Harrington v. American Airlines

United States Court of Appeals
For the First Circuit

No. 06-1625

CRAIG BUCK ET AL.,

Plaintiffs, Appellants,

v.

AMERICAN AIRLINES, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Howard, Circuit Judge,
Selya, Senior Circuit Judge,
and Shadur,* Senior District Judge.

Evans J. Carter, with whom Evans J. Carter, P.C. was on brief,
for appellants.
Matthew A. Porter, with whom Michael S. Shin and Dechert LLP
were on brief, for appellees American Airlines, Inc., Alaska
Airlines, Inc., Continental Airlines, Inc., Southwest Airlines Co.,
Airlines Reporting Corp., and Air Transport Association of America,
Inc.
Ethan G. Shenkman, with whom Daniel M. Esrick, David W. Ogden,
and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for
appellee Deutsche Lufthansa A.G.
Kevin C. Cain and Peabody & Arnold LLP on brief for appellees

*
Of the Northern District of Illinois, sitting by designation.
Aer Lingus Ltd., Alitalia-Linee Aeree Italiane S.p.A. d/b/a
Alitalia Airlines, and British Airways, PLC, d/b/a British Airways.
Thomas J. Whalen, with whom Kathleen M. Guilfoyle, Campbell
Campbell Edwards & Conroy, P.C., and Eckert Seamans Cherin &
Mellott, LLC were on brief, for appellees China Eastern Airlines
Co. and China Southern Airlines Co.

February 7, 2007
 SELYA, Senior Circuit Judge. When the plaintiffs in this

case purchased nonrefundable airline tickets that they ultimately

were unable to use, they received no payback of any kind. In the

lawsuit that followed, they conceded that they were correctly

denied any refund of their base fares but accused the airlines of

unlawfully failing to refund various fees and taxes that had been

collected as part of the original ticket prices. The plaintiffs'

core theory was that the word "nonrefundable" pertained only to

their base fares, not to the various other charges (none of which

became due without travel).

The district court found the plaintiffs' claims preempted

and dismissed the suit for failure to state a viable cause of

action. We too conclude that the plaintiffs are fruitlessly

endeavoring to fly in unfriendly skies. Consequently, we affirm

the order of dismissal.

I. BACKGROUND

On November 4, 2004, fifteen individuals filed suit

against a number of airlines and related entities in a

Massachusetts state court. The plaintiffs alleged that the

defendants had wrongfully retained fees and taxes collected at the

time of their purchase of nonrefundable tickets. This retention of

funds was wrongful, the plaintiffs maintained, because they never

used the tickets and, thus, the fees and taxes, which did not

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become due until the commencement of air travel, should have been

returned.

The defendants removed the case to the federal district

court. The plaintiffs, now reduced to nine in number, served an

amended complaint (the operative pleading for our purposes) that

named six domestic and seven international airlines as the

culprits.1 The fees and taxes said to have been wrongly withheld

include passenger facility charges, see 14 C.F.R. § 158.5; customs

fees, see 19 C.F.R. § 24.22(g)(1); immigration fees, see 8 C.F.R.

§ 286.2; agricultural quarantine fees, see 7 C.F.R. § 354.3(f);

security fees, see 49 C.F.R. § 1510.5; and charges on behalf of

foreign sovereigns (collectively, the fees). The amended complaint

named as additional defendants two trade associations (Airlines

Reporting Corp. and Air Transport Association of America, Inc.),

alleging that they had been complicit in allowing the airlines

wrongfully to retain the fees.

1
Of the domestic airlines, American Airlines, Alaska Airlines,
Continental Airlines, and Southwest Airlines remain as defendants.
Two other domestic carriers (Northwest and Delta) have been
dismissed due to ongoing bankruptcy proceedings. The international
airlines named in the suit are Aer Lingus, Alitalia, British
Airways, China Eastern Airlines, China Southern Airlines,
Lufthansa, and Olympic Airways. Of these, six remain (Olympic
Airways appears to have been dropped as a party). The Federal
Aviation Administration (FAA) also was named, but the district
court dismissed all claims against the FAA on grounds wholly
unrelated to the issues raised on appeal.

