United States Court of Appeals
For the First Circuit
No. 12-1543
JOSEPH BROWN ET AL.,
Plaintiffs, Appellants,
v.
UNITED AIRLINES, INC.,
Defendant, Appellee.
No. 12-2056
BEN MITCHELL ET AL.,
Plaintiffs, Appellants,
v.
US AIRWAYS, INC.,
Defendant, Appellee.
_____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Selya and Thompson,
Circuit Judges.
Shannon Liss-Riordan, with whom Hillary Schwab and Lichten &
Liss-Riordan, P.C. were on brief, for appellants.
Scott L. Nelson, Adina H. Rosenbaum, and Public Citizen
Litigation Group on brief for Public Citizen, Inc., amicus curiae.
Jonathan E. Nuechterlein, with whom Bruce H. Rabinovitz,
Daniel T. Deacon, and Wilmer Cutler Pickering Hale and Dorr LLP
were on brief, for appellee United Airlines, Inc.
Robert S. Span and Steinbrecher & Span LLP on brief for
Airlines for America, amicus curiae.
Michael McGuinness, with whom Robert Siegel, O'Melveny & Myers
LLP, Ellen C. Kearns, Jeffrey M. Rosin, and Constangy, Brooks &
Smith LLP were on brief, for appellee US Airways, Inc.
Jeffrey A. Lamken, Andrew M. Bernie, and MoloLamken LLP on
brief for Airlines for America, amicus curiae.
July 9, 2013
SELYA, Circuit Judge. These appeals pose a question of
first impression: Can the plaintiffs, skycaps affiliated with two
major airlines, maintain common-law actions for unjust enrichment
and tortious interference based on the airlines' imposition and
retention of baggage-handling fees for curbside service?
Concluding, as we do, that the plaintiffs' actions intrude into a
no-fly zone demarcated by the preemption provision of the Airline
Deregulation Act (ADA), 49 U.S.C. § 41713(b)(1), we affirm the
district court's orders of dismissal.
I. BACKGROUND
These consolidated cases have a convoluted history. For
present purposes, however, a simplified account will do.
The cases comprise two putative class actions brought by
skycaps — a term of art used to describe "porters who provide
curbside service" at airports. DiFiore v. Am. Airlines, Inc., 646
F.3d 81, 82 (1st Cir.), cert. denied, 132 S. Ct. 761 (2011). At
the times relevant hereto, the skycaps toiled on behalf of air
carriers (either defendant US Airways, Inc. or defendant United
Airlines, Inc.).
By tradition, skycaps' remuneration depended largely on
tips. In the middle of the last decade, however, the defendants,
acting independently and at different times, each introduced a
$2.00 per bag fee for curbside service for departing passengers at
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airports. These baggage-handling fees did not inure to the benefit
of the skycaps.
Invoking diversity jurisdiction, see 28 U.S.C.
§ 1332(d)(2), the plaintiffs brought suit in the federal district
court. They asserted that their compensation "decreased
dramatically" after the baggage-handling fees were established, "as
some passengers thought the $2.00 charge was a mandatory gratuity,
and others declined voluntarily to tip in addition to paying the
$2.00 charge." Mitchell v. US Airways, Inc., 858 F. Supp. 2d 137,
148 (D. Mass. 2012). Relatedly, the plaintiffs faulted the
airlines for "not adequately notify[ing] passengers that this
charge was not a gratuity." Id.
The plaintiffs made a number of state law claims premised
on these averments. We rehearse here only the claims that have
continuing relevance: unjust enrichment and tortious interference
with advantageous relations.1
In the early going, this litigation encountered strong
headwinds, fueled by a byzantine series of procedural twists and
turns. This history need not concern us, so we fast-forward to the
point at which the ADA preemption issue came to the fore. The
1
The plaintiffs in these cases seek to represent nationwide
classes of skycaps, not just skycaps who work in Massachusetts.
They assert that the common-law principles on which they rely are
universal, not state-specific. For ease in exposition, we
sometimes refer to Massachusetts case law to exemplify those
principles.
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district court heard oral argument and dismissed the unjust
enrichment and tortious interference claims as preempted. See id.
at 148-59. These timely appeals ensued.
