Case: 09-10971 Document: 00511192120 Page: 1 Date Filed: 08/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 2, 2010
No. 09-10971 Lyle W. Cayce
Clerk
LILIAN ONOH,
Plaintiff - Appellant
v.
NORTHWEST AIRLINES, INC.,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
Before DAVIS, SMITH, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Appellant Lilian Onoh (“Onoh”) appeals the district court’s grant of
summary judgment on her state-law breach-of-contract and intentional-
infliction-of-emotional-distress (“IIED”) claims against Appellee Northwest
Airlines (“Northwest”). The district court found that Onoh’s claims were
preempted by the Airline Deregulation Act (“ADA”). We AFFIRM.
I. FACTUAL & PROCEDURAL BACKGROUND
Onoh, a Nigerian national and diplomat, purchased a round-trip ticket
from Northwest and its partner, KLM “Royal Dutch” Airlines, from Nigeria to
Dallas-Fort Worth International Airport (“DFW”) by way of the Netherlands.
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Onoh carries both a personal and a diplomatic passport, but her trip was
unrelated to diplomatic business.
Onoh’s return itinerary also included a stopover in Amsterdam. The
Netherlands, pursuant to international agreements referred to by the parties as
“the Schengen Agreements,” requires certain air passengers passing through the
country to acquire an airport transit visa (“ATV”). Passengers must possess a
valid ATV at the time of entry or they will not be permitted to continue on to
their final destinations from the Netherlands. Carriers are responsible for
verifying that international passengers have the correct travel documents under
the Schengen Agreements, and they face penalties for failing to do so.
When Onoh tried to check in for her flight at DFW on December 5, 2007,
an automated program informed the Northwest ticketing agent that Onoh, as a
Nigerian national, needed an ATV in order to travel through Amsterdam.
Because her trip was for personal reasons, Onoh presented the Northwest agent
her personal passport. Her personal passport contained an ATV that was valid
through December 5, 2007. But Onoh was scheduled to arrive in Amsterdam on
December 6. As a result, the agent informed Onoh that she could not board the
plane because she did not have an ATV that would be valid on the date she
would arrive in Amsterdam. Onoh then presented her diplomatic passport and
explained that, as a diplomat, she did not need an ATV. As Onoh had already
stated that she was traveling for personal, rather than official, reasons, the
Northwest agent declined to accept Onoh’s diplomatic passport. After speaking
with several additional Northwest employees, each of whom told Onoh that she
could not travel without an ATV that was valid on December 6, Onoh left the
airport.
Over the next several days, Onoh alleges that she spoke with a
representative of the Dutch consulate who informed her that she did not need
an ATV to travel through the Netherlands because she was a diplomat. She
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further alleges that both a Northwest customer service agent and a KLM
representative also told Onoh that she did not need an ATV because of her
diplomatic status. On December 6 and 9, Onoh again tried to board flights from
DFW traveling through Amsterdam using her diplomatic passport. She was
refused on both occasions by Northwest staff because she did not have a valid
ATV. A few days later, another Northwest employee allegedly told Onoh that
the United States Department of State would not allow her to fly. Onoh
eventually returned to Nigeria on February 10, 2008, after securing a new ATV.
Onoh sued Northwest for discrimination under 49 U.S.C. § 40127 and for
breach-of-contract and IIED under state law. Northwest filed a motion to
dismiss and an alternative motion for summary judgment. Northwest claimed
that Onoh had failed to state a discrimination claim and that her state-law
claims were preempted by the ADA. Onoh agreed to dismiss her discrimination
claim but opposed Northwest’s motion on the state-law claims. The district court
granted Northwest’s motion for summary judgment, finding that Onoh’s breach-
of-contract and IIED claims were preempted by the ADA. Onoh timely appealed.
II. STANDARD OF REVIEW
A grant of summary judgment is reviewed de novo, applying the same
standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th
Cir. 2006). Our inquiry “is limited to the summary judgment record before the
trial court.” Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir.
2009). We view the evidence in the light most favorable to the non-moving
party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986), and the movant has the burden of showing this court that summary
judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Summary judgment is appropriate where the competent summary judgment
evidence demonstrates that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Bolton, 472 F.3d at 263;
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see Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if a reasonable
jury could enter a verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986).
III. DISCUSSION
The only issues before the court are: (1) whether the ADA preempts Onoh’s
state-law IIED claim; and (2) whether the ADA preempts Onoh’s state-law
breach-of-contract claim. We address each claim in turn.
A. IIED Claim
Onoh first claims that the district court erred when it concluded that her
IIED claim was preempted under the ADA. Her claim arises from a
conversation she had with a Northwest agent, in which the agent allegedly
stated that “the U.S. State Department would not permit [her] to travel . . . .”
Onoh contends that the district court incorrectly held that this conversation and
the resultant claim were sufficiently related to Northwest’s provision of
“services” to trigger preemption.
The preemption provision of the ADA provides that a state “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)
(2006). The Supreme Court has interpreted the preemptive effect of the ADA
broadly. Any state law, including state common law, “having a connection with
or reference to” airline prices, routes, or services is preempted unless the
connection or reference is “too tenuous, remote, or peripheral.” Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 384, 390 (1992).
In applying Morales, we have had occasion to specifically address the scope
of the term “service” as used in the ADA preemption provision. In Hodges v.