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 The plaintiffs averred that, in keeping the fees, the

defendants violated a host of federal regulations, most notably a

regulation that provides:

A passenger shall not be bound by any terms
restricting refunds of the ticket price,
imposing monetary penalties on passengers, or
permitting the carrier to raise the price,
unless the passenger receives conspicuous
written notice of the salient features of
those terms on or with the ticket.

14 C.F.R. § 253.7. The plaintiffs claim that the retained fees

constitute a forbidden monetary penalty, imposed without due

notice. In this connection, they admit having had adequate notice

that their tickets were nonrefundable; in their view, however, this

only alerted them to the fact that they could not recover the base

ticket price. They had no notice that the fees would be forfeit as

well.

The plaintiffs cloaked this theory in pleochroic raiment;

their multitudinous statements of claim included counts for

declaratory judgment, rescission, breach of contract, unjust

enrichment, breach of a covenant of good faith and fair dealing,

breach of fiduciary duty, and civil conspiracy. In addition, the

plaintiffs purposed to sue pursuant to an implied right of action

arising under a federal regulation. Their prayer for relief

requested certification of a class; a declaration that (i) the

airlines had failed to provide adequate notice of an intention to

withhold the fees and (ii) the airlines' retention of the fees was

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wrongful; treble damages; injunctive and other equitable

remediation; and attorneys' fees.

A majority of the defendants moved to dismiss on the

ground, inter alia, that all the claims were preempted by section

105(a) of the Airline Deregulation Act (ADA), 49 U.S.C. §

41713(b)(1). The district court granted the motion to dismiss.

Harrington v. Delta Air Lines, Inc., No. Civ. A. 04-12558, 2006 WL

1581752, at *7-8 (D. Mass. Feb. 21, 2006). The court, acting sua

sponte, extended its ruling to cover those defendants that had not

joined in the original motion.2 See id. This timely appeal

followed.

II. STANDARD OF REVIEW

This case arrives on our doorstep following the entry of

a judgment of dismissal pursuant to Rule 12(b)(6). Consequently,

"we review the lower court's dismissal order de novo, accepting the

plaintiffs' well-pleaded facts as true and indulging all reasonable

inferences to their behoof." McCloskey v. Mueller, 446 F.3d 262,

266 (1st Cir. 2006). In conducting that tamisage, however, "bald

assertions, unsupportable conclusions, periphrastic

circumlocutions, and the like need not be credited." Aulson v.

Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).

2
Those defendants had chosen instead to contest personal
jurisdiction.

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III. DISCUSSION

We begin our analysis with the plaintiffs' lone federal-

law claim3: their claim of an implied right of action under 14

C.F.R. § 253.4 and § 253.7. These provisions govern the disclosure

of terms in contracts for air travel. Among other things, they

prevent airlines from claiming the benefit of contract terms not

incorporated by reference in a specified manner. See 14 C.F.R. §

253.4(a). They go on to restrict the authority of airlines to

impose monetary penalties on passengers without clear notice. See

id. § 253.7. In this instance, the plaintiffs argue that they were

denied notice that they would forfeit the fees (in addition to the

base fares) in the event that they did not use their nonrefundable

tickets.

In support of this argument, the plaintiffs invoke the

test formulated in Cort v. Ash, 422 U.S. 66 (1975), which they

insist controls whether a private right of action is to be implied

in connection with a federal statute. Under that test, courts are

to ask four questions:

3
Although the plaintiffs style "declaratory judgment" as a
cause of action, the provision that they cite, 28 U.S.C. § 2201(a),
creates a remedy, not a cause of action. See, e.g., Muirhead v.
Mecham, 427 F.3d 14, 17 n.1 (1st Cir. 2005) (noting that section
2201 "neither provides nor denies a jurisdictional basis for
actions under federal law, but merely defines the scope of
available declaratory relief" (internal quotation marks omitted)).
The actual claims asserted by the plaintiffs, save only for the
implied right of action claim, have their genesis in state law.

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 [I]s the plaintiff a member of the class for
whose "especial benefit" the statute was
passed? Is there any cogent indication of
legislative intent to create or deny the
remedy sought? Would recognition of the
remedy be "consistent with the underlying
purposes" of the statutory scheme? Would it
be inappropriate to infer a federal remedy
because "the cause of action [is] one
traditionally relegated to state law . . ."?

