Nat'l Fed'n of the Blind v. United Airlines Inc., No. 11–16240.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: BERZON, Circuit Judge
• Citation: 813 F.3d 718
• Parties: NATIONAL FEDERATION OF THE BLIND, on behalf of its members and itself; Michael May; Michael Hingson ; Christina Thomas, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants, v. UNITED AIRLINES INC., Defendant–Appellee.
• Docket Number: No. 11–16240.
• Decision Date: 19 January 2016

813 F.3d 718

NATIONAL FEDERATION OF THE BLIND, on behalf of its members and itself; Michael May; Michael Hingson ; Christina Thomas, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants,
v.
UNITED AIRLINES INC., Defendant–Appellee.

No. 11–16240.

United States Court of Appeals, Ninth Circuit.

Argued Nov. 8, 2012.
Submitted and Filed Jan. 19, 2016.

Gregory P. Care (argued) and Daniel F. Goldstein, Brown Goldstein & Levy, Baltimore, MD; Kevin Knestrick and Laurence W. Paradis, Disability Rights Advocates, Berkeley, CA, for Plaintiffs–Appellants.

Jonathan E. Nuechterlein (argued), Bruce H. Rabinovitz, Eric F. Citron, and Eric Paul Winke, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Richard G. Grotch, Coddington, Hicks & Danforth, Redwood City, CA, for Defendant–Appellee.

Christine N. Kohl (argued), Douglas N. Letter, Abby C. Wright and Michael S. Raab, and Tony West and Stuart F. Delery, Assistant Attorneys General, United States Department of Justice, Civil Division, Washington, D.C.; Joy K. Park, Peter J. Plocki, Deputy Assistant General Counsel for Litigation, Paul M. Geier, Assistant General Counsel for Litigation, and Kathryn B. Thomson and Roberty S. Rivkin, General Counsel, United States Department of Transportation, Office of the General Counsel, Washington, D.C., for Amicus Curiae United States.

Robert S. Span, Steinbrecher & Span LLP, Los Angeles, CA, for Amicus Curiae Air Transport Association of America, Inc.

Before: ANDREW J. KLEINFELD and MARSHA S. BERZON, Circuit Judges, and ROGER T. BENITEZ, District Judge.^*

Opinion by Judge BERZON ; Concurrence by Judge KLEINFELD.

OPINION

BERZON, Circuit Judge:

This case requires us to consider once more the circumstances under which claims brought under state law are preempted by federal statutes governing air transportation. See, e.g., Gilstrap v. United Air Lines, Inc., 709 F.3d 995 (9th Cir.2013) ; Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir.1998) (en banc).

Plaintiff–Appellants the National Federation of the Blind¹ and three blind individuals, Michael May, Michael Hingson, and Christina Thomas—collectively, "the Federation"—filed a class lawsuit against Defendant–Appellee United Airlines, Inc. ("United"), alleging that the airline's policy of using automatic kiosks inaccessible to blind travelers violates California's antidiscrimination laws. The district court dismissed the suit on the grounds that the Federation's claims were expressly preempted under the Airline Deregulation Act of 1978 ("ADA"), 49 U.S.C. § 41713, and impliedly field preempted under the Air Carrier Access Act of 1986 ("ACAA"),

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49 U.S.C. § 41705, and its implementing regulations, issued by the U.S. Department of Transportation ("DOT"). We affirm the district court on the basis of a regulation promulgated after its decision.

BACKGROUND

United owns and operates over 100 automatic ticketing kiosks in airports throughout California. These kiosks allow passengers to perform various functions relevant to their air travel, including accessing flight information, checking in for flights, printing boarding passes, checking baggage, and selecting and upgrading seats. As now configured, the kiosks require user responses to visual prompts on a computer touchscreen and so cannot be used without assistance by blind travelers. Although United could make its kiosks accessible to blind passengers using commercially available technologies such as audio interfaces and tactile keyboards, it has not.² As a result, blind passengers seeking to use United's ticketing kiosks must either rely on the help of sighted relatives, friends, or strangers, or wait for a United agent to assist them. According to the Federation, United thereby "excludes the blind from full and equal access" to its kiosks.

