07-5771-cv
     Air Transport Ass’n of America v. Cuomo


 1                         UNITED STATES COURT OF APPEALS
 2                             FOR THE SECOND CIRCUIT
 3
 4                                             August Term 2007
 5
 6
 7   (Argued: March 5, 2008                                       Decided: March 25, 2008)
 8
 9                                        Docket No. 07-5771-cv
10
11                            _____________________________________
12
13                  AIR TRANSPORT ASSOCIATION OF AMERICA, INC.,
14                               Plaintiff-Appellant,
15
16                                                   -v.-
17
18               ANDREW CUOMO, in his official capacity as Attorney General
19                 of the State of New York, MINDY A. BOCKSTEIN, in her
20                  official capacity as Chairperson and Executive Director
21                     of the New York State Consumer Protection Board,
22                                    Defendants-Appellees.
23                           _____________________________________
24
25   Before:         WESLEY, LIVINGSTON, Circuit Judges, and
26                   COGAN, District Judge.*
27
28           The Air Transport Association of America appeals from a final judgment

29   of the United States District Court for the Northern District of New York (Kahn,

30   J.) granting summary judgment to defendants and dismissing plaintiff’s com-

31   plaint seeking declaratory and injunctive relief against New York State’s

32   Passenger Bill of Rights, codified at section 553(2)(b)-(d) of the New York


             *
            The Honorable Brian M. Cogan, District Judge, United States District Court for the
     Eastern District of New York, sitting by designation.
 1   Executive Law and sections 251-f to 251-j of the New York General Business

 2   Law. We reverse and hold that the substantive provisions of the law, N.Y. Gen.

 3   Bus. Law § 251-g(1), are preempted by the Airline Deregulation Act of 1978.

 4         Reversed and remanded.

 5                                 SETH P. WAXMAN, Wilmer Cutler Pickering
 6                                 Hale and Dorr LLP, Washington, DC (Bruce H.
 7                                 Rabinowitz, Jonathan E. Nuechterlein, Heather
 8                                 Zachary, Daniel S. Volchok, Chad Golder,
 9                                 Wilmer Cutler Pickering Hale and Dorr LLP,
10                                 Washington, DC, Robert S. Span, John J.
11                                 Gallagher, Neal D. Mollen, Paul, Hastings,
12                                 Janofsky & Walker LLP, Washington, DC, on
13                                 the brief), for Plaintiff-Appellant.
14
15                                 BARBARA D. UNDERWOOD, Solicitor General
16                                 (Andrea Oser, Deputy Solicitor General,
17                                 Andrew B. Ayers, Assistant Solicitor General,
18                                 of counsel, Andrew M. Cuomo, Attorney Gen-
19                                 eral of the State of New York, on the brief), for
20                                 Defendants-Appellees.
21
22                                 Paul S. Hudson, Sarasota, FL (Burton Jay
23                                 Rubin, Alexandria, VA, on the brief), for Amici
24                                 Curiae Aviation Consumer Action Project and
25                                 Coalition for an Airline Passengers’ Bill of
26                                 Rights in Support of Defendants-Appellees.
27
28
29   PER CURIAM:

30         Appellant Air Transport Association of America (“Air Transport”), the

31   principal trade and service organization of the United States airline industry,

32   appeals from an order of the United States District Court for the Northern


                                            2
 1   District of New York (Kahn, J.) granting summary judgment to Appellees and

 2   dismissing its complaint seeking declaratory and injunctive relief against

 3   enforcement of the New York State Passenger Bill of Rights (the “PBR”), 2007

 4   N.Y. Sess. Laws, ch. 472 (codified at N.Y. Exec. Law § 553(2)(b)-(d); N.Y. Gen.

 5   Bus. Law §§ 251-f to 251-j). Air Transp. Ass’n of Am. v. Cuomo, 

  62 (N.D.N.Y. 2007). We hold that the PBR is preempted by the express preemp-

 7   tion provision of the Airline Deregulation Act of 1978 (the “ADA”) and therefore

 8   reverse.