Royal Business Grp., Inc. v. Realist, Inc., 933 F.2d 1056, 1060

(1st Cir. 1991) (quoting and paraphrasing Cort, 422 U.S. at 78)

(alternations in original).4 The plaintiffs maintain that the

regulations' goal is to protect consumers and, thus, that it is

appropriate to imply a private right of action.

This argument cannot withstand scrutiny. In the first

place, the plaintiffs misapprehend the relevant unit of analysis.

Regulations alone cannot create private rights of action; the

source of the right must be a statute. See Alexander v. Sandoval,

532 U.S. 275, 291 (2001); Iverson v. City of Boston, 452 F.3d 94,

100 (1st Cir. 2006). The regulations upon which the plaintiffs

rely were promulgated pursuant to 49 U.S.C. § 41707 — a statute

that has its roots in the CAB Sunset Act, Pub. L. No. 98-443, § 7,

98 Stat. 1703, 1706 (1984). The CAB Sunset Act embodies a series

4
We previously have questioned the continuing vitality of the
Cort test. See Rolland v. Romney, 318 F.3d 42, 52 n.9 (1st Cir.
2003). At the very least, the second factor — legislative intent
to create a remedy — appears to be ascendant. See id. Here,
however, the plaintiffs cannot prevail even under the original Cort
test. Thus, we elect to address their argument in the terms in
which they have presented it.

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of amendments to the ADA, which six years earlier had significantly

revamped the Federal Aviation Act.5 We recently rejected an

entreaty to imply a private cause of action pursuant to other

regulations implementing the ADA. See Bonano v. E. Carib. Airline

Corp., 365 F.3d 81, 84-85 (1st Cir. 2004). In the process, we made

clear that, for the purpose of implying private rights of action,

the Federal Aviation Act (and, hence, the ADA, see supra note 5) is

barren soil. See id. There is nothing about the case at bar that

shakes our confidence in that assessment.

To cinch matters, "[e]very court faced with the question

of whether a consumer protection provision of the ADA allows the

implication of a private right of action against an airline has

answered the question in the negative." Casas v. Am. Airlines,

Inc., 304 F.3d 517, 522 n.7 (5th Cir. 2002) (quoting Musson

Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1252 (6th

Cir. 1996)); see Statland v. Am. Airlines, Inc., 998 F.2d 539, 540-

41 (7th Cir. 1993) (declining to imply a private right of action

under the statutory provision at issue in this case). We see no

justification for creating a circuit split. Thus, we hold that the

consumer protection provisions of the ADA do not permit the

imputation of a private right of action against an airline and

5
For ease in reference, we henceforth will refer to the ADA,
employing that acronym to encompass the entire scope of the
revamped statute, including provisions that originated in the
Federal Aviation Act.

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that, therefore, the plaintiffs do not have an implied right of

action under 14 C.F.R. § 253.4 or § 253.7.

Lacking a federal-law cause of action, the plaintiffs are

relegated to their array of state-law claims. See supra note 3.

Yet, even though Massachusetts law offers them a cornucopia of

vehicles for their theory that the fees should have been refunded,

this bounty avails them naught; state-law claims premised on that

theory cannot survive the ADA's broad preemptive sweep. We explain

briefly.

Pertinently, the ADA declares that no state may "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). The Supreme Court has offered

considerable guidance as to how this preemption provision should be

construed. In Morales v. Trans World Airlines, Inc., 504 U.S. 374

(1992), the Court referred to the "sweeping nature" of the

preemption provision, emphasizing the reach of the provision's

"relationship" language.6 Id. at 384. The Morales Court held that

6
The version of the ADA in effect when the Court decided
Morales used the phrase "relating to" in place of the phrase
"related to" (used in the current version). We heretofore have
noted, and today reaffirm, that this slight change in terminology,
which occurred in 1994, had no substantive effect on the provision
and does not undercut the precedential value of Morales. See N.H.
Motor Transp. Ass'n v. Rowe, 448 F.3d 66, 75 n.11 (1st Cir. 2006).

