National Federation of the Blind v. United Airlines Inc. ( 2016 )


Menu:
  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    NATIONAL FEDERATION OF THE                        No. 11-16240
    BLIND, on behalf of its members and
    itself; MICHAEL MAY; MICHAEL                        D.C. No.
    HINGSON; CHRISTINA THOMAS, on                    3:10-cv-04816-
    behalf of themselves and all others                  WHA
    similarly situated,
    Plaintiffs-Appellants,
    OPINION
    v.
    UNITED AIRLINES INC.,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Northern District of California
    William Alsup, District Judge, Presiding
    Argued November 8, 2012
    Submitted January 19, 2016
    San Francisco, California
    Filed January 19, 2016
    Before: Andrew J. Kleinfeld and Marsha S. Berzon, Circuit
    Judges, and Roger T. Benitez, District Judge.*
    *
    The Honorable Roger T. Benitez, District Judge for the U.S. District
    Court for the Southern District of California, sitting by designation.
    2       NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    Opinion by Judge Berzon;
    Concurrence by Judge Kleinfeld
    SUMMARY**
    Federal Preemption
    The panel affirmed the district court’s dismissal of a
    class action lawsuit brought by the National Federation of the
    Blind against United Airlines alleging that the airline’s policy
    of using automatic kiosks inaccessible to blind travelers
    violated California’s antidiscrimination laws.
    The panel held that the Federation’s state-law claims were
    not expressly preempted under the ADA. Specifically, the
    panel held that United’s kiosks did not qualify as a “service”
    within the meaning of the Airline Deregulation Act (“ADA”)
    § 41713(b)(1). The panel further held that its holding was
    consistent with the ADA’s deregulatory purpose.
    The panel held that the Federation’s state-law claims were
    impliedly field preempted by the Air Carrier Access Act of
    1986 (“ACAA”) and 14 C.F.R. § 382.57. Specifically, the
    panel rejected the Federation’s contention that its state-law
    claims could not be impliedly field preempted under the
    ACAA because of the combined effects of the Federal
    Aviation Act’s savings clause and the express preemption
    clause of the ADA. The panel concluded that the U.S.
    Department of Transportation ACAA regulations covering
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES             3
    matters other than the use of airline ticketing kiosks were not
    pertinent to the field preemption inquiry; that the new
    regulation (passed after oral argument in this case, 14 C.F.R.
    § 382.57 (2014)) was pervasive and intended to occupy the
    field of kiosk accessibility; and that the Department of
    Transportation acted within its delegated authority in
    promulgating the new regulation.
    Judge Kleinfeld joined in Part II of the majority opinion,
    and concurred in the result. Judge Kleinfeld did not join Part
    I of the Opinion, concerning express preemption under the
    ADA, because Part II, addressing implied preemption of the
    field, entirely controlled the outcome of the case.
    COUNSEL
    Gregory P. Care (argued) and Daniel F. Goldstein, Brown
    Goldstein & Levy, Baltimore, Maryland; Kevin Knestrick
    and Laurence W. Paradis, Disability Rights Advocates,
    Berkeley, California, for Plaintiffs-Appellants.
    Jonathan E. Nuechterlein (argued), Bruce H. Rabinovitz, Eric
    F. Citron, and Eric Paul Winke, Wilmer Cutler Pickering
    Hale and Dorr LLP, Washington, D.C.; Richard G. Grotch,
    Coddington, Hicks & Danforth, Redwood City, California,
    for Defendant-Appellee.
    Christine N. Kohl (argued), Douglas N. Letter, Abby C.
    Wright and Michael S. Raab, and Tony West and Stuart F.
    Delery, Assistant Attorneys General, United States
    Department of Justice, Civil Division, Washington, D.C.; Joy
    K. Park, Peter J. Plocki, Deputy Assistant General Counsel
    for Litigation, Paul M. Geier, Assistant General Counsel for
    4       NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    Litigation, and Kathryn B. Thomson and Roberty S. Rivkin,
    General Counsel, United States Department of
    Transportation, Office of the General Counsel, Washington,
    D.C., for Amicus Curiae United States.
    Robert S. Span, Steinbrecher & Span LLP, Los Angeles,
    California, for Amicus Curiae Air Transport Association of
    America, Inc.
    OPINION
    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 Blind1
    and three blind individuals, Michael May, Michael Hingson,
    and Christina Thomas — collectively, “the Federation” —
    filed a class lawsuit against Defendant-Appellee United
    Airlines, Inc. (“United”), alleging that the airline’s policy of
    using automatic kiosks inaccessible to blind travelers violates
    California’s antidiscrimination laws. The district court
    dismissed the suit on the grounds that the Federation’s claims
    1
    The National Federation of the Blind is a non-profit advocacy group
    on behalf of the blind. The majority of its 50,000 members are blind
    persons, a protected class under California disability anti-discrimination
    law. See Cal. Gov. Code § 12926; Cal. Civ. Code §§ 51, 54.
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                    5
    were expressly preempted under the Airline Deregulation Act
    of 1978 (“ADA”), 49 U.S.C. § 41713, and impliedly field
    preempted under the Air Carrier Access Act of 1986
    (“ACAA”), 49 U.S.C. § 41705, and its implementing
    regulations, issued by the U.S. Department of Transportation
    (“DOT”). We affirm the district court on the basis of a
    regulation promulgated after its decision.
    BACKGROUND
    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.2 As a result, blind passengers seeking to use
    United’s ticketing kiosks must either rely on the help of
    sighted relatives, friends, or strangers, or wait for a United
    agent to assist them. According to the Federation, United
    thereby “excludes the blind from full and equal access” to its
    kiosks.
    2
    Automatic Teller Machines (“ATMs”) are required to be equipped with
    such technologies. See 2010 Americans with Disabilities Act Standards
    for Accessible Design, § 707, available at http://www.ada.gov/regs2010/
    2010ADAStandards/2010ADAstandards.htm#pgfId-1006537.
    6      NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    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.”3
    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
    3
    There are no California cases or regulations specifically addressing
    whether California law does so require.
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                     7
    conflicted with the policy objectives reflected in the
    implementing regulations.4
    After United filed its motion to dismiss, the district court
    requested the input of the United States and the DOT. The
    United States filed a Statement of Interest maintaining that
    the Federation’s claims were preempted for all of the reasons
    cited by United. The district court subsequently issued an
    order granting United’s motion to dismiss, holding the
    Federation’s claims expressly preempted under the ADA and
    impliedly field preempted under the ACAA. This appeal
    followed.
    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, 
    134 S. Ct. 1422
    (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.
    DISCUSSION
    Federal law may preempt state law in three ways. First,
    “Congress may withdraw specified powers from the States by
    4
    United also argued that the Federation’s complaint failed to state a
    claim under California law.
    8      NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    enacting a statute containing an express preemption
    provision.” Arizona v. United States, 
    132 S. Ct. 2492
    ,
    2500–01 (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 (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 (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 (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
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                          9
    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.
    I. Express Preemption under the Airline Deregulation
    Act (“ADA”)5
    A. Statutory Background
    5
    We reach the express preemption question because it was a basis for
    the district court’s decision and was one of the primary arguments raised
    on appeal. It was that issue that prompted us to vacate submission
    pending the Supreme Court’s resolution of Northwest, Inc. v. Ginsberg,
    