The Federation sued United, seeking declaratory and injunctive relief as well as damages. Its complaint asserted that United's policy of using kiosks inaccessible to the blind violates two California antidiscrimination statutes: the Unruh Civil Rights Act ("Unruh Act") and the Disabled Persons Act ("DPA"). Cal. Civ.Code §§ 51, 54. The Unruh Act provides that "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Id. § 51(b). The DPA guarantees persons with disabilities, including the blind, "full and equal access ... to accommodations, advantages, facilities, ... and privileges of all common carriers, airplanes, ... or any other ... modes of transportation." Id. § 54.1(a)(1). These statutes, the Federation argues, require United to "take the steps necessary to make its [k]iosks readily accessible to and usable by blind individuals."³

United moved to dismiss the Federation's claims on three preemption grounds: (1) that the claims were preempted under the ADA's express preemption provision, 49 U.S.C. § 41713(b)(1) ; (2) that the claims were impliedly preempted by the ACAA and its implementing regulations, including in particular an "interim" regulation governing kiosk accessibility, see Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed.Reg. 27,614, 27,619 (May 13, 2008), which, according to United, pervasively regulated airport kiosk accessibility; and (3) that the Federation's claims were impliedly preempted by the ACAA because they conflicted with the policy objectives reflected in the implementing regulations.⁴

After United filed its motion to dismiss, the district court requested the input of the United States and the DOT. The United

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States filed a Statement of Interest maintaining that the Federation's claims were preempted for all of the reasons cited by United. The district court subsequently issued an order granting United's motion to dismiss, holding the Federation's claims expressly preempted under the ADA and impliedly field preempted under the ACAA. This appeal followed.

The United States filed an amicus brief with this court, repeating its position that asserted state law claims are preempted. After oral argument, we vacated submission pending the Supreme Court's resolution of Northwest, Inc. v. Ginsberg, ––– U.S. ––––, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014). While that case was pending, the DOT replaced the interim kiosk regulation with an extensive final rule. See Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports, 78 Fed.Reg. 67,882 (Nov. 12, 2013). We ordered supplemental briefing on both developments, and the United States submitted an additional amicus brief, again maintaining that the claims are preempted.

DISCUSSION

Federal law may preempt state law in three ways. First, "Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision." Arizona v. United States, –––U.S. ––––, 132 S.Ct. 2492, 2500–01, 183 L.Ed.2d 351 (2012). Second, "States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Id. at 2501. Finally, "state laws are preempted when they conflict with federal law," such that "compliance with both federal and state regulations is a physical impossibility, ... [or] the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. (internal quotation marks and citation omitted).

Regardless of the type of preemption involved—express, field, or conflict—"[t]he purpose of Congress is the ultimate touchstone of pre-emption analysis." Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (alteration in original) (internal quotation marks omitted). In this regard, "we are mindful of the adage that Congress does not cavalierly preempt state law causes of action." Montalvo v. Spirit Airlines, 508 F.3d 464, 471 (9th Cir.2007) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) ). At the same time, we have recognized that "preemptive intent is more readily inferred" in the field of aviation, because it is "an area of the law where the federal interest is dominant." Id. (citing Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) ).

In applying these principles to this case, our inquiry is a cabined one. The Federation's claims were brought pursuant to California's general antidiscrimination statutes. There is no California case law concerning the application of those statutes to airport kiosks. So we do not know at this point to what extent California law requires accessible kiosks or alternatives thereto. The issue at this juncture is thus whether any accessibility requirement for airport kiosks not required by the DOT regulations would be preempted.

With these background principles and caveats in mind, we consider whether the Federation's claims are foreclosed by any of the three types of preemption.

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