Harris v. American Airlines, Inc., 92-36768

• Decision Date: 01 June 1995
• Docket Number: No. 92-36768,92-36768
• Citation: 55 F.3d 1472
• Parties: Donna Jean HARRIS, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., a Delaware corporation, and John Doe, a fictitious party, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1472

55 F.3d 1472

63 USLW 2757

Donna Jean HARRIS, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., a Delaware corporation, and John Doe, a fictitious party, Defendant-Appellee.

No. 92-36768.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 3, 1994.

Decided June 1, 1995.

Christopher H. Kent, O'Connell, Goyak & DiLorenzo, Portland, OR, for plaintiff-appellant.

James N. Westwood, Steven O. Rosen, Pamela J. Stendahl, Miller, Nash, Wiener, Hager & Carlsen, Portland, OR, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: ALARCON, NORRIS, and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

The issue before us is whether section 1305(a)(1) of the Federal Aviation Act, also known as the Airline Deregulation Act (the Act), 49 U.S.C.App. Secs. 1301-1308 (1978 and Supp.1994) preempts state law claims against an airline for negligence, the intentional infliction of emotional distress, and violation of a state public accommodation statute where one passenger harassed another by making rude and obnoxious remarks indicative of racial animus.

On September 30, 1990, Donna Jean Harris (Harris), a black female, traveled from Dallas, Texas, to Portland, Oregon, on American Airlines flight 1289. Harris was seated in first class. She was the only black person on the airplane. Seated directly in front of Harris was a white male known only as John Doe.

During the course of the flight, John Doe allegedly had four drinks. Harris thought John Doe was drunk but she did not notice him stumbling and did not remember him slurring his words. He did not make any physically threatening gestures toward Harris. After one flight attendant told John Doe that she would have to stop serving him alcoholic beverages, he went to the galley and returned with a drink. After takeoff, John Doe uttered a number of racial slurs, including the repeated use of the word "niggers."

Understandably, Harris felt humiliated and intimidated by John Doe's conduct. She became apprehensive to the point of tears.

Harris filed a complaint in state court in Oregon against American Airlines and John Doe. ¹ In the complaint, Harris alleged claims for a violation of Oregon's Public Accommodation Act, ORS 30.670-30.685, ² intentional infliction of emotional distress, and negligence. American Airlines removed the action to federal court on grounds of diversity jurisdiction.

American Airlines moved for summary judgment on the grounds that: (1) section 1305(a)(1) preempted Harris's state law claims; (2) American Airlines did not violate the Oregon Public Accommodations Act; (3) Harris's claim for intentional infliction of emotional distress should fail because American Airlines' acts were not outrageous in the extreme and because Harris did not suffer severe emotional distress; and (4) Harris could not recover on her negligence claim for purely emotional injury.

Although the Magistrate Judge found that Harris's state claims were not preempted, he recommended summary judgment on the merits. The district court adopted the Magistrate Judge's findings and recommendations in full and granted American Airlines' motion for summary judgment.

Harris timely appealed. We do not reach the merits of the state law claims, for we hold these claims are preempted.

ANALYSIS

The preemption clause of the Act provides that no State or political subdivision thereof and no interstate 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. Sec. 1305(a)(1) (Supp.1994).

Three cases, all decided since the district court's judgment, are central to resolving the preemption issue under the Act. Two are from the Supreme Court: Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992); and American Airlines, Inc. v. Wolens, --- U.S. ----, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). The third is from this circuit: West v. Northwest Airlines, 995 F.2d 148 (9th Cir.1993).

I. The Morales Decision

In Morales, in interpreting the phrase "relating to," the Supreme Court held that this provision has an expansive reach:

The ordinary meaning of ["relating to"] is a broad one--"to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with," Black's Law Dictionary 1158 (5th ed. 1979)--and the words thus express a broad pre-emptive purpose.... State enforcement actions having a connection with or reference to airline "rates, routes, or services" are pre-empted under 49 U.S.C. Sec. 1305(a)(1).

Morales, 504 U.S. at 383, 112 S.Ct. at 2037.

