FILED
United States Court of Appeals
Tenth Circuit
December 3, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
US AIRWAYS, INC.,
Plaintiff-Appellant,
v. No. 09-2271
KELLY O’DONNELL, in her official
capacity as Superintendent of the New
Mexico Regulation and Licensing
Department; GARY TOMADA, in his
official capacity as Director, New Mexico
Regulation and Licensing Department,
Alcohol & Gaming Division,
Defendants-Appellees.
________________
AIR TRANSPORT ASSOCIATION OF
AMERICA, INC.; UNITED STATES OF
AMERICA; ALAN S. BOYD; WILLIAM
T. COLEMAN, JR.; ELIZABETH H.
DOLE; JAMES H. BURNLEY, IV;
SAMUEL K. SKINNER; ANDREW H.
CARD, JR; FEDERICO F. PENA;
RODNEY E. SLATER; NORMAN Y.
MINETTA; MARY E. PETERS;
ASSOCIATION OF FLIGHT
ATTENDANTS - CWA; AMERICAN
BEVERAGE LICENSEES; MOTHERS
AGAINST DRUNK DRIVING; WINE &
SPIRITS WHOLESALERS OF
AMERICA, INC.; SAZERAC
COMPANY; STATE OF INDIANA;
STATE OF COLORADO; STATE OF
FLORIDA; STATE OF IDAHO; STATE
OF LOUISIANA; STATE OF
MARYLAND; STATE OF MICHIGAN;
STATE OF MISSISSIPPI; STATE OF
OHIO; STATE OF TENNESSEE;
STATE OF TEXAS; STATE OF UTAH;
STATE OF WYOMING;
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:07-CV-01235-MCA-LFG)
Seth P. Waxman, of Wilmer, Cutler, Pickering, Hale and Dorr, LLP, Washington, D.C.,
(Edward C. DuMont, Daniel S. Volchok of Wilmer, Cutler, Pickering, Hale and Dorr,
LLP, Washington, D.C.; Howard Kass, Michael J. Minerva, US Airways, Inc.,
Washington, D.C., with him on the briefs), for Plaintiff-Appellant.
Joseph Goldberg, of Freedman, Boyd, Hollander, Goldberg, Ives & Duncan, P.A.,
Albuquerque, New Mexico, (John W. Boyd, Michael L. Goldberg, Molly Schmidt-
Nowara of Freedman, Boyd, Hollander, Goldberg, Ives & Duncan, P.A., Albuquerque,
New Mexico; Julie Ann Meade, New Mexico Regulation and Licensing Department,
Santa Fe, New Mexico, with him on the brief), for Defendants-Appellees.
Mark R. Freeman, Attorney, Appellate Staff, Civil Division, United States Department of
Justice, Washington, D.C., (Tony West, Assistant Attorney General; Greg Fouratt, United
States Attorney; Mark B. Stern, Attorney, Appellate Staff, Civil Division, United States
Department of Justice, Washington, D.C.; Robert S. Rivkin, General Counsel, of Counsel;
Paul M. Geier, Assistant General Counsel for Litigation, of Counsel; Paul S. Smith,
Senior Trial Counsel, United States Department of Transportation, of Counsel; Richard
H. Saltsman, Assistant Chief Counsel for Litigation, Federal Aviation Administration, of
Counsel, with him on the brief), for Amici Curiae, United States of America.
David A. Berg, Air Transport Association of America, Inc., Washington, D.C.; Kenneth
W. Starr, Tracy K. Genesen of Kirkland & Ellis, LLP, San Francisco, California; Jeffrey
Bossert Clark, Jeffrey A. Rosen, P.C., Robert R. Gasaway, Michael A. Petrino of
Kirkland & Ellis, LLP, Washington, D.C., filed an amicus brief for the Air Transport
Association of America, Inc.
2
Paul D. Clement, Daryl L. Joseffer of King & Spalding, LLP, Washington, D.C., filed an
amicus brief for Ten Former Secretaries of the Department of Transportation.
Edward J. Gilmartin, General Counsel, Association of Flight Attendants - CWA,
Washington, D.C., filed an amicus brief for the Association of Flight Attendants - CWA.
Anthony S. Kogut of Willingham & Coté, P.C., East Lansing, Michigan, filed an amicus
brief for the American Beverage Licensees.
Leslie Patterson Moore, General Counsel, Mothers Against Drunk Driving 511, Irving,
Texas, filed an amicus brief for the Mothers Against Drunk Driving.
Craig Wolf, Joanne Moak, Karin F. R. Moore, Wine & Spirits Wholesalers of America,
Inc., Washington, D.C.; Carter G. Phillips, Jacqueline G. Cooper of Sidley Austin, LLP,
Washington, D.C., filed an amicus brief for the Wine & Spirits Wholesalers of America,
Inc. and Sazerac Company.
Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General,
Heather L. Hagan, Deputy Attorney General, Office of the Attorney General,
Indianapolis, Indiana; John W. Suthers, Attorney General of Colorado, Denver, Colorado;
Bill McCollum, Attorney General of Florida, Tallahassee, Florida; Lawrence G. Wasden,
Attorney General of Idaho, Boise, Idaho; James D. “Buddy” Caldwell, Attorney General
of Louisiana, Baton Rouge, Louisiana; Douglas F. Gansler, Attorney General of
Maryland, Baltimore, Maryland; Michael A. Cox, Attorney General of Michigan,
Lansing, Michigan; Jim Hood, Attorney General of Mississippi, Jackson, Mississippi;
Richard Cordray, Attorney General of Ohio, Columbus, Ohio; Robert E. Cooper, Jr.,
Attorney General of Tennessee, Nashville, Tennessee; Greg Abbott, Attorney General of
Texas, Austin, Texas; Mark L. Shurtleff, Attorney General of Utah, Salt Lake City, Utah;
Bruce A. Salzburg, Attorney General of Wyoming, Cheyenne, Wyoming, filed an amicus
brief for the States of Indiana, Colorado, Florida, Idaho, Louisiana, Maryland, Michigan,
Mississippi, Ohio, Tennessee, Texas, Utah and Wyoming.
Before BRISCOE, Chief Judge, LUCERO, and HOLMES, Circuit Judges.
BRISCOE, Chief Judge.
3
Plaintiff-Appellant US Airways, Inc. (“US Airways”) filed this action in the
United States District Court for the District of New Mexico seeking to enjoin Defendants-
Appellees New Mexico state officials (“New Mexico”) from regulating, pursuant to the
New Mexico Liquor Control Act (“NMLCA”), N.M. Stat. § 60-3A-1 et seq., the alcoholic
beverage service that airlines provide to passengers on flights. The district court
concluded that federal law does not preempt the NMLCA and granted summary judgment
for New Mexico. US Airways appeals that decision.
On appeal, US Airways argues that the Airline Deregulation Act of 1978 (“ADA”)
expressly preempts state regulation of airlines’ alcoholic beverage services provided to
passengers. In addition to express preemption, US Airways argues that federal law
impliedly preempts the application of the NMLCA to US Airways. Specifically, US
Airways contends that the Federal Aviation Act of 1958 (“FAA”) and the federal
regulations promulgated pursuant to the FAA occupy the field of aviation safety to the
exclusion of state regulation and that NMLCA’s application to an airline implicates the
field of aviation safety. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that
New Mexico’s regulatory scheme is impliedly preempted as it falls within the field of
aviation safety that Congress intended federal law to occupy exclusively, but that the
Twenty-first Amendment of the United States Constitution requires a balancing of New
Mexico’s core powers and the federal interests underlying the FAA. Accordingly, we
reverse and remand for the district court to conduct a Twenty-first Amendment balancing.
4
I.
A.
NMLCA regulates the sale, service and public consumption of alcoholic beverages
in the State of New Mexico. See N.M. Stat. § 60-3A-1 et seq. NMLCA states, in
relevant part, that “[e]very person selling alcoholic beverages to travelers on . . . airplanes
within the state shall secure a public service license.” N.M. Stat. § 60-6A-9. Further,
NMLCA prohibits any person from being “employed as a server on a licensed premises
unless that person obtains within thirty days of employment alcohol server training
pursuant to the provisions of [N.M. Stat. § 60-6E-1 et seq.].” N.M. Stat. § 60-6E-4.
B.
US Airways, an interstate airline carrier regulated by the Federal Aviation
Administration of the United States Department of Transportation, operates flights that
travel to and from the State of New Mexico at the Albuquerque International Sunport
Airport. See Aplt. App. at A325, A1015. These flights generally originate from or arrive
at locations outside New Mexico. See id. at A329, A1015.
US Airways serves alcoholic beverages during its flights, including those that
arrive in and depart from New Mexico. Id. at A1015. However, passengers are not
permitted to remove from the aircraft the alcoholic beverages served during flight. Id. at
A1231. Further, the US Airways beverage carts containing the alcoholic beverages are
not removed from the aircraft in New Mexico. Id. at A330–31, A1231–32. US Airways
does not stock its aircraft with alcoholic beverages and does not purchase or store such
5
beverages in New Mexico. Id. at A330. Prior to 2007, US Airways provided alcoholic
beverage service to passengers on flights departing from and arriving in New Mexico
without possessing a public service license as required by NMLCA. See id. at A1016,
A1231.