 9


10                                  BACKGROUND

11         Following a series of well-publicized incidents during the winter of 2006-

12   2007 in which airline passengers endured lengthy delays grounded on New York

13   runways, some without being provided water or food, the New York legislature

14   enacted the PBR. The substantive provisions of the PBR state as follows:

15                  1. Whenever airline passengers have boarded an
16               aircraft and are delayed more than three hours on the
17               aircraft prior to takeoff, the carrier shall ensure that
18               passengers are provided as needed with:
19                 (a) electric generation service to provide temporary
20               power for fresh air and lights;
21                  (b) waste removal service in order to service the
22               holding tanks for on-board restrooms; and
23                  (c) adequate food and drinking water and other
24               refreshments.


                                            3
 1
 2   N.Y. Gen. Bus. Law § 251-g(1). The law also requires all carriers to display

 3   consumer complaint contact information and an explanation of these rights. 

251-g(2). Section 251-g took effect on January 1, 2008. 2007 N.Y. Sess. Laws,

 5   ch. 472, § 5.

 6         Air Transport filed suit in the United States District Court for the

 7   Northern District of New York seeking declaratory and injunctive relief on the

 8   grounds that the PBR is preempted by the ADA and violates the Commerce

 9   Clause of the U.S. Constitution. Appellant Air Transport moved for summary

10   judgment, and the district court granted summary judgment sua sponte to the

11   appellees, holding that the PBR was not expressly preempted by the ADA

12   because it is not “related to a price, route, or service of an air carrier,” Air

13   

(quoting 49 U.S.C. § 41713(b)(1)) (internal

14   quotation mark omitted), and was not impliedly preempted because Congress did

15   not intend for the ADA to occupy the field of airplane safety, 

We

16   granted Air Transport’s motion for an expedited appeal.

17


18                                   DISCUSSION

19         We review the district court’s grant of summary judgment de novo. SEC

20   v. Kern, 

, 147 (2d Cir. 2005); see also Drake v. Lab. Corp. of Am.

21   Holdings, 

, 56 (2d Cir. 2006) (“[A] determination regarding preemp-

                                            4
 1   tion is a conclusion of law, and we therefore review it de novo.”).

 2         The Supremacy Clause, U.S. Const. art VI, cl. 2, “invalidates state laws

 3   that ‘interfere with, or are contrary to,’ federal law.” Hillsborough County v.

 4   Automated Med. Labs., Inc., 

, 712 (1985) (quoting Gibbons v. Ogden,

 5   22 U.S. (9 Wheat.) 1, 211 (1824)). Preemption can be either express or implied.

 6   Express preemption arises when “a federal statute expressly directs that state

 7   law be ousted.” Ass’n of Int’l Auto. Mfrs. v. Abrams, 

, 607 (2d Cir.

 8   1996). Implied preemption arises when, “in the absence of explicit statutory

 9   language, . . . Congress intended the Federal Government to occupy [a field]

10   exclusively,” or when state law “actually conflicts with federal law.” English v.

11   Gen. Elec. Co., 

, 79 (1990). More specifically, preemption is implied

12   when “the pervasiveness of the federal regulation precludes supplementation by

13   the States, where the federal interest in the field is sufficiently dominant, or

14   where ‘the object sought to be obtained by the federal law and the character of

15   obligations imposed by it . . . reveal the same purpose.’” Schneidewind v. ANR

16   Pipeline Co., 

, 300 (1988) (omission in original) (quoting Rice v.

17   Santa Fe Elevator Corp., 

, 230 (1947)). Congress has enacted two

18   statutes that potentially bear on the subject matter of the PBR: (1) the ADA,

19   Pub. L. No. 95-504, 92 Stat. 1705 (1978); and (2) the Federal Aviation Act of 1958

20   (the “FAA”), Pub. L. No. 85-726, 72 Stat. 731. We begin with the former.


