulatory and pre-emption-related objectives. 25 128 S. Ct. at 995 (alteration in original) (emphasis omitted) (citations omitted) 15 16 17 18 19 20 21 22 23 9 1 (quoting Morales, 504 U.S. at 384, 386-87, 390). The Court emphasized that 2 Congress s overarching goal with regard to the ADA was helping to assure that 3 transportation rates, routes, and services reflect[ed] maximum reliance on 4 competitive market forces, thereby stimulating not only efficiency, innovation, 5 and low prices, but also variety and quality in transportation services. Id. 6 (quoting Morales, 504 U.S. at 378). 7 A majority of the circuits to have construed service have held that the 8 term refers to the provision or anticipated provision of labor from the airline to 9 its passengers and encompasses matters such as boarding procedures, baggage 10 handling, and food and drink matters incidental to and distinct from the 11 actual transportation of passengers. See Travel All Over the World, Inc. v. 12 Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996); Hodges v. Delta 13 Airlines, Inc., 44 F.3d 334, 336-38 (5th Cir. 1995) (en banc); see also Branche v. 14 Airtran Airways, Inc., 342 F.3d 1248, 1257 (11th Cir. 2003) (referring to the 15 Hodges definition as the more compelling of the alternative definitions that 16 have been adopted); Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998) 17 (citing Travel All Over the World and Hodges in holding that tort claims based 18 in part upon [an airline s] refusal of permission to board are preempted because 19 boarding procedures are a service rendered by an airline ); Chukwu v. Bd. of 20 Dirs. British Airways, 889 F. Supp. 12, 13 (D. Mass. 1995) (adopting the Hodges 10 1 definition), aff d mem. sub nom. Azubuko v. Bd. of Dirs. British Airways, 101 2 F.3d 106 (1st Cir. 1996). 3 construed service to refer more narrowly to the prices, schedules, origins and 4 destinations of the point-to-point transportation of passengers, cargo, or mail, 5 but not to include an airline s provision of in-flight beverages, personal 6 assistance to passengers, the handling of luggage, and similar amenities. 7 Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir. 1998) (en 8 banc); accord Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 193-94 9 (3d Cir. 1998). The Third and Ninth Circuits, in contrast, have 10 Charas s approach, we believe, is inconsistent with the Supreme Court s 11 recent decision in Rowe. There, the Court necessarily defined service to extend 12 beyond prices, schedules, origins, and destinations. Indeed, in determining that 13 the ADA s preemption provision reached, among other things, the imposition of 14 recipient verification requirements on tobacco shipments, the Court stated 15 expressly that federal law must . . . pre-empt Maine s efforts directly to regulate 16 carrier services. Rowe, 128 S. Ct. at 998 (emphasis added). It noted further 17 that to interpret the federal preemption provision not to reach such regulation 18 could easily lead to a patchwork of state service-determining laws, rules, and 19 regulations, which would be inconsistent with Congress major legislative effort 20 to leave such decisions, where federally unregulated, to the competitive 11 1 marketplace. Id. at 996. 2 We hold that requiring airlines to provide food, water, electricity, and 3 restrooms to passengers during lengthy ground delays does relate to the service 4 of an air carrier and therefore falls within the express terms of the ADA s 5 preemption provision. 6 codified at section 251-g(1) of the New York General Business Law, are 7 preempted. As a result, the substantive provisions of the PBR, 8 The unanimous Rowe opinion held that Maine s law resulted in Maine s 9 direct substitution of its own governmental commands for competitive market 10 forces in determining the services that motor carriers will provide to their 11 customers. Id. at 995 (quoting Morales, 504 U.S. at 378). In this respect, the 12 PBR is indistinguishable. It substitutes New York s commands for competitive 13 market forces, requiring airlines to provide the services that New York specifies 14 during lengthy ground delays and threatening the same patchwork of state 15 service-determining laws, rules, and regulations that concerned the Court in 16 Rowe.1 Id. at 996. 1 At least nine other states have proposed legislation regarding lengthy ground delays. See H.R. 2149, 48th Leg., 2d Reg. Sess. (Ariz. 2008); Assem. 1943, 2007-2008 Reg. Sess. (Cal. 2008); S. 2062, 110th Reg. Sess. (Fla. 2008); S. 161, 115th Gen. Assem., 2d Reg. Sess. (Ind. 2008); H.R. 5475, 94th Legis., 2007 Reg. Sess. (Mich. 2007); Assem. 967, 213th Leg., 1st Ann. Sess. (N.J. 2008); H.R. 2055, 190th Gen. Assem., 2007 Sess. (Pa. 2007); S. 2088, 2008 Legis. Sess. (R.I. 2008); S. 6269, 60th Legis., 2008 Reg. Sess. (Wash. 2008). These proposed laws would impose obligations ranging from a requirement that the airline accommodate passengers on the next available route, see Mich. H.R. 5475 § 5(2), to a requirement that 12 1 Additionally, we note that Rowe declined to read into § 14501(c)(1) s 2 preemption provision an exception that preserves state laws protecting the 3 public health. Id. at 996-97. Rowe accordingly forecloses New York s argument 4 and the district court s conclusion, see Air Transp., 528 F. Supp. 2d at 67, that 5 classifying the PBR as a health and safety regulation or a matter of basic human 6 necessities somehow shields it from the preemptive force of § 41713(b)(1). 7 Onboard amenities, regardless of whether they are luxuries or necessities, still 8 relate to airline service and fall within the express terms of the preemption 9 provision a conclusion, we note, that even the drafters of the PBR appear to 10 have been unable to escape. See N.Y. Gen. Bus. Law § 251-g(1)(a) (referring to 11 electric generation service ); id. § 251-g(1)(b) (referring to waste removal 12 service ). 