II. ANALYSIS
The plaintiffs' appeals hinge on the proposition that the
ADA does not preempt common-law claims, regardless of the
relationship between those claims and an air carrier's prices,
routes, or services. The district court rejected this proposition
as a matter of statutory construction, and we review its decision
de novo. See DiFiore, 646 F.3d at 85; Buck v. Am. Airlines, Inc.,
476 F.3d 29, 32 (1st Cir. 2007).
The Supremacy Clause sits at the epicenter of every
preemption question. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,
210-11 (1824). The Clause instructs that federal law "shall be the
supreme Law of the Land . . . any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding." U.S. Const. art.
VI, cl. 2. A state law that offends the Supremacy Clause "is a
nullity." Mass. Ass'n of Health Maint. Orgs. v. Ruthardt, 194 F.3d
176, 178 (1st Cir. 1999).
Federal preemption of state law may occur either
expressly or by implication. Grant's Dairy - Me., LLC v. Comm'r of
Me. Dep't of Agric., Food & Rural Res., 232 F.3d 8, 15 (1st Cir.
2000). The fact that the statute at issue here contains a specific
preemption clause, 49 U.S.C. § 41713(b)(1), streamlines our
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inquiry. The issue at hand is one of express preemption. But even
express preemption is not self-elucidating: it nonetheless falls to
the courts to identify which state laws are preempted. See
Medtronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996); Ruthardt, 194
F.3d at 179.
Congressional intent is the principal resource to be used
in defining the scope and extent of an express preemption clause.
See Grant's Dairy, 232 F.3d at 14; Ruthardt, 194 F.3d at 179. In
this endeavor, we look to both the text and context of the
particular clause. See Ruthardt, 194 F.3d at 179. We also may
consider the clause's purpose and history, as well as the structure
of the statutory scheme in which it is housed. See Lohr, 518 U.S.
at 486; UPS, Inc. v. Flores-Galarza, 318 F.3d 323, 334 (1st Cir.
2003).
Our starting point is textual. See CSX Transp., Inc. v.
Easterwood, 507 U.S. 658, 664 (1993). The ADA preemption provision
reads in pertinent part: "[A] State, political subdivision of a
State, or political authority of at least 2 States may not enact or
enforce a law, regulation, or other provision having the force and
effect of law related to a price, route, or service of an air
carrier . . . ." 49 U.S.C. § 41713(b)(1). We must effectuate the
plain meaning of this language "unless there is good reason to
believe Congress intended the language to have some more
restrictive meaning." Cipollone v. Liggett Group, Inc., 505 U.S.
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504, 521 (1992) (plurality opinion) (internal quotation marks
omitted); see Morales v. Trans World Airlines, Inc., 504 U.S. 374,
383 (1992).
Reduced to bare essence, the question before us is
whether the quoted language preempts the plaintiffs' common-law
claims. Given the wording of the ADA preemption provision, this
question breaks down into two sub-questions. The first sub-
question asks whether the arguably preempted claim is based on a
state "law, regulation, or other provision having the force and
effect of law." The second sub-question asks whether the claim is
sufficiently "related to a price, route, or service of an air
carrier." Put in shorthand, the first sub-question focuses on the
mechanism through which the claim is preferred; the second sub-
question focuses on the linkage between the claim and the core
activities of the regulated industry. We address these two sub-
questions separately, but in reverse order.
Linkage is an open-and-shut matter here. For ADA
preemption to thrive, the state law, regulation, or other provision
sought to be enforced must "relate[] to a price, route, or service
of an air carrier." 49 U.S.C. § 41713(b)(1). Our decision in
DiFiore (a case that arose out of a remarkably similar set of
facts) conclusively resolves this point.
In DiFiore, skycap plaintiffs alleged that after the
defendant airline "began charging passengers a fee of $2 for each
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bag checked with [skycaps,] . . . passengers mistook the fee for a
mandatory gratuity for the skycaps and stopped tipping." 646 F.3d
at 82. We held preempted the plaintiffs' claims under the
Massachusetts Tips Act, Mass. Gen. Laws ch. 149, § 152A. See
DiFiore, 646 F.3d at 88-90. As part of this holding, we concluded
that an airline's "conduct in arranging for transportation of bags
at curbside into the airline terminal en route to the loading
facilities is itself a part of the 'service' referred to in the
[ADA preemption provision], and the airline's 'price' includes
charges for such ancillary services as well as the flight itself."
