Opinion by Judge BERZON; Concurrence by Judge KLEINFELD.
BERZON, Circuit Judge:
This case requires us to consider once more the circumstances under which claims brought under state law are preempted by federal statutes governing air transportation. See, e.g., Gilstrap v. United Air Lines, Inc., 709 F.3d 995 (9th Cir.2013); Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir.1998) (en banc).
Plaintiff-Appellants the National Federation of the Blind
United owns and operates over 100 automatic ticketing kiosks in airports throughout California. These kiosks allow passengers to perform various functions relevant to their air travel, including accessing flight information, checking in for flights, printing boarding passes, checking baggage, and selecting and upgrading seats. As now configured, the kiosks require user responses to visual prompts on a computer touchscreen and so cannot be used without assistance by blind travelers. Although United could make its kiosks accessible to blind passengers using commercially available technologies such as audio interfaces and tactile keyboards, it has not.
The Federation sued United, seeking declaratory and injunctive relief as well as damages. Its complaint asserted that United's policy of using kiosks inaccessible to the blind violates two California antidiscrimination statutes: the Unruh Civil Rights Act ("Unruh Act") and the Disabled Persons Act ("DPA"). Cal. Civ.Code §§ 51, 54. The Unruh Act provides that "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their . . . disability . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Id. § 51(b). The DPA guarantees persons with disabilities, including the blind, "full and equal access. . . to accommodations, advantages, facilities,. . . and privileges of all common carriers, airplanes, . . . or any other . . . modes of transportation." Id. § 54.1(a)(1). These statutes, the Federation argues, require United to "take the steps necessary to make its [k]iosks readily accessible to and usable by blind individuals."
United moved to dismiss the Federation's claims on three preemption grounds: (1) that the claims were preempted under the ADA's express preemption provision, 49 U.S.C. § 41713(b)(1); (2) that the claims were impliedly preempted by the ACAA and its implementing regulations, including in particular an "interim" regulation governing kiosk accessibility, see Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed.Reg. 27,614, 27,619 (May 13, 2008), which, according to United, pervasively regulated airport kiosk accessibility; and (3) that the Federation's claims were impliedly preempted by the ACAA because they conflicted with the policy objectives reflected in the implementing regulations.
After United filed its motion to dismiss, the district court requested the input of the United States and the DOT. The United
The United States filed an amicus brief with this court, repeating its position that asserted state law claims are preempted. After oral argument, we vacated submission pending the Supreme Court's resolution of Northwest, Inc. v. Ginsberg, ___ U.S. ___, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014). While that case was pending, the DOT replaced the interim kiosk regulation with an extensive final rule. See Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports, 78 Fed.Reg. 67,882 (Nov. 12, 2013). We ordered supplemental briefing on both developments, and the United States submitted an additional amicus brief, again maintaining that the claims are preempted.
Federal law may preempt state law in three ways. First, "Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision." Arizona v. United States, ___ U.S. ___, 132 S.Ct. 2492, 2500-01, 183 L.Ed.2d 351 (2012). Second, "States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Id. at 2501. Finally, "state laws are preempted when they conflict with federal law," such that "compliance with both federal and state regulations is a physical impossibility, . . . [or] the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. (internal quotation marks and citation omitted).
Regardless of the type of preemption involved—express, field, or conflict—"[t]he purpose of Congress is the ultimate touchstone of pre-emption analysis." Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (alteration in original) (internal quotation marks omitted). In this regard, "we are mindful of the adage that Congress does not cavalierly preempt state law causes of action." Montalvo v. Spirit Airlines, 508 F.3d 464, 471 (9th Cir.2007) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). At the same time, we have recognized that "preemptive intent is more readily inferred" in the field of aviation, because it is "an area of the law where the federal interest is dominant." Id. (citing Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982)).
In applying these principles to this case, our inquiry is a cabined one. The Federation's claims were brought pursuant to California's general antidiscrimination statutes. There is no California case law concerning the application of those statutes to airport kiosks. So we do not know at this point to what extent California law requires accessible kiosks or alternatives thereto. The issue at this juncture is thus whether any accessibility requirement for airport kiosks not required by the DOT regulations would be preempted.
With these background principles and caveats in mind, we consider whether the Federation's claims are foreclosed by any of the three types of preemption.
ADA § 41713(b)(1) 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 that may provide air transportation under this subpart." 49 U.S.C. § 41713(b)(1) (previously codified at 49 U.S.C.App. § 1305(a)(1)). It is this provision upon which United relies for its express preemption argument.