    134 S. Ct. 1422
    (2014). We then directed the parties to file supplemental
    briefs addressing the effect on this appeal of the construction of the
    express preemption clause of the Airline Deregulation Act adopted in
    Northwest. Had we reached the opposite conclusion—that the
    Federation’s claims were expressly preempted under the ADA—that
    conclusion would have been dispositive, as it would have rendered it
    unnecessary to proceed to the issue of implied preemption under the Air
    Carrier Access Act. A decision that a hotly contested, potentially
    dispositive issue is not dispositive, and a reasoned explanation as to why,
    is one function of a considered and informative judicial decision. Whether
    such an issue is properly discussed (that is, not “dicta”) should not depend
    on which way the court decides it. See, e.g., United States v. Ingham,
    
    486 F.3d 1068
    , 1078 n.8 (9th Cir. 2007).
    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”).
    10     NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    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
    ). 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 (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));6 see also 
    Morales, 504 U.S. at 378
    . Thus, under
    the original statutory regime, states “were not prevented from
    6
    The saving clause currently reads as follows: “A remedy under this
    part is in addition to any other remedies provided by law.” 49 U.S.C.
    § 40120(c).
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                      11
    enforcing their own laws, despite the economic effect on the
    airlines.” 
    Charas, 160 F.3d at 1262
    .
    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 Sess.
    53 (1978)). “Congress’s ‘clear and manifest purpose’ . . . was
    to achieve . . . the economic deregulation of the airline
    industry . . . [and] ‘to promote maximum reliance on
    competitive market forces.’” 
    Id. at 1265
    (quoting Am.
    Airlines, Inc. v. Wolens, 
    513 U.S. 219
    , 230 (1995)) (internal
    quotation marks omitted). To prevent the states from
    “undo[ing] federal deregulation with regulation of their own,”
    
    Northwest, 134 S. Ct. at 1428
    (quoting 
    Morales, 504 U.S. at 378
    ) (internal quotation marks omitted), Congress included
    § 41713(b)(1) to expressly preempt state laws “related to a
    price, route, or service of an air carrier.” 49 U.S.C.
    § 41713(b)(1).7
    7
    This clause was originally located at 49 U.S.C. App. § 1305(a)(1) and
    preempted state laws “relating to [air carrier] rates, routes, or services.”
    In 1994, § 1305(a)(1) was amended and incorporated into the Federal
    Aviation Administration Authorization Act of 1994 to prohibit the
    enactment or enforcement of state laws “related to price, route, or service
    of an air carrier.” 49 U.S.C. § 41713(b)(1) (emphasis added). Congress
    intended this amendment “to make no substantive change.” 
    Wolens, 513 U.S. at 238
    n.1 (citing Pub. L. No. 103-272, § 1(a), 108 Stat. 745
    (1994)).
    12      NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    B. United’s Kiosks Are Not “Services” under the
    ADA
    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.8 We
    disagree.
    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.
    8
    United does not argue that the Federation’s claims relate to United’s
    prices or routes.
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES            13
    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 from cancer and a heart
    condition was denied passage on the airline until she could
    provide a certificate from her doctor stating that it was safe
    for her to fly. 
    Id. at 1130.
    The passenger sued the airline,
    alleging, inter alia, discrimination claims under California
    law. 
    Id. We held
    that “[a]s used in a public utility sense, the
    term ‘service’ does not refer to alleged discrimination to
    passengers due to their disabilities.” 
    Id. at 1131.
    For the
    same reason, the Federation’s accommodation claims do not
    come within the preemptive scope of § 41713(b)(1).
    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
    (2008), by adopting a
    different and broader definition of “service” than did Charas.
    Not so.
    14     NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    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
    . 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.
    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
    (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. Most notably,
    the law mandated “particular delivery procedures” that
    affected how and to whom carriers could deliver tobacco. 
    Id. at 371.
    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, 
    133 S. Ct. 1769
    , 1779 (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”
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES            15
    — 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 Co., 
    731 F.3d 85
    ,
    94 (1st Cir. 2013) (noting that the court had adopted the
    Hodges definition of “service”); Koutsouradis v. Delta Air
    Lines, Inc., 
    427 F.3d 1339
    , 1343 (11th Cir. 2005) (same);
    Arapahoe Cnty. Pub. Airport Auth. v. F.A.A., 
    242 F.3d 1213
    ,
    1222 (10th Cir. 2001) (citing the Hodges definition); Smith v.
    Comair, Inc., 
    134 F.3d 254
    , 259 (4th Cir. 1998) (same);
    Travel All Over The World, Inc. v. Kingdom of Saudi Arabia,
    
