Ray v. Spirit Airlines, Inc., No. 13–15681.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtMARCUS
Citation767 F.3d 1220
PartiesBryan RAY, on behalf of himself and all others similarly situated, Gretel Dorta, et al., Plaintiffs–Appellants, v. SPIRIT AIRLINES, INC., a Delaware corporation, Defendant–Appellee.
Docket NumberNo. 13–15681.
Decision Date23 September 2014

767 F.3d 1220

Bryan RAY, on behalf of himself and all others similarly situated, Gretel Dorta, et al., Plaintiffs–Appellants,
SPIRIT AIRLINES, INC., a Delaware corporation, Defendant–Appellee.

No. 13–15681.

United States Court of Appeals, Eleventh Circuit.

Sept. 23, 2014

Vacated and remanded.

[767 F.3d 1221]

Joel D. Eaton, Katherine Warthen Ezell, John Gravante, III, Robert C. Josefsberg, Podhurst Orseck, PA, Miami, FL, for Plaintiff–Appellant.

Daniel T. Graham, Leslie A. Gutierrez, Clark Hill, PLC, Chicago, IL, Scott Michael Dimond, Lorenz Michel Pruss, Dimond Kaplan & Rothstein, PA, Miami, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:12–cv–61528–RNS.
Before HULL, MARCUS and HILL, Circuit Judges. MARCUS, Circuit Judge:

Plaintiffs commenced this civil suit against Spirit Airlines, Inc. (“Spirit”) under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–68, alleging that Spirit conducted an enterprise by means of racketeering activity—here, two or more predicate acts of mail and wire fraud involving the concealment and misrepresentation of airfares and user fees. The district court dismissed the action, ruling that comprehensive federal regulation of the airline industry precluded Plaintiffs' civil RICO claims. We disagree. Because federal laws do not preempt other federal laws, subsequent legislation could preclude Plaintiffs' claims only if Congress had repealed the provisions of RICO, at least insofar as they authorized Plaintiffs' actions. Congress did not do so expressly through the Airline Deregulation Act of 1978(ADA), Pub.L. No. 95–504, 92 Stat. 1705. And we find no “repeal by implication” because Congress has not exhibited the requisite clear and manifest intent. E.g., Posadas v. Nat'l City Bank of N.Y., 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936). The ADA explicitly preempted state laws but, notably, said nothing about any federal cause of action. Moreover, a saving clause found in the ADA did not disturb any other remedies provided by law. Quite simply, the two laws are not irreconcilably in conflict,

[767 F.3d 1222]

nor was the ADA clearly intended as a substitute for RICO. Applying the strong presumption against implied repeals, we are constrained to conclude that RICO supplements, rather than subverts, federal regulation of air carriers.

Our decision in no way addresses whether Plaintiffs adequately alleged the elements of their civil RICO claim under Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, we have no occasion today to pass any judgment on whether fraud is pled with particularity, or whether Plaintiffs adequately pled the elements of mail and wire fraud, or indeed whether Plaintiffs sufficiently pled a RICO injury. All we hold today is that the federal regulatory scheme governing the airline industry does not preclude a claim founded on the civil provisions of RICO.


Plaintiffs' second amended complaint alleged the following basic facts. Spirit holds itself out as an “Ultra Low Cost Carrier” offering airfares at rates far lower than other providers. These cheap fares disguise the total cost of travel because Spirit forces consumers to pay unbundled charges traditionally included in the price of an airline ticket. Specifically, Spirit charges a Passenger Usage Fee to all consumers who buy tickets through its website or call center. When searching for flights on Spirit's website, a consumer sees only the base fares. Once he has selected a flight, a webpage directs him to “confirm” the flight on a page that displays both the base fare and an undifferentiated amount labeled “Taxes & Fees.” For a breakdown of these charges, the consumer then must click on an additional link, “more information,” which lists “Passenger Usage Fee” alongside government taxes and fees.

