Brown v.United Airlines, Inc., Nos. 12–1543

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtSELYA
Citation720 F.3d 60
PartiesJoseph BROWN et al., Plaintiffs, Appellants, v. UNITED AIRLINES, INC., Defendant, Appellee. Ben Mitchell et al., Plaintiffs, Appellants, v. US Airways, Inc., Defendant, Appellee.
Decision Date09 July 2013
Docket NumberNos. 12–1543,12–2056.

720 F.3d 60

Joseph BROWN et al., Plaintiffs, Appellants,
v.
UNITED AIRLINES, INC., Defendant, Appellee.

Ben Mitchell et al., Plaintiffs, Appellants,
v.
US Airways, Inc., Defendant, Appellee.

Nos. 12–1543, 12–2056.

United States Court of Appeals,
First Circuit.

July 9, 2013.


[720 F.3d 61]


Shannon Liss–Riordan, with whom Hillary Schwab and Lichten & Liss–Riordan, P.C. were on brief, for appellants.

Scott L. Nelson, Adina H. Rosenbaum, and Public Citizen Litigation Group on brief for Public Citizen, Inc., amicus curiae.


Jonathan E. Nuechterlein, with whom Bruce H. Rabinovitz, Daniel T. Deacon, and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for appellee United Airlines, Inc.

Robert S. Span and Steinbrecher & Span LLP on brief for Airlines for America, amicus curiae.

Michael McGuinness, with whom Robert Siegel, O'Melveny & Myers LLP, Ellen C. Kearns, Jeffrey M. Rosin, and Constangy,

[720 F.3d 62]

Brooks & Smith LLP were on brief, for appellee U.S. Airways, Inc.

Jeffrey A. Lamken, Andrew M. Bernie, and MoloLamken LLP on brief for Airlines for America, amicus curiae.


Before HOWARD, SELYA and THOMPSON, Circuit Judges.


SELYA, Circuit Judge.

These appeals pose a question of first impression: Can the plaintiffs, skycaps affiliated with two major airlines, maintain common-law actions for unjust enrichment and tortious interference based on the airlines' imposition and retention of baggage-handling fees for curbside service? Concluding, as we do, that the plaintiffs' actions intrude into a no-fly zone demarcated by the preemption provision of the Airline Deregulation Act (ADA), 49 U.S.C. § 41713(b)(1), we affirm the district court's orders of dismissal.

I. BACKGROUND

These consolidated cases have a convoluted history. For present purposes, however, a simplified account will do.

The cases comprise two putative class actions brought by skycaps—a term of art used to describe “porters who provide curbside service” at airports. DiFiore v. Am. Airlines, Inc., 646 F.3d 81, 82 (1st Cir.), cert. denied,––– U.S. ––––, 132 S.Ct. 761, 181 L.Ed.2d 483 (2011). At the times relevant hereto, the skycaps toiled on behalf of air carriers (either defendant U.S. Airways, Inc. or defendant United Airlines, Inc.).

By tradition, skycaps' remuneration depended largely on tips. In the middle of the last decade, however, the defendants, acting independently and at different times, each introduced a $2.00 per bag fee for curbside service for departing passengers at airports. These baggage-handling fees did not inure to the benefit of the skycaps.

Invoking diversity jurisdiction, see28 U.S.C. § 1332(d)(2), the plaintiffs brought suit in the federal district court. They asserted that their compensation “decreased dramatically” after the baggage-handling fees were established, “as some passengers thought the $2.00 charge was a mandatory gratuity, and others declined voluntarily to tip in addition to paying the $2.00 charge.” Mitchell v. U.S. Airways, Inc., 858 F.Supp.2d 137, 148 (D.Mass.2012). Relatedly, the plaintiffs faulted the airlines for “not adequately notify[ing] passengers that this charge was not a gratuity.” Id.

The plaintiffs made a number of state law claims premised on these averments. We rehearse here only the claims that have continuing relevance: unjust enrichment and tortious interference with advantageous relations.1

In the early going, this litigation encountered strong headwinds, fueled by a byzantine series of procedural twists and turns. This history need not concern us, so we fast-forward to the point at which the ADA preemption issue came to the fore. The district court heard oral argument and dismissed the unjust enrichment and tortious interference claims as preempted. See id. at 148–59. These timely appeals ensued.