                                             5
 1


 2                                            I.

 3         “Since the existence of preemption turns on Congress’s intent, we are to

 4   ‘begin as we do in any exercise of statutory construction[,] with the text of the

 5   provision in question, and move on, as need be, to the structure and purpose of

 6   the Act in which it occurs.’” McNally v. Port Auth. of N.Y. & N.J. (In re WTC

 7   Disaster Site), 

, 371 (2d Cir. 2005) (alteration in original) (quoting

 8   N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,

 9   

, 655 (1995)). The ADA’s express preemption provision states as

10   follows:

11               Except as provided in this subsection, a State, political
12               subdivision of a State, or political authority of at least
13               2 States may not enact or enforce a law, regulation, or
14               other provision having the force and effect of law
15               related to a price, route, or service of an air carrier that
16               may provide air transportation under this subpart.

17   49 U.S.C. § 41713(b)(1). The exceptions to which this provision refers are not

18   applicable in this case. Thus, the PBR is preempted if it is “related to a price,

19   route, or service of an air carrier.” We conclude that it is.

20

        Air Transport’s complaint asserts a claim under the Supremacy Clause

23   and a claim that the PBR violates § 41713(b)(1). Importantly, § 41713(b)(1) does

                                              6
 1   not provide an express private right of action, and we have held with regard to

 2   its predecessor statute, which is substantively identical, that no private right of

 3   action can be implied. W. Air Lines, Inc. v. Port Auth. of N.Y. & N.J., 

  222, 225 (2d Cir. 1987); Montauk-Caribbean Airways, Inc. v. Hope, 

,

 5   97 (2d Cir. 1986). Air Transport therefore cannot sue for a violation of the

 6   statute.

 7         Nevertheless, Air Transport is entitled to pursue its preemption challenge

 8   through its Supremacy Clause claim. The distinction between a statutory claim

 9   and a Supremacy Clause claim, although seemingly without a difference in this

10   particular context, is important and is not a trifling formalism:

11                  A claim under the Supremacy Clause that a federal
12               law preempts a state regulation is distinct from a claim
13               for enforcement of that federal law. . . . A claim under
14               the Supremacy Clause simply asserts that a federal
15               statute has taken away local authority to regulate a
16               certain activity. In contrast, an implied private right of
17               action is a means of enforcing the substantive provi-
18               sions of a federal law. It provides remedies, frequently
19               including damages, for violations of federal law by a
20               government entity or by a private party. The mere
21               coincidence that the federal law in question in this case
22               contains its own preemption language does not affect
23               this distinction.

24   W. Air 

. Moreover, contrary to amici’s suggestion, Air

25   Transport’s preenforcement challenge presents no problem of unripeness or

26   other barriers to justiciability. See Morales v. Trans World Airlines, Inc., 504


                                              7
 

, 380-81 (1992) (citing Ex parte Young, 

, 145-47, 163-65

 2   (1908)).

 3


 

        Congress enacted the ADA in 1978, loosening its economic regulation of

 6   the airline industry after determining that “‘maximum reliance on competitive

 7   market forces’ would best further ‘efficiency, innovation, and low prices’ as well

 8   as ‘variety [and] quality . . . of air transportation.’” 

(alteration and

 9   omission in original) (quoting 49 U.S.C. app. § 1302(a)(4), (9) (1988)). “To ensure

10   that the States would not undo [this] deregulation with regulation of their own,”

11   Congress included an express preemption provision. Id.; see also 

12   (holding that the ADA expressly preempted the application of state deceptive

13   business practice laws to airline fare advertisements because such regulation

14   related to air carrier prices). Recognizing this goal, the Supreme Court has

15   repeatedly emphasized the breadth of the ADA’s preemption provision. See Am.

16   Airlines, Inc. v. Wolens, 

, 225-26 (1995); 

(Stevens, J.,

17   concurring in part and dissenting in part); 

; see also

18   Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. ---, 

, 998 (2008)

19   (Ginsburg, J., concurring) (noting the “breadth of [the] preemption language” in

20   the Federal Aviation Administration Authorization Act of 1994, whose


                                              8
 1   preemption provision, 49 U.S.C. § 14501(c)(1), is in pari materia with that of the

 2   ADA).

 3         Although this Court has not yet defined “service” as it is used in the ADA,

 4   we have little difficulty concluding that requiring airlines to provide food, water,

 5   electricity, and restrooms to passengers during lengthy ground delays relates to

 6   the service of an air carrier. This conclusion draws considerable support from

 7   the Supreme Court’s recent unanimous opinion in Rowe construing 49 U.S.C.

