Hodges v. Delta Airlines, Inc. ( 1995 )


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  •                       United States Court of Appeals,
    Fifth Circuit.
    No. 91-6070.
    Charles E. Gene SMITH and Joan Smith, et al., Plaintiffs-
    Appellants,
    v.
    AMERICA WEST AIRLINES, INC. and Connie Lynn Weaver, Defendants-
    Appellees.
    Feb. 15, 1995.
    Appeal from the United States District Court for the Southern
    District of Texas.
    Before POLITZ, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,
    JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
    BENAVIDES, STEWART and PARKER, Circuit Judges.
    EDITH H. JONES, Circuit Judge:
    This appeal presents the question whether 49 U.S.C.App. §
    1305(a)(1),     the    express     preemption     section         of   the   Airline
    Deregulation Act of 1978, preempts a state law claim for negligence
    and gross negligence relating to the airline's alleged failure to
    prevent   a   would-be    hijacker     from    boarding      an    airplane     as   a
    passenger.      The    district    court,     relying   on    our      then-binding
    precedent,     held   that   the    plaintiffs'     causes        of   action     were
    preempted     and   dismissed    the   complaint.       Our       analysis   of    the
    preemptive scope of § 1305(a)(1) has significantly changed in the
    companion en banc case Hodges v. Delta Airlines, Inc., No. 91-6037,
    --- F.3d ---- (5th Cir.1995), decided today.              Reviewing this case
    in light of Hodges, we reverse the dismissal.
    I. BACKGROUND
    On January 16, 1990, America West flight 727 was hijacked en
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    route to Las Vegas from Houston.        The hijacker forced the pilot to
    land the aircraft in Austin, Texas, so that it could be refueled
    and flown to Cuba.     At the Austin airport, police overpowered the
    hijacker and placed him under arrest.
    Passengers on the airplane brought a lawsuit in state court
    against America West and Connie Lynn Weaver claiming that the
    defendants were negligent in permitting the hijacker to board the
    aircraft.    The defendants removed the action to federal court and
    promptly moved to dismiss on the ground that the plaintiffs' state
    law tort claims were preempted by the Airline Deregulation Act of
    1978 (ADA), 49 U.S.C.App. § 1301 et seq., and that no implied cause
    of action existed under the Federal Aviation Act.             The district
    court granted the defendants' motion and dismissed the complaint.
    The plaintiffs appeal.1
    The    petition   here   alleges   several   acts   or   omissions   of
    negligence and gross negligence by America West and Weaver.          These
    allegations generally accuse the airline and its local supervisor
    of failing to warn or protect ticketed passengers against hazards
    which were known or should have been known to them by allowing Jose
    1
    The Smiths preliminarily contend that the federal court
    lacked removal jurisdiction over this case, in which no federal
    claim or cause of action appeared on the face of the well-pleaded
    complaint and in which both they and the America West supervisor
    were Texas citizens for diversity purposes. If those were the
    only salient facts relevant to diversity jurisdiction, appellants
    might well be correct. Appellants omit to state, however, that
    America West entered Chapter 11 bankruptcy protection three weeks
    after the case was removed to federal court, and America West
    shortly afterward filed a notice of supplemental removal based on
    28 U.S.C. § 1452 and Bankruptcy Rule 9027. Appellants have never
    contested this fully defensible basis of federal jurisdiction.
    2
    Manuel     Gonzales-Gonzales       to    board     Flight       727   at   Houston
    Intercontinental Airport.       The plaintiffs allege that America West
    and Weaver negligently failed to use boarding practices stringent
    enough to prevent Gonzales-Gonzales from boarding the aircraft,
    failed to train their employees and failed to warn the passengers,
    as a result of which they were endangered and injured.
    II. DISCUSSION
    In    Hodges,   this   court       analyzed    congressional       intent   in
    preempting any state law, rule, regulation standard or other
    provision "relating to rates, routes or services" of any air
    carrier.      Construing    this    language       in   light    of   pre-existing
    statutory usage, the interpretation of regulatory agencies that had
    or have jurisdiction over the airline industry, and the intent of
    the ADA, this court concluded that "services" include:
    Elements of the air carrier service bargain ... items such as
    ticketing, boarding procedures, provision of food and drink,
    and baggage handling, in addition to the transportation
    itself.
