This article addresses recent US cases considering the preemptive effect of the Air Carrier Access Act, the Airline Deregulation Act and the Montreal Convention. These cases demonstrate that preemption cannot be defined in broad strokes, but rather must be considered on a case-by-case basis.
Preemption under the Airline Deregulation Act
In Gleason v United Airlines, Inc., 2015 WL 2448682 (E. D. Cal. May 20, 2015), the plaintiff Alisa Gleason brought a personal injury action against United Airlines arising from a “severe peanut allergy attack” she allegedly suffered while on a United flight bound for Chicago. The action alleged seven common law causes of action under Illinois state law.
Prior to boarding the Chicago-bound United flight in Orlando, the plaintiff notified several United employees that she had a “severe, grave allergy to [ ] peanut[s] and peanut-related products…” The plaintiff alleged that at least one United employee informed her that the flight attendants would make an announcement asking passengers to refrain from consuming peanuts and peanutrelated products during the flight. However, when the plaintiff notified the crew members on board of her alleged allergy, they informed her that they would not make the announcement.
About an hour into the flight, the plaintiff “began to experience initial physical symptoms of a severe peanut allergy attack.” She subsequently observed a passenger seated four rows behind her eating peanuts. After selfmedicating did not relieve her symptoms, it became clear that she was in serious distress. In fact, the flight attendants and medical personnel who assisted her informed the pilot that the plaintiff would not survive if the aircraft did not divert. Following an unscheduled emergency landing in St. Louis, Missouri, the plaintiff was transported by ambulance to a local hospital where she received emergency medical care and was placed in an intensive care unit for two days.
The plaintiff alleged that she suffered permanent physical and emotional injury, and asserted the following causes of action in her First Amended Complaint: negligence, negligent infliction of emotional distress, promissory estoppel, fraudulent misrepresentation, breach of contract, tortious breach of contract, and breach of the implied convent of good faith and fair dealing.
United moved for summary judgment, arguing that federal law, specifically the Airline Deregulation Act, 49 U.S.C. § 41713(b) (“ADA”), expressly preempted the plaintiff’s state law claims. The ADA includes an express preemption provision prohibiting states from “enact[ing] or enforc[ing] a law ... related to a price, route, or service of an air carrier ....” The Court concluded that each of the plaintiff’s claims related to the service of an air carrier.
First, there was no dispute that United was an air carrier for purposes of the ADA. Second, each of the plaintiff’s claims were based on United’s alleged refusal to make an announcement asking that passengers refrain from consuming peanuts and peanut-based products during the flight. Therefore, the Court found that the claims related to a service provided (or more appropriately, not provided) by United. As the plaintiff’s claims related to the service of an air carrier, they were pre-empted by the ADA.
Preemption under the Air Carrier Access Act
The case of Baugh v Delta Air Lines, Inc., 2015 WL 761932 (N.D. Ga. Feb. 23, 2015) addressed the possible preemption of the plaintiff’s state-law claims by the Air Carrier Access Act of 1986 (“ACAA”). The ACAA is a federal law that prohibits air carriers from discriminating against individuals with disabilities. The action, originally filed in Georgia state court, was removed by defendant Delta Air Lines, Inc. to federal court. The plaintiff sought remand to state court and Delta moved to dismiss the complaint for failure to state a claim.
The plaintiff alleged that after her flight was called for boarding, she told a Delta gate employee that she was blind and needed assistance boarding the aircraft, but was told to proceed with boarding without assistance. After the plaintiff boarded the aircraft without assistance as per the instructions of the Delta ground staff, she claimed that she tripped and fell while attempting to walk down the sloping ramp, suffered serious injuries and incurred medical expenses as a result.
The Court analyzed whether the plaintiff’s claims were preempted in whole, or in part, by the ACAA. As a matter of background, the ACAA amended the Federal Aviation Act. See 49 U.S.C. § 40101 et seq. In 2003, the ACAA implementing regulations, entitled the “Nondiscrimination on the Basis of Disability in Air Travel,” were enacted. The ACAA Regulations “prohibit[ ] both U.S. and foreign carriers from discriminating against passengers on the basis of disability; require[ ] carriers to make aircraft, other facilities, and services accessible; and require[ ] carriers to take steps to accommodate passengers with a disability.” 14 C.F.R. § 82.1.