In determining the scope of § 41713(b)(1), we "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Charas, 160 F.3d at 1265 (quoting Medtronic, 518 U.S. at 485, 116 S.Ct. 2240). To help determine Congress's "manifest purpose," we turn to the ADA's history.
Before 1978, the Civil Aeronautics Board regulated interstate air transportation pursuant to the Federal Aviation Act of 1958 ("FAA"), Pub.L. No. 85-726, 72 Stat. 731 (1958), as amended, 49 U.S.C.App. § 1301 et seq. See Northwest, 134 S.Ct. at 1428. The FAA did not expressly preempt state regulation. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). Moreover, the FAA contained a "saving clause," which provided that "[n]othing . . . in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." 49 U.S.C.App. § 1506 (1976) (recodified at 49 U.S.C. § 40120(c));
In 1978, Congress, concluding that "efficiency, low prices, variety, and quality would be furthered by reliance on competitive market forces rather than pervasive federal regulation," enacted the ADA as an amendment to the FAA. Id. (citing H.R. Conf. Rep. No. 95-1779, 95th Cong., 2d
The express preemption question in this case is whether the Federation's state law claims are "related to" United's "prices, routes, or services." United contends that its kiosks are a "service" as that term is used in the ADA, and that the Federation's Unruh Act and DPA claims are "related to a . . . service of an air carrier," rendering them preempted.
To begin, under the ADA as we have interpreted it, the term "service" "refer[s] to the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail." Charas, 160 F.3d at 1261. "Congress used `service' in [§ 41713(b)(1)] in the public utility sense—i.e., the provision of air transportation to and from various markets at various times," and did not mean broadly to reach the various amenities provided by airlines, such as "in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities." Id. at 1266, 1261.
Under our interpretation of § 41713(b)(1), the Federation's claims do not relate to a "service" provided by United. First, kiosks are not "prices, schedules, origins [or] destinations of the point-to-point transportation of passengers, cargo, or mail." Id. at 1261. Thus, to the extent they regulate kiosks, California's antidiscrimination statutes regulate an amenity that United has chosen to provide, not "the provision of air transportation." Id. at 1266.
Nor is it significant that kiosks facilitate services that relate to air transportation. As we noted in Charas, Congress did not intend "service" to refer to the "assistance to passengers in need, or like functions." Id. at 1266. While they may be convenient for passengers, kiosks are not "services" in the "public utility sense." See id.
Finally, Charas's analysis of the term "service" is equally applicable to discrimination claims, so that a claim concerning the "service" of accommodating disabled passengers (or failing to do so) does not automatically trigger the express preemption provision. See Newman v. Am. Airlines, Inc., 176 F.3d 1128, 1131 (9th Cir. 1999). In Newman, a blind passenger suffering
United and its supporting amici, the United States and the Air Transport Association of America ("ATAA"), do not really contest that, under Charas, the conclusion that the kiosks do not provide a "service" within the meaning of the ADA preemption provision is inescapable. Instead, they dispute Charas's continuing vitality, maintaining that the Supreme Court overruled Charas in Rowe v. New Hampshire Motor Transport Ass'n, 552 U.S. 364, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008), by adopting a different and broader definition of "service" than did Charas. Not so.
Rowe, applying a provision of the Motor Carrier Act modeled after § 41713(b)(1), held preempted a Maine statute that imposed a licensing and recipient-verification regime on retailers seeking to transport tobacco within the state. 552 U.S. at 370, 128 S.Ct. 989. Rowe concluded that the Maine statute was sufficiently related to "delivery services" to come within the scope of the Motor Carrier Act's preemption provision. Id. at 371-72, 128 S.Ct. 989. Rowe's understanding of the term "service" is entirely consistent with our decision in Charas.
Like Charas, Rowe viewed the term "service" as focused on "essential details of the carriage itself." Id. at 373, 128 S.Ct. 989 (emphasis added). Far from being aimed at carriers' amenities, the Maine tobacco law at issue in Rowe was "aim[ed] directly at the carriage of goods," and "directly regulate[d] a significant aspect of the motor carrier's package pickup and delivery service." Id. at 376, 373, 128 S.Ct. 989. Most notably, the law mandated "particular delivery procedures" that affected how and to whom carriers could deliver tobacco. Id. at 371, 128 S.Ct. 989. In other words, the Maine law regulated "such things as . . . the selection of markets to or from which transportation is provided." Charas, 160 F.3d at 1265-66.