The Court held preempted certain state consumer protection guidelines on fare advertising that "contained detailed standards governing, inter alia, the content and format of airline fare advertising," id. at 374, 112 S.Ct. at 2032-33, because "[o]ne cannot avoid the conclusion that [certain enumerated] aspects of the guidelines 'relate to' airline rates." Id. at 387, 112 S.Ct. at 2039. The Court observed that "compelling or restricting '[p]rice advertising surely 'relates to' price.' " Id. (quoting Illinois Corporate Travel v. American Airlines, Inc., 889 F.2d 751, 754 (7th Cir.1989), cert. denied, 495 U.S. 919, 110 S.Ct. 1948, 109 L.Ed.2d 311 (1990)). In its discussion, the Court stated that the preemptive scope of the Act was like that of the preemption provision in the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Sec. 1144(a), which preempts all state laws "insofar as they ... relate to any employee benefit plan." Id. at 383, 112 S.Ct. at 2037. In addition, the Court rejected the argument that preemption under the Act extends "only [to] State laws specifically addressed to the airline industry...." Id. at 385, 112 S.Ct. at 2038. State laws of general applicability, it reasoned, may equally be subject to preemption. The Court emphasized, however, that " '[s]ome state actions may affect [air fares] in too tenuous, remote, or peripheral a manner' to have pre-emptive effect." Id. at 389, 112 S.Ct. at 2040 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490 (1983)). The Court explained:

[W]e do not ... set out on a road that leads to preemption of state laws against gambling and prostitution as applied to airlines. Nor need we address whether state regulation of the nonprice aspects of fare advertising (for example, state laws preventing obscene depictions) would similarly 'relat[e] to' rates; the connection would obviously be far more tenuous.

Id. at 389, 112 S.Ct. at 2040.

II. The 1993 West Decision (West II )

In West v. Northwest Airlines, 995 F.2d 148, 151 (9th Cir.1993) (West II ), we decided on remand from the Supreme Court that certain state law claims were too tenuously connected to "rates, routes or services" to be preempted by section 1305(a)(1). In that case, a passenger purchased a non-refundable ticket and was "bumped" from an overbooked flight from Montana when Northwest Airlines decided to substitute a smaller aircraft for the flight. The passenger filed claims in state court for breach of the covenant of good faith and fair dealing under Montana law and for unjust discrimination under section 404(b) of the ADA, seeking compensatory and punitive damages under the state and federal claims.

In our pre-Morales opinion in West v. Northwest Airlines, 923 F.2d 657 (9th Cir.1990) (West I ), we distinguished between state legislation that merely has an affect on airline services and that relating directly to airline services. On remand, we viewed West's claims in light of the emphasis in Morales on the purpose of preemption under the Act:

In crafting this clause, reasoned the Court, Congress intended to preempt state laws which interfered with the goal of deregulation of the airline industry.

In so holding, the Supreme Court invalidated this court's approach to FAA preemption in our original Opinion in this case. Under our pre-Morales reasoning, we distinguished between state laws which "merely have an effect of airline services" and those involving an "underlying statute or regulation [which] itself relates to airline services," and held that only the latter are preempted by the ADA. West v. Northwest Airlines, Inc., 923 F.2d 657, 660 (9th Cir.1990). Morales directly challenges this analysis.

West II, 995 F.2d at 151. In reading Morales we were uncertain whether Montana's good faith and fair dealing provision was "within that range of statutes too tenuously connected to airline regulation to trigger preemption under the [Act], what the Morales court called 'borderline questions.' " West II, 995 F.2d at 151. Therefore we "look[ed] outside the controlling statute for guidance.... [to] the agency regulations interpreting the [Act and found].... a detailed set of rules pertaining to airline 'oversales' or overbooking of flights." Id. (footnote omitted). One provision in the regulations "expressly contemplates that an injured passenger may seek relief in court for being bumped from an overbooked flight." Id. at 152. We held that West's state claims for compensatory damages were not preempted, so as to avoid "eviscerating" the provision. Id. However, we held the claim for punitive damages for overbooking preempted as contrary to the goals of deregulation; that is, "[o]verbooking and bumping are accepted forms of price competition[.]" Id.

III. The Wolens Decision

In American Airlines, Inc. v. Wolens, --- U.S. ----, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), the Supreme Court again discussed the scope of preemption under section 1305. American Airlines' frequent flyer program members argued that the modifications to the program should not apply retroactively.

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