    73 F.3d 1423
    , 1433 (7th Cir. 1996) (adopting the Hodges
    definition). But see Taj Mahal Travel, Inc. v. Delta Airlines,
    Inc., 
    164 F.3d 186
    , 194 (3d Cir. 1998) (adopting the Charas
    definition of “service”).        And in adopting broader
    interpretations of “service,” two Courts of Appeals have
    suggested that Rowe is inconsistent with our Charas
    definition. See 
    Bower, 731 F.3d at 94
    (citing DiFiore v. Am.
    Airlines, Inc., 
    646 F.3d 81
    , 88 & n.9 (1st Cir. 2011)); Air
    Transp. Ass’n of Am., Inc. v. Cuomo, 
    520 F.3d 218
    , 223 (2d
    Cir. 2008).
    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
    16       NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    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:
    Like the frequent flyer program in Wolens, the
    Northwest program is connected to the
    airline’s “rates” because the program awards
    mileage credits that can be redeemed for
    tickets and upgrades.          See [Wolens,]
    513 U.S.[] at 226. When miles are used in
    this way, the rate that a customer pays, i.e.,
    the price of a particular ticket, is either
    eliminated or reduced. The program is also
    connected to “services,” i.e., access to flights
    and to higher service categories. 
    Ibid. 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.9 Like Wolens, Northwest
    addressed a frequent-flyer program. 
    Id. Northwest concluded
    9
    Northwest’s other holdings, that the ADA’s express preemption
    provision may apply to common-law 
    rules, 134 S. Ct. at 1429
    –30, and that
    the particular claim for breach of the duty of good faith and fair dealing
    at issue did not fall within the Wolens exception to preemption for
    contractual claims, 
    id. at 1431–33,
    have no application to this case.
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES            17
    that the program was connected to both rates and services for
    exactly the same reasons given in Wolens. See id.; 
    Wolens, 513 U.S. at 226
    . The discussion does not clarify whether
    aspects of air travel other than frequent-flyer programs, such
    as ticket kiosks, fall within the scope of the preemption
    clause.
    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
    kiosks do not qualify as a “service” within the meaning of
    ADA § 41713(b)(1).
    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
    ).
    Instead, “when Congress enacted federal economic
    deregulation of the airlines, it intended to insulate the
    18     NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    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.
    II. Implied Preemption under the Air Carrier Access Act
    (“ACAA”)
    A. Statutory and Regulatory Background
    We recently explained the background of the ACAA:
    The ACAA is an amendment to the
    [FAA]. The original FAA, passed in 1958,
    included a requirement that air carriers not
    “subject any particular person . . . to any
    unjust discrimination or any undue or
    unreasonable prejudice or disadvantage in any
    respect whatsoever.” 49 U.S.C. App. § 1374
    (1982), repealed by Pub. L. No. 103-272, 108
    Stat. 745, 1141 (1994). This requirement was
    repealed by the [ADA], leaving passengers
    with disabilities without express protection
    against discrimination by commercial airlines.
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES            19
    See Shinault v. Am. Airlines, Inc., 
    936 F.2d 796
    , 802 (5th Cir. 1991).
    A different statute, § 504 of the
    Rehabilitation Act of 1973[,] provides
    generally that individuals with disabilities
    may not be excluded from or discriminated
    against by federally-funded programs. See
    U.S. Dep’t of Transp. v. Paralyzed Veterans
    of Am., 
    477 U.S. 597
    , 599 (1986). In 1979,
    the Civil Aeronautics Board . . . promulgated
    regulations applying § 504 to those
    commercial airlines that received direct
    federal subsidies. Organizations representing
    individuals with disabilities . . . challenged
    those regulations, seeking to apply § 504 to
    all commercial airlines, on the ground that
    airlines not receiving direct federal subsidies
    were indirect recipients of federal funding for
    airport construction and for the federally
    operated air traffic control system. The
    Supreme Court rejected [that] argument[],
    holding that commercial airlines were . . . not
    “recipients[]” of federal [financial assistance].
    
    Id. at 607,
    611.
    
    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 to the FAA. 
    Id. at 1000.
    The
    current version of the ACAA provides that “an air carrier . . .
    may not discriminate against an otherwise qualified
    individual” on the ground that “the individual has a physical
    20    NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    or mental impairment that substantially limits one or more
    major life activities.” 49 U.S.C. § 41705(a)(1). The
    Secretary of Transportation is authorized to promulgate
    regulations implementing the ACAA under § 40113(a) of the
    FAA, 
    id. § 40113(a),
    and:
    Pursuant to that authorization, the [DOT]
    issued regulations, codified at 14 C.F.R. Part
    382, specifying the detailed requirements that
    airlines must meet to comply with the ACAA.
    The regulations impose four general duties on
    air carriers: “not [to] discriminate against any
    qualified individual with a disability, by
    reason of such disability, in the provision of
    air transportation”; “not [to] require a
    qualified individual with a disability to accept
    special services . . . that the individual does
    not request”; “not [to] exclude a qualified
    individual with a disability from or deny the
    person the benefit of any air transportation or
    related services that are available to other
    persons,” with certain limited exceptions; and
    “not [to] take any adverse action against an
    individual (e.g., refusing to provide
    transportation) because the individual asserts,
    on his or her own behalf or through or on
    behalf of others, rights protected” by the
    regulations or the ACAA.             14 C.F.R.
    § 382.11(a).
    