The Supreme Court recently confirmed Rowe's focus on transportation services in Dan's City Used Cars, Inc. v. Pelkey, ___ U.S. ___, 133 S.Ct. 1769, 1779, 185 L.Ed.2d 909 (2013). In that case, the Court held that claims brought under New Hampshire's abandoned vehicle removal regime were not preempted under the same express preemption provision at issue in Rowe. Id. The Court again declined to articulate "an all-purposes definition of transportation `service[s].'" Id. (alteration in original). It emphasized, however, that unlike the tobacco delivery restrictions at issue in Rowe, New Hampshire's abandoned vehicle laws had no connection to "transportation activities"—they merely addressed the "storage" of vehicles. Id. We conclude that Rowe is not inconsistent with Charas with respect to the definition of "service."
We are mindful that some circuit courts have articulated broader constructions of the word "service" in ADA § 41713(b)(1) than the one we adopted in Charas. See, e.g., Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.1995) (en banc) (interpreting "services" to include "items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself"); see also Bower v. Egyptair Airlines
We disagree with these other courts for the reasons we have explained. In any event, Rowe is certainly not so "clearly irreconcilable" with Charas as to allow a three-judge panel to overrule a prior en banc decision of this court. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). As we said in Dilts v. Penske Logistics, LLC: "Rowe did not represent a significant shift in [Motor Carrier Act] jurisprudence. Nor did it call into question our past [Motor Carrier Act] cases." 769 F.3d 637, 645 (9th Cir.2014).
Nor is Northwest inconsistent with Charas. In the course of holding expressly preempted a claim in connection with a frequent flyer program, Northwest observed that:
Northwest, 134 S.Ct. at 1431.
The relevant portion of Northwest was a direct application of Wolens, not a shift in the Supreme Court's interpretation of the ADA preemption provision.
United and the United States argue, however, that Northwest "underscores" that "the Supreme Court had already superseded this Court's airline `services' interpretation [in Charas] with a controlling classification of its own." But Wolens was decided before Charas. So, even if Charas was wrongly decided, Wolens would not give this panel the authority to revisit it. Miller, 335 F.3d at 900. And, since the relevant portion of Northwest simply applies Wolens, it similarly does not give this panel the authority to disregard Charas. Id. Accordingly, we hold that United's
Moreover, our conclusion, based on Charas, that United's kiosks fall outside the statutory definition of "services" is consistent with the ADA's deregulatory purpose. In enacting the ADA, Congress primarily sought to "utilize competition and market forces to achieve regulatory goals, such as low-cost, efficient air transportation." H.R.Rep. No. 95-1779, at 55 (1978) (Conf.Rep.); see also Charas, 160 F.3d at 1262-63. But, as Charas stated, "[n]othing in the Act itself, or its legislative history, indicates that Congress had a `clear and manifest purpose' to displace" state laws "that do not affect deregulation in more than a `peripheral manner.'" Charas, 160 F.3d at 1265 (quoting Morales, 504 U.S. at 390, 112 S.Ct. 2031). Instead, "when Congress enacted federal economic deregulation of the airlines, it intended to insulate the industry from possible state economic regulation as well." Id. at 1266.
United does not argue that the Federation's claims, if accepted, would frustrate the goals of airline deregulation. Nor has it demonstrated that the claims would have a significant effect on any of those airline services that are covered by the ADA preemption provision. See Montalvo, 508 F.3d at 475; Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806, 810 (9th Cir.2009).
For all these reasons, the Federation's claims are not expressly preempted under the ADA.
Gilstrap, 709 F.3d at 999 (some alterations in original) (footnote and some citations omitted).
Congress responded to Paralyzed Veterans by passing the ACAA as an amendment
Gilstrap, 709 F.3d at 1000-01 (all but first alteration in the original).
Before we consider whether the Federation's claims are impliedly field preempted by the ACAA and its implementing regulations, we must first address the Federation's assertion that implied field preemption is "not permitted" under the ACAA. Specifically, the Federation argues that its state-law claims cannot be impliedly field preempted under the ACAA because of the combined effect of the FAA's saving clause and the express preemption clause of the ADA. According to the Federation, any state-law claims that fall outside the scope of the ADA express preemption provision are necessarily preserved by the FAA's saving clause. That is not so.
The saving clause provides that "[a] remedy under this part is in addition to any other remedies provided by law." 49 U.S.C. § 40120(c).
The Federation maintains that if Congress had wanted to preempt state discrimination claims, it could have done so explicitly in the ADA express preemption provision, 49 U.S.C. § 41713(b)(1). Because Congress did not do so, the Federation's argument goes, "the [FAA] savings clause springs into operation once it is determined that a claim is not expressly preempted . . . [and] preserves those claims from field preemption."