    Hodges, --- F.3d at ----.       This court also reiterated its holding
    in O'Carroll v. American Airlines, Inc., 
    863 F.2d 11
    (5th Cir.),
    cert. denied, 
    490 U.S. 1106
    , 
    109 S. Ct. 3158
    , 
    104 L. Ed. 2d 1021
    (1989), in which a passenger's suit for wrongful eviction from a
    flight because of his alleged intoxication was held preempted by §
    1305(a)(1).
    America West asserts that this case, a suit for wrongful
    boarding of a passenger who should have been evicted, is the
    converse of O'Carroll.         In each case, America West contends,
    enforcement of state law claims against the carrier would "result
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    in significant de facto regulation of the airlines' boarding
    practices ..." Hodges, --- F.3d at ----.      Consequently, the claims
    asserted here by appellants are "related to" the airline's services
    and would have the "forbidden significant effect" that compels §
    1305(a)(1) preemption.    Morales v. Trans World Airlines, Inc., ---
    U.S. ----, ----, 
    112 S. Ct. 2031
    , 2039, 
    119 L. Ed. 2d 157
    (1992).
    Appellants construe O'Carroll as more narrowly focusing on the
    airline's   economic   regulations,   while   the   instant   case,   by
    contrast, seeks redress for the airline's failure to insure the
    safety of its passengers.    See Margolis v. United Airlines, Inc.,
    
    811 F. Supp. 318
    , 321 (E.D.Mich.1993).         Appellants contend that
    lawsuits for negligent rendition of services are not preempted by
    § 1305(a)(1).
    Applying the Hodges framework, it first appears that the
    scope of § 1305(a)(1) preemption will not be affected by 49
    U.S.C.App. § 1371(q), which requires airlines to carry insurance to
    cover personal injury arising out of the operation or maintenance
    of aircraft.    Neither the alleged failure of America West's ticket
    agent to perceive that the hijacker was deranged when she sold him
    a ticket nor appellants' other allegations of negligence are part
    of the operation or maintenance of aircraft.
    Appellants' claims are thus preempted only if they "relate
    to" "services" within the scope of § 1305(a)(1).      We conclude that
    they do not relate to preempted services and that this case is not
    simply the converse of O'Carroll.        As explained in Hodges, §
    1305(a)(1) assured the economic deregulation of the airlines by
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    rendering them immune from rate and service regulation by the
    states after        the   demise     of   federal       regulation.           Neither   the
    language    nor     history    of    the    ADA       implies     that   Congress       was
    attempting to displace state personal injury tort law concerning
    the safety of the airline business.                    The Supreme Court counsels
    that courts should not lightly infer in federal actions an attempt
    to preempt traditional state police powers.                        California v. ARC
    America Corp., 
    490 U.S. 93
    , 102, 
    109 S. Ct. 1661
    , 1665, 
    104 L. Ed. 2d 86
      (1989).        Under    these    circumstances,         it    is    reasonable      to
    interpret the "service" of boarding to be limited to economic
    decisions       concerning     boarding,        e.g.,      overbooking        or   charter
    arrangements, and contractual decisions whether to board particular
    ticketed passengers.
    Consistent with this line of reasoning, O'Carroll's claim was
    preempted under § 1305(a)(1).              His suit for wrongful eviction from
    a flight involved an alleged breach of the airline's duty to
    transport the plaintiff.             If O'Carroll's judgment had remained
    intact, it would interfere with the economic deregulation of
    airline services by imposing a state-law-based duty to transport
    ticketed passengers.
    The Smiths' claim issues from a different perspective that has
    nothing    to    do   either    with      the     airlines'       economic      practices
    regarding boarding or with the boarding practices that America West
    applied to the Smith appellants.                  Instead, the Smiths' claim is
    that the safety of their flight was jeopardized by the airline's
    permitting      a   visibly    deranged         man   to   board.        If    appellants
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    ultimately recover damages, the judgment could affect the airline's
    ticket selling, training or security practices, but it would not
    regulate the economic or contractual aspects of boarding. Any such
    effect would be "too tenuous, remote or peripheral" to be preempted
    by § 1305(a)(1).      Morales, --- U.S. at 
    ----, 112 S. Ct. at 2040
    (quoting Shaw v. Delta Airlines, Inc., 
    463 U.S. 85
    , 100 n. 21, 
    103 S. Ct. 2890
    , 2901 n. 21, 
    77 L. Ed. 2d 490
    (1983)).