Id. at 87. Thus, a state law that penalizes the imposition of
baggage-handling fees at airports "directly regulates how an
airline service is performed and how its price is displayed to
customers." Id. at 88.
DiFiore answers the linkage sub-question for us. Our
holding there signifies that the enforcement of a state law,
regulation, or other provision in a way that materially affects an
air carrier's imposition of baggage-handling fees relates to both
an air carrier's prices and services. That holding, unimpeached by
any supervening authority, is binding in this litigation. See,
e.g., United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991)
(explaining "that in a multi-panel circuit, prior panel decisions
are binding upon newly constituted panels in the absence of
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supervening authority sufficient to warrant disregard of
established precedent").
The reason why DiFiore does not end our journey is
because the decision there turned entirely on the linkage sub-
question. See 646 F.3d at 86-89. The mechanism sub-question was
not in issue because the plaintiffs' claims depended on positive
law in the form of a state statute (the Tips Act).2 Here, however,
the claims pressed by the plaintiffs on appeal do not depend on a
state statute; rather, they are founded on the common law.
Building on this distinction, the plaintiffs contend that common
law is not a mechanism that can be preempted under the ADA
preemption clause; that is, that common law is not a state "law,
regulation, or other provision having the force and effect of law"
within the purview of the ADA preemption clause. DiFiore did not
address this issue. Accordingly, this case requires us to delve
into that portion of the ADA preemption clause declaring that no
state may "enact or enforce a law, regulation, or other provision
having the force and effect of law." 49 U.S.C. § 41713(b)(1).
In an effort to score an early knockout, the plaintiffs
point to the Supreme Court's statement that the use of "law" and/or
"regulation" in a preemption provision, preceded by an indefinite
2
To be sure, the DiFiore plaintiffs also mounted a common-law
tortious interference claim. But the panel concluded that, in the
circumstances of the case, all of the plaintiffs' claims "rest[ed]
critically" on whether the Tips Act was preempted. DiFiore, 646
F.3d at 89.
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article, refers only to state positive law. See Sprietsma v.
Mercury Marine, 537 U.S. 51, 63-64 (2002). But this is not a
knockout blow; the ADA preemption provision — unlike the provision
at issue in Sprietsma, see 46 U.S.C. § 4306 — goes beyond a bare
reference to state laws and regulations. The ADA also refers to
"other provision[s] having the force and effect of law." Thus, our
inquiry reduces to whether this additional language encompasses
state common law.
Seen in this light, we think that a more helpful
precedent is the Supreme Court's opinion in American Airlines, Inc.
v. Wolens, 513 U.S. 219 (1995). There, the Supreme Court stated,
albeit in dictum, that the words "having the force and effect of
law" are "most naturally read to refer to binding standards of
conduct that operate irrespective of any private agreement." Id.
at 229 n.5 (alteration and internal quotation marks omitted). It
cannot be gainsaid that common law functions as a set of binding
standards of conduct.
Wolens is not a waif in the wilderness. In a recent case
interpreting the preemption provision of the Federal Aviation
Administration Authorization Act of 1994 (FAAAA), 49 U.S.C.
§ 14501(c)(1) — a provision that stands in pari materia with the
preemption provision of the ADA, see DiFiore, 646 F.3d at 86 n.4 —
the Court took an expansive approach to the meaning of such
language. See Am. Trucking Ass'ns, Inc. v. City of Los Angeles,
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___ S. Ct. ___ (2013) [No. 11-798, 2013 WL 2631059]. There, the
Court held that the FAAAA preempted certain contractual
requirements, enforced by way of criminal penalties, that were
imposed on trucking companies by a municipal port authority. See
id. at *3. In so holding, the Court looked to the practical effect
of the requirements rather than their form: they forced businesses
"to alter their conduct by implementing a criminal prohibition."
Id. at *6.