    Gilstrap, 709 F.3d at 1000
    –01 (all but first alteration in the
    original).
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                    21
    B. Implied Field Preemption
    1. The Federal Aviation Act’s Saving Clause
    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).10 The clause was enacted as part of the
    original Federal Aviation Act of 1958; it remained unchanged
    when Congress enacted the ADA in 1978 and the ACAA in
    1986. Congress retained once more the saving clause when
    it reorganized the FAA in 1994. See Revision of Title 49,
    United States Code Annotated, “Transportation,” Pub. L. No.
    103-272, 108 Stat. 745 (1994).
    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,
    10
    As noted, the ACAA is contained within the same “part” of the FAA,
    which is Part A of Title 49, Subtitle VII. See 49 U.S.C. Subtit. VII, Part
    A.
    22     NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    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 provided by law,” 49 U.S.C. § 40120(c) (emphasis
    added), not claims brought under state statutes prescribing
    substantive standards of care. See 
    Northwest, 134 S. Ct. at 1428
    (describing § 40120(c) as “a saving provision
    preserving pre-existing statutory and common-law remedies”)
    (emphasis added); 
    Morales, 504 U.S. at 385
    (describing
    § 40120(c) as a “general ‘remedies’ saving clause”)
    (emphasis added); Ventress v. Japan Airlines, 
    747 F.3d 716
    ,
    723 n.7 (9th Cir. 2014) (“The FAA’s savings clause . . .
    establish[es] that state law remedies remain available . . . .”)
    (emphasis added); 
    Gilstrap, 709 F.3d at 1005
    –06; see also US
    Airways, Inc. v. O’Donnell, 
    627 F.3d 1318
    , 1326 (10th Cir.
    2010). In this case, the Federation seeks relief under
    “prescriptive” state statutes that “control[] the primary
    conduct of those falling within [their] governance.” 
    Wolens, 513 U.S. at 227
    . It does not, as in Gilstrap, seek to use a
    state-law remedy for a breach of a federally prescribed
    standard of behavior. See 
    Gilstrap, 709 F.3d at 1007
    .
    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
    ,
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES            23
    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 (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
    (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
    . 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
    (quoting 15 U.S.C.
    24       NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    § 1397(k) (1988)). Geier explained that neither the Safety
    Act’s saving clause nor its express preemption clause11
    “foreclose[d] or limit[ed] the operation of ordinary pre-
    emption principles insofar as those principles instruct us to
    read statutes as pre-empting state laws . . . that ‘actually
    conflict’ with the statute or federal standards promulgated
    thereunder.” 
    Id. at 869;
    see also Williamson v. Mazda Motor
    of Am., Inc., 
    131 S. Ct. 1131
    , 1136 (2011) (holding that a
    statute’s saving clause did not “foreclose or limit the
    operation of ordinary conflict preemption principles”). Geier
    emphasized that the Court “ha[d] repeatedly ‘decline[d] to
    give broad effect to saving clauses where doing so would
    upset the careful regulatory scheme established by federal
    law.’” 
    Id. at 870
    (quoting United States v. Locke, 
    529 U.S. 89
    , 106 (2000)).
    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
    .
    Although the saving and preemption clauses reflected
    11
    The Safety Act’s express preemption clause provided that
    Whenever a Federal motor vehicle safety standard
    established under this subchapter is in effect, no State
    or political subdivision of a State shall have any
    authority either to establish, or to continue in effect,
    with respect to any motor vehicle or item of motor
    vehicle equipment[,] any safety standard applicable to
    the same aspect of performance of such vehicle or item
    of equipment which is not identical to the Federal
    standard.
    15 U.S.C. § 1392(d) (1988), repealed by Pub. L. No. 103-272, § 7(b),
    108 Stat. 1379 (1994).
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES             25
    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.
    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
    — would allow the FAA to “defeat its own
    objectives.” 
    Geier, 529 U.S. at 872
    . 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
    26     NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    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. A federal regulatory scheme
    designed to determine entirely the rights and obligations of
    affected parties as to particular issues could then coexist with
    another set of comprehensive regulations covering the same
    area, as long as there was no direct conflict between the two.
    Yet, comprehensive regulatory schemes often represent
    considered decisions to refrain from mandating certain
    actions or protections, while at the same time allowing those
    same actions or protections if undertaken voluntarily.
    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
    . 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.
    2. The Regulatory Field
    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
    (quoting de la 
    Cuesta, 458 U.S. at 153
    ); see also 
    Freightliner, 514 U.S. at 287
    . In determining field preemption, “[f]ederal
    regulations have no less pre-emptive effect than federal
    statutes.” de la 
    Cuesta, 458 U.S. at 153
    . Accordingly,
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                    27
    “[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
    (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
    .
    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 27,619–20.12 After oral
    argument in this case, DOT replaced that brief interim rule
    with a much more extensive and detailed one, addressing a
    wide variety of accessibility, technical, and timing
    requirements specifically applicable to airport kiosks (the
    “new regulation”). See 14 C.F.R. § 382.57 (2014); 78 Fed.
    Reg. at 67,900–11.
    12
    The interim rule provided, in its entirety: “As a carrier, if your
    automated kiosks in airport terminals cannot readily be used by a
    passenger with a disability for such functions as ticketing and obtaining
    boarding passes that the kiosks make available to other passengers, you
    must provide equivalent service to the passenger (e.g., by assistance from
    your personnel in using the kiosk or allowing the passenger to come to the
    front of the line at the check-in counter).” 14 C.F.R. § 382.57 (2008).
    28     NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    Applying our precedents concerning field preemption, we
    conclude, first, that the DOT ACAA regulations covering
    matters other than the use of airline ticketing kiosks are not
    pertinent to our field preemption inquiry; second, that the new
    regulation is pervasive and intended to occupy the field of
    kiosk accessibility; and, third, that DOT acted within its
    delegated authority in promulgating the new regulation.
    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
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                      29
    regulations . . . the state standard of care remains applicable.”
    Id.13
    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:
    (1) “Automated airport kiosks must provide
    an option for speech output,” and meet
    specified requirements concerning the
    content, volume, and privacy restrictions on
    that output, 
    id. § 382.57(c)(5)(i)–(ii);14
    and (2)
    13
    As Gilstrap explained, while our earlier decision in 
    Montalvo, 508 F.3d at 473
    , had “contained some broad language concerning the
    reach of FAA preemption[,] . . . Martin clarified that Montalvo should not
    be read . . . expansively” with regard to the relevant field for preemption
    purposes. 
    Gilstrap, 709 F.3d at 1004
    .
    14
    With regard to speech output, as for other matters, the current
    regulation provides an extremely fine-cut level of detail. The regulation
    provides, for example, that, “[w]hen asterisks or other masking characters
    are used to represent personal identification numbers or other visual output
    that is not displayed for security purposes, the masking characters must be
    spoken (“*” spoken as “asterisk”) rather than presented as beep tones or
    speech representing the concealed information.”                 14 C.F.R.
    § 382.57(c)(5)(i)(A). As to the volume of speech output, the regulation
    instructs:
    Where sound is delivered through speakers on the
    automated kiosk, incremental volume control must be
    provided with output amplification up to a level of at
    least 65 dB SPL. Where the ambient noise level of the
    environment is above 45 dB SPL, a volume gain of at
    30      NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    “[a]t least one input control that is tactilely
    discernible without activation must be
    provided for each function,” and meet
    specified requirements regarding the
    arrangement and tactile indication required,
    
