DUNCAN v NORTHWEST AIRLINES, 9835617
U.S. 9th Circuit Court of Appeals
DUNCAN v NORTHWEST AIRLINES
9835617
JULIE DUNCAN, on behalf of herself
and all others similarly situated, No. 98-35617
Plaintiff-Appellant,
D.C. No.
v. CV-98-00130-TSZ
NORTHWEST AIRLINES, INC., OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted
December 7, 1999 -- Seattle, Washington
Filed April 6, 2000
Before: Thomas M. Reavley,1 Stephen Reinhardt, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Reinhardt
dants challenging an airline's smoking policy is not pre-
empted by the Airline Deregulation Act (ADA).
In a class-action personal-injury suit against appellee
Northwest Airlines, Inc. in Washington state court, appellant
Julie Duncan challenged the airline's smoking policy on most
trans-Pacific flights. The complaint alleged that by permitting
smoking on such flights, Northwest breached its duty under
state law to provide a safe and healthy workplace for employ-
ees. The complaint sought damages, an injunction (later aban-
doned), and medical monitoring.
The district court granted Northwest's motion to dismiss on
the ground that the action was preempted by the ADA. In its
preemption provision, the ADA provides that no state may
enforce any law "relating to the rates, routes, or services" of
any air carrier.
Duncan appealed. While the appeal was pending, North-
west banned smoking on all trans-Pacific flights.
[1] Congress used the word "service" in the phrase "rates,
routes, or service" to refer to the prices, schedules, origins,
and destinations of the point-to-point transportation of passen-
gers, cargo, or mail. Congress intended to preempt only state
laws and lawsuits that would adversely affect economic
deregulation of the airlines and competition within the airline
industry. Courts interpret "service" narrowly to prevent pre-
emption of virtually everything an airline does."Service" was
not intended to include an airline's provision of "amenities."
[2] Allowing smoking on Northwest's trans-Pacific flights
did not constitute a "service." An airline's decision to permit
or not permit smoking on a flight is not a decision dealing
with the frequency and scheduling of transportation, or the
selection of markets to or from which transportation is pro-
vided. A rule permitting or prohibiting smoking deals with
"amenities."
[3] Northwest stopped allowing smoking on its trans-
Pacific flights while Duncan's appeal was pending. Thus, the
airline's own business decision demonstrated that even if
Duncan's suit had forced it to prohibit smoking on flights
originating in Washington, the airline would not have to can-
cel its Washington-based trans-Pacific departures and reroute
its other flights.
[4] Moreover, the type of causal relationship to a "service"
alleged by Northwest was not sufficient to invoke preemption.
If it were, almost all personal-injury claims would be pre-
empted, because all successful tort suits carry an economic
cost for the airline. Such cases may even cause the airline to
make changes in its operations. However, imposition of liabil-
ity as a result of a personal injury action does not sufficiently
interfere with the objectives of deregulation to warrant
preemption--the connection between an award in a tort case
and an airline's "services" is too tenuous.
_________________________________________________________________
COUNSEL
Steve W. Berman, Hagens & Berman, Seattle, Washington,
for the plaintiff-appellant.
Thomas Tinkham, Dorsey & Whitney, Minneapolis, Minne-
sota, for the defendant-appellee.
_________________________________________________________________
OPINION
REINHARDT, Circuit Judge:
In this case, we must determine whether a class-action tort
suit brought against Northwest Airlines by some of its flight
attendants is preempted by the Airline Deregulation Act. We
hold that it is not.
I. BACKGROUND
Julie Duncan, as the named plaintiff, filed a class-action,
personal-injury lawsuit against Northwest Airlines in Wash-
ington state court. Brought on behalf of nonsmoking flight
attendants who served as crew members on Northwest's
smoking flights to and from Asia, the suit raises a claim based
on Northwest's smoking policy. At the time the action was
filed, Northwest prohibited smoking on all domestic and most
international flights, but permitted smoking on most flights to
and from Asia.2 In her complaint, Duncan argued that, by per-
mitting smoking on most trans-Pacific flights, Northwest
breached its duty under state law to provide a safe and healthy
work environment for its employees. She further alleged that
Northwest's decision to allow smoking on these flights
injured the flight attendants by exposing them to secondhand
smoke. The complaint sought damages, an injunction, and
medical monitoring.3
Northwest removed the suit to federal court and filed a
motion to dismiss, asserting that Duncan's action was pre-
empted by S 1305(a)(1) the Airline Deregulation Act (ADA).
The district court granted Northwest's motion and dismissed
the case. Duncan appealed. After the appeal was filed, North-
west banned smoking on all trans-Pacific flights.