II. ANALYSIS

The plaintiffs' appeals hinge on the proposition that the ADA does not

[720 F.3d 63]

preempt common-law claims, regardless of the relationship between those claims and an air carrier's prices, routes, or services. The district court rejected this proposition as a matter of statutory construction, and we review its decision de novo. See DiFiore, 646 F.3d at 85;Buck v. Am. Airlines, Inc., 476 F.3d 29, 32 (1st Cir.2007).

The Supremacy Clause sits at the epicenter of every preemption question. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210–11, 6 L.Ed. 23 (1824). The Clause instructs that federal law “shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. A state law that offends the Supremacy Clause “is a nullity.” Mass. Ass'n of Health Maint. Orgs. v. Ruthardt, 194 F.3d 176, 178 (1st Cir.1999).

Federal preemption of state law may occur either expressly or by implication. Grant's Dairy–Me., LLC v. Comm'r of Me. Dep't of Agric., Food & Rural Res., 232 F.3d 8, 15 (1st Cir.2000). The fact that the statute at issue here contains a specific preemption clause, 49 U.S.C. § 41713(b)(1), streamlines our inquiry. The issue at hand is one of express preemption. But even express preemption is not self-elucidating: it nonetheless falls to the courts to identify which state laws are preempted. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 484, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); Ruthardt, 194 F.3d at 179.

Congressional intent is the principal resource to be used in defining the scope and extent of an express preemption clause. See Grant's Dairy, 232 F.3d at 14;Ruthardt, 194 F.3d at 179. In this endeavor, we look to both the text and context of the particular clause. See Ruthardt, 194 F.3d at 179. We also may consider the clause's purpose and history, as well as the structure of the statutory scheme in which it is housed. See Lohr, 518 U.S. at 486, 116 S.Ct. 2240;UPS, Inc. v. Flores–Galarza, 318 F.3d 323, 334 (1st Cir.2003).

Our starting point is textual. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The ADA preemption provision reads in pertinent part: “[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....” 49 U.S.C. § 41713(b)(1). We must effectuate the plain meaning of this language “unless there is good reason to believe Congress intended the language to have some more restrictive meaning.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (plurality opinion) (internal quotation marks omitted); see Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).

Reduced to bare essence, the question before us is whether the quoted language preempts the plaintiffs' common-law claims. Given the wording of the ADA preemption provision, this question breaks down into two sub-questions. The first sub-question asks whether the arguably preempted claim is based on a state “law, regulation, or other provision having the force and effect of law.” The second sub-question asks whether the claim is sufficiently “related to a price, route, or service of an air carrier.” Put in shorthand, the first sub-question focuses on the mechanism through which the claim is preferred; the second sub-question focuses on the linkage between the claim and the core activities of the regulated industry. We address these two sub-questions separately, but in reverse order.

[720 F.3d 64]

Linkage is an open-and-shut matter here. For ADA preemption to thrive, the state law, regulation, or other provision sought to be enforced must “relate[ ] to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b)(1). Our decision in DiFiore (a case that arose out of a remarkably similar set of facts) conclusively resolves this point.

In DiFiore, skycap plaintiffs alleged that after the defendant airline “began charging passengers a fee of $2 for each bag checked with [skycaps,] ... passengers mistook the fee for a mandatory gratuity for the skycaps and stopped tipping.” 646 F.3d at 82. We held preempted the plaintiffs' claims under the Massachusetts Tips Act, Mass. Gen. Laws ch. 149, § 152A. See DiFiore, 646 F.3d at 88–90. As part of this holding, we concluded that an airline's “conduct in arranging for transportation of bags at curbside into the airline terminal en route to the loading facilities is itself a part of the ‘service’ referred to in the [ADA preemption provision], and the airline's ‘price’ includes charges for such ancillary services as well as the flight itself.” Id. at 87. Thus, a state law that penalizes the imposition of baggage-handling fees at airports “directly regulates how an airline service is performed and how its price is displayed to customers.” Id. at 88.

DiFiore answers the linkage sub-question for us. Our holding there signifies that the enforcement of a state law, regulation, or other provision in a way that materially affects an air carrier's imposition of baggage-handling fees relates to both an air carrier's prices and services. That holding, unimpeached by any supervening authority, is binding in this litigation. See, e.g., United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991) (explaining “that in a multi-panel circuit, prior panel decisions are binding upon newly constituted panels in the absence of supervening authority sufficient to warrant disregard of established precedent”).