 8   § 14501(c)(1)’s identically worded preemption provision. In Rowe, the Court

 9   addressed a Maine law imposing, among other obligations, a requirement that

10   retailers shipping tobacco products to customers within the State use a delivery

11   service that provides certain forms of recipient verification — a law enacted,

12   according to the State, to further its interest in preventing minors from

13   obtaining cigarettes. The Rowe Court reiterated its conclusions from Morales in

14   construing the ADA:

15               (1) that “[s]tate enforcement actions having a connec-
16               tion with, or reference to” carrier “‘rates, routes, or
17               services’ are pre-empted”; (2) that such pre-emption
18               may occur even if a state law’s effect on rates, routes or
19               services “is only indirect”; (3) that, in respect to
20               pre-emption, it makes no difference whether a state law
21               is “consistent” or “inconsistent” with federal regulation;
22               and (4) that pre-emption occurs at least where state
23               laws have a “significant impact” related to Congress’
24               deregulatory and pre-emption-related objectives.

(alteration in original) (emphasis omitted) (citations omitted)

                                              9
 1   (quoting 

, 386-87, 390). The Court emphasized that

 2   Congress’s “overarching goal” with regard to the ADA was helping to assure that

 3   transportation rates, routes, and services “reflect[ed] ‘maximum reliance on

 4   competitive market forces,’ thereby stimulating” not only “‘efficiency, innovation,

 5   and low prices,’” but also “‘variety’ and ‘quality’” in transportation services. 

).

 7         A majority of the circuits to have construed “service” have held that the

 8   term refers to the provision or anticipated provision of labor from the airline to

 9   its passengers and encompasses matters such as boarding procedures, baggage

10   handling, and food and drink — matters incidental to and distinct from the

11   actual transportation of passengers. See Travel All Over the World, Inc. v.

12   Kingdom of Saudi Arabia, 

, 1433 (7th Cir. 1996); Hodges v. Delta

13   Airlines, Inc., 

, 336-38 (5th Cir. 1995) (en banc); see also Branche v.

14   Airtran Airways, Inc., 

, 1257 (11th Cir. 2003) (referring to the

15   Hodges definition as the “more compelling” of the alternative definitions that

16   have been adopted); Smith v. Comair, Inc., 

, 259 (4th Cir. 1998)

17   (citing Travel All Over the World and Hodges in holding that tort claims “based

18   in part upon [an airline’s] refusal of permission to board” are preempted because

19   “boarding procedures are a service rendered by an airline”); Chukwu v. Bd. of

20   Dirs. British Airways, 

, 13 (D. Mass. 1995) (adopting the Hodges


                                              10
 1   definition), aff’d mem. sub nom. Azubuko v. Bd. of Dirs. British Airways, 101

 

(1st Cir. 1996).     The Third and Ninth Circuits, in contrast, have

 3   construed service to refer more narrowly to “the prices, schedules, origins and

 4   destinations of the point-to-point transportation of passengers, cargo, or mail,”

 5   but not to “include an airline’s provision of in-flight beverages, personal

 6   assistance to passengers, the handling of luggage, and similar amenities.”

 7   Charas v. Trans World Airlines, Inc., 

, 1261 (9th Cir. 1998) (en

 8   banc); accord Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 

, 193-94

 9   (3d Cir. 1998).

10         Charas’s approach, we believe, is inconsistent with the Supreme Court’s

11   recent decision in Rowe. There, the Court necessarily defined “service” to extend

12   beyond prices, schedules, origins, and destinations. Indeed, in determining that

13   the ADA’s preemption provision reached, among other things, the imposition of

14   recipient verification requirements on tobacco shipments, the Court stated

15   expressly that “federal law must . . . pre-empt Maine’s efforts directly to regulate

16   carrier services.” 

(emphasis added). It noted further

17   that to interpret the federal preemption provision not to reach such regulation

18   “could easily lead to a patchwork of state service-determining laws, rules, and

19   regulations,” which would be “inconsistent with Congress’ major legislative effort

20   to leave such decisions, where federally unregulated, to the competitive


                                              11
 1   marketplace.” 