We are unpersuaded, for several reasons. First, by its terms, the FAA's saving clause preserves only "other remedies
The Federation relies on the statement in Brown v. United Airlines, Inc., a First Circuit case, that "when the [ADA] saving clause is juxtaposed with the [ADA express] preemption provision it `ought properly be read to carve out all common law or statutory claims not related to an airline's prices, routes or services.'" 720 F.3d 60, 69 (1st Cir.2013) (quoting Mitchell v. U.S. Airways, Inc., 858 F.Supp.2d 137, 154 (D.Mass.2012)). But Brown held, in relevant part, only that common-law claims could be preempted by the ADA's express preemption provision, and that the plaintiffs' claims were in fact preempted. Id. at 69, 71. Implied preemption was not at issue in Brown at all. Nor is there any reason to think that Brown's statement that claims not falling within the express clause are carved out by the saving clause was intended to refer to implied preemption.
Moreover, in general, the inclusion of either a saving clause or an express preemption clause within a statutory scheme does not foreclose the application of ordinary implied preemption principles. "[T]he existence of an `express pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles' or impose a `special burden' that would make it more difficult to establish the preemption of laws falling outside the clause." Arizona, 132 S.Ct. at 2504-05 (quoting Geier v. Am. Honda Motor Co., 529 U.S. 861, 869-72, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000)). That the Federation's claims are not expressly preempted under the ADA, therefore, does not "categorical[ly]. . . preclude" implied preemption under the ACAA. Freightliner Corp. v. Myrick, 514 U.S. 280, 288, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995).
The presence of a saving clause does not necessarily limit the operation of ordinary implied preemption principles either. Geier is instructive in this regard. That case concerned preemption under the National Traffic and Motor Vehicle Safety Act of 1966 ("Safety Act"), 15 U.S.C. § 1381 (1988), repealed by Pub.L. No. 103-272, § 7(b), 108 Stat. 1379 (1994). 529 U.S. at 867, 120 S.Ct. 1913. The Safety Act had a saving clause, which provided that "[c]ompliance with' a federal safety standard `does not exempt any person from any liability under common law.'" Id. at 868, 120 S.Ct. 1913 (quoting 15 U.S.C. § 1397(k) (1988)). Geier explained that neither the Safety Act's saving clause nor its express preemption clause
As Geier then went on to explain, the presence of both a saving clause and an express preemption clause in the Safety Act does not "create some kind of `special burden' beyond that inherent in ordinary pre-emption principles." Id. at 870, 120 S.Ct. 1913. Although the saving and preemption clauses reflected seemingly conflicting congressional objectives, Geier declined to interpret the Safety Act's saving clause as preserving all claims brought under state law that did not fall within the preemption provision's scope, noting that "[t]o the extent that such an interpretation of the saving provision reads into a particular federal law toleration of a conflict that [ordinary conflict preemption] principles would otherwise forbid, it permits that law to defeat its own objectives." Id. at 872, 120 S.Ct. 1913. Permitting common-law actions that "actually conflict" with federal regulations "would take from those who would enforce a federal law the very ability to achieve the law's congressionally mandated objectives that the Constitution, through the operation of ordinary pre-emption principles, seeks to protect." Id.
Geier concerned only the operation of ordinary implied conflict preemption principles. But the same logic applies to the operation of implied field preemption principles. Compare Arizona, 132 S.Ct. at 2504-05 (relying on Geier) with id. at 2520 (Scalia, J., concurring in part and dissenting in part) (arguing that Geier was inapplicable because it applied conflict preemption principles, while the majority relied on field preemption). To interpret § 40120(c) as preserving any state-law claim not preempted under the ADA—including claims involving areas pervasively regulated by the DOT, such that Congressional intent to "occupy a field exclusively" would otherwise be inferred, Freightliner, 514 U.S. at 287, 115 S.Ct. 1483—would allow the FAA to "defeat its own objectives." Geier, 529 U.S. at 872, 120 S.Ct. 1913. The FAA expressly authorizes the DOT to promulgate "necessary" regulations to carry out the ACAA. 49 U.S.C. §§ 40101, 40113. In fact, it was the need for a "uniform and exclusive system of federal regulation" that led Congress to enact the FAA in the first place. See Montalvo, 508 F.3d at 471. Under the Federation's reading of § 40120(c), however, a passenger could sue an airline for violating any state standard of care not expressly preempted by the ADA, notwithstanding federal regulations covering in depth the particular field at issue. The result would be chaotic.