    id. § 382.57(c)(6).15
    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).16
    least 20 dB above the ambient level must be user
    selectable. A function must be provided to
    automatically reset the volume to the default level after
    every use.
    
    Id. § 382.57(c)(5)(ii)(B).
     15
    Again demonstrating its extreme precision, the regulation specifies the
    particular symbols to be used for “function keys”: “Enter or Proceed key:
    raised circle; Clear or Correct key: raised left arrow; Cancel key: raised
    letter ex; Add Value key: raised plus sign; Decrease Value key: raised
    minus sign.” 14 C.F.R. § 382.57(c)(6)(iv)(B).
    16
    “You must provide equivalent service upon request to passengers with
    a disability who cannot readily use your automated airport kiosks (e.g., by
    directing a passenger who is blind to an accessible automated kiosk,
    assisting a passenger in using an inaccessible automated kiosk, assisting
    a passenger who due to his or her disability cannot use an accessible
    automated kiosk by allowing the passenger to come to the front of the line
    at the check-in counter).” 
    Id. § 382.57(d).
          NAT’L FED. OF THE BLIND V. UNITED AIRLINES           31
    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 accessability 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. 32 NAT’L
    FED. OF THE BLIND V. UNITED AIRLINES
    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).17
    In other words, the
    regulation envisions that 25% of kiosks at each location will
    be accessible by the end of 2022, and requires in the mean
    time only that any new kiosks installed after December 12,
    2016, be accessible until that 25% goal is reached.
    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
    17
    Both rules apply only to kiosks at airports with “10,000 or more
    enplanements per year.” 14 C.F.R. § 382.57(a). The regulation specifies
    that “location” refers to “each cluster of kiosks and all stand-alone kiosks
    at the airport.” 
    Id. § 382.57(a)(1).
    Finally, the regulation imposes these
    requirements both as to kiosks a particular airline owns, leases, or
    controls, 
    id. § 382.57(a),
    and as to “shared-use” kiosks that an airline
    jointly owns, leases, or controls, 
    id. § 382.57(b).
           NAT’L FED. OF THE BLIND V. UNITED AIRLINES              33
    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:
    The [DOT’s] comments, which accompanied
    the promulgation of [the rule], make clear that
    the standard deliberately provided the
    manufacturer with a range of choices among
    34    NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    different passive restraint devices. Those
    choices would bring about a mix of different
    devices introduced gradually over time; and
    [the rule] would thereby lower costs,
    overcome technical safety problems,
    encourage technological development, and
    win widespread consumer acceptance–all of
    which would promote [the rule’s] safety
    
    objectives. 529 U.S. at 874
    –75. Because the rule “deliberately sought a
    gradual phase-in of passive restraints,” 
    id. at 879,
    a rule
    requiring more immediate implementation would conflict
    with federal law and was therefore preempted, 
    id. at 881.
    Here, we consider not conflict preemption but field
    preemption. But the essential point is the same regarding
    phasing in the accessibility requirements: In promulgating its
    regulation, the DOT made deliberate choices and devised
    nuanced, detailed phase-in requirements, thereby occupying
    the field of airport kiosk accessibility for the blind with
    regard to timing as well as substantively. Any accelerated
    state-law requirement is therefore preempted.
    Finally, our conclusion that the new regulation occupies
    the field of kiosk accessability 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 (2009). “The weight we accord the
    agency’s explanation of state law’s impact on the federal
    scheme depends on its thoroughness, consistency, and
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES            35
    persuasiveness.” 
    Id. (citing United
    States v. Mead Corp.,
    