C.
In November 2006, Dana Papst was a passenger on a US Airways flight departing
from Phoenix, Arizona and arriving in Albuquerque, New Mexico. Id. at A1016. He
allegedly purchased and consumed alcoholic beverages during his US Airways flight.
See id. at A1017. During his drive home from the Albuquerque airport and
approximately three hours after deplaning, he caused an automobile accident that resulted
in his death and the death of five others. Id. at A589, A1232. An analysis of Papst’s
blood drawn after the accident revealed that Papst’s blood alcohol content was
approximately 0.329. See id. at A1232. After conducting an investigation of the
incident, the Federal Aviation Administration declined to take any action against US
Airways or its employees. Id. at A32, A1233.
In January 2007, the Alcohol and Gaming Division (“AGD”) of the New Mexico
Regulation and Licensing Department served US Airways with a citation asserting that
US Airways had served alcohol to an intoxicated person, namely Dana Papst. Id. at A33.
The AGD also served US Airways with a cease-and-desist order directing US Airways to
“refrain from selling, serving and otherwise dispensing, storing or possessing alcoholic
beverages of any kind in the State of New Mexico” without properly complying with the
6
requirements of NMLCA. Id. at A35–38.
In February 2007, while noting its belief that federal law preempted the application
of NMLCA to an airline, US Airways applied for a public service license to serve
alcoholic beverages to passengers on aircraft in New Mexico. Id. at A43. In response to
the application, AGD issued US Airways a ninety-day temporary license. See id. at A51.
However, in June 2007, AGD declined to extend US Airways’ temporary license
explaining that US Airways’ alcohol server training did not comply with NMLCA’s
requirements. Id. at A86–88. AGD ultimately rejected US Airways’ application for a
license in November 2007 citing as reasons for the denial the Dana Papst incident and
another incident which involved a passenger who had been served alcoholic beverages on
a US Airways flight and was apprehended for driving while intoxicated approximately an
hour after he had deplaned at Albuquerque. Id. at A404–05.
D.
US Airways filed this action seeking to “enjoin New Mexico state officials [in the
AGD and the New Mexico Regulation and Licensing Department] from enforcing laws
that purport to govern US Airways’ alcoholic beverage service on flights departing from
or arriving into New Mexico.” Id. at A6 (Compl. at 1). US Airways asserted both
express and implied preemption in support of its request for injunction. Id. at A6–9
(Compl. at 1–4). Specifically, US Airways argued that the enforcement of NMLCA
against an airline violated the Supremacy Clause of the United States Constitution as the
ADA expressly preempts state regulation of airline services, including the alcoholic
7
beverage service provided to passengers on flights. Id. Alternatively, US Airways
contended that federal law impliedly preempts the application of NMLCA to airlines as
the application of NMLCA to an airline implicates the field of aviation safety, which
federal law regulates to the exclusion of state regulation. Id. Further, US Airways
asserted that New Mexico’s regulatory efforts could not be otherwise authorized pursuant
to the Twenty-first Amendment to the United States Constitution. Id.
The parties filed cross-motions for summary judgment. See id. at A1265 (Op. at
1). The district court concluded that federal law neither expressly nor impliedly preempts
New Mexico’s regulation of the alcoholic beverage service that airlines provide. Id. at
A1287 (Op. at 23). Specifically, the district court narrowly construed the explicit
preemption provision in the ADA, concluding that the provision’s reference to “service”
did not include an airline’s alcoholic beverage service. See id. at A1283 (Op. at 19). The
district court reasoned that the narrow interpretation necessarily avoided rendering the
ADA preemption provision violative of § 2 of the Twenty-first Amendment. See id. at
A1275 (Op. at 11). Further, the district court addressed field preemption and concluded
that federal law did not preempt the field of alcohol service on airlines. Id. at A1287 (Op.
at 23). In reaching this decision, the district court reasoned that, when enacting the FAA,
“Congress was addressing the need for exclusive and complete rules for the physical and
mechanical operation of aircraft.” Id. at A1285 (Op. at 21). The district court then
denied US Airways’ motion for summary judgment and granted New Mexico’s motion.
Id. at A1287 (Op. at 23).
8
II.
“We review the district court’s grant of summary judgment de novo, applying the
same legal standard as the district court.” Christian Heritage Acad. v. Okla. Secondary
Sch. Activities Ass’n, 483 F.3d 1025, 1030 (10th Cir. 2007). “Cross motions for
summary judgment are . . . treated separately; the denial of one does not require the grant
of another.” Id. (internal quotation marks omitted). In this case, we review the grant of
summary judgment to New Mexico. Summary judgment is appropriate only when “there
is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c)(2).