 2          We hold that requiring airlines to provide food, water, electricity, and

 3   restrooms to passengers during lengthy ground delays does relate to the service

 4   of an air carrier and therefore falls within the express terms of the ADA’s

 5   preemption provision.       As a result, the substantive provisions of the PBR,

 6   codified at section 251-g(1) of the New York General Business Law, are

 7   preempted.

 8          The unanimous Rowe opinion held that Maine’s law resulted in Maine’s

 9   “direct substitution of its own governmental commands for ‘competitive market

10   forces’” in determining “the services that motor carriers will provide” to their

11   customers. 

(quoting 

). In this respect, the

12   PBR is indistinguishable. It substitutes New York’s commands for competitive

13   market forces, requiring airlines to provide the services that New York specifies

14   during lengthy ground delays and threatening the same “patchwork of state

15   service-determining laws, rules, and regulations” that concerned the Court in

16   Rowe.1 

            1
             At least nine other states have proposed legislation regarding lengthy ground delays.
     See H.R. 2149, 48th Leg., 2d Reg. Sess. (Ariz. 2008); Assem. 1943, 2007-2008 Reg. Sess. (Cal.
     2008); S. 2062, 110th Reg. Sess. (Fla. 2008); S. 161, 115th Gen. Assem., 2d Reg. Sess. (Ind.
     2008); H.R. 5475, 94th Legis., 2007 Reg. Sess. (Mich. 2007); Assem. 967, 213th Leg., 1st Ann.
     Sess. (N.J. 2008); H.R. 2055, 190th Gen. Assem., 2007 Sess. (Pa. 2007); S. 2088, 2008 Legis.
     Sess. (R.I. 2008); S. 6269, 60th Legis., 2008 Reg. Sess. (Wash. 2008). These proposed laws
     would impose obligations ranging from a requirement that the airline accommodate
     passengers on the next available route, see Mich. H.R. 5475 § 5(2), to a requirement that

                                                  12
 1          Additionally, we note that Rowe declined to read into § 14501(c)(1)’s

 2   preemption provision an exception that preserves state laws protecting the

 3   public health. 

Rowe accordingly forecloses New York’s argument

 4   and the district court’s conclusion, see Air 

, that

 5   classifying the PBR as a health and safety regulation or a matter of basic human

 6   necessities somehow shields it from the preemptive force of § 41713(b)(1).

 7   Onboard amenities, regardless of whether they are luxuries or necessities, still

 8   relate to airline service and fall within the express terms of the preemption

 9   provision — a conclusion, we note, that even the drafters of the PBR appear to

10   have been unable to escape. See N.Y. Gen. Bus. Law § 251-g(1)(a) (referring to

11   “electric generation service ”); 

(referring to “waste removal

12   service ”).

13


14                                                 II.

15          Insofar as the PBR is intended to prescribe standards of airline safety, we



     passengers be permitted to disembark, see Pa. H.R. 2055 § 3(b). It is irrelevant that these bills
     all seek to impose the same principal service obligations as the PBR — requiring airlines to
     provide food, water, electric generation, and waste removal after a three-hour ground delay
     — for state laws related to airline service are preempted regardless of whether they are
     consistent with each other and regardless of whether they are consistent with the ADA’s
     objective. 

; 

. We note that the Department
     of Transportation has proposed and sought comment on several similar passenger protection
     measures that could provide uniform standards to deal with lengthy ground delays. See
     Enhancing Airline Passenger Protections, 72 Fed. Reg. 65,233 (Nov. 20, 2007) (to be codified
     at 14 C.F.R. pts. 234, 253, 259, 399).