    533 U.S. 218
    , 234–35 (2001) and Skidmore v. Swift & Co.,
    
    323 U.S. 134
    , 140 (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 (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
    36      NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    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 accessability.
    3. Regulatory Authority
    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.18 Rather, apart from the
    18
    In its opening brief, filed before the current regulation became final,
    the Federation argued that the interim regulation was not pervasive. It
    noted that:
    “Federal agencies have shown that they are capable of
    pervasive regulation of self-service terminals similar to
    air carrier kiosks, and that type of regulation is absent
    here. For example, the comprehensive standards for
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                    37
    argument, which we have already rejected — that implied
    field preemption is simply inapplicable because of the FAA
    saving clause — the Federation argues only that the new
    regulation cannot field preempt its claims because the
    regulation itself is invalid. We disagree.
    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
    . “[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
    .
    ATMs and fare machines in the 2010 Americans with
    Disabilities Act Standards for Accessible Design
    address such details as clear ground or floor space
    around machine; speech output for instructions,
    orientation, transaction prompts, error messages, and all
    information displayed on the machine’s screen; privacy
    of input and output; the need for tactile input controls
    for all functions; the layout of numeric and function
    keys; visibility and characters used on the display
    screen; and volume control.”
    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).
    38    NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    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
    . “A pre-emptive regulation’s force does not depend on
    express congressional authorization to displace state law.” 
    Id. Rather, as
    we have explained, “the correct focus is on the
    federal agency that seeks to displace state law and on the
    proper bounds of its lawful authority to undertake such
    action.” City of N.Y. v. F.C.C., 
    486 U.S. 57
    , 64 (1988).
    Nothing in the text or legislative history of the ACAA
    convinces us that “Congress would not have sanctioned the
    preemption” intended by the DOT. 
    Montalvo, 508 F.3d at 471
    ; see also 
    Gilstrap, 709 F.3d at 999
    –1000, 1006–07
    (reviewing the legislative history of the ACAA, and
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                     39
    concluding that DOT’s regulation had field-preemptive
    effect).19
    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.”20 The ACAA provides that, “[i]n providing air
    transportation, an air carrier . . . may not discriminate against
    an otherwise qualified individual” on the basis of current,
    past, or perceived disability. 49 U.S.C. § 41705(a). But we
    have understood, and continue to understand, the term “[i]n
    providing air transportation,” 
    id., broadly, to
    generally
    include “airlines’ interactions with their customers who have
    disabilities.” 
    Gilstrap, 709 F.3d at 1005
    n.14.
    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
    19
    The Federation points to legislative history indicating that the ACAA
    was modeled after § 504 of the Rehabilitation Act, argues that the latter
    Act permits concurrent state regulation, and asks us to infer that Congress
    therefore intended the same as to the ACAA. United and the United
    States point to countervailing indications in the legislative history,
    including a desire that disabled persons have the benefit of consistent
    accessibility practices. See 55 Fed. Reg. at 8012 (citing legislative
    history). Taken together, we are not persuaded that the legislative history
    establishes Congressional intent to foreclose field-preemptive regulations
    like the one at issue here.
    20
    This argument appears to have been raised for the first time in the
    Federation’s reply brief. We assume for the sake of argument that it has
    not been waived.
    40     NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    (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 nondiscriminatory 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.21 The Federation is correct that the term “air
    transportation” is defined in the FAA as “foreign air
    transportation, interstate air transportation, or the
    transportation of mail by aircraft,” apparently exclusive of
    intrastate air transportation. 49 U.S.C. § 40102(a)(5); see
    also 14 C.F.R. § 298.2 n.1. But DOT’s authority to
    promulgate regulations is not so constrained as the Federation
    suggests. Rather, the Secretary “may take action [he]
    considers necessary” to effectuate the provisions at issue
    here. 49 U.S.C. § 40113(a).
    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
    21
    Again, although the issue was not raised in the district court, we
    assume for the sake of argument that it has not been waived.
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                         41
    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.”22 The filing of a case in a different
    jurisdiction that might lead to the rule’s invalidation has no
    pertinence to the preemption question before this court.23
    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
    22
    The Federation initially filed that suit in the U.S. District Court for the
    District of Columbia, but that court ruled that it lacked jurisdiction over
    that case, transferring it to the D.C. Circuit in lieu of dismissal. See Nat’l
    Fed’n of Blid v. U.S. Dep’t of Transp., No. 14-CV-85 (TSC),
    — F.Supp.3d —, 
    2015 WL 349156
    (D.D.C. Jan. 28, 2015). The case
    remains pending.
    23
    We do not understand the Federation to have argued in this case that
    the regulation is invalid under the APA, notwithstanding its statement that
    it “adopt[s]” the challenge to the rulemaking. To the extent that the
    Federation has gestured at such an argument, we decline to address it, both
    because the Federation has not “specifically and distinctly argue[d]” it,
    United States v. Marcia-Acosta, 
    780 F.3d 1244
    , 1250 (9th Cir. 2015)
    (internal quotation marks omitted), and because it raises an issue