On appeal, US Airways reasserts its contention that federal law both expressly and
impliedly preempts NMLCA’s regulation of an airline’s alcoholic beverage service
provided on aircraft. Aplt. Br. at 1. Further, US Airways argues that New Mexico cannot
avoid the preemption of NMLCA’s application to an airline’s alcoholic beverage service
by applying the Twenty-first Amendment. Id.
A. Preemption
The Supremacy Clause provides that the laws of the United States “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. Pursuant to this provision,
Congress has the power to enact statutes that preempt state law. Nw. Cent. Pipeline Corp.
v. State Corp. Comm’n of Kan., 489 U.S. 493, 509 (1989). Thus, preemption is
ultimately a question of congressional intent. See Altria Grp., Inc. v. Good, 129 S. Ct.
9
538, 543 (2008) (recognizing that “the purpose of Congress is the ultimate touchstone in
every pre-emption case” (internal quotation marks and brackets omitted)). “Congress
may indicate pre-emptive intent through a statute’s express language or through its
structure and purpose.” Id.
There are three types of preemption: 1) “express preemption, which occurs when
the language of the federal statute reveals an express congressional intent to preempt state
law;” 2) “field preemption, which occurs when the federal scheme of regulation is so
pervasive that Congress must have intended to leave no room for a State to supplement
it;” and 3) “conflict preemption, which occurs either when compliance with both the
federal and state laws is a physical impossibility, or when the state law stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of
Congress.” Mount Olivet Cemetery Ass’n v. Salt Lake City, 164 F.3d 480, 486 (10th Cir.
1998). In this case, US Airways asserts that federal law expressly preempts NMLCA’s
application to an airline. Additionally, US Airways asserts that the FAA, 49 U.S.C. §
40101 et seq., and the federal regulations promulgated pursuant to the FAA occupy the
field of aviation safety to the exclusion of state regulation, including the NMLCA.
Because we conclude that applying New Mexico’s regulatory scheme to US Airways
implicates the field of aviation safety that Congress intended federal law to regulate
exclusively, we need not reach the question of express preemption.
1.
Field preemption occurs when a “state law . . . regulates conduct in a field that
10
Congress intended the Federal Government to occupy exclusively.” English v. Gen. Elec.
Co., 496 U.S. 72, 78–79 (1990). Congress’s intent for federal law to occupy a field
exclusively “may be inferred from a scheme of federal regulation so pervasive as to make
reasonable the inference that Congress left no room for the States to supplement it, or
where an Act of Congress touches a field in which the interest is so dominant that the
federal system will be assumed to preclude enforcement of state laws on the same
subject.” Id. at 79 (internal quotation marks, brackets and ellipses omitted).
When conducting a field preemption analysis, we must first identify the legislative
field that the state law at issue implicates. See Martin ex rel. Heckman v. Midwest
Express Holdings, Inc., 555 F.3d 806, 809 (9th Cir. 2009) (explaining that “the circuits
have generally analyzed FAA preemption by looking to the pervasiveness of federal
regulations in the specific area covered by the . . . state law at issue”). In this case, the
district court narrowly construed NMLCA as regulating the field of alcoholic beverage
service provided on airplanes. Aplt. App. at A1287 (Op. at 23). In our view, however,
the regulation of an airline’s alcoholic beverage service necessarily implicates the field of
airline safety. The FAA similarly recognized the safety considerations implicated when
promulgating 14 C.F.R. § 121.575 to regulate the alcoholic beverage services provided on
airplanes. See Drinking and Serving of Alcoholic Beverages, 25 Fed. Reg. 168, 168–69
(Jan. 9, 1960) (discussing the safety concerns associated with an airline’s alcoholic
beverage service).
Additionally, NMLCA’s regulatory scheme extends beyond the field of airline
11
alcoholic beverage services. Specifically, NMLCA prescribes training and certification
requirements for flight attendants and other airline crew members serving alcoholic
beverages on aircraft. See N.M. Stat. § 60-6E-4 (“No person shall be employed as a
server on a licensed premises unless that person obtains within thirty days of employment
alcohol server training pursuant to the provisions of [N.M. Stat. § 60-6E-1 et seq.].”);
N.M. Stat. § 60-6E-5(B) (delineating the subjects that the training program for employees
serving alcoholic beverages must cover). Thus, we conclude that New Mexico’s
regulatory scheme as applied to an airline generally implicates the field of aviation safety.
2.
Having identified the legislative field at issue, we must next evaluate whether
Congress intended to occupy the field to the exclusion of the states. See Martin ex rel.
Heckman, 555 F.3d at 808 (“To find field preemption here, we must infer that Congress
intended to exclude all state law . . . from [this] area . . . even though it didn’t say so.”).