The reason why DiFiore does not end our journey is because the decision there turned entirely on the linkage sub-question. See646 F.3d at 86–89. The mechanism sub-question was not in issue because the plaintiffs' claims depended on positive law in the form of a state statute (the Tips Act). 2 Here, however, the claims pressed by the plaintiffs on appeal do not depend on a state statute; rather, they are founded on the common law. Building on this distinction, the plaintiffs contend that common law is not a mechanism...

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48 practice notes
  • Nat'l Fed'n of the Blind v. United Airlines Inc., No. 11–16240.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 19, 2016
    ...it ‘ought properly be read to carve out all common law or statutory claims not related to an airline's prices, routes or services.’ " 720 F.3d 60, 69 (1st Cir.2013) (quoting Mitchell v. U.S. Airways, Inc., 858 F.Supp.2d 137, 154 (D.Mass.2012) ). But Brown held, in relevant part, only that c......
  • Puma Energy Caribe LLC v. P.R., CIVIL 20-1591 (DRD)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • September 22, 2021
    ...to the clause's ‘text and context' as well as its ‘purpose and history' in this endeavor.” Id. (citing Brown v. United Airlines, Inc., 720 F.3d 60, 63 (1st Cir.2013)). [19] “More often, explicit pre-emption language does not appear, or does not directly answer the question. In that event, c......
  • People ex rel. Harris v. Delta Air Lines, Inc., A139238
    • United States
    • California Court of Appeals
    • May 25, 2016
    ...court] been hesitant to give force to the ADA preemption provision.” ( 202 Cal.Rptr.3d 408 Brown v. United Airlines, Inc. (1st Cir.2013) 720 F.3d 60, 68 ; see DiFiore v. American Airlines, Inc. (1st Cir.2011) 646 F.3d 81, 86 (DiFiore ); Buck v. American Airlines, Inc. (1st Cir.2007) 476 F.3......
  • Club Gallístico De Puerto Rico Inc. v. United States, CIVIL NO. 19-1481 (GAG); (consolidated with Civil No. 19-1739 (GAG))
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 28, 2019
    ...Act and any other Commonwealth regulations involving live-bird fights. See U.S. CONST. ART. VI ; Brown v. United Airlines, Inc., 720 F.3d 60, 63 (1st Cir. 2013) ("A state law that offends the Supremacy Clause is a nullity.") (internal quotation marks omitted). See also Hines v. Davidowitz, ......
  • Request a trial to view additional results
48 cases
  • Nat'l Fed'n of the Blind v. United Airlines Inc., No. 11–16240.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 19, 2016
    ...it ‘ought properly be read to carve out all common law or statutory claims not related to an airline's prices, routes or services.’ " 720 F.3d 60, 69 (1st Cir.2013) (quoting Mitchell v. U.S. Airways, Inc., 858 F.Supp.2d 137, 154 (D.Mass.2012) ). But Brown held, in relevant part, only that c......
  • Puma Energy Caribe LLC v. P.R., CIVIL 20-1591 (DRD)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • September 22, 2021
    ...to the clause's ‘text and context' as well as its ‘purpose and history' in this endeavor.” Id. (citing Brown v. United Airlines, Inc., 720 F.3d 60, 63 (1st Cir.2013)). [19] “More often, explicit pre-emption language does not appear, or does not directly answer the question. In that event, c......
  • People ex rel. Harris v. Delta Air Lines, Inc., A139238
    • United States
    • California Court of Appeals
    • May 25, 2016
    ...court] been hesitant to give force to the ADA preemption provision.” ( 202 Cal.Rptr.3d 408 Brown v. United Airlines, Inc. (1st Cir.2013) 720 F.3d 60, 68 ; see DiFiore v. American Airlines, Inc. (1st Cir.2011) 646 F.3d 81, 86 (DiFiore ); Buck v. American Airlines, Inc. (1st Cir.2007) 476 F.3......
  • Club Gallístico De Puerto Rico Inc. v. United States, CIVIL NO. 19-1481 (GAG); (consolidated with Civil No. 19-1739 (GAG))
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 28, 2019
    ...Act and any other Commonwealth regulations involving live-bird fights. See U.S. CONST. ART. VI ; Brown v. United Airlines, Inc., 720 F.3d 60, 63 (1st Cir. 2013) ("A state law that offends the Supremacy Clause is a nullity.") (internal quotation marks omitted). See also Hines v. Davidowitz, ......
  • Request a trial to view additional results

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