                                                    13
 1   note, finally, that it may also be impliedly preempted by the FAA and regula-

 2   tions promulgated thereunder. The FAA was enacted to create a “uniform and

 3   exclusive system of federal regulation” in the field of air safety. City of Burbank

 4   v. Lockheed Air Terminal, Inc., 

, 639 (1973). Shortly after it became

 5   law, we noted that the FAA “was passed by Congress for the purpose of

 6   centralizing in a single authority — indeed, in one administrator — the power

 7   to frame rules for the safe and efficient use of the nation’s airspace.” Air Line

 8   Pilots Ass’n, Int’l v. Quesada, 

, 894 (2d Cir. 1960); see also British

 9   Airways Bd. v. Port Auth. of N.Y. & N.J., 

, 83 (2d Cir. 1977) (“[The

10   FAA] requires that exclusive control of airspace management be concentrated

11   at the national level.”). Congress and the Federal Aviation Administration have

12   used this authority to enact rules addressing virtually all areas of air safety.

13   These regulations range from a general standard of care for operating

14   requirements, see 14 C.F.R. § 91.13(a) (“No person may operate an aircraft in a

15   careless or reckless manner so as to endanger the life or property of another.”),

16   to the details of the contents of mandatory onboard first-aid kits, 

app.

17   A, to the maximum concentration of carbon monoxide permitted in “suitably

18   vented” compartments, 

This power extends to grounded planes

19   and airport runways. See 

(requiring pilots to comply with all orders

20   and instructions of air traffic control); 

(requiring airlines to restrict


                                               14
 1   movement of pedestrians and ground vehicles on runways).

 2         The intent to centralize air safety authority and the comprehensiveness

 3   of these regulations pursuant to that authority have led several other circuits

 4   (and several courts within this Circuit) to conclude that Congress intended to

 5   occupy the entire field and thereby preempt state regulation of air safety. See,

 6   e.g., Montalvo v. Spirit Airlines, 

, 468 (9th Cir. 2007) (“[T]he FAA

 7   preempts the entire field of aviation safety through implied field preemption.

 8   The FAA and regulations promulgated pursuant to it establish complete and

 9   thorough safety standards for air travel, which are not subject to supplemen-

10   tation by . . . state laws.”); Greene v. B.F. Goodrich Avionics Sys., Inc., 

  784, 795 (6th Cir. 2005), cert. denied, 

(2006); Abdullah v. Am.

12   Airlines, Inc., 

, 367-68 (3d Cir. 1999); French v. Pan Am Express,

13   Inc., 

, 5 (1st Cir. 1989); Curtin v. Port Auth. of N.Y. & N.J., 

  Supp. 2d 664, 671 (S.D.N.Y. 2002). Although we have not addressed this precise

15   issue, we have acknowledged that the FAA does not preempt all state law tort

16   actions. See In re Air Crash Disaster at John F. Kennedy Int’l Airport on June

17   24, 1975, 

, 75 (2d Cir. 1980). However, the FAA has a savings clause

18   that specifically preserves these actions. See 49 U.S.C. § 40120(c).

19         If New York’s view regarding the scope of its regulatory authority carried

20   the day, another state could be free to enact a law prohibiting the service of soda


                                              15
 1   on flights departing from its airports, while another could require allergen-free

 2   food options on its outbound flights, unraveling the centralized federal

 3   framework for air travel. On this point, the decisions of the Fifth and Ninth

 4   Circuits finding preemption of state common law claims for failure to warn of the

 5   risk of deep vein thrombosis are instructive. See 

(“[A]

 6   state [is not] free to require any announcement it wishe[s] on all planes arriving

 7   in, or departing from, its soil . . . .”); Witty v. Delta Air Lines, Inc., 

,

 8   383-84 (5th Cir. 2004).

 9         In light of our determination that the PBR is preempted by the ADA,

10   however, we need not address the scope of any FAA preemption, and we decline

11   to do so here. Although the goals of the PBR are laudable and the circumstances

12   motivating its enactment deplorable, only the federal government has the

13   authority to enact such a law. We conclude, then, by reiterating our holding that

14   the PBR’s substantive provisions, codified at section 251-g(1) of the New York

15   General Business Law, are preempted by 49 U.S.C. § 41713(b)(1).

16


17                                     CONCLUSION

18         For the foregoing reasons, the judgment of the district court is RE-

19   VERSED, and the case is REMANDED to the district court so that it may enter

20   summary judgment in favor of Air Transport.

21



                                               16