This pragmatic emphasis on function over form offers
guidance here. Even though a suit at common law is most often
brought by one private party against another, that suit is backed
by the weight of the state judiciary enforcing state law.3 Common
law, like positive law, can effectively strong-arm regulated
entities to alter their business practices. We think it clear,
therefore, that common law — no less than positive law — has the
force and effect of law.
The plaintiffs persist. They say that, whatever the
import of the phrase "having the force and effect of law," the term
"other provision," as used in the phrase "law, regulation, or other
provision," does not include common law. We do not agree.
3
It makes no difference that the plaintiffs in this case are
attempting to enforce state common law in a suit brought in federal
court. See Riegel v. Medtronic, Inc., 552 U.S. 312, 320, 324-25
(2008).
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A statute need not use the words "common law" in order to
preempt common-law claims. See, e.g., Riegel v. Medtronic, Inc.,
552 U.S. 312, 324-25 (2008); CSX Transp., 507 U.S. at 664;
Cipollone, 505 U.S. at 521-23 & n.22 (plurality opinion).
Preemption of common law need not be in haec verba.
Both the Supreme Court and this court have consistently
given a wide interpretive sweep to ADA preemption. See, e.g.,
Wolens, 513 U.S. at 223; Morales, 504 U.S. at 383-87; DiFiore, 646
F.3d at 86; Buck, 476 F.3d at 34-35. In Buck, we faced a variation
of the mechanism sub-question that confronts us today. There, the
plaintiffs' complaint asserted a gallimaufry of common-law claims,
including breach of contract, unjust enrichment, breach of an
implied covenant of good faith and fair dealing, breach of
fiduciary duty, and civil conspiracy. See Buck, 476 F.3d at 32.
Although we made no particular distinction between claims rooted in
positive law and claims rooted in common law, we found that ADA
preemption foreclosed these common-law claims. See id. at 34-35.
Our intuition that the "other provision" language
encompasses common law is bolstered by the purpose and history of
the ADA preemption clause and the structure of the statutory
scheme. The evolution of the preemption provision informs its
purpose. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 542
(2001) ("We are aided in our interpretation by considering the
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predecessor pre-emption provision and the circumstances in which
the current language was adopted.").
Prior to its revision in 1994, the preemption provision
read: "[N]o State or political subdivision thereof . . . 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 . . . ." Pub. L. No. 95-
504, § 4(a), 92 Stat. 1705, 1707-08 (1978). We think it telling
that Congress used words such as "rule" and "standard" to describe
the state law that could be preempted. Those words typically
include common law. See, e.g., CSX Transp., 507 U.S. at 664
(finding the phrase "law, rule, regulation, order, or standard" to
include common law); Drake v. Lab. Corp. of Am. Holdings, 458 F.3d
48, 59 & n.10 (2d Cir. 2006) (finding the words "rule" and
"standard" to include common law). It is, therefore, conspicuously
clear that the pre-1994 version of the preemption provision
included common law as a mechanism eligible for preemption.
This is a highly significant datum. Congress amended the
ADA in 1994 and, as a part of this recodification, reworded the
preemption provision. Though reworded, the purpose of the new
preemption provision remained to "ensure that the States would not
undo federal deregulation [of the airline industry] with regulation
of their own." Morales, 504 U.S. at 378. While the rewording did
not repeat the words "rule" and "standard," the revised language
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was not meant to effect any substantive change. See Wolens, 513
U.S. at 223 n.1; Flores-Galarza, 318 F.3d at 334-35 n.17; see also
H.R. Conf. Rep. No. 103-677, at 83 (1994), reprinted in 1994
U.S.C.C.A.N. 1715, 1755 (confirming that Congress "intend[ed] no
substantive change to the previously enacted preemption provision"
and "d[id] not intend to alter the broad preemption interpretation
adopted by the United States Supreme Court in" Morales).
Silhouetted against this backdrop, the only plausible reading of
the ADA preemption provision is that it continues to preempt rules
and standards and, thus, continues to preempt common law. We hold
that, to the extent that a state common-law claim relates to a
price, route, or service of an air carrier, it is preempted by the
ADA.