Plaintiffs filed a class action complaint in the United States District Court for the Southern District of Florida, alleging that Spirit concealed the existence and purpose of the Passenger Usage Fee between approximately 2008 and 2011 and used the mails and wires to execute the scheme or artifice to defraud, thereby yielding civil RICO liability. Spirit moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. Spirit argued that permitting Plaintiffs' RICO action would thwart Congress's intent to delegate entirely the regulation of airline ticket prices and price advertising to the Department of Transportation (DOT). Spirit also argued that Plaintiffs' RICO claims were precluded by the ADA's preemption provision. Alternatively, Spirit urged that Plaintiffs had failed to adequately plead RICO mail and wire fraud related to the Passenger Usage Fee.

The district court granted Spirit's motion to dismiss, finding that Congress intended the DOT to be the sole legal control on deceptive airfare, fees, and deceptive fee and fare advertising. Therefore, the broad federal remedial scheme precluded Plaintiffs from challenging the Passenger Usage Fee through a civil RICO action. The district court had no occasion to address whether the complaint adequately and with sufficient particularity pled the elements of wire and mail fraud and civil RICO on this claim. The district court, however, did find that Plaintiffs alleged a separate misrepresentation or scheme to defraud not related to fees, fares, or advertising that was not precluded by federal regulations: Spirit's marketing materials encouraged consumers to book tickets online but failed to disclose that

[767 F.3d 1223]

online purchases carried an additional fee. Still, the district court dismissed that RICO claim because Plaintiffs had failed to properly allege a predicate act and injury. The court granted leave to file a third amended complaint setting forth a RICO claim related to the buy-online marketing. Plaintiffs, however, filed notice of their intention not to amend the complaint, and the district court entered final judgment. Plaintiffs timely appealed, raising a single issue: whether the district court erred in determining that a civil RICO action related to the Passenger Usage Fee was precluded by the federal scheme of airline regulation.


We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim. Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 705 (11th Cir.2014). We accept, as we must at this stage, the allegations in the complaint as true and construe them in the light most favorable to Plaintiffs. Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir.2011). To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

The Federal Aviation Act (FAA), Pub.L. No. 85–726, 72 Stat. 731 (1958), gives the DOT the power to “investigate and decide whether an air carrier ... has been or is engaged in an unfair or deceptive practice or an unfair method of competition in air transportation or the sale of air transportation.” 49 U.S.C. § 41712(a).1 The DOT may order an air carrier to stop an unfair or deceptive practice or method and may impose civil penalties of no more than $25,000 for each day of these violations. Id. § 41712(a); id. § 46301(a)(1) (“A person is liable to the United States Government for a civil penalty of not more than $25,000 ... for violating ... [ § 41712]....”); id. § 46301(a)(2) (“A separate violation occurs under this subsection for each day the violation ... continues....”). The DOT's “full-fare advertising rule” deems unfair and deceptive any price advertising for air transportation that does not state the “entire price to be paid by the customer.” 14 C.F.R. § 399.84(a) (“Although charges included within the single total price listed (e.g., government taxes) may be stated separately or through links or ‘pop ups' on websites that display the total price, such charges may not be false or misleading, may not be displayed prominently, may not be presented in the same or larger size as the total price, and must provide cost information on a per passenger

[767 F.3d 1224]

basis that accurately reflects the cost of the item covered by the charge.”).

When first enacted, the FAA provided that it did not “in any way abridge or alter the remedies now existing at common law or by statute.” Pub.L. No. 85–726, § 1106, 72 Stat. at 798. Instead, Congress wrote, its provisions “are in addition to such remedies.” Id. The 1978 ADA, however, contained a preemption provision expressly prohibiting “a State” from “enact[ing] or enforc [ing] a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1). At the same time, the ADA included a saving clause to the effect that “[a] remedy under this part is in addition to any other remedies provided by law.” Id. § 40120(c).

Meanwhile, in 1970 Congress enacted RICO, which created both criminal and civil liability for “racketeering activity” connected to interstate commerce. 18 U.S.C. § 1962. Section 1961(1) of RICO defines racketeering activity to include acts indictable as mail fraud, id. § 1341, and wire fraud, id. § 1343. RICO provides criminal penalties, but also allows “[a]ny person injured in his business or property” by a RICO violation to sue to recover treble damages, as well as fees and costs. Id. § 1964(c). To recover, a civil...

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