    As this discussion intimates, we hold that the Smiths' claim
    is not preempted, but we do not accept the broadest version of
    their argument, which is that a claim for the negligent rendition
    of services by an air carrier is not preempted.           This argument was
    rejected    in   Morales,   which   held   that   state   laws   of   general
    applicability are preempted whenever they "relate to" the subject
    of federal legislation.      --- U.S. at 
    ----, 112 S. Ct. at 2038
    .         The
    real question, is the scope of "services" that were deregulated:
    those services include boarding practices in their economic or
    contractual dimension but not insofar as the safety of the flight
    is involved.2
    For these reasons, the Smiths' claims are not preempted by §
    1305(a)(1), and the case is REVERSED and REMANDED for further
    proceedings.
    E. GRADY JOLLY, Circuit Judge, specially concurring:
    In this case, the majority modifies its interpretation of the
    2
    As in Hodges, we do not decide whether Federal Aviation
    Administration safety regulations may exert some preemptive
    effect over the Smith appellants' claims. See Hodges, --- F.3d -
    ---, n. 13.
    6
    ADA   preemption   provision   announced   today   in   Hodges   v.   Delta
    Airlines to differentiate further between the economic aspects and
    the safety aspects of a service.       I do not think this distinction
    is defensible in the light of American Airlines v. Wolens, 
    1995 WL 15047
    , --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----.          American
    Airlines determined that the term "service" in the preemption
    provision includes all services, both essential and unessential.
    
    Id. at *5,
    --- U.S. at ----, --- S.Ct. at ----.         Given that fact,
    it is likely that the Supreme Court would view the term "service"
    as encompassing claims relating to the safety as well as the
    economic or contractual aspects of a service. Nonetheless, for the
    reasons stated in my special concurring opinion in Hodges, I concur
    in the judgment of the court.
    PATRICK E. HIGGINBOTHAM, Circuit Judge with whom EMILIO M.
    GARZA, Circuit Judge, joins dissenting:
    In Hodges v. Delta Airlines, Inc., --- F.3d ----, ---- (5th
    Cir.1995) (en banc), I explained that I would test the preemptive
    reach of § 1305(a)(1) of the Airline Deregulation Act of 1978 as
    follows:
    The first inquiry is whether the claim, with regulatory
    effect, relates to "rates, routes or services." 49 U.S.C.App.
    § 1305(a)(1). If the claim relates to services, then it is
    preempted unless it also results from "the operation or
    maintenance of aircraft."    
    Id. § 1371(q)(1).
      If there is
    doubt as to whether the claim results from the operation or
    maintenance of the aircraft, that doubt is to be resolved in
    favor of the operation or maintenance category.
    I am persuaded that the Smiths' claim is preempted.         A claim
    alleging that an airline negligently failed to prevent a visibly
    deranged   passenger,   holding   an   otherwise   valid   ticket,     from
    7
    boarding the aircraft relates to boarding procedures, which are
    inextricably part of providing air travel services.                      The next
    inquiry then is whether this claim results from the operation or
    maintenance of the aircraft. As the majority indicates, "[n]either
    the alleged failure of America West's ticket agent to perceive that
    the   hijacker   was   deranged   when    she   sold   him    a    ticket      nor
    appellants'    other   allegations   of   negligence    are       part    of   the
    operation or maintenance of aircraft."          For me, the analysis ends
    there, and the correct result is that the Smiths' claim relates to
    services and, therefore, is preempted.
    The majority suggests that affecting an airline's ticket
    selling, training, or security practices is "too tenuous, remote or
    peripheral" to be preempted by § 1305(a)(1) and has nothing to do
    with the economic practices regarding boarding.               This does not
    comport with the plain meaning of the term services, and I am not
    persuaded of the relevance or force of the proffered economic
    analysis.     The regulatory bite of tort laws is direct.                I cannot
    find in the words of the statute a wholesale exception for claims
    of personal injury nor any exception for tort claims with a
    contract in the background.          The state is enforcing its own
    standards, policies, and duties, not the obligations of private
    contract—just as surely as Illinois was regulating an airline
    service by applying its rules against fraudulent acts to a frequent
    flier mile program.    See American Airlines, Inc. v. Wolens, No. 93-
    1286, 
    1995 WL 15047
    , --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---
    - (U.S. Jan. 18, 1995).
    8
    I would affirm.
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