Common sense supports this holding. After all, courts
adjudicating common-law claims can create just as much uncertainty
and inconsistency in a carefully calibrated federal regulatory
framework as can state legislatures enacting statutes or state
agencies promulgating regulations. See, e.g., Geier v. Am. Honda
Motor Co., 529 U.S. 861, 871 (2000); DiFiore, 646 F.3d at 88. It
defies logic to think that Congress would disregard real-world
consequences and give dispositive effect to the form of a clear
intrusion into a federally regulated industry.4 See Am. Trucking,
4
We note in passing that at least one jurisdiction has
codified claims for unjust enrichment and tortious interference.
See P.R. Laws Ann. tit. 31, §§ 5121-5127; id. § 5141. Were we to
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___ S. Ct. at ___ [2013 WL 2631059, at *5] (finding preemption
despite form of requirement imposed when municipality "exercise[s]
classic regulatory authority").
The case law in other circuits, while not precisely on
point, is compatible with our holding. A number of courts have
found common-law claims preempted by the ADA, albeit without
explicitly ruling on the scope of the phrase "other provision."
See, e.g., Onoh v. Nw. Airlines, Inc., 613 F.3d 596, 599-601 (5th
Cir. 2010); Weiss v. El Al Israel Airlines, 309 F. App'x 483, 484-
85 (2d Cir. 2009) (per curiam); Koutsouradis v. Delta Air Lines,
Inc., 427 F.3d 1339, 1344 (11th Cir. 2005) (per curiam); Weber v.
USAirways, Inc., 11 F. App'x 56, 56-58 (4th Cir. 2001) (per
curiam); Anderson v. USAir, Inc., 818 F.2d 49, 57 (D.C. Cir. 1987).
The cases that have held claims not preempted appear to have been
decided on the linkage sub-question; that is, the litigated claims
did not relate to prices, routes, or services of an air carrier.
See, e.g., Wellons v. Nw. Airlines, Inc., 165 F.3d 493, 494-96 (6th
Cir. 1999); Taj Mahal Travel, Inc. v. Delta Airlines Inc., 164 F.3d
186, 194-95 (3d Cir. 1998); Charas v. Trans World Airlines, Inc.,
adopt the plaintiffs' view, the viability of skycaps' unjust
enrichment and tortious interference claims would depend on where
those claims arose. In a jurisdiction like Puerto Rico, such
claims would be statutory and thus preempted, whereas identical
claims, arising in a jurisdiction like Massachusetts, would not be
preempted. Congress surely could not have intended so haphazard a
result in an industry that inherently involves constant movement
from state to state.
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160 F.3d 1259, 1261, 1265-66 (9th Cir. 1998) (en banc), amended by
169 F.3d 594 (9th Cir. 1999) (en banc).
The only reported circuit court decision that squarely
addresses the question of whether the "other provision" language
extends to state common law answers that question in the
affirmative. In United Airlines, Inc. v. Mesa Airlines, Inc., 219
F.3d 605 (7th Cir. 2000), the Seventh Circuit concluded that
"[s]tate common law counts as an 'other provision having the force
and effect of law' for purposes of [the ADA preemption clause]."
Id. at 607. We see no valid reason to depart from this view and in
doing so create a circuit split.
In their search for a friendly face in the crowd, the
plaintiffs place heavy reliance on the decision in Spinrad v.
Comair, Inc., 825 F. Supp. 2d 397 (E.D.N.Y. 2011). This reliance
is mislaid: Spinrad turned on the district court's conclusion that
the plaintiff's claim was not preempted because of lack of linkage.
In other words, it was insufficiently "related to" prices, routes,
or services. See id. at 413-14. The court's speculation about
whether or not ADA preemption reaches state common-law claims is
unhelpful dictum.
The plaintiffs create no fewer than six pockets of
turbulence in an effort to steer us in a different direction. This
turbulence is mostly hot air, and none of it disrupts our flight
path.