There is little reason to think Congress, in retaining the FAA's saving clause, intended to create "such a complex type of state/federal relationship" as would result if two sets of comprehensive schemes of this sort were allowed to coexist. Geier, 529 U.S. at 872, 120 S.Ct. 1913. Absent any specific indication that Congress sought to preserve all state-law claims not expressly preempted under the ADA, we adopt the Geier approach and so apply ordinary implied field preemption principles to the Federation's claims.
Under those principles, "state law is pre-empted . . . if federal law so thoroughly occupies a legislative field `as to make reasonable the inference that Congress left no room for the States to supplement it.'" Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (quoting de la Cuesta, 458 U.S. at 153, 102 S.Ct. 3014); see also Freightliner, 514 U.S. at 287, 115 S.Ct. 1483. In determining field preemption, "[f]ederal regulations have no less pre-emptive effect than federal statutes." de la Cuesta, 458 U.S. at 153, 102 S.Ct. 3014. Accordingly, "[w]here . . . Congress has entrusted an agency with the task of promulgating regulations to carry out the purposes of a statute, as part of the preemption analysis we must consider whether the regulations evidence a desire to occupy a field completely." Montalvo, 508 F.3d at 470-71 (quoting R.J. Reynolds Tobacco Co. v. Durham Cnty., 479 U.S. 130, 149, 107 S.Ct. 499, 93 L.Ed.2d 449 (1986)) (alteration in original). In particular, we "look[] to the pervasiveness of federal regulations in the specific area covered by the . . . state law at issue." Martin, 555 F.3d at 809; see also Ventress, 747 F.3d at 721. If the pervasiveness of the regulations indicate that the agency sought to occupy the field, we ask only "whether that action [wa]s within the scope of the [agency's] delegated authority." de la Cuesta, 458 U.S. at 154, 102 S.Ct. 3014.
With respect to accessibility of airport kiosks, DOT has promulgated two regulations. First, on May 13, 2008, DOT promulgated an "interim" rule, requiring, without significant further elaboration, that if kiosks are inaccessible, the airline must provide "equivalent service." 14 C.F.R. § 382.57 (2008); see also 73 Fed. Reg. at 27,619-20.
Applying our precedents concerning field preemption, we conclude,
The essential field preemption inquiry is whether the density and detail of federal regulation merits the inference that any state regulation within the same field will necessarily interfere with the federal regulatory scheme. The first step in determining whether that situation exists is to delineate the pertinent regulatory field; the second is to survey the scope of the federal regulation within that field.
In Martin, 555 F.3d 806, for example, a pregnant passenger who had fallen on an airplane's stairway, injuring herself and her fetus, alleged that the airstairs were "defectively designed because they had only one handrail." Id. at 808. The "only [DOT] regulation on airstairs," we noted, provided that "they can't be designed in way that might block the emergency exits"; the regulation had "nothing to say about handrails, or even stairs at all, except in emergency landings." Id. at 812. We concluded that "[b]ecause the agency [had] not comprehensively regulated airstairs, the FAA [had] not preempted state law claims that the stairs are defective." Id. In so ruling, we emphasized the importance of delineating the pertinent area of regulation with specificity before proceeding with the field preemption inquiry: "[W]hen [an] agency issues `pervasive regulations' in an area . . . the [statute] preempts all state law claims in that area." Id. at 811. But, "[i]n areas without pervasive regulations . . . the state standard of care remains applicable." Id.
The current version of § 382.57 does pervasively regulate the accessibility of airport kiosks. That regulation, appended to this opinion, is exhaustive. With regard to blind travelers, the rule specifies, among many other matters, the following technical and design requirements for accessible airport kiosks:
The regulation also requires that the kiosk's "[o]perable parts must be tactilely discernible without activation," id. § 382.57(c)(3)(i) and that "Braille instructions for initiating the speech mode must be provided." Id. § 382.57(c)(8). Finally, the regulation imposes a backup requirement of "equivalent service," similar to the general accommodation language that appeared in the interim rule. Id. § 382.57(d).
The new regulation thus informs airlines with striking precision about the attributes their accessible kiosks must have. In doing so, the new regulation speaks directly to the concerns raised by the Federation's suit.
In its complaint, the Federation alleged that, because United's kiosks "use exclusively visual computer screen prompts and touch-screen navigation to guide a customer through a transaction without translating the prompts into a medium accessible to the blind, such as audio output[,] . . . vision is required to successfully use" the kiosks. Furthermore, the Federation alleged, "[t]echnology exists for United's [k]iosks to be accessible to the blind, including but not limited to an audio interface, a tactile keyboard, and/or interactive screen reader technology for use with touch screens."