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the provision should be construed broadly.7 Id. at 384-85. This

court has explained that, under Morales, the ADA preempts both laws

that explicitly refer to an airline's prices and those that have a

significant effect upon prices. See United Parcel Serv., Inc. v.

Flores-Galarza, 318 F.3d 323, 335 (1st Cir. 2003).

Three years after Morales, the Supreme Court reaffirmed

the breadth of the ADA's preemption provision. See Am. Airlines,

Inc. v. Wolens, 513 U.S. 219, 223 (1995). However, the Court

carved out an exception for "suits alleging no violation of state-

imposed obligations, but seeking recovery solely for the airline's

alleged breach of its own, self-imposed undertakings." Id. at 228.

It follows that, in order to avoid preemption, the plaintiffs in

this case must demonstrate either that their state-law claims do

not constitute state enforcement related to airline prices or

services, or that they can navigate the straits of the Wolens

exception.

The plaintiffs' doctrinal starting point is the assertion

that their claims are outside the ambit of ADA preemption because

they seek to enforce federal, not state, regulatory requirements.

7
In adopting this expansive reading, the Morales Court relied,
in part, upon its interpretation of similar language in the
Employee Retirement Income Security Act (ERISA), 29 U.S.C. §
1144(a). See Morales, 504 U.S. at 383-87. This umbilical cord has
since been severed. See United Parcel Serv., Inc. v. Flores-
Galarza, 318 F.3d 323, 335 n.19 (1st Cir. 2003). Thus, the meaning
of the ADA's preemption provision is no longer entwined with the
meaning of ERISA's preemption provision.

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At the heart of this assertion lies the dubious premise that since

federal rules govern the airlines' collection of the fees and

provide certain forms of passenger protection in the contracting

process, only federal policies are being advanced by this

litigation. On this telling, "[s]tate court enforcement of Federal

law is not the same as enforcement of a State-imposed requirement,"

and the fact that the causes of action themselves spring from state

law is less important than the source of the underlying policies.

Appellants' Br. at 29. This is so, the plaintiffs asseverate,

because federal preemption should not disrupt federal policies;

after all, nationwide uniformity is the driver for preemption, see

Morales, 504 U.S. at 378, and that uniformity is not offended by

enforcement of federal policies.

This sleight of hand will not work. While the plaintiffs

strive to characterize their suit as one that invokes state

remedies to right a federal wrong, that characterization does not

ring true. More accurately, they are attempting to invoke state

remedies to further a state policy: that those who are wronged

should have individualized access to the courts in order to

remediate that wrong. Cf. Santagate v. Tower, 833 N.E.2d 171, 176

(Mass. App. Ct. 2005) (discussing how Massachusetts provides an

"equitable remedy" for those without "an adequate remedy at law").

It is the imposition of this state policy that would constitute

forbidden state enforcement, in violation of the ADA's preemption

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provision, because the ADA itself provides no private right of

action.

As an alternative, the plaintiffs posit that allowing

their suit to proceed "does not — and in fact cannot — affect the

prices (or rates), routes, or services [of airlines], since the

redress occurs only after the prices (or rates), routes, and

services have been determined by the Air Industry." Appellants'

Br. at 19-20. In their view, "[a]irline ticket prices (or rates)

are composed of two separate components: (1) the fare prices (or

rates) set by the airlines, which comprise the base cost of a

ticket, and (2) the taxes, fees, and, charges imposed by the

Government or other fee-levying authorities." Id. at 21.

This dichotomy blurs when contextualized within the

contours of the "significant effect" doctrine. Although the fees

are in one sense separate from the base fare, the two are

inextricably intertwined. In all events, an air traveler's concern

is with the overall cost of his or her ticket. Thus, when an

airline establishes the base fare, it must take cognizance of any

surcharges that will be imposed by operation of law.

It is freshman-year economics that higher prices mean

lower demand, and that consumers are sensitive to the full price

that they must pay, not just the portion of the price that will

stay in the seller's coffers. For that reason, an airline must

account for the fees when setting its own rates. It follows that

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a finding for the plaintiffs in this case would impact base fares

— and since past judgments affect future behavior, this is as true

of the retrospective relief requested by the plaintiffs as it is of

the prospective relief that they request.