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As a threshold matter, the plaintiffs argue that the
plain meaning of the word "provision" does not encompass common law
and, by like token, that courts do not "enforce" common law. The
first part of this premise is simply wrong. The word "provision,"
though inexact, is elastic enough to encompass common law. See,
e.g., Veiga v. McGee, 26 F.3d 1206, 1215 n.10 (1st Cir. 1994)
(noting that "[t]here are specific . . . common law provisions that
regulate breaches of the peace"); Smith v. Pasqualetto, 246 F.2d
765, 769 (1st Cir. 1957) (discussing "common law provision").
Everything depends on context, and when read in context, the word
"provision" in the ADA preemption clause can most appropriately be
construed to include common law.
The second part of the plaintiffs' premise is errant
nonsense, which we reject without extended comment. Suffice it to
say that one wonders how the plaintiffs expect their common-law
claims to be vindicated if not by a court.
The plaintiffs next seek refuge in the venerable
presumption against preemption. See, e.g., United States v. Texas,
507 U.S. 529, 534 (1993); Ruthardt, 194 F.3d at 179. That refuge
is beyond their reach.
The so-called presumption against preemption stems from
the Supreme Court's admonition "that statutes which invade the
common law are to be read with a presumption favoring the retention
of long-established and familiar principles, except when a
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statutory purpose to the contrary is evident." Texas, 507 U.S. at
534 (alterations and internal quotation marks omitted). With
respect to the ADA, such a purpose is apparent and the presumption
against preemption does not apply. See DiFiore, 646 F.3d at 86;
Flores-Galarza, 318 F.3d at 336.
Moreover, as we noted in Flores-Galarza, the presumption
against preemption "only arises . . . if Congress legislates in a
field traditionally occupied by the states." 318 F.3d at 336. In
matters of air transportation, the federal presence is both
longstanding and pervasive; that field is simply not one
traditionally reserved to the states. The Supreme Court has not
suggested that the presumption against preemption should be
interposed in that field, nor has the Court been hesitant to give
force to the ADA preemption provision. We see no reason to
hesitate here.
The plaintiffs' third attempt to stall a finding of
preemption invokes the doctrine of ejusdem generis. This doctrine
teaches that "when a general term follows [] specific one[s], the
general term should be understood as a reference to subjects akin
to the one[s] with specific enumeration." Norfolk & W. Ry. Co. v.
Am. Train Dispatchers' Ass'n, 499 U.S. 117, 129 (1991). The
plaintiffs asseverate that, because "common law" is a broader
category than "law" and "regulation," the ADA's "other provision"
terminology cannot reasonably be understood to include common law.
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This asseveration fails for at least three reasons.
First, we believe that, categorically speaking, "common law" is
fairly comparable to "law" and "regulation." The trilogy of
statutes, regulations, and common law comprises a natural grouping,
with each component having roughly equal weight. Cf. Cipollone,
505 U.S. at 522 (plurality opinion) (explaining that "the phrase
'state law' [] include[s] common law as well as statutes and
regulations").
Second, the principle of ejusdem generis should be
applied only when it furnishes meaningful interpretive assistance,
not when it defenestrates Congress's clear purpose and discernable
intent. See Norfolk, 499 U.S. at 129; United States v. Alpers, 338
U.S. 680, 682 (1950). Defenestration would be the result of
applying ejusdem generis here.
Third, it is settled law that courts should strive to
breathe life into every word and phrase in a statute. See United
States v. Menasche, 348 U.S. 528, 538-39 (1955); United States v.
Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir. 1985). This
construct dictates that we should, if possible, "give meaning to
each element of the pre-emption provision." Lorillard Tobacco, 533
U.S. at 542. The doctrine of ejusdem generis "cannot be employed
to render general words meaningless." Alpers, 338 U.S. at 682.
Under this approach, the term "other provision" in the
ADA preemption clause must have some purpose apart from referring
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to the positive enactments encompassed by "law" and "regulation."
The most obvious purpose is that Congress intended to include
common law. The plaintiffs have not offered us any persuasive
reason for overlooking this purpose.5
The plaintiffs' fourth argument centers on a statutory
saving clause, 49 U.S.C. § 40120(c). We pause to place this clause
into perspective.
The ADA is nested within a sprawling, multi-part scheme
regulating aviation. See, e.g., 49 U.S.C. §§ 40101-46507. The
saving clause appears within this scheme, but it is not directly
tied to the ADA's preemption provision.