II. DISCUSSION
On appeal, we must determine whether Duncan's tort suit
is preempted by S 1305(a)(1) of the ADA. Section 1305(a)(1)
provides:
[N]o state or political subdivision thereof and no
interstate agency or other political agency of two or
more states shall enact or enforce any law, rule, reg-
ulation, standard, or other provision having the force
and effect of law relating to the rates, routes or ser-
vice of any air carrier . . . .4
49 U.S.C. app. S 1305(a)(1) (emphasis added). The scope of
preemption under this provision depends on the interpretation
of the phrase "relating to the rates, routes or service."5 When
the district court dismissed Duncan's suit, the meaning of this
phrase -- and hence the scope of preemption under section
1305(a)(1) -- was uncertain both in this circuit and others.
[1] While Duncan's appeal was pending, we substantially
clarified the scope of S 1305(a)(1) preemption in Charas v.
Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir.1998) (en
banc).6 In that case, we provided a definitive interpretation of
the term "service": we concluded that "Congress used the
word `service' in the phrase `rates, routes, or service' in the
ADA's preemption clause to refer to the prices, schedules,
origins and destinations of the point-to-point transportation of
passengers, cargo, or mail."7Id. at 1261. This interpretation
was mandated by the purpose and language of the preemption
provision. First, we determined that "in enacting the ADA,
Congress intended to preempt only state laws and lawsuits
that would adversely affect the economic deregulation of the
airlines and the forces of competition within the airline indus-
try. Congress did not intend to preempt passengers' run-of-
the-mill personal injury claims."8 Id. Accordingly, we inter-
preted the term "service" narrowly in order to prevent the
"preemption of virtually everything an airline does." Id. at
1266. Second, our interpretation of the term "service" was
guided by the context in which the term was used:
Airlines' "rates" and "routes" generally refer to the
point-to-point transport of passengers. "Rates " indi-
cates price; "routes" refers to courses of travel. It
therefore follows that "service," when juxtaposed to
"rates" and "routes," refers to such things as the fre-
quency and scheduling of transportation, and to the
selection of markets to or from which transportation
is provided . . . .
. . . .
[Thus,] [l]ike "rates" and "routes," Congress used
"service" in S 1305(a)(1) in the public utility sense
-- i.e., [to refer to] the provision of air transportation
to and from various markets at various times.
Id. at 1265-66. We concluded that, "[i]n the context in which
it was used in the Act, `service' was not intended to include
an airline's provision of in-flight beverages, personal assis-
tance to passengers, the handling of luggage, and similar ame-
nities." Id. at 1261.
[2] Given our holding in Charas , it is clear that allowing
smoking on Northwest's trans-Pacific flights does not consti-
tute a "service." An airline's decision to permit (or not to per-
mit) smoking on a flight is not a decision dealing with "the
frequency and scheduling of transportation, [or ] the selection
of markets to or from which transportation is provided."
Charas, 160 F.3d at 1265-66. Rather, like the decision to offer
in-flight beverages, a rule permitting or prohibiting smoking
deals with what we termed, for want of a better word, "ameni-
ties."
Northwest contends that, even if permitting smoking does
not itself constitute a service, Duncan's action is still pre-
empted by S 1305(a)(1) because it "relates to" a "service."
The airline's argument proceeds in two parts. First, it con-
tends that the result of permitting Duncan's lawsuit to proceed
might be to force Northwest to prohibit smoking on any trans-
Pacific flights that originate in Washington State. It argues
that this forced prohibition, in turn, might compel Northwest,
for economic reasons, to drop its trans-Pacific departures
from Washington and reroute its other trans-Pacific flights
around the state. The airline argues that this causal relation-
ship between Duncan's tort suit and its provision of "ser-
vices" renders her claim "related to" a "service."
[3] Northwest's argument about the causal connection
between its smoking policy and its ability to profit on the
trans-Pacific routes is unpersuasive. As noted above, North-
west stopped allowing smoking on its trans-Pacific flights
while Duncan's appeal was pending. In spite of its smoking
prohibition, Northwest has not canceled its trans-Pacific
flights. Thus, the airline's own business decision demon-
strates conclusively that, even if Duncan's suit had forced it
to prohibit smoking on flights originating in Washington (and
perhaps it did), the airline would not have had to cancel its
Washington-based trans-Pacific departures and reroute its
other flights.
[4] Moreover, the type of causal relationship to a "service"
alleged by Northwest is not sufficient to invoke preemption
under S 1305(a)(1). If it were, then, contrary to Charas,
almost all personal injury claims would be preempted. This is
because all successful tort suits -- and certainly all successful
class-action tort suits -- invariably carry with them an eco-
nomic cost for the defendant airline. Such cases may even, in
some instances, cause the airline to decide to make changes
in its operations. Charas makes clear, however, that the impo-
sition of liability as a result of a personal injury action does
not sufficiently interfere with the objectives of airline
deregulation to warrant preemption of the action -- in other
words, the connection between an award in a tort case and an
airline's "services" is simply too tenuous. See 160 F.3d at
1261, 1266; see also Newman v. American Airlines, 176 F.3d
1128, 1131 (9th Cir. 1999). Cf. Morales v. Trans World Air-
lines, 504 U.S. 374, 378 (1992) (holding that state actions are
not preempted if they affect rates, routes, or services "in too
tenuous, remote, or peripheral a manner" (internal quotation
omitted)).