Delta argued that, because the plaintiff was physically disabled and her claim arose while attempting to board an aircraft, her rights and remedies exclusively were those allowed by the ACAA. Delta further argued that, because the ACAA preempts the plaintiff’s state-law claim and does not provide a private cause of action, the plaintiff’s claim should be dismissed. The plaintiff countered in her motion for remand that she was not asserting a discrimination claim pursuant to the ACAA, but rather only a state-law tort claim for damages based upon Delta’s negligence. Specifically, the plaintiff alleged that Delta was negligent in failing to:
- keep its premises and approaches safe for invitees, in violation of Massachusetts law
- ensure that the premises and boarding procedures were in a safe and proper condition for blind passengers
- properly and adequately assist Plaintiff in boarding Defendant’s aircraft, after Defendant knew, or should have known, of her condition
- follow its own policies and procedures in assisting disabled, or blind invitees into Defendant’s aircraft
- properly assist Plaintiff when Defendant knew this created a hazardous condition, in violation of Massachusetts law
- exercise extraordinary care required to protect Plaintiff, a known blind passenger, while she was attempting to negotiate the boarding ramp and board Defendant’s aircraft, in violation of Massachusetts law
The ACAA Regulations provide that an air carrier:
Must promptly provide or ensure the provision of assistance requested by or on behalf of passengers with a disability, or offered by carrier or airport operator personnel and accepted by passengers with a disability, in enplaning and deplaning.
See 14 C.F.R. § 382.95.
Thus, the Court noted that four of the plaintiff’s claims appeared to be related to Delta’s alleged failure to assist the plaintiff in boarding the defendant’s aircraft.
The Court then considered whether the ACAA completely preempted the plaintiff’s state-law negligence claims, an issue of first impression for the Northern District as well as the Eleventh Circuit.
Under the Supremacy Clause of the United States Constitution, when a state law conflicts, or is incompatible with federal law, federal law preempts the state law. See, e.g., Teper v Miller, 82 F.3d 989, 993 (11th Cir.1996); see also U.S. Const. art. VI, § 2. Preemption generally arises under three circumstances: (1) express preemption – where Congress has expressly preempted state law by statute; (2) field or complete preemption –where, through Congressional legislation, federal law occupies an entire field of regulation and leaves no room for state law; or (3) conflict preemption – where federal law so conflicts with state law that it is impossible to comply with both.
In this case, because the ACAA does not expressly preempt state law and there is no conflict between state law and the ACAA, the only possible area of preemption was field preemption.
Factors considered by a court in determining whether federal law has completely preempted state law in an area include: (1) whether the state claim is displaced by federal law under an ordinary preemption analysis; (2) whether the federal statute provides a cause of action; (3) what kind of jurisdictional language exists in the federal statute; and (4) what kind of language is present in the legislative history to evince Congress’s intentions. Id. at *5, citing, Smith v GTE Corp., 236 F.3d 1292, 1312 (11th Cir. 2001) (internal citations omitted).
The Court found that the main cases cited by Delta (Love v Delta Air Lines, 310 F.3d 1347, 1350 (11th Cir. 2002); Gill v JetBlue Airways Corp., 836 F. Supp. 2d 33, 45-46 (D. Mass.2011)), do not stand for the proposition that the ACAA preempts state-law negligence claims. Instead, the Court held that, at best, the cases hold that the ACAA does not provide a private cause of action and does not preempt state-law claims but may preempt the standard of care applied in state-law based claims.
The US Supreme Court and the Eleventh Circuit have found complete preemption in the context of only three statutes: (1) the Labor Management Relations Act; (2) the Employee Retirement Income Security Act of 1974; and (3) the National Bank Act. See Dunlap v G & L Holding Grp., Inc., 381 F.3d 1285, 1290 (11th Cir.2004) (citing Beneficial Nat’l Bank v Anderson, 539 U.S. 1, 7–11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Significantly, each of these statutes set forth the causes of action and remedies available.
In Bough, the court found significant to its complete preemption analysis the fact that the ACAA does not provide a private cause of action. The Court further noted that the FAA does not specifically exclude tort claims, but rather contemplates them, as evidenced by the liability insurance requirements provided therein. Based upon the foregoing, the Court held that the ACAA does not preempt a state-law negligence claim, and agreed with the Ninth Circuit, which has held that the ACAA does preempt statelaw standards of care. See Gilstrap v United Air Lines, Inc., 709 F.3d 995, 998 (9th Cir. 2013).