The new regulation instructs United exactly what it must do to address this problem, from the general—namely that its accessible kiosks must, as the Federation suggests, incorporate both speech output and at least one tactile input method—to the granularly specific, including the specific decibel levels for speech output and the particular tactile symbols to be used. Thus, "a number of specific federal [regulatory provisions] govern" the particular standards at issue here, namely what level of accessibility for blind individuals is required for airport kiosks. Montalvo, 508 F.3d at 472 (emphasis added). Further, the regulation is unmistakably pervasive in the pertinent sense, in that it exhaustively regulates the relevant attributes of accessible kiosks. Given its great detail and pervasive extent, the new regulation preempts any state regulation of that same field. See id.
As the Federation notes, the regulation does not require that airlines make such accessible kiosks immediately available. Rather, the regulation establishes a timeline, gradually increasing the availability of accessible kiosks. First, all kiosks installed on or after December 12, 2016, must meet the accessibility specifications defined by the regulation, until 25% of the kiosks at each location at an airport are accessible. 14 C.F.R. § 382.57(a)(1). Second, airlines must ensure that at least 25% of kiosks at each location meet the regulation's accessibility specifications by December 12, 2022. Id. § 382.57(a)(2).
That federal and state regulatory schemes "may require different . . . deadlines" for compliance does not always establish a conflict between those schemes. Greater L.A. Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 430 (9th Cir.2014). Here, however, DOT has very precisely dictated not only the substance of the accessible kiosk requirement, but also when airlines must come into full compliance with those substantive requirements, and what steps the airlines must take in the interim. The detail concerning timing demonstrates that the regulation is pervasive not only as to what standards apply, but also as to when compliance is required.
Moreover, DOT carefully calibrated the phase-in period for kiosk accessibility. First, while DOT initially considered a compliance deadline of only 60 days, it ultimately decided that such a short timeline would not be "feasible" given the time that would be required to develop, test, and market new accessible kiosks. 78 Fed.Reg. at 67,907. Second, DOT settled on the ultimate 10-year deadline for airlines to ensure that 25% of kiosks are accessible at every location after considering the average life span of kiosks, indicating that "it is reasonable to conclude that well before the end of the 10-year period after the effective date of this rule virtually all airport kiosks will have reached the end of their life span" and will be replaced with accessible kiosks until the 25% threshold is reached. Id. at 67,908. Third, DOT initially raised the possibility of requiring airlines to retrofit existing kiosks as an interim measure, but ultimately rejected the idea as "an expensive, and in some cases, technically infeasible means to accomplish" the "more rapid near-term availability of accessible machines." Id. at 67,909.
In this regard, the regulation resembles the airbag standard at issue in Geier. Rejecting the view, urged in that case, that DOT had "set[] a minimum airbag standard" but allowed state regulation to accelerate requirements because "the more airbags, and the sooner, the better," Geier observed that DOT's view was to the contrary:
529 U.S. at 874-75, 120 S.Ct. 1913. Because the rule "deliberately sought a gradual phase-in of passive restraints," id. at 879, 120 S.Ct. 1913, a rule requiring more immediate implementation would conflict with federal law and was therefore preempted, id. at 881, 120 S.Ct. 1913.
Here, we consider not conflict preemption but field preemption. But the essential point is the same regarding phasing in the accessibility requirements: In promulgating
Finally, our conclusion that the new regulation occupies the field of kiosk accessibility is bolstered, but only marginally, by DOT's assertions that it does. As a general matter, although we may give "`some weight'" to "an agency's explanation of how state law affects the [relevant] regulatory scheme," we do "not defer[] to an agency's conclusion that state law is pre-empted." Wyeth v. Levine, 555 U.S. 555, 576, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). "The weight we accord the agency's explanation of state law's impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness." Id. (citing United States v. Mead Corp., 533 U.S. 218, 234-35, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) and Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).
Here, we give DOT's statements minimal weight. DOT's position is that, even before the current kiosk regulation was promulgated, "States [we]re already preempted from regulating in the area of disability civil rights in air transportation under the [ADA] and the ACAA." 78 Fed. Reg. at 67,910 (emphasis added). The government has echoed that view before us, filing a supplemental amicus brief in this case maintaining that the DOT's new regulation "further demonstrates that the federal government's regulation of the accessibility of air transportation is so pervasive as to `occupy the field.'"
