United States Court of Appeals,
Fifth Circuit.
No. 91-6070.
Charles E. Gene SMITH and Joan Smith, et al., Plaintiffs-
Appellants,
v.
AMERICA WEST AIRLINES, INC. and Connie Lynn Weaver, Defendants-
Appellees.
Feb. 15, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before POLITZ, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART and PARKER, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This appeal presents the question whether 49 U.S.C.App. §
1305(a)(1), the express preemption section of the Airline
Deregulation Act of 1978, preempts a state law claim for negligence
and gross negligence relating to the airline's alleged failure to
prevent a would-be hijacker from boarding an airplane as a
passenger. The district court, relying on our then-binding
precedent, held that the plaintiffs' causes of action were
preempted and dismissed the complaint. Our analysis of the
preemptive scope of § 1305(a)(1) has significantly changed in the
companion en banc case Hodges v. Delta Airlines, Inc., No. 91-6037,
--- F.3d ---- (5th Cir.1995), decided today. Reviewing this case
in light of Hodges, we reverse the dismissal.
I. BACKGROUND
On January 16, 1990, America West flight 727 was hijacked en
1
route to Las Vegas from Houston. The hijacker forced the pilot to
land the aircraft in Austin, Texas, so that it could be refueled
and flown to Cuba. At the Austin airport, police overpowered the
hijacker and placed him under arrest.
Passengers on the airplane brought a lawsuit in state court
against America West and Connie Lynn Weaver claiming that the
defendants were negligent in permitting the hijacker to board the
aircraft. The defendants removed the action to federal court and
promptly moved to dismiss on the ground that the plaintiffs' state
law tort claims were preempted by the Airline Deregulation Act of
1978 (ADA), 49 U.S.C.App. § 1301 et seq., and that no implied cause
of action existed under the Federal Aviation Act. The district
court granted the defendants' motion and dismissed the complaint.
The plaintiffs appeal.1
The petition here alleges several acts or omissions of
negligence and gross negligence by America West and Weaver. These
allegations generally accuse the airline and its local supervisor
of failing to warn or protect ticketed passengers against hazards
which were known or should have been known to them by allowing Jose
1
The Smiths preliminarily contend that the federal court
lacked removal jurisdiction over this case, in which no federal
claim or cause of action appeared on the face of the well-pleaded
complaint and in which both they and the America West supervisor
were Texas citizens for diversity purposes. If those were the
only salient facts relevant to diversity jurisdiction, appellants
might well be correct. Appellants omit to state, however, that
America West entered Chapter 11 bankruptcy protection three weeks
after the case was removed to federal court, and America West
shortly afterward filed a notice of supplemental removal based on
28 U.S.C. § 1452 and Bankruptcy Rule 9027. Appellants have never
contested this fully defensible basis of federal jurisdiction.
2
Manuel Gonzales-Gonzales to board Flight 727 at Houston
Intercontinental Airport. The plaintiffs allege that America West
and Weaver negligently failed to use boarding practices stringent
enough to prevent Gonzales-Gonzales from boarding the aircraft,
failed to train their employees and failed to warn the passengers,
as a result of which they were endangered and injured.
II. DISCUSSION
In Hodges, this court analyzed congressional intent in
preempting any state law, rule, regulation standard or other
provision "relating to rates, routes or services" of any air
carrier. Construing this language in light of pre-existing
statutory usage, the interpretation of regulatory agencies that had
or have jurisdiction over the airline industry, and the intent of
the ADA, this court concluded that "services" include:
Elements of the air carrier service bargain ... items such as
ticketing, boarding procedures, provision of food and drink,
and baggage handling, in addition to the transportation
itself.
Hodges, --- F.3d at ----. This court also reiterated its holding
in O'Carroll v. American Airlines, Inc., 863 F.2d 11 (5th Cir.),
cert. denied, 490 U.S. 1106, 109 S.Ct. 3158, 104 L.Ed.2d 1021
(1989), in which a passenger's suit for wrongful eviction from a
flight because of his alleged intoxication was held preempted by §
1305(a)(1).
America West asserts that this case, a suit for wrongful
boarding of a passenger who should have been evicted, is the
converse of O'Carroll. In each case, America West contends,
enforcement of state law claims against the carrier would "result
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in significant de facto regulation of the airlines' boarding
practices ..." Hodges, --- F.3d at ----. Consequently, the claims
asserted here by appellants are "related to" the airline's services
and would have the "forbidden significant effect" that compels §
1305(a)(1) preemption. Morales v. Trans World Airlines, Inc., ---
U.S. ----, ----, 112 S.Ct. 2031, 2039, 119 L.Ed.2d 157 (1992).
Appellants construe O'Carroll as more narrowly focusing on the
airline's economic regulations, while the instant case, by
contrast, seeks redress for the airline's failure to insure the
safety of its passengers. See Margolis v. United Airlines, Inc.,
811 F.Supp. 318, 321 (E.D.Mich.1993). Appellants contend that
lawsuits for negligent rendition of services are not preempted by
§ 1305(a)(1).
Applying the Hodges framework, it first appears that the
scope of § 1305(a)(1) preemption will not be affected by 49
U.S.C.App. § 1371(q), which requires airlines to carry insurance to
cover personal injury arising out of the operation or maintenance
of aircraft. Neither the alleged failure of America West's ticket
agent to perceive that the hijacker was deranged when she sold him
a ticket nor appellants' other allegations of negligence are part
of the operation or maintenance of aircraft.