Thus, the Court concluded that the ACAA and its implementing regulations did not completely preempt the plaintiff’s state-law negligence claim, but did preempt the state-law standard of care with regard to the plaintiff’s failure to assist in boarding claims. The Court then determined that the preemption of the state standard of care did not confer federal question jurisdiction upon the Court. The Court concluded that federal jurisdiction did not exist merely because state law provides that the violation of a federal statute establishes negligence and remanded the case to state court.
Preemption under the Montreal Convention
The case of Naqvi v Turkish Airlines, Inc., 2015 WL 757198 (D.D.C. Feb. 23, 2015) addressed the issue of express preemption pursuant to the Montreal Convention.
The action was brought by pro se plaintiff Syed M. Arif Naqvi and arose from the plaintiff’s transportation with his wife from Dulles International Airport to Istanbul, Turkey on a Turkish Airlines flight. According to the Complaint, the plaintiff requested exit row seating during check-in, but was told that all of the exit row seats, which were reserved for “Elite Class” passengers, had already been assigned. The plaintiff also alleged that he was told that only passengers taller than six feet were assigned to exit rows, and that plaintiff, at six feet tall, was ineligible for such seating. The plaintiff demanded a return of his baggage, but relented and agreed to fly after being told that he would be given a seat with “leg space”. When the plaintiff boarded the plane, he noticed that all of the exit row seats were occupied by passengers who appeared to be of Turkish descent, six of whom were women under six feet. Once seated, the plaintiff realized that his seat was not, as he allegedly was promised by Turkish Airlines staff, a “leg space seat,” causing the plaintiff great distress. According to the plaintiff, this distress was intensified when the crew allegedly violated airline “safety requirements,” by failing to both “provide any information regarding safety” and to “illuminate the seat belt signs before landing.”
The plaintiff claimed that Turkish Airlines’ denial of an exit row and “leg space” seat, coupled with the flight staff’s purported failure to follow safety protocols, caused him “extreme emotional” distress that manifested in physical malaise and a loss of appetite during the flight. The plaintiff commenced an action in District of Columbia Superior Court alleging breach of contract and discrimination under what the Court called “a kaleidoscope of federal statutes”, including 42 U.S.C. § 1981 and sections 41310(a) and 40127(a) of the ADA. Turkish Airlines removed the action to federal court and later moved to dismiss the plaintiff’s complaint.
The Court first addressed whether the Montreal Convention applied to the plaintiff’s claims. Holding that the plaintiff’s journey was “marked by the prototypical features of ‘international carriage’”, the plaintiff’s claims fell within the ambit of the Montreal Convention.
It is well-settled in the US that, where applicable, the Montreal Convention preempts state law remedies for claims within its “substantive scope.” See El Al Israel Airlines, Ltd. v Tsui Yuan Tseng, 525 U.S. 155, 161, 119 S.Ct. 662 (U.S. Sup. Ct. 1999)(“[R]ecovery for a personal injury suffered ‘on board [an] aircraft or in the course of any of the operations of embarking or disembarking,’ ... if not allowed under the Convention, is not available at all.”)
The Court then addressed whether the plaintiff’s discrimination and breach of contract claims were preempted—whether they fell within the substantive scope of the Montreal Convention. In doing so, the Court looked at whether the plaintiff’s particular claims fell within the Montreal Convention’s liability provision in Article 17.
With respect to the federal discrimination claims, the Court followed the lead of “numerous courts” that have found similar discrimination claims preempted. Interestingly, the Court noted that, even if the Montreal Convention did not preempt the plaintiff’s discrimination claims, the claims would fail because the ADA does not confer a private right of action.
Addressing the breach of contract claim, the Court noted that while some courts have held that the Montreal Convention does not preempt claims of contractual nonperformance, other courts have been wary of attempts to circumvent the Convention through artful pleading. Ultimately, the Court found the plaintiff’s contract claim to be “a tort masquerading as a contractual dispute. Stripped of this guise, the plaintiff’s contract claim is indistinct from his discrimination claims, and must be brought ‘under the terms of the Convention or not at all.’”
With the Montreal Convention deemed to be the plaintiff’s only avenue for relief, the Court examined whether the plaintiff stated a claim for relief under Article 17. In that regard, the plaintiff was required to show that: (1) an accident (2) caused him bodily injury (3) either “on board the aircraft or in the course of any of the operations of embarking or disembarking.” As the plaintiff did not allege a cognizable Article 17 “accident” or an actionable “bodily injury”, the Court granted Turkish Airlines’ motion and dismissed the plaintiff’s complaint in its entirety.
As these cases demonstrate, federal preemption of state law claims is highly dependent upon the statute/regulation involved and the types of claims being asserted.