The government's view that the field of air carrier accessibility is broadly preempted has the virtue of being consistent over time. See Nondiscrimination on the Basis of Handicap in Air Travel, 55 Fed.Reg. 8008, 8014 (Mar. 6, 1990); cf. Wyeth, 555 U.S. at 579-80, 129 S.Ct. 1187 (rejecting the agency's "newfound opinion" in part because it represented "a dramatic change in position"). As noted, however, under our precedents, the pertinent field for purposes of field preemption analysis is not "air carrier accessibility" in general; it is airport kiosk accessibility for the blind. DOT's statements do not, as our case law requires, delineate the specific field within which the federal ACAA regulations are preemptive, or explain why § 382.57 in particular occupies the field at issue here. We therefore find them unpersuasive.
Nevertheless, we do give some weight to DOT's specific rejection of a saving provision in adopting the final kiosk regulation. In its regulatory commentary, DOT considered comments, including one submitted by the Federation, urging it to include a saving clause in 14 C.F.R. Pt. 382 to ensure the viability of concurrent state-law claims. 78 Fed.Reg. at 67,910. The comments had pointed out two district court decisions, including the decision on review in this case, holding preempted certain state law suits challenging inaccessible kiosks. Id. DOT refused to adopt a saving provision, concluding that "the detrimental impacts resulting from the concurrent operation of State/local disability non-discrimination laws on passengers with disabilities and on air transportation overall are serious and foreseeable." Id. DOT's rejection of the saving provision, which was proposed and rejected in the context of the exact issue raised here, confirms that DOT meant to leave no space for concurrent regulation of kiosk accessibility by the states. To that extent, DOT's regulatory discussion bolsters our conclusion that the agency occupied the field of kiosk accessibility.
In its supplemental brief, the Federation argues that its suit does not conflict with the new regulation. In light of our conclusion that DOT has occupied the field, we need not reach that issue. As to field preemption, the Federation offers no argument that the new regulation is not pervasive; indeed, it is hard to see how it could do so.
Because we have concluded that DOT "meant to pre-empt" the claims at issue here, the question is simply "whether that action [wa]s within the scope of the [agency's] delegated authority." de la Cuesta, 458 U.S. at 154, 102 S.Ct. 3014. "[W]hen an agency administrator promulgates pervasive regulations pursuant to his Congressional authority, we may infer a preemptive intent unless it appears from the underlying statute or its legislative history that Congress would not have sanctioned the preemption." Montalvo, 508 F.3d at 471.
We conclude that DOT acted within its authority in promulgating the field-preemptive § 382.57. First, regulations under the ACAA, like § 382.57, are "covered by the FAA's general authorization that the Secretary `may take action . . . consider[ed] necessary to carry out' the FAA's `Air Commerce and Safety' provisions, `including. . . prescribing regulations, standards, and procedures, and issuing orders.'" Gilstrap, 709 F.3d at 1000 (quoting 49 U.S.C. § 40113(a)) (first alteration in original). As Gilstrap recognized, the ACAA, as part of the broader FAA, regulates "aviation commerce," including principally "airlines' interactions with their customers who have disabilities," as well as "aviation safety." Id. at 1005 & n. 14. Thus, Congress authorized DOT to promulgate regulations that, like § 382.57, speak to United's interactions with its customers with disabilities in the context of its kiosks.
Second, even granting for the sake of argument the Federation's argument that, in enacting the ACAA, "Congress did not in any way suggest that" it wanted to preempt state law, this "narrow focus on Congress' intent to supersede state law [i]s misdirected." de la Cuesta, 458 U.S. at 154, 102 S.Ct. 3014. "A pre-emptive
Third, we reject the Federation's argument that the regulation is invalid because the ACAA "is limited to prohibiting discrimination in `air transportation,'" but does not extend to "subsidiary activities" like the operation of airport kiosks that "do not move people or things by aircraft."
In Gilstrap, for example, we held that the ACAA regulations occupied the field implicated by Gilstrap's claim that "United did not provide the assistance that Gilstrap requested for moving through the airports." 709 F.3d at 1007 (emphasis added). Moving through an airport is not air transportation, yet we concluded that the ACAA regulations validly preempted the application of any different or higher state standard of care as to that issue. Id. Consistent with Gilstrap, we conclude that "[t]he ACAA was intended to ensure non-discriminatory treatment of airline passengers," Elassaad v. Independence Air, Inc., 613 F.3d 119, 133 (3d Cir.2010), whether on an airplane, in an airport, at a kiosk, or otherwise. DOT thus has authority to promulgate regulations, like the one at issue here, that concern the ability to use devices designed to facilitate the provision of airplane transportation.