Thus, in this case, we must determine whether Congress intended to occupy the field of
aviation safety to the exclusion of the states. While recognizing that the purpose of
Congress must be clear as we presume that “Congress does not cavalierly pre-empt state-
law causes of action,” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996), the field of
aviation safety “has long been dominated by federal interests.” Montalvo v. Spirit
Airlines, 508 F.3d 464, 471 (9th Cir. 2007). Thus, the presumption against preemption
does not apply in this case. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341,
347–48 (2001) (explaining that the presumption against preemption did not apply because
12
the field at issue was “hardly a field which the States have traditionally occupied”
(internal quotation marks omitted)).
While we have previously held that Congress did not indicate “‘a clear and
manifest’ intent to occupy the field of airplane safety to the exclusion of state common
law,” Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1443–44 (10th Cir. 1993), our
prior holding addressed only the preemption of state tort remedies. See id. In Cleveland,
our analysis relied in part on the FAA statutory savings clause, which “leaves in place
remedies then existing at common law or by statute.” Id. at 1442–43. Further, in
Cleveland, we recognized the possibility that “Congress may reserve for the federal
government the exclusive right to regulate safety in a given field, yet permit the states to
maintain tort remedies covering much the same territory.” Id. at 1441 (emphases added).
In contrast to Cleveland, NMLCA does not involve state tort remedies and instead
imposes substantive requirements.
Further, we have recognized that our analysis in Cleveland has been called into
question based on subsequent Supreme Court opinions. See Choate v. Champion Home
Builders Co., 222 F.3d 788, 794 n.8 (10th Cir. 2000). Specifically, our holding in
Cleveland relied, in significant part, on the premise that “implied preemption is generally
inapplicable to a federal statute that contains an express preemption provision.”
Cleveland, 985 F.2d at 1443. However, the Supreme Court appears to have rejected this
reasoning. See Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 873 (2000) (“[T]he
express pre-emption provision imposes no unusual, ‘special burden’ against [implied]
13
pre-emption.”); see also Choate, 222 F.3d at 794 n.8. Thus, we conclude that Cleveland
does not dictate the outcome in this case, and we must address whether Congress intended
to occupy the field of aviation safety to the exclusion of state regulation.
Based on the FAA’s purpose to centralize aviation safety regulation and the
comprehensive regulatory scheme promulgated pursuant to the FAA, we conclude that
federal regulation occupies the field of aviation safety to the exclusion of state
regulations. The FAA was enacted to create a “uniform and exclusive system of federal
regulation” in the field of air safety. City of Burbank v. Lockheed Air Terminal Inc., 411
U.S. 624, 639 (1973). Specifically, Congress enacted the FAA in response to a series of
“fatal air crashes between civil and military aircraft operating under separate flight rules.”
H.R. Rep. No. 85-2360, at 2 (1958), reprinted in 1958 U.S.C.C.A.N. 3741, 3742 (noting
that “[t]he magnitude and critical nature of [airspace use and air-safety problems] came . .
. to general public notice . . . as a result of” a series of airplane crashes). In response to
the air safety concerns, the House Report discussing the FAA indicated that the
“Administrator of the new Federal Aviation Agency . . . would be given full
responsibility and authority for the . . . promulgation and enforcement of safety
regulations . . . .” H.R. Rep. No. 85-2360, at 1 (1958), reprinted in 1958 U.S.C.C.A.N.
3741, 3741. Further, as documented in the House Report, a letter from a representative of
the Executive Branch to the House Committee on International and Foreign Commerce
explained that “[i]t is essential that one agency of government, and one agency alone, be
responsible for issuing safety regulations.” H.R. Rep. 85-2360, at 20 (1958), reprinted in
14
1958 U.S.C.C.A.N. 3741, 3761.
The language of the FAA explicitly directs the Administrator of the Federal
Aviation Administration to promulgate regulations for the “safe flight of civil aircraft in
air commerce.” 49 U.S.C. § 44701(a). Beyond the types of regulations specifically
enumerated, the FAA directs the Administrator to regulate any “other practices, methods,
and procedure the Administrator finds necessary for safety in air commerce and national
security.” Id. The Federal Aviation Administration has exercised its authority pursuant
to the FAA to promulgate regulations addressing “virtually all areas of air safety.” Air
Transp. Ass’n of Am., Inc. v. Cuomo, 520 F.3d 218, 224 (2d Cir. 2008); see, e.g., 14
C.F.R. § 91.13(a) (identifying the general standard of care for operating an aircraft); 14
C.F.R. § 121.571 (specifying the mandatory briefings that must be provided to all
passengers on aircraft); 14 C.F.R. pt. 121, app. A (identifying the minimum number of
first-aid kits that must be stored on aircraft and the items that each first-aid kit must
contain). Significantly, as relevant to the present case, the Federal Aviation
Administration has promulgated a regulation pursuant to the FAA specifically addressing
airlines’ alcoholic beverage services. See 14 C.F.R. § 121.575. We conclude that the
comprehensive regulatory scheme promulgated pursuant to the FAA evidences the intent
for federal law to occupy the field of aviation safety exclusively. See Fid. Fed. Sav. &
Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153–154 (1982) (“Federal regulations have no
less preemptive effect than statutes.”).
