Gilstrap v. United Air Lines, Inc.

• Decision Date: 12 March 2013
• Docket Number: No. 11–55271.,11–55271.
• Citation: 709 F.3d 995
• Parties: Michelle GILSTRAP, an individual, Plaintiff–Appellant, v. UNITED AIR LINES, INC., a Delaware Corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

709 F.3d 995

Michelle GILSTRAP, an individual, Plaintiff–Appellant,

v.UNITED AIR LINES, INC., a Delaware Corporation, Defendant–Appellee.

No. 11–55271.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 9, 2012.

Filed March 12, 2013.

Mark P. Meuser, Meuser Law Group, Inc., Walnut Creek, CA, for Appellant.

Richard G. Grotch, Coddington, Hicks & Danforth, Redwood City, CA, for Appellee.

Appeal from the United States District Court for the Central District of California, Jacqueline H. Nguyen, District Judge, Presiding. D.C. No. 2:10–cv–06131–JHN–JC.

Before: HARRY PREGERSON, SUSAN P. GRABER, and MARSHA S. BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

Michelle Gilstrap has difficulty walking because of osteoarthritis and other health problems. She alleges that, on two airplane trips in 2008 and 2009, United Air Lines (“United”) did not provide her with adequate assistance moving through the airport and that she suffered physical and emotional injuries as a result. Gilstrap sued United, alleging several causes of action under California state tort law and a violation of Title III of the Americans with Disabilities Act of 1990 (“ADA”). Our questions are (1) whether Gilstrap's state-law claims are preempted by the federal Air Carrier Access Act (“ACAA”) and, if so, in what respect; and (2) whether airport terminals are among the “places of public accommodation” governed by Title III of the ADA.

I. FACTUAL AND PROCEDURAL HISTORY

Michelle Gilstrap has difficulty walking because she has a collapsed disc in her back, one replaced knee, another knee that needs replacing, and osteoarthritis. In August 2008,¹ she flew on United from Los Angeles to Calgary, from Calgary to Chicago,² and finally from Milwaukee back to Los Angeles (via Denver). Gilstrap again flew on United in December 2009, this time from Burbank, California, to Madison, Wisconsin (via Denver).³ When booking both sets of flights, Gilstrap requested that United provide her with wheelchair assistance for moving through the airports.

During both trips, United failed repeatedly to provide Gilstrap with the assistance that she requested. At one airport, Gilstrap located a wheelchair on her own; at other airports she was provided a wheelchair by United only after prolonged insistence and up to 45 minutes of waiting; and at others she was never able to locate a wheelchair at all and had to walk. Gilstrap alleges various physical injuries as a result of having to walk, including, after the August 2008 trip, severe pain that was treated with an epidural injection. Gilstrap also alleges that United agents yelled at her, expressed skepticism that she actually needed a wheelchair, and twice directed her to stand in line (which she could not do because of her disabilities). At one point during her travels, a United agent whom she asked for assistance unilaterally rebooked her onto a later flight, telling her that “this was what she got for refusing to stand in line.”

Gilstrap sued United, alleging several counts under California tort law, including negligence, negligent misrepresentation, breach of duty of a common carrier, intentional infliction of emotional distress, and negligent infliction of emotional distress. In addition, the complaint maintains that United violated Title III of the ADA. Gilstrap seeks compensatory damages for physical and emotional injuries, including reimbursement for her medical bills, exemplary and punitive damages, and litigation costs. Gilstrap does not allege a cause of action under the ACAA itself. Rather, her complaint cites the ACAA as relevant to establishing her state-law negligence claims. Under the California evidentiary rule of “negligence per se,” a violation of “a statute, ordinance, or regulation” can support a rebuttable presumption of failure to exercise due care. Cal. Evid.Code § 669(a)(1).

United filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion in its entirety, dismissing Gilstrap's complaint with prejudice. The district court held that all of Gilstrap's California tort claims were both conflict- and field-preempted by the ACAA.

The primary basis for the district court's ruling was that “[t]he ACAA does not expressly provide a private right of action for violations of the statute or its regulations,” but instead “provides for administrative investigation of complaints.” On that ground, the district court concluded that Congress intended the Federal Aviation Act administrative enforcement scheme to be the exclusive remedy for violations of the ACAA and its regulations and that state personal-injury lawsuits against airlines would conflict with that congressional intent. The district court further held that Gilstrap's claims were field-preempted by the ACAA regulations pertaining to wheelchair assistance codified in 14 C.F.R. part 382, subpart G. As to Gilstrap's ADA claim, the district court held that Title III of the ADA does not apply to airport terminals, because the statute applies only to “places of public accommodation” and expressly excludes terminals for aircraft from its definition of that phrase.