Congress originally enacted the saving clause as part of
the Civil Aeronautics Act of 1938, Pub. L. No. 75-706, § 1106, 52
Stat. 973, 1027, and later recodified it as part of the Federal
Aviation Act of 1958 (FAA), Pub. L. No. 85-726, 72 Stat. 731. This
clause states that "[a] remedy under this part is in addition to
any other remedies provided by law." 49 U.S.C. § 40120(c).
Despite the fact that the saving clause antedates the preemption
clause and has no direct connection to it, the plaintiffs assert
5
The plaintiffs suggest that "other provision" might mean
such things as travel guidelines and compacts between air carriers
and governmental or quasi-governmental authorities. This may be
true, but it is hard to imagine that, in drafting the ADA
preemption clause, Congress would have focused on such relatively
obscure possibilities while ignoring common law.
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that the saving clause protects against the preemption of common-
law claims.
This assertion is groundless. In ADA cases, the Supreme
Court has not put much stock in the saving clause, dismissing it as
"a relic of the pre-ADA/no pre-emption regime." Morales, 504 U.S.
at 385. The Court reasoned that, given the evolution and framework
of the statutory scheme, a "general 'remedies' saving clause cannot
be allowed to supersede the specific substantive pre-emption
provision" of the ADA. Id.; see Wolens, 513 U.S. at 232-33.
We add a coda. The field of aviation is regulated under
an intricate framework of rules promulgated by the federal
sovereign, so the Supreme Court's reluctance to accord decretory
significance to the saving clause is of a piece with the Court's
repeated refusal "to give broad effect to saving clauses where
doing so would upset [a] careful regulatory scheme established by
federal law." Geier, 529 U.S. at 870 (internal quotation marks
omitted).
This is not to say — as the plaintiffs would have it —
that rejecting their argument is tantamount to consigning the
saving clause to the scrap heap. As the district court astutely
observed, when the saving clause is juxtaposed with the preemption
provision it "ought properly be read to carve out all common law or
statutory claims not related to an airline's prices, routes or
services." Mitchell, 858 F. Supp. 2d at 154.
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The cases cited by the plaintiffs in furtherance of their
position largely turn on the distinction noted by the court below.
See, e.g., Taj Mahal Travel, 164 F.3d at 194-95; Charas, 160 F.3d
at 1261, 1265-66. The same distinction — between claims that are
related to the price, route, or service of an air carrier and those
that are not — accounts for language, improvidently relied upon by
the plaintiffs, concerning the preservation of common-law claims
under the ADA. See, e.g., Morales, 504 U.S. at 390 (explaining
that "some state actions may affect airline fares in too tenuous,
remote, or peripheral a manner to have pre-emptive effect"
(alterations and internal quotation marks omitted)); DiFiore, 646
F.3d at 87 ("[T]he Supreme Court would be unlikely — with some
possible qualifications — to free airlines from most conventional
common law claims for tort . . . .").
We give short shrift to the plaintiffs' importuning that
the presence of a saving clause in a statute necessarily implies
that there are numerous common-law claims to be saved. In support,
the plaintiffs cite Sprietsma and Geier. In those cases, however,
the saving clause specifically applied to the preemption provision
at issue. See Sprietsma, 537 U.S. at 63; Geier, 529 U.S. at 867-
68. That is not true of the relationship between the FAA saving
clause and the ADA preemption provision.
Here, the saving clause extends to a more wide-ranging
statutory scheme. Indeed, it is not even in the same subpart of
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the statutory title as the preemption provision. Given both this
structure and the fact that the saving clause long predates the
preemption provision, there is no logical basis for transforming
the saving clause into a monkey wrench designed to impede the work
of the preemption provision.
The plaintiffs' fifth argument attempts to build upon the
Supreme Court's decision in Wolens. There, the Justices held that
although "the ADA's preemption prescription bars state-imposed
regulation of air carriers, [it] allows room for court enforcement
of contract terms set by the parties themselves." Wolens, 513 U.S.
at 222. Consequently, the ADA does not preempt "suits alleging no
violation of state-imposed obligations, but [rather] seeking
recovery solely for the airline's alleged breach of its own, self-
imposed undertakings." Id. at 228. This isthmian exception is
justified because, in a Wolens scenario, a court is confined "to
the parties' bargain, with no enlargement or enhancement based on
state laws or policies external to the agreement." Id. at 233.