Other circuits have similarly concluded that Congress intended federal law to
15
occupy the entire field of aviation safety exclusively. See Montalvo, 508 F.3d at 473
(“We . . . hold that federal law occupies the entire field of aviation safety. Congress’
intent to displace state law is implicit in the pervasiveness of the federal regulations, the
dominance of the federal interest in this area, and the legislative goal of establishing a
single, uniform system of control over air safety.”); see also Cuomo, 520 F.3d at 224–25
(suggesting in dicta that the state law at issue “may also be impliedly preempted by the
FAA and regulations promulgated thereunder”); Greene v. B.F. Goodrich Avionics Sys.,
Inc., 409 F.3d 784, 795 (6th Cir. 2005) (“We agree . . . that federal law establishes the
standards of care in the field of aviation safety and thus preempts the field from state
regulation.”); Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999) (“[W]e
hold that federal law establishes the applicable standards of care in the field of air safety,
generally, thus preempting the entire field from state and territorial regulation.”).1
3.
Having addressed the field of aviation safety generally, we must consider whether
the NMLCA implicates the field as occupied by federal law. Even if we narrowly define
the field of aviation safety, we conclude that NMLCA’s regulation of an airline’s
1
However, while concluding that federal regulation occupies the field of aviation
safety to the exclusion of state regulation, some circuits have narrowed the field of air
safety. See Elassaad v. Independence Air, Inc., 613 F.3d 119, 121 (3d Cir. 2010)
(holding “that the ‘field of aviation safety’ does not include a flight crew’s oversight of
the disembarkation of passengers once a plane has come to a complete stop at its
destination”); see also Martin ex rel. Heckman, 555 F.3d at 812 (explaining that a design
defect claim related to airstairs was not preempted “[b]ecause the agency has not
comprehensively regulated airstairs”).
16
alcoholic beverage service directly implicates the field of aviation safety regulated by
federal law. As noted, the Federal Aviation Administration has promulgated a federal
regulation specifically addressing airlines’ alcoholic beverage services. See 14 C.F.R. §
121.575.2 Notably, the Federal Aviation Administration promulgated this regulation to
promote aviation safety. See Drinking and Serving of Alcoholic Beverages, 25 Fed. Reg.
168, 168–69 (Jan. 9, 1960) (“The Agency’s responsibility is only for the air safety
considerations and not for the social or moral aspects” of alcohol consumption.).
Specifically, the Federal Aviation Administration balanced the safety concerns inherent in
regulating airline alcoholic beverage service against the imposition of additional
responsibilities on flight crew members. See id. (explaining that airline flight crew
2
Section 121.575 provides in full:
(a) No person may drink any alcoholic beverage aboard an aircraft unless the
certificate holder operating the aircraft has served that beverage to him.
(b) No certificate holder may serve any alcoholic beverage to any person aboard
any of its aircraft who—
(1) Appears to be intoxicated;
(2) Is escorting a person or being escorted . . . ; or
(3) Has a deadly or dangerous weapon accessible to him while aboard the
aircraft . . . .
(c) No certificate holder may allow any person to board any of its aircraft if that
person appears to be intoxicated.
(d) Each certificate holder shall, within five days after the incident, report to the
Administrator the refusal of any person to comply with paragraph (a) of this
section, or of any disturbance caused by a person who appears to be intoxicated
aboard any of its aircraft.
17
members would not have the responsibility to “restrain physically a passenger who
wished to consume drinks that were not served to him by the carrier”). Additionally, the
Federal Aviation Administration considered whether the proposed provision adequately
addressed safety concerns, noting that “flat prohibition [of alcohol on aircraft] has not
proven successful” and “it might even work adversely, since passengers who wish to
drink might . . . do so to excess in advance of the flight, knowing that they could not
obtain a drink aboard an aircraft.” Id. at 170. Thus, NMLCA implicates the field of
aviation safety as occupied by federal law.
