West v. Northwest Airlines, Inc., 89-35820

• Decision Date: 03 June 1993
• Docket Number: No. 89-35820,89-35820
• Parties: William D. WEST, Plaintiff-Appellant, v. NORTHWEST AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 148

995 F.2d 148

61 USLW 2765

William D. WEST, Plaintiff-Appellant, v. NORTHWEST AIRLINES, INC., Defendant-Appellee.

No. 89-35820.

United States Court of Appeals Ninth Circuit.

June 3, 1993.

Cornish F. Hitchcock, Public Citizen Litigation Group, Washington, DC, for plaintiff-appellant.

John N. Romans, Mark Dombroff, Lawrence Rosen, and John Henderson, Katten Muchin Zavis & Dombroff, New York City, for defendant-appellee.

On Remand from the United States Supreme Court.

Before HUG, D.W. NELSON, and BRUNETTI, Circuit Judges.

D.W. NELSON, Circuit Judge:

The Supreme Court remanded this case --- U.S. ----, 112 S.Ct. 2932, 119 L.Ed.2d 558, --- U.S. ----, 112 S.Ct. 2986, 120 L.Ed.2d 864, to us for further consideration in light of Morales v. Trans World Airlines, Inc., 504 U.S. ----, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). We hereby withdraw our previous Opinion in this case, filed as amended February 5, 1991, and substitute this Opinion.

Plaintiff-appellant, William D. West ("West"), purchased a ticket to travel on Northwest Airlines, Inc. ("Northwest"). Northwest overbooked West's flight and refused to allow West to board the plane. West brought this action against Northwest for breach of the covenant of good faith and fair dealing under Montana law. The district court granted summary judgment for Northwest on the ground that West's claim was preempted by the Federal Aviation Act. We now affirm in part and reverse in part, and we remand to the district court to determine whether West has a meritorious claim for compensatory damages under Montana law.

FACTUAL AND PROCEDURAL BACKGROUND

On September 3, 1986, West purchased a non-refundable, non-changeable ticket to travel on Northwest from Great Falls, Montana to Arlington, Virginia. His flight was Between the date of purchase and the scheduled departure date, Northwest decided to reduce the size of its aircraft from a Boeing 727, which carries 146 passengers, to a DC 9 aircraft, which carries 78 passengers. When West arrived at the check-in gate, a Northwest employee informed him that the flight was overbooked. Northwest attempted to make room for West and other passengers by requesting volunteers to deplane in exchange for certain payments. However, only three people accepted, and West was unable to board the flight.

                scheduled to depart Great Falls at 1:30 p.m. and to arrive in Arlington at 9:00 p.m. on October 7, 1986.   West confirmed his scheduled departure with his travel agent on October 6, 1986
                

Northwest then offered West an alternate flight that would arrive at nearby Dulles Airport at 3:00 a.m. the next morning. West declined to take this flight and made his own arrangements to travel to Arlington at a later date. West subsequently 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 Federal Aviation Act ("FAA"), 49 U.S.C.App. § 1301 et seq., seeking both compensatory and punitive damages on the state and federal claims.

Northwest successfully petitioned the United States District Court to remove the case to the federal court on the basis of diversity of citizenship. Northwest then moved for summary judgment on the grounds that the period for bringing a claim under Section 404(b) had expired and that West's state claim was preempted by the FAA. On September 28, 1989, the district court granted Northwest's motion for summary judgment on both grounds.

West timely appealed only the issue of whether the district court erred in dismissing West's state law claim on the ground that it was preempted by the FAA. This court previously affirmed in part and reversed in part, finding that the FAA preempted West's claim for punitive damages but that it did not preempt his claim for compensatory damages under Montana law.

West then petitioned the Supreme Court for certiorari, claiming that punitive damages were not preempted. Northwest cross-petitioned on the grounds that the state claims for compensatory damages were preempted by the FAA. The Supreme Court waited to decide the petitions until after it decided Morales, and then denied West's petition but granted Northwest's and remanded the case to this court to reconsider whether compensatory damages are preempted.

After receiving another petition from West claiming that the Court's rules prohibited it from granting certiorari on a cross-petition but not the initial petition, the Supreme Court vacated its denial of West's petition and granted certiorari on both petitions. It then remanded the case to this court for further proceedings on both questions in light of Morales.

DISCUSSION

I. Standard of Review

A grant of summary judgment is reviewed de novo to determine, viewing the evidence in the light most favorable to the nonmoving party, whether there existed any genuine issue of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

II. Preemption Analysis

In Morales, the Supreme Court considered whether or not the Airline Deregulation Act ("ADA"), § 1305(a)(1) of the FAA, preempted enforcement of a detailed set of guidelines concerning the regulation of airline fare advertising through state consumer protection laws. ¹

The Court held that the ADA expressly preempted the guidelines because their enforcement "relat[ed] to rates, routes, or services of any air carrier...." Morales, 504 U.S. at ----, 112 S.Ct. at 2037. The Court interpreted this preemptive clause broadly:

For purposes of the present case, the key phrase, obviously, is 'relating to.' The ordinary meaning of these words is a broad one ... and the words thus express a broad pre-emptive purpose.

Id. 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 on 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.

We find that, under the reasoning in Morales, the ADA preempts West's claim for punitive damages under state contract and tort law, but that it does not preempt his claim for compensatory damages under state law. Morales left open the possibility that certain state laws would not be preempted by the ADA even under the broad reading of the preemption clause:

[W]e do not ... set out on a road that leads to pre-emption 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 ... would similarly 'relat[e] to' rates; the connection would obviously be far more tenuous. To adapt to this case our language in Shaw [v. Delta Airlines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) ], '[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner' to have pre-emptive effect.

Morales, 504 U.S. at ----, 112 S.Ct. at 2040 (citation omitted; brackets in original).

We believe that the state contract and tort laws under which West seeks relief are within that range of statutes too tenuously connected to airline regulation to trigger preemption under the ADA, what the Morales court called "borderline questions." Morales, however, does not provide much guidance to courts which must decide which state laws fall into this category and which do not.

When it is unclear whether or not a state law comes within the ADA's preemption reach, courts must look outside the controlling statute for guidance. In other contexts, the Supreme Court has held that when the statute is silent or ambiguous courts should turn to agency regulations for clarification.

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).

In the case of the Airline Deregulation Act, the agency regulations interpreting the FAA are particularly illuminating. Title 14 of Code of Federal Regulations implements the FAA, including the deregulation provision. 14 C.F.R. § 250.1 et seq. (1990). Part 250 of that title is a detailed set of rules pertaining to airline "oversales" or overbooking of flights. ² In the wake of the deregulation This provision expressly contemplates that an injured passenger may seek relief in court for being bumped from an overbooked flight. According to § 250.9(b), the bumped passenger has three options: (1) he may accept the airline's offer of alternate transportation; (2) he may accept airline compensation (in the form of money or a voucher for future travel or some combination of the two); or, (3) "the passenger may decline the payment and seek to recover damages in a court of law or in some other manner." 14 C.F.R. § 250.9(b).

                legislation, Part 250 was substantially amended, but § 250.9, the provision giving passengers the option of rejecting airline compensation and pursuing a remedy under state law, has not been altered.   See 47 Fed.Reg. 52980 (Nov. 24, 1982);  46 Fed.Reg. 62285 (Dec. 12, 1981)
                

This court and at least one other circuit have recognized the controlling authority of this provision in the post-deregulation period. In Christensen v....