Fourth, we also reject the Federation's argument that, because Congress did not intend the ACAA to apply to intrastate air transportation, the Federation's claims, to the extent they relate to purely intrastate travel, are not preempted.
United, like most airlines, does not maintain separate kiosks for interstate travel and intrastate travel. Faced with the likelihood of a single set of kiosks, the Secretary could reasonably conclude that a rule governing accessibility of kiosks in general is "necessary" to ensure ACAA compliance with regard to interstate travel. Thus, the Federation's argument fails to demonstrate that the regulation is beyond DOT's authority.
Finally, the Federation notes that it has, in a different case, challenged the new regulation's validity under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., and that, if the challenge is successful, "the rulemaking may be invalidated, in which case there would no longer be any basis for implied preemption of the claims that are subject to this appeal."
In sum, § 382.57 pervasively and comprehensively regulates the field of airport kiosk accessibility, and is within DOT's delegated authority. We therefore hold that the Federation's state-law claims are impliedly field preempted under the ACAA.
For the reasons stated above, the Federation's state-law claims are not expressly preempted by the ADA. They are, however, impliedly field preempted by the ACAA and 14 C.F.R. § 382.57. Accordingly, we affirm the district court's dismissal of the Federation's state-law claims.
(a) As a carrier, you must comply with the following requirements with respect to any
KLEINFELD, Senior Circuit Judge, concurring:
I join Part II of the majority opinion, and concur in the result.
I do not join in Part I of the opinion, because Part II, addressing implied preemption of the field, entirely controls the outcome of this case. The field is preempted by the forty pages in the Federal Register in which the Department of Transportation has addressed service to disabled passengers.
Federal preemption under the Airline Deregulation Act is a complex and nuanced body of law. I do not express agreement or disagreement with anything in the majority's unnecessary discussion of express preemption. By adding many words to the Federal Reporter about it, we have made the subject even more complex.
The reason why express preemption is a complex and delicate subject is that the Airline Deregulation Act preempts state laws "related to a price, route, or service of an air carrier,"
Because the lengthy first section of the majority opinion is an entirely unnecessary disquisition on a subject of no significance to the outcome, it should be regarded as dicta of no precedential force. That too is a complex issue in our circuit because of our court's departure from the common law tradition regarding dicta and holding. That oddity in our circuit law generates more complexity into the question of whether the agency and subsequent panels are bound by Part I of today's opinion.
Our circuit, unlike traditional common law courts, the Supreme Court,
There are good reasons why courts write dicta. Often dicta make the discussion of the law easier to understand, such as by discussing hypothetical and analogous cases. Language in a decision unnecessary to the decision often has value, for making the decision easier to understand, courts easier to predict, and decisions whether to expand or restrict holdings easier to make. Much dicta is written accidentally, because a judge explaining why the court reaches its outcome in one case will not be able to perceive every factual circumstance that will arise in the future, and potentially be covered by an accidentally overbroad rule articulated in the instant case. Part I of today's opinion is dicta for no such good reason.
Instead, it is a prime example of what Judge Rymer, in her dissent in Barapind, called overwriting invited by the Barapind majority opinion.
Barapind claims authority to bind subsequent panels and district courts by dicta
"Everything that ends up in F.3d cannot possibly be the law of the circuit."
That is what Part I of the majority opinion is, and, as Judge Leval says of his hypothetical case, "It is beyond our authority."
Part I of the majority opinion does not use dicta as an explanatory aid, an often useful practice. It is not important to the decision in this case, just discussion that might arguably be useful in some other case. But when we purport to articulate law not affecting the decision of a case, our likelihood of error increases. Practicing lawyers, district judges, and subsequent appellate panels often experience difficulty
According to the concurring opinion, Part I should be disregarded as non-precedential dicta. For the reasons we have given, we do not believe that is so. In the end, however, the degree to which Part I has precedential force in a particular future case will be for the future court to decide. See, e.g., Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (analyzing whether statements in an earlier Ninth Circuit opinion were precedential or "nonbinding dicta").
15 U.S.C. § 1392(d) (1988), repealed by Pub.L. No. 103-272, § 7(b), 108 Stat. 1379 (1994).
Id. § 382.57(c)(5)(ii)(B).
DOT's final kiosk regulation addresses all or nearly all of these topics. Indeed, the technical specifications in the final regulation were based on the very same 2010 ATM accessibility standards to which the Federation pointed as an example of pervasive regulation. See 78 Fed.Reg. at 67,902-03; Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports, 76 Fed.Reg. 59,307-01 (Sept. 26, 2011).