Further, New Mexico’s regulatory efforts extend beyond the alcoholic beverage
service that airlines provide on flights. By requiring airlines to comply with NMLCA,
New Mexico is seeking to impose additional training requirements on flight attendants
and crew members serving alcoholic beverages on airplanes. See N.M. Stat. § 60-6E-4
(“No person shall be employed as a server on a licensed premises unless that person
obtains within thirty days of employment alcohol server training pursuant to the
provisions of [N.M. Stat. § 60-6E-1 et seq.].”); N.M. Stat. § 60-6E-5(B) (delineating the
subjects that the training program for employees serving alcoholic beverages must cover).
In fact, when New Mexico denied the renewal of US Airways’ temporary public service
license, New Mexico noted that US Airways “ha[d] done little if anything to consider
implementing applicable portions of [New Mexico’s] required alcohol server training.”
Aplt. App. at A87. However, federal law extensively regulates flight attendant and crew
member training programs and certification requirements due to the aviation safety
18
considerations involved. See 49 U.S.C. § 44728(a)(1) (“No person may serve as a flight
attendant aboard an aircraft of an air carrier unless that person holds a certificate of
demonstrated proficiency from the Administrator of the Federal Aviation Administration.
. . .”); 14 C.F.R. §§ 121.404 (requiring that flight attendants and aircraft dispatchers
“complete[] approved crew resource management . . . or dispatcher resource management
. . . initial training”), 121.405 (explaining the approval process for training programs or
revisions to existing training programs), 121.415 (delineating the training program
requirements), 121.421 (describing the initial and transition ground training requirements
for flight attendants), 121.427 (explaining the recurrent training requirements for crew
members and dispatchers), 121.433 (describing the mandatory crew member training
requirements). Thus, NMLCA’s regulatory scheme implicates the field occupied by
federal law.
Based on the pervasive federal regulations concerning flight attendant and crew
member training and the aviation safety concerns involved when regulating an airline’s
alcoholic beverage service, we conclude that NMLCA’s application to an airline
implicates the field of airline safety that Congress intended federal law to regulate
exclusively. Thus, New Mexico’s regulatory efforts are impliedly preempted.
B. Twenty-first Amendment
While we conclude that federal law preempts NMLCA’s regulation of the
alcoholic beverage service on aircraft, our analysis does not end there. We must next
evaluate whether § 2 of the Twenty-first Amendment permits New Mexico’s regulatory
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scheme, as applied to an airline’s alcoholic beverage service, to override federal policy.
See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698 (1984). In this regard, the
Twenty-first Amendment requires a balancing of New Mexico’s core powers and the
federal interests underlying the FAA. See id. at 712–14. As the district court concluded
that federal law does not preempt the NMLCA, the district court did not conduct a
balancing of state and federal interests. As this is a fact-intensive inquiry, we remand to
the district court to conduct this balancing in the first instance.
1.
Section 2 of the Twenty-first Amendment provides: “The transportation or
importation into any State, . . . for delivery or use therein of intoxicating liquors, in
violation of the laws thereof, is hereby prohibited.” U.S. Const. amend. XXI, § 2.
“Notwithstanding the [Twenty-first] Amendment’s broad grant of power to the States, . . .
the Federal Government plainly retains authority under the Commerce Clause to regulate
even interstate commerce in liquor.” Crisp, 467 U.S. at 713.
The Supreme Court has recognized that “there is no bright line between federal
and state powers over liquor.” Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum,
Inc., 445 U.S. 97, 110 (1980). Instead, “[b]oth the Twenty-first Amendment and the
Commerce Clause are parts of the same Constitution. Like other provisions of the
Constitution, each must be considered in light of the other, and in the context of the issues
and interests at stake in any concrete case.” Id. at 109 (internal quotation marks omitted).
When resolving conflicts between different provisions of the Constitution, courts must
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undertake a “pragmatic effort to harmonize state and federal powers.” Id. Thus, as
Congress enacted the FAA pursuant to the Commerce Clause, the state interests protected
under the Twenty-first Amendment must be balanced against the federal interests.
New Mexico contends that Twenty-first Amendment balancing is inapplicable in
this case. Specifically, New Mexico argues that cases “involving core powers of
licensing do not require balancing under the Twenty-first Amendment.” Aplee. Br. at 41.
While NMLCA represents an exercise of a state’s core powers reserved by the Twenty-
first Amendment, see Crisp, 467 U.S. at 715 (describing core powers as “control over
whether to permit importation or sale of liquor and how to structure the liquor distribution
system” (internal quotation marks omitted)), New Mexico relies on a flawed reading of
Crisp to reach the conclusion that a balancing is unnecessary in this case. In Crisp, the
Supreme Court held that when “a state regulation squarely conflicts with the
accomplishment and execution of the full purposes of federal law, and the State’s central
power under the Twenty-first Amendment . . . is not directly implicated, the balance
between state and federal power tips decisively in favor of the federal law.” Id. at 716.