13 14 15 II. Insofar as the PBR is intended to prescribe standards of airline safety, we passengers be permitted to disembark, see Pa. H.R. 2055 § 3(b). It is irrelevant that these bills all seek to impose the same principal service obligations as the PBR requiring airlines to provide food, water, electric generation, and waste removal after a three-hour ground delay for state laws related to airline service are preempted regardless of whether they are consistent with each other and regardless of whether they are consistent with the ADA s objective. Rowe, 128 S. Ct. at 995; Morales, 504 U.S. at 386-87. We note that the Department of Transportation has proposed and sought comment on several similar passenger protection measures that could provide uniform standards to deal with lengthy ground delays. See Enhancing Airline Passenger Protections, 72 Fed. Reg. 65,233 (Nov. 20, 2007) (to be codified at 14 C.F.R. pts. 234, 253, 259, 399). 13 1 note, finally, that it may also be impliedly preempted by the FAA and regula- 2 tions promulgated thereunder. The FAA was enacted to create a uniform and 3 exclusive system of federal regulation in the field of air safety. City of Burbank 4 v. Lockheed Air Terminal, Inc., 411 U.S. 624, 639 (1973). Shortly after it became 5 law, we noted that the FAA was passed by Congress for the purpose of 6 centralizing in a single authority indeed, in one administrator the power 7 to frame rules for the safe and efficient use of the nation s airspace. Air Line 8 Pilots Ass n, Int l v. Quesada, 276 F.2d 892, 894 (2d Cir. 1960); see also British 9 Airways Bd. v. Port Auth. of N.Y. & N.J., 558 F.2d 75, 83 (2d Cir. 1977) ( [The 10 FAA] requires that exclusive control of airspace management be concentrated 11 at the national level. ). Congress and the Federal Aviation Administration have 12 used this authority to enact rules addressing virtually all areas of air safety. 13 These regulations range from a general standard of care for operating 14 requirements, see 14 C.F.R. § 91.13(a) ( No person may operate an aircraft in a 15 careless or reckless manner so as to endanger the life or property of another. ), 16 to the details of the contents of mandatory onboard first-aid kits, id. pt. 121, app. 17 A, to the maximum concentration of carbon monoxide permitted in suitably 18 vented compartments, id. § 125.117. This power extends to grounded planes 19 and airport runways. See id. § 91.123 (requiring pilots to comply with all orders 20 and instructions of air traffic control); id. § 139.329 (requiring airlines to restrict 14 1 movement of pedestrians and ground vehicles on runways). 2 The intent to centralize air safety authority and the comprehensiveness 3 of these regulations pursuant to that authority have led several other circuits 4 (and several courts within this Circuit) to conclude that Congress intended to 5 occupy the entire field and thereby preempt state regulation of air safety. See, 6 e.g., Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir. 2007) ( [T]he FAA 7 preempts the entire field of aviation safety through implied field preemption. 8 The FAA and regulations promulgated pursuant to it establish complete and 9 thorough safety standards for air travel, which are not subject to supplemen- 10 tation by . . . state laws. ); Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 11 784, 795 (6th Cir. 2005), cert. denied, 547 U.S. 1003 (2006); Abdullah v. Am. 12 Airlines, Inc., 181 F.3d 363, 367-68 (3d Cir. 1999); French v. Pan Am Express, 13 Inc., 869 F.2d 1, 5 (1st Cir. 1989); Curtin v. Port Auth. of N.Y. & N.J., 183 F. 14 Supp. 2d 664, 671 (S.D.N.Y. 2002). Although we have not addressed this precise 15 issue, we have acknowledged that the FAA does not preempt all state law tort 16 actions. See In re Air Crash Disaster at John F. Kennedy Int l Airport on June 17 24, 1975, 635 F.2d 67, 75 (2d Cir. 1980). However, the FAA has a savings clause 18 that specifically preserves these actions. See 49 U.S.C. § 40120(c). 19 If New York s view regarding the scope of its regulatory authority carried 20 the day, another state could be free to enact a law prohibiting the service of soda 15 1 on flights departing from its airports, while another could require allergen-free 2 food options on its outbound flights, unraveling the centralized federal 3 framework for air travel. On this point, the decisions of the Fifth and Ninth 4 Circuits finding preemption of state common law claims for failure to warn of the 5 risk of deep vein thrombosis are instructive. See Montalvo, 508 F.3d at 473 ( [A] 6 state [is not] free to require any announcement it wishe[s] on all planes arriving 7 in, or departing from, its soil . . . . ); Witty v. Delta Air Lines, Inc., 366 F.3d 380, 8 383-84 (5th Cir. 2004). 9 In light of our determination that the PBR is preempted by the ADA, 10 however, we need not address the scope of any FAA preemption, and we decline 11 to do so here. Although the goals of the PBR are laudable and the circumstances 12 motivating its enactment deplorable, only the federal government has the 13 authority to enact such a law. We conclude, then, by reiterating our holding that 14 the PBR s substantive provisions, codified at section 251-g(1) of the New York 15 General Business Law, are preempted by 49 U.S.C. § 41713(b)(1). 16 17 CONCLUSION 18 For the foregoing reasons, the judgment of the district court is RE- 19 VERSED, and the case is REMANDED to the district court so that it may enter 20 summary judgment in favor of Air Transport. 21 16

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