In view of these practical realities, it is not

surprising that most of the courts to have considered suits for

refunds of government fees associated with air travel have found

those suits preempted.8 See, e.g., Statland, 998 F.2d at 542;

Lehman v. USAIR Grp., Inc., 930 F. Supp. 912, 916 (S.D.N.Y. 1996);

Kaucky v. Sw. Airlines Co., No. 96 C 750, 1996 WL 267875, at *4

(N.D. Ill. May 17, 1996). These cases corroborate the

inevitability of a finding of preemption.9

The plaintiffs next argue that their suit was

improvidently dismissed because their contract-based claims fit

within the Wolens exception. But the plaintiffs' amended complaint

identifies only a single word — "nonrefundable" — as common to

their contracts of carriage with a multitude of airlines. It seems

fanciful to suggest, in the circumstances of this case, that the

word "nonrefundable" alone can anchor a breach of contract claim.

8
We say "most" because at least one court has found to the
contrary. See In re Air Transp. Excise Tax. Litig., 37 F. Supp. 2d
1133, 1140 (D. Minn. 1999). We regard that decision as mistaken.

9
In addition to alleging that the instant suit relates to
price, the defendants also have argued that the suit relates to
airline service. Since we find preemption on price grounds, we
need not reach the question.

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 The same result would follow even if, as the plaintiffs

insist, the word "nonrefundable" is ambiguous. At best, an

ambiguity would furnish a rejoinder to a claim that the airlines

gave clear notice about fees being forfeit. It could not, without

more, support a claim that the defendants have breached their duty

to treat the tickets as "nonrefundable" by withholding both the

fare and the fees.

The plaintiffs attempt to circumvent this conspicuous

obstacle by latching onto the federal regulatory guidelines

relating to the disclosure of terms in airline contracts. These

guidelines, they suggest, are "federally mandated terms of their

air travel contracts." Appellants' Br. at 20. In making this

point, the plaintiffs again emphasize 14 C.F.R. § 253.7, the

provision prohibiting the imposition of monetary penalties without

clear notice.10 The plaintiffs allege that this regulation is

written implicitly into every airline contract of carriage and

10
The plaintiffs list a dizzying assortment of other federal
regulations and describe them as relevant. See, e.g., 7 C.F.R. §
354.3(f); 8 C.F.R. § 286.4; 14 C.F.R. §§ 158.45, 158.47; 19 C.F.R.
§ 24.22(g)(4); 49 C.F.R. § 1510.9. These regulations, which
dictate how airlines are supposed to collect and hold the fees, are
too far removed from the contracts of carriage to give rise to a
colorable claim that they are incorporated as contract terms. In
all events, the plaintiffs offer no developed argumentation for the
proposition that these peripheral regulations comprise federally
mandated contract terms. Any such argument is, therefore,
abandoned. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).

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thus, by retaining the fees, the airlines have breached their

contractual duty not to levy an unwarned monetary penalty.

The plaintiffs have not directed us to a single case

holding that a federal regulation incapable of spawning an implied

private right of action may be enforced between private parties as

an implicit contract term. The precedent that they most loudly

trumpet — the Texas Supreme Court's decision in Delta Air Lines,

Inc. v. Black, 116 S.W.3d 745 (Tex. 2003) — is inapposite. The

contract at issue there explicitly incorporated federal

regulations. See id. at 755.

We conclude, without serious question, that the

proposition asserted by the plaintiffs is untenable. As they

conceded at oral argument, construing all federal regulations

touching upon air travel as automatically incorporated into every

airline's contracts of carriage would allow litigants freely to

skirt the implied right of action doctrine. There is nothing to

distinguish the regulation at issue here from the mine-run of

federal regulations touching upon air travel, and we will not

countenance the flagrant undermining of Supreme Court doctrine that

the plaintiffs invite.

Our reluctance is evidently shared by the Fifth Circuit,

which confronted a similar problem in Casas. There, the plaintiff

argued for a remedy under federal common law with respect to

violations of regulations prescribed by the federal Department of

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Transportation. The court rejected this argument, observing that

a contrary holding "would be, in substance, to craft a private

right of action for violations of [the regulation] — and thus to

circumvent the conclusion that the ADA, and therefore the

regulations enacted pursuant to it, creates no private right of

action." Casas, 304 F.3d at 525. Like the Fifth Circuit, we

refuse to abet a blatant evasion of the implied right of action

doctrine.