The plaintiffs posit that their claims can be squeezed
into the narrow confines of the Wolens exception. In their view,
the defendants incurred a privately ordered obligation by
"promis[ing] customers that the $2 per bag charges they paid would
be kept by the skycaps as tips." The plaintiffs were allegedly
harmed by the breach of that promise and the defendants were
unjustly enriched. And because passengers paid the baggage fees
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based on "misleading representations," thus "making the $2 charge
appear to be the skycaps' tip," the defendants tortiously
interfered with the plaintiffs' advantageous relations.
The Wolens exception is very narrow, see Buck, 476 F.3d
at 36-37, and the plaintiffs' unjust enrichment and tortious
interference claims fall outside its confines. As we explain more
specifically below, those claims are alleged to arise out of state-
imposed obligations, not private terms agreed to by the parties.
The doctrine of unjust enrichment exists in the hazy
realm of quasi-contract and restitution. See, e.g., Metro. Life
Ins. Co. v. Cotter, 984 N.E.2d 835, 850 (Mass. 2013); Salamon v.
Terra, 477 N.E.2d 1029, 1031 (Mass. 1985); Restatement (Third) of
Restitution & Unjust Enrichment § 1 (2011). "Ordinarily, a claim
of unjust enrichment will not lie where there is a valid contract
that defines the obligations of the parties." Cotter, 984 N.E.2d
at 849 (internal quotation marks omitted). This makes good sense
because unjust enrichment is based on "an obligation created by law
for reasons of justice, without any expression of assent and
sometimes even against a clear expression of dissent." Salamon,
477 N.E.2d at 1031 (internal quotation marks omitted).
Unjust enrichment claims do not fall within the Wolens
exception. Virtually by definition, unjust enrichment turns on
sources external to any agreement between the parties — such as
"considerations of equity and morality," Cotter, 984 N.E.2d at 850
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(alteration and internal quotation marks omitted) — and is
predicated on the lack of any agreement. A fortiori, the Wolens
exception does not apply.
The plaintiffs' claims of tortious interference fare no
better. Such claims sound in tort, not contract. See, e.g.,
United Truck Leasing Corp. v. Geltman, 551 N.E.2d 20, 21-22 (Mass.
1990); Restatement (Second) of Torts §§ 766-767 (1979). Tort law
is not a privately ordered obligation, and tortious interference
claims therefore cannot trigger the Wolens exception.
Grasping at straws, the plaintiffs next suggest that the
Supreme Court's recent decision in Dan's City Used Cars, Inc. v.
Pelkey, 133 S. Ct. 1769 (2013), somehow changed the landscape and
reshaped preemption doctrine to favor their position. This
suggestion represents a triumph of hope over reason.
The Supreme Court decided Dan's City — a case that
implicated the preemption provision in the FAAAA, 49 U.S.C.
§ 14501(c)(1) — on a nuanced reading of the "related to" preemption
component (what we have called the linkage component). See Dan's
City, 133 S. Ct. at 1775, 1778-79. The Court in no way retreated
from existing precedent but, rather, reiterated and cited with
approval a representative sampling of its earlier decisions. See,
e.g., id. at 1775 (citing Morales); id. at 1778-80 (citing Rowe v.
N.H. Motor Transp. Ass'n, 552 U.S. 364 (2008)). Fairly read, Dan's
City does not advance the plaintiffs' cause by so much as an inch.
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III. CONCLUSION
We need go no further.6 We have said before, and today
reaffirm, that "[p]reemption is strong medicine, not casually to be
dispensed." Grant's Dairy, 232 F.3d at 18. Here, the district
court appropriately prescribed that strong medicine: a searching
appraisal of statutory language, congressional intent, and case law
leads unwaveringly to the conclusion that the ADA preempts the
plaintiffs' common-law claims.
Affirmed.
6
The plaintiffs make other arguments, but none of them
warrants discussion. We simply reject those other arguments out of
hand.
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