Nonetheless, this does not dictate the conclusion that when a state exercises a core power,
the balance will decisively tip in favor of the state.
In fact, in North Dakota v. United States, the state regulations at issue “f[e]ll
within the core of the State’s power under the Twenty-first Amendment.” 495 U.S. 423,
432 (1990) (plurality opinion). Rather than simply adopting a bright line rule immunizing
core Twenty-first Amendment powers from federal regulation, the plurality suggested
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that a state exercising its Twenty-first Amendment power may violate the Supremacy
Clause when state regulation conflicts with federal law. See id. at 439–40 (plurality
opinion) (explaining that “when the Court is asked to set aside a regulation at the core of
the State’s powers under the Twenty-first Amendment . . . it must proceed with particular
care” (internal citation omitted)). Thus, even though NMLCA represents the exercise of a
core state power pursuant to the Twenty-first Amendment, a balancing of state and
federal interests must be conducted.
New Mexico also contends that the Twenty-first Amendment analysis is controlled
by National Railroad Passenger Corp. v. Miller, 358 F. Supp. 1321 (D. Kan. 1973), aff’d
without op. 414 U.S. 948 (1973). We disagree. First, we question whether Miller is
controlling precedent. Specifically, Miller was decided by a three-judge panel and was
summarily affirmed by the Supreme Court without opinion. Id. When the Supreme
Court summarily affirms without opinion, it “affirm[s] the judgment but not necessarily
the reasoning by which it was reached.” Mandel v. Bradley, 432 U.S. 173, 176 (1977)
(per curiam) (internal quotation marks omitted). A summary affirmance without opinion
“prevent[s] lower courts from coming to opposite conclusions on the precise issues
presented and necessarily decided by those actions.” Id. In Miller, a three-judge panel
concluded that a federal statute did not expressly preempt state liquor laws regulating
Amtrak’s liquor sales to passengers. See 358 F. Supp. at 1329. However, as Miller did
not address the issue of field preemption, Miller does not speak to the precise issue
presented in this case.
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Further, the Twenty-first Amendment analysis in Miller is inconsistent with more
recent Supreme Court decisions. Specifically, the Miller court reasoned that “a state has
the right to legislate concerning intoxicants brought from without the State for use and
sale therein, unfettered by the commerce clause.” Id. at 1327. However, the Supreme
Court has subsequently stated that “there is no bright line between federal and state
powers over liquor,” endorsing the use of a balancing of the state and federal interests
involved. Midcal, 445 U.S. at 110.
2.
While we defer to the district court to conduct the balancing of state and federal
interests in the first instance, we offer some guidance for this analysis. The key inquiry in
balancing state and federal interests is “whether the interests implicated by a state
regulation are so closely related to the powers reserved by the Twenty-first Amendment
that the regulation may prevail, notwithstanding that its requirements directly conflict
with express federal policies.” Crisp, 467 U.S. at 714.
In conducting this balancing, the court should be guided by the following three-
step framework:
First, the court should examine the expressed state interest and the closeness of
that interest to those protected by the Twenty-first Amendment. . . . Second, the
court should examine whether, and to what extent, the regulatory scheme serves its
stated purpose . . . . Simply put, is the scheme effective? . . . [T]he answer to this
question may ultimately rest upon findings and conclusions having a large factual
component. Finally, the court should balance the state’s interest . . . (to the extent
that interest is actually furthered by the regulatory scheme) against the federal
interest . . . .
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TFWS, Inc. v. Schaefer, 242 F.3d 198, 213 (4th Cir. 2001) (internal citation and quotation
marks omitted).
In this case, the district court never conducted any balancing of state and federal
interests. Thus, the district court did not have the opportunity to evaluate the
effectiveness of New Mexico’s regulatory scheme in furtherance of its interests protected
under the Twenty-first Amendment. As this inquiry may ultimately depend upon factual
findings and conclusions, we remand this case to the district court to conduct the
balancing of state and federal interests. See Miller v. Hedlund, 813 F.2d 1344, 1352 (9th
Cir. 1987) (“Since we have rejected the ground upon which the lower court’s decision
rested and since the Twenty-first Amendment issue may ultimately rest upon findings and
conclusions having a large factual component, we remand this issue for the trial court’s
initial determination.”).
The district court’s order granting summary judgment for New Mexico is
REVERSED and the case is REMANDED for the district court to conduct a balancing of
state and federal interests. In further response to the parties’ joint motion to withdraw
their motions to seal their briefs, which we have granted, Volume III of the Appellant’s
Appendix will remain sealed.
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