Delta Airlines, 44 F.3d 334 (5th Cir. 1995) (en banc), we held that:
Elements of the air carrier service bargain include items such as
ticketing, boarding procedures, provision of food and drink, and
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baggage handling, in addition to the transportation itself. These
matters are all appurtenant and necessarily included with the
contract of carriage between the passenger or shipper and the
airline. It is these [contractual] features of air transportation that
we believe Congress intended to de-regulate as “services” and
broadly to protect from state regulation.
Id. at 336 (alteration in original). The question of whether Onoh suffered an
IIED when a Northwest agent prohibited her from boarding a flight on the
grounds that the State Department would not permit Onoh to travel clearly falls
within this definition of airline “services.” Moreover, we reject Onoh’s contention
that her claim is “tenuous, remote, or peripheral” with respect to Northwest’s
provision of “service” because it only addresses the manner in which she was
refused service rather than the fact that service was refused. Northwest’s
decision to deny Onoh boarding cannot be divorced from its stated reasons for
denying her boarding. Accordingly, Onoh’s IIED claim is preempted by the ADA.
B. Breach-of-Contract Claim
Onoh next claims that the district court erred in concluding that her
breach-of-contract claim is preempted by the ADA. More precisely, Onoh
contends that, while her claim clearly falls within the scope of preemption
discussed in Morales, she is excluded from the application of the ADA
preemption provisions by the so-called “Wolens exception.”
As Onoh contends, ADA preemption is not absolute in certain cases that
would otherwise fall outside the preemptive boundaries described in Morales.
Specifically, the Supreme Court has held that the ADA’s preemption clause does
not extend so far as to “to shelter airlines from suits . . . seeking recovery solely
for the airline’s alleged breach of its own, self-imposed undertakings.” Am.
Airlines, Inc. v. Wolens, 513 U.S. 219, 228 (1995). “[S]tate-law-based court
adjudication of routine breach-of-contract claims” is permissible so long as a
court makes “no enlargement or enhancement [of the contract] based on . . . state
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laws or policies external to the agreement.” Id. at 232-33. Thus, an otherwise
preempted claim may remain viable under the ADA if it falls within the two-
prongs of the Wolens exception: 1) the claim alleged only concerns a self-imposed
obligation; and 2) no enlargement or enhancement of the contract occurs based
on state laws or policies external to the agreement. Id.; see also Lyn-Lea Travel
Corp. v. Am. Airlines, 283 F.3d 282, 287 (5th Cir. 2002).
Onoh contends Northwest incorrectly interpreted the Schengen
Agreements when it concluded she required an ATV and refused to grant her
access to her flight as a result. The first step in deciding a Wolens-exception case
is determining whether the airline breached its own, self-imposed undertaking.
Because we conclude that this case does not involve the airline’s “self-imposed”
undertaking, we need not reach the second prong of the Wolens analysis
concerning state regulation.
Here, the only way to assess whether the airline breached its duty is to
determine whether it refused to transport a passenger who was fit for travel. To
make that determination, the court would be required to reach beyond the
contract and interpret a variety of external laws that were not expressly
incorporated in the contract. Calling the Schengen Agreements “self-imposed”
obligations of Northwest and Onoh is a large stretch from the simple references
to the need to comply with all applicable law addressed in the limited portions
of the contract contained in the record. Whether or not Northwest advised its
passengers of the need to comply with international law, such law would apply.
Therefore, the airline’s (and Onoh’s1 ) obligations under the Schengen
Agreements are not “self-imposed,” and the first prong of the Wolens exception
1
Onoh’s counsel stated at oral argument that Onoh’s obligation to have the
documentation necessary under the Schengen Agreement was a “condition precedent” to her
right to contractual relief; this argument further demonstrates the “outside the contract”
nature of this claim.
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is not met. See Sanchez v. Aerovias De Mex., S.A. de C.V., 590 F.3d 1027, 1030-
31 (9th Cir. 2010) (finding no contractual commitment where the only alleged
incorporation occurred with respect to a passenger duty rather than airline
duty).2 As Onoh’s counsel conceded, Onoh’s claim is preempted if the
Wolens exception does not apply, and, as we so find, her state law claim is
barred.3
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s grant of
summary judgment.
2
We also note that Texas courts have already addressed this question in a very similar
context. In Delta Air Lines, Inc. v. Black, 116 S.W.3d 745, 756 (Tex. 2003), the Texas Supreme
Court held that breach-of-contract actions flowing from an airline’s boarding policies are
preempted under the ADA. Thus, even if we were to apply Texas law here, Texas would find
these claims preempted.
3
We also question Onoh’s suggestion that the function of ADA preemption in these
circumstances would be to leave passengers without remedy if airlines breach their
contractual obligations. The applicable statutory provisions and regulations in this area
explicitly create a number of remedial avenues for injured passengers. See, e.g., 49 U.S.C. §
41712 (2010) (providing remedial process for unfair and deceptive practices by airlines); 14
C.F.R. § 253.7 (2010) (remedy for failure to provide adequate notice of price-related contractual
terms);14 C.F.R. § 250.1-.9 (2010) (remedy for denied boarding due to overselling of flights);
14 C.F.R. § 254.4 (2010) (remedy for mishandling of domestic baggage). The fact that certain,
more advantageous forms of relief are not available merely reflects Congress’s preemptive
desire to carefully control the way in which regulation is imposed on the airlines.
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