To say more on this point would be supererogatory. At

bottom, the plaintiffs would have us believe that the implied right

of action doctrine contains a gaping aperture that allows federal

regulations, promulgated pursuant to a statute that creates no

right of private enforcement, to be privately enforced through

state-law mechanisms. We cannot imagine that the Supreme Court,

which has devoted nearly three decades to cabining the implied

right of action doctrine, see Richard H. Fallon et al., Hart &

Wechsler's The Federal Courts and the Federal System 781-82 (5th

ed. 2003), would approve so vagarious a course. We hold instead

that, because no implied right of action exists under the ADA and

the regulation at issue here, the regulation cannot be read as an

implied contract provision.

Next, the plaintiffs launch a naked appeal to public

policy. They tell us that if state-law causes of action are denied

them, there will be a wrong (the airlines' withholding of the fees)

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without a remedy. Put in more hyperbolic terms, a rejection of the

plaintiffs' claims would render "almost all airline contracts and

certain provisions of Federal law" meaningless. Appellants' Br. at

34.

The first half of this lament — that a finding for the

defendants will jeopardize the enforceability of all airline

contracts of carriage — is empty rhetoric. A finding for the

defendants merely retains the configuration of the Wolens exception

crafted by the Supreme Court, which limited that exception to

"self-imposed undertakings." Wolens, 513 U.S. at 228. The second

half of this lament — that a finding for the defendants will

undercut the federal regulatory scheme — is equally baseless.

Refusing to treat federal regulations as implied contract terms

does not in any way diminish the efficacy of the regulatory scheme

itself. Contrary to the plaintiffs' importunings, we do not think

it "inexplicabl[e]" that Congress might view certain regulations as

sufficiently important to warrant their promulgation, yet "not

sufficiently important to permit [private] enforcement in any

court." Appellants' Br. at 35.

What the plaintiffs fail to grasp is that the

unavailability of private enforcement is not the same as the

unavailability of any enforcement at all. We made that point in

Bonano, 365 F.3d at 85, where we remarked upon the power of the

Secretary of Transportation to conduct investigations and issue

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orders with respect to the airline industry. This led us to the

conclusion that Congress's preference in this area is for public,

rather than private, enforcement. See id.; see also 49 U.S.C. §

46106. In other words, Congress reasonably expected the

regulations to be enforced by the Secretary. See Statland, 998

F.2d at 542.

In a last-ditch effort to pull a rabbit out of the hat,

the plaintiffs venture a pair of procedural arguments. First, they

say that their suit should not have been dismissed prior to the

discovery of additional contract terms. This ipse dixit

misapprehends the mechanics of Rule 12(b)(6) which, as we have

interpreted it, requires that plaintiffs "allege a factual

predicate concrete enough to warrant further proceedings." United

States ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220,

240 (1st Cir. 2004) (internal quotation marks omitted); see

Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 68

(1st Cir. 2004) (explaining that, to survive a Rule 12(b)(6)

motion, "the complaint should at least set forth minimal facts as

to who did what to whom, when, where, and why"). In a contract

action, this irreducible minimum requires the pleader to "explain

what obligations were imposed on each of the parties by the alleged

contract." Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir.

1996). The plaintiffs failed to achieve that benchmark here.

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Absent a minimally sufficient complaint, they were not entitled to

discovery. See McCloskey, 446 F.3d at 271.

Second, the plaintiffs make a half-hearted argument that

because some defendants annexed exhibits to their motions to

dismiss, the district court should have converted the motions to

motions for summary judgment. See Fed. R. Civ. P. 12(b). This

argument is triply flawed. For one thing, conversion is wholly

discretionary with the district court. See Beddall v. State St.

Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998). For another

thing, none of the submitted materials bore upon the preemption

issue, which is dispositive here. Third, and finally, the

plaintiffs' brief is devoid of any developed argumentation on this

point. Therefore, the issue is not properly before us. See

Martinez v. Colon, 54 F.3d 980, 990 (1st Cir. 1995); United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

we uphold the district court's order of dismissal.

Affirmed.

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