Appellants' claims are thus preempted only if they "relate
to" "services" within the scope of § 1305(a)(1). We conclude that
they do not relate to preempted services and that this case is not
simply the converse of O'Carroll. As explained in Hodges, §
1305(a)(1) assured the economic deregulation of the airlines by
4
rendering them immune from rate and service regulation by the
states after the demise of federal regulation. Neither the
language nor history of the ADA implies that Congress was
attempting to displace state personal injury tort law concerning
the safety of the airline business. The Supreme Court counsels
that courts should not lightly infer in federal actions an attempt
to preempt traditional state police powers. California v. ARC
America Corp., 490 U.S. 93, 102, 109 S.Ct. 1661, 1665, 104 L.Ed.2d
86 (1989). Under these circumstances, it is reasonable to
interpret the "service" of boarding to be limited to economic
decisions concerning boarding, e.g., overbooking or charter
arrangements, and contractual decisions whether to board particular
ticketed passengers.
Consistent with this line of reasoning, O'Carroll's claim was
preempted under § 1305(a)(1). His suit for wrongful eviction from
a flight involved an alleged breach of the airline's duty to
transport the plaintiff. If O'Carroll's judgment had remained
intact, it would interfere with the economic deregulation of
airline services by imposing a state-law-based duty to transport
ticketed passengers.
The Smiths' claim issues from a different perspective that has
nothing to do either with the airlines' economic practices
regarding boarding or with the boarding practices that America West
applied to the Smith appellants. Instead, the Smiths' claim is
that the safety of their flight was jeopardized by the airline's
permitting a visibly deranged man to board. If appellants
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ultimately recover damages, the judgment could affect the airline's
ticket selling, training or security practices, but it would not
regulate the economic or contractual aspects of boarding. Any such
effect would be "too tenuous, remote or peripheral" to be preempted
by § 1305(a)(1). Morales, --- U.S. at ----, 112 S.Ct. at 2040
(quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 100 n. 21, 103
S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490 (1983)).
As this discussion intimates, we hold that the Smiths' claim
is not preempted, but we do not accept the broadest version of
their argument, which is that a claim for the negligent rendition
of services by an air carrier is not preempted. This argument was
rejected in Morales, which held that state laws of general
applicability are preempted whenever they "relate to" the subject
of federal legislation. --- U.S. at ----, 112 S.Ct. at 2038. The
real question, is the scope of "services" that were deregulated:
those services include boarding practices in their economic or
contractual dimension but not insofar as the safety of the flight
is involved.2
For these reasons, the Smiths' claims are not preempted by §
1305(a)(1), and the case is REVERSED and REMANDED for further
proceedings.
E. GRADY JOLLY, Circuit Judge, specially concurring:
In this case, the majority modifies its interpretation of the
2
As in Hodges, we do not decide whether Federal Aviation
Administration safety regulations may exert some preemptive
effect over the Smith appellants' claims. See Hodges, --- F.3d -
---, n. 13.
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ADA preemption provision announced today in Hodges v. Delta
Airlines to differentiate further between the economic aspects and
the safety aspects of a service. I do not think this distinction
is defensible in the light of American Airlines v. Wolens, 1995 WL
15047, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----. American
Airlines determined that the term "service" in the preemption
provision includes all services, both essential and unessential.
Id. at *5, --- U.S. at ----, --- S.Ct. at ----. Given that fact,
it is likely that the Supreme Court would view the term "service"
as encompassing claims relating to the safety as well as the
economic or contractual aspects of a service. Nonetheless, for the
reasons stated in my special concurring opinion in Hodges, I concur
in the judgment of the court.
PATRICK E. HIGGINBOTHAM, Circuit Judge with whom EMILIO M.
GARZA, Circuit Judge, joins dissenting:
In Hodges v. Delta Airlines, Inc., --- F.3d ----, ---- (5th
Cir.1995) (en banc), I explained that I would test the preemptive
reach of § 1305(a)(1) of the Airline Deregulation Act of 1978 as
follows:
The first inquiry is whether the claim, with regulatory
effect, relates to "rates, routes or services." 49 U.S.C.App.
§ 1305(a)(1). If the claim relates to services, then it is
preempted unless it also results from "the operation or
maintenance of aircraft." Id. § 1371(q)(1). If there is
doubt as to whether the claim results from the operation or
maintenance of the aircraft, that doubt is to be resolved in
favor of the operation or maintenance category.
I am persuaded that the Smiths' claim is preempted. A claim
alleging that an airline negligently failed to prevent a visibly
deranged passenger, holding an otherwise valid ticket, from
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boarding the aircraft relates to boarding procedures, which are
inextricably part of providing air travel services. The next
inquiry then is whether this claim results from the operation or
maintenance of the aircraft. As the majority indicates, "[n]either
the alleged failure of America West's ticket agent to perceive that
the hijacker was deranged when she sold him a ticket nor
appellants' other allegations of negligence are part of the
operation or maintenance of aircraft." For me, the analysis ends
there, and the correct result is that the Smiths' claim relates to
services and, therefore, is preempted.
The majority suggests that affecting an airline's ticket
selling, training, or security practices is "too tenuous, remote or
peripheral" to be preempted by § 1305(a)(1) and has nothing to do
with the economic practices regarding boarding. This does not
comport with the plain meaning of the term services, and I am not
persuaded of the relevance or force of the proffered economic
analysis. The regulatory bite of tort laws is direct. I cannot
find in the words of the statute a wholesale exception for claims
of personal injury nor any exception for tort claims with a
contract in the background. The state is enforcing its own
standards, policies, and duties, not the obligations of private
contract—just as surely as Illinois was regulating an airline
service by applying its rules against fraudulent acts to a frequent
flier mile program. See American Airlines, Inc. v. Wolens, No. 93-
1286, 1995 WL 15047, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---
- (U.S. Jan. 18, 1995).
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I would affirm.
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