    essentially different from the one the Federation has heretofore presented
    on appeal.
    42      NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    Federation’s state-law claims are impliedly field preempted
    under the ACAA.
    CONCLUSION
    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.24
    AFFIRMED.
    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
    24
    The parties have never suggested that a different result with regard to
    field preemption is warranted as between the Federation’s damages claims
    and its claims for declaratory and injunctive relief, despite the additional
    opportunity to do so afforded by our supplemental briefing order. We
    generally do not reach issues that the parties have not raised. See, e.g.,
    Eid v. Alaska Airlines, Inc., 
    621 F.3d 858
    , 875 (9th Cir. 2010) (“Because
    plaintiffs don’t make a [potentially dispostive] argument, we say nothing
    on that score.”). Particularly in light of the lack of any California
    authority addressing whether that State’s law does impose a different
    standard for kiosk accessability, we decline to do so in this case.
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                  43
    Transportation has addressed service to disabled passengers.1
    Nothing needs to be said about express preemption, so
    nothing should be said. I cannot think of a good reason for us
    to speak at considerable length about a subject that does not
    in the slightest affect the decision of the case before us.
    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,”2 and we and our sister circuits have read “service” in
    differing ways.3 Since we need not further complexify the
    1
    See Nondiscrimination on the Basis of Disability in Air Travel,
    78 Fed. Reg. 67,882–924 (Nov. 12, 2013) (codified at 14 C.F.R. pts. 382,
    388, 399, and 49 C.F.R. pts. 27, 382).
    2
    49 U.S.C. § 41713(b)(1).
    3
    See Charas v. Trans World Airlines, Inc., 
    160 F.3d 1259
    , 1266 (9th
    Cir. 1998) (en banc) (“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.”); Taj Mahal Travel, Inc. v.
    Delta Airlines, Inc., 
    164 F.3d 186
    , 193–94 (3d Cir. 1998) (adopting the
    Charas definition). But see Hodges v. Delta Airlines, Inc., 
    44 F.3d 334
    ,
    336 (5th Cir. 1995) (en banc) (holding that “Congress intended to
    de-regulate as ‘services’” “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 Co., 
    731 F.3d 44
         NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    meaning of “service,” we should not. Much can be said, and
    need not be said in this case, about whether our construction
    of “service” in Charas v. Trans World Airlines, Inc. is
    consistent with, or qualified or overruled by, the Supreme
    Court decision in Rowe v. New Hampshire Motor Transport
    Ass’n.4 We should not address that question in a decision on
    which it has no bearing.
    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.
    85, 94 (1st Cir. 2013) (adopting the Hodges definition); Branche v. Airtran
    Airways, Inc., 
    342 F.3d 1248
    , 1257 (11th Cir. 2003) (same); Arapahoe
    Cnty. Pub. Airport Auth. v. F.A.A., 
    242 F.3d 1213
    , 1222 (10th Cir. 2001)
    (quoting Hodges); Smith v. Comair, Inc., 
    134 F.3d 254
    , 259 (4th Cir.
    1998) (citing Hodges); Travel All over the World, Inc. v. Kingdom of
    Saudi Arabia, 
    73 F.3d 1423
    , 1433 (7th Cir. 1996) (adopting the Hodges
    definition).
    4
    See Dilts v. Penske Logistics, LLC, 
    769 F.3d 637
    , 645 (9th Cir. 2014)
    (arguing that, in regards to a statute analogous to the ADA, “Rowe did not
    . . . . call into question our past FAAAA cases”). But see Air Transp.
    Ass’n of Am., Inc. v. Cuomo, 
    520 F.3d 218
    , 223 (2d Cir. 2008) (per
    curiam) (“Charas’s approach, we believe, is inconsistent with the
    Supreme Court’s recent decision in Rowe. There, the Court necessarily
    defined ‘service’ to extend beyond prices, schedules, origins, and
    destinations.”); see also Bower v. Egyptair Airlines Co., 
    731 F.3d 85
    , 94
    (1st Cir. 2013) (“Rowe forecloses the Charas interpretation of ‘service’ as
    a term closely related to prices and routes.”).
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES                   45
    Our circuit, unlike traditional common law courts, the
    Supreme Court,5 and our sister circuits,6 purports in Barapind
    v. Enomoto7 to treat all our considered pronouncements,
    whether necessary to the decision or not, as binding law. Our
    anomalous language in Barapind says that if “[w]e addressed
    the issue and decided it in an opinion joined in relevant part
    by a majority of the panel[,] . . . . [it] became law of the
    circuit, regardless of whether it was in some technical sense
    ‘necessary’ to our disposition of the case.”8 The good and
    traditional reasons for stare decisis are that like cases ought
    as a matter of justice to be treated alike, and that stability in
    the law benefits those who wish to conduct their activities in
    compliance with and reliance on it. When cases are not alike,
    the common law method is to determine whether to extend or
    5
    Carroll v. Carroll’s Lessee, 
    57 U.S. 275
    , 287 (1853) (“[T]his court and
    other courts organized under the common law, has never held itself bound
    by any part of an opinion, in any case, which was not needful to the
    ascertainment of the right or title in question between the parties.”).
    6
    See United States v. Matchett, 
    802 F.3d 1185
    , 1195 (11th Cir. 2015);
    Arcam Pharm. Corp. v. Faria, 
    513 F.3d 1
    , 3 (1st Cir. 2007); Hearn v.
    Dretke (In re Hearn), 
    376 F.3d 447
    , 453 (5th Cir. 2004); Cal. Pub.
    Employees’ Ret. Sys. v. WorldCom, Inc., 
    368 F.3d 86
    , 106 n.19 (2d Cir.
    2004); DaimlerChrysler Corp. v. United States, 
    361 F.3d 1378
    , 1384 (Fed.
    Cir. 2004); Figg v. Schroeder, 
    312 F.3d 625
    , 643 n.14 (4th Cir. 2002);
    PDV Midwest Ref., L.L.C. v. Armada Oil & Gas Co., 
    305 F.3d 498
    , 510
    (6th Cir. 2002); Wilder v. Apfel, 
    153 F.3d 799
    , 803 (7th Cir. 1998);
    Rohrbaugh v. Celotex Corp., 
    53 F.3d 1181
    , 1184 (10th Cir. 1995);
    Robinson v. Norris, 
    60 F.3d 457
    , 460 (8th Cir. 1995); United States v.
    Ricks, 
    5 F.3d 48
    , 50 (3d Cir. 1993) (per curiam); Noel v. Olds, 
    138 F.2d 581
    , 586 (D.C. Cir. 1943).
    7
    Barapind v. Enomoto, 
    400 F.3d 744
    , 750–51 (9th Cir. 2005) (en banc)
    (per curiam).
    8
    