II. STATUTORY AND REGULATORY BACKGROUND

A. The Air Carrier Access Act

The ACAA is an amendment to the Federal Aviation Act (“FAA”).⁴ The original FAA, passed in 1958, included a requirement that air carriers not “subject any particular person ... to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” 49 U.S.C.App. § 1374 (1982), repealed byPub.L. No. 103–272, 108 Stat. 745, 1141 (1994). This requirement was repealed by the Airline Deregulation Act of 1978, 49 U.S.C.App. § 1301, repealed byPub.L. No. 103–272, 108 Stat. 745, 1141 (1994), leaving passengers with disabilities without express protection against discrimination by commercial airlines. See Shinault v. Am. Airlines, Inc., 936 F.2d 796, 802 (5th Cir.1991).

A different statute, § 504 of the Rehabilitation Act of 1973 provides generally that individuals with disabilities may not be excluded from or discriminated against by federally-funded programs. See U.S. Dep't of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 599, 106 S.Ct. 2705, 91 L.Ed.2d 494 (1986). In 1979, the Civil Aeronautics Board, the federal agency then in charge of airline regulation, promulgated regulations applying § 504 to those commercial airlines that received direct federal subsidies. Id. at 600–01, 106 S.Ct. 2705. Organizations representing individuals with disabilities (collectively, Paralyzed Veterans of America, or “PVA”), challenged those regulations, seeking to apply § 504 to all commercial airlines, on the ground that airlines not receiving direct federal subsidies were indirect recipients of federal funding for airport construction and for the federally operated air traffic control system. Id. The Supreme Court rejected PVA's arguments, holding that commercial airlines were “beneficiaries,” not “recipients,” of federal grants for airport construction and that the air traffic control system was not “a form of federal financial assistance to airlines.” Id. at 607, 611, 106 S.Ct. 2705.

Congress responded to Paralyzed Veterans by passing the ACAA. An amendment to the FAA, the ACAA “provide[d] that prohibitions of discrimination against handicapped individuals shall apply to air carriers.” Air Carrier Access Act of 1986, Pub.L. No. 99–435, § 2(a), 100 Stat. 1080; see Shinault, 936 F.2d at 802. In its original form, the ACAA prohibited air carriers from “discriminat[ing] against any otherwise qualified handicapped individual, by reason of such handicap, in the provision of air transportation,” and directed the Secretary of Transportation to “promulgate regulations to ensure non-discriminatory treatment of qualified handicapped individuals consistent with safe carriage of all passengers on air carriers.” Air Carrier Access Act of 1986, Pub.L. No. 99–435, § 3, 100 Stat. 1080.⁵

In its current version, effective December 12, 2003, the pertinent sections of the ACAA read as follows:

§ 41705. Discrimination against handicapped individuals

(a) In general.—In providing air transportation, an air carrier, including (subject to section 40105(b)) any foreign air carrier, may not discriminate against an otherwise qualified individual on the following grounds:

(1) the individual has a physical or mental impairment that substantially limits one or more major life activities.

(2) the individual has a record of such an impairment.

(3) the individual is regarded as having such an impairment.

(b) Each act constitutes separate offense.—For purposes of section 46301, a separate violation occurs under this section for each individual act of discrimination prohibited by subsection (a).

(c) Investigation of complaints.—

(1) In general.—The Secretary shall investigate each complaint of a violation of subsection (a).

49 U.S.C. § 41705. Although the ACAA itself no longer includes an express directive that the Secretary of Transportation promulgate regulations,⁶ it is covered by the FAA's general authorization that the Secretary “may take action ... consider[ed] necessary to carry out” the FAA's “Air Commerce and Safety” provisions, “including conducting investigations, prescribing regulations, standards, and procedures, and issuing orders.” Id. § 40113(a).

Pursuant to that authorization, the Department of Transportation (“DOT”) issued regulations, codified at 14 C.F.R. Part 382, specifying the detailed requirements that airlines must meet to comply with the ACAA. The regulations impose four general duties on air carriers: “not [to] discriminate against any qualified individual with a disability, by reason of such disability, in the provision of air transportation”; “not [to] require a qualified individual with a disability to accept special services ... that the individual does not request”; “not [to] exclude a qualified individual with a disability from or...