Finally, Northwest argues that Read-Rite Corp. v. Burling-
ton Air Express, 186 F.3d 1190 (9th Cir. 1999), somehow
compels a different result. Read-Rite, however, provides no
support for Northwest's position. Read-Rite concerned the
law governing the loss of or damage to goods transported by
interstate common carriers. In that case, we held that "state
law regulating the scope of air carrier liability for loss or dam-
age to cargo is preempted by the ADA." Id. at 1197. The crux
of our holding was that claims arising from damage by com-
mon carriers had been governed by a purely federal regime
for nearly the entire century. We described that regime as fol-
lows: "federal regulation by statute, federal preemption of
state regulation, and regulation by federal common law of
matters not covered by federal statute." Id. at 1196. Unlike
personal injury claims, which state tort law has traditionally
governed, federal law governed the claims at issue in Read-
Rite prior to the enactment of the ADA. Consequently, Read-
Rite's finding of preemption after the ADA's enactment sim-
ply maintained the regulatory status quo ante. Because it did
not address the question of when preemption within a field
that the states have traditionally occupied is appropriate --
the question at issue in both Charas and the present case --
Read-Rite is of no relevance here.
III. CONCLUSION
For the foregoing reasons, we reverse the district court's
conclusion that Duncan's suit is preempted by S 1305(a)(1) of
the ADA, hold that the provision does not preempt Duncan's
action, and remand for further proceedings consistent with
this opinion.
REVERSED and REMANDED.
_______________________________________________________________
FOOTNOTES
1 The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the United States Court of Appeals, Fifth Circuit, sitting by des-
ignation.
2 Prior to 1988, nearly every airline permitted smoking on both domestic
and international flights. Smoking policies began to change in 1988, when
a federal statute banned smoking on some domestic flights. Since then, a
combination of statutory prohibitions, international agreements, and vol-
untary efforts by airlines have made nonsmoking domestic and interna-
tional flights the rule rather than the exception.
3 Both Duncan and Northwest agree that Duncan abandoned her claim
for injunctive relief before the district court. In any event, her request for
injunctive relief would now be moot, given that Northwest no longer per-
mits smoking on its trans-Pacific flights.
4 In 1994, section 1305(a)(1) of the ADA was amended and incorporated
into the Federal Aviation Administration Authorization Act of 1994. See
49 U.S.C. S 41713(b)(1). As amended, the provision reads in relevant part:
"[A] State, political subdivision of a State, or political authority of at least
2 States may not enact or enforce a law, regulation, or other provision hav-
ing 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." Because
the minor amendments are nonsubstantive, for convenience we will con-
tinue to refer to the provision as S 1305(a)(1) of the ADA.
5 Obviously, an action is preempted only if it also satisfies the other
requirements of S 1305(a)(1). For purposes of the present appeal, we
assume that a court ruling that granted relief in Duncan's suit would con-
stitute the enforcement by Washington of "a law, regulation, or other pro-
vision having the force and effect of law." 49 U.S.C. app. S 1305(a)(1).
6 For a detailed description of the evolution of ADA preemption doctrine
in this circuit, see Charas, 160 F.3d at 1262-63.
7 We also expressly overruled our earlier decisions in Harris v. Ameri-
can Airlines, Inc., 55 F.3d 1472 (9th Cir. 1995), and Gee v. Southwest Air-
lines, 110 F.3d 1400 (9th Cir. 1997), to the extent that those decisions
were inconsistent with our new decision.
8 One might argue that, because the quoted passage mentions only pas-
sengers' personal injury claims, Charas is inapplicable to personal injury
claims brought by others, such as flight attendants. However, we stated
that passengers' claims were not preempted because the claims before us
were all filed by passengers. The logic of Charas does not support a dis-
tinction between passenger plaintiffs and other plaintiffs. The opinion
turns on the effect of a lawsuit on certain aspects of the defendant airlines'
business, not on the role of the plaintiff who brought the lawsuit. More-
over, any such argument is rebutted by the fact that, in its conclusion,
Charas holds that "[Congress] did not intend to immunize the airlines
from liability for personal injuries caused by their tortious conduct." 160
F.3d at 1266. Nothing in this statement suggests that we intended the hold-
ing in Charas to be limited to suits brought by passengers.