    Id. at 751
    (footnote omitted).
    46      NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    distinguish and limit pronouncements in prior cases, not to
    treat all the pronouncements like statutes. Part I of the
    majority opinion appears to be an attempt to write a binding
    gloss on what is a “service,” but confusion about whether, in
    our circuit, it has any precedential force undermines whatever
    value it might have as guidance.
    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.9 The Constitution gives us
    authority to decide only “Cases and Controversies.”10 The
    federal courts do not have authority to issue advisory
    9
    
    Id. at 759
    (Rymer, J., concurring in the judgment in part and dissenting
    in part) (“[T]he majority’s approach . . . invites overwriting that may be
    difficult or impossible to cure.”).
    10
    Chafin v. Chafin, — U.S. ––, 
    133 S. Ct. 1017
    , 1023 (2013) (quotations
    omitted); see U.S. Const. art. III.
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES               47
    opinions.11 Yet that is what Part I is. The judicial power we
    wield is “to determine actual controversies arising between
    adverse litigants,” not to make law on issues that do not
    determine the parties’ controversy.12
    Barapind claims authority to bind subsequent panels and
    district courts by dicta as part of our “supervisory function.”13
    But it is doubtful that there is any such authority, particularly
    when a three-judge panel purports to exercise it.14 Congress
    located supervisory power in the Judicial Conference of the
    United States15 and the Judicial Council of the Ninth Circuit.16
    We make general rules for our court by Local Rules pursuant
    to Rule 47 of the Federal Rules of Appellate procedure.
    While we claim more authority for our en banc panels of
    eleven judges in our twenty-nine-judge court,17 we have not
    claimed it for three-judge panels.
    11
    United States v. Fruehauf, 
    365 U.S. 146
    , 157 (1961).
    12
    Muskrat v. United States, 
    219 U.S. 346
    , 361 (1911).
    13
    
    Barapind, 400 F.3d at 751
    n.8.
    14
    But see Miller v. Gammie, 
    335 F.3d 889
    , 902–04 (9th Cir. 2003) (en
    banc) (Tashima, J., concurring).
    15
    28 U.S.C. § 331.
    16
    See 
    id. § 332.
     17
    See 
    Barapind, 400 F.3d at 751
    n.8.
    48        NAT’L FED. OF THE BLIND V. UNITED AIRLINES
    “Everything that ends up in F.3d cannot possibly be the
    law of the circuit.”18 Since Part I of the majority opinion is
    entirely unnecessary to the decision in this case, I see no
    reason why future panels or anyone else would be bound by
    it. Writing what purports to be law of the circuit entirely
    outside the necessity of deciding the case before us increases
    the risk of troublesome error, and of exercising power beyond
    our authority. Judge Leval of the Second Circuit attacked
    Barapind as “announcing a rule, irrespective of whether the
    rule plays any functional role in the court’s decision of the
    case—a very considerable power, and without constitutional
    justification.”19 He suggests a “blatant” hypothetical:
    What if we in the Second Circuit, without
    any filed dispute between parties, were to
    publish a tract entitled In re Securities
    Litigation, in which we promulgated a
    compendium of rules to govern securities
    cases? I think all would agree that we lack
    constitutional authority to establish binding
    law in this fashion.
    Then what if, when a securities dispute
    comes before us, after giving judgment on the
    disputed issue, we go on to say, “Having
    focused our attention on the subject of
    securities litigation, we will go beyond the
    particular issue in dispute and proclaim a set
    18
    
    Id. at 759
    (Rymer, J., concurring in the judgment in part and
    dissenting in part).
    19
    Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta,
    81 N.Y.U. L. Rev. 1249, 1251 (2006).
    NAT’L FED. OF THE BLIND V. UNITED AIRLINES              49
    of rules to be followed.” Is this meaningfully
    different from the previous example?20
    That is what Part I of the majority opinion is, and, as Judge
    Leval says of his hypothetical case, “It is beyond our
    authority.”21 As Judge Rymer wrote, “Views of two or three
    judges in an opinion on matters that are not necessarily
    dispositive of the case are no different from the same views
    expressed in a law review article; neither should be treated as
    a judicial act that is entitled to binding effect.”22
    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 reaching what they agree is a sensible result,
    because of excess language in a case resolved on a different
    ground. We should police our opinions to prevent that kind
    of surplus language. Part II of the majority opinion fully
    resolves this case. Part I has no bearing on its resolution, so,
    right or wrong, it raises a question of whether it really is
    circuit law, even as it attempts to articulate circuit law.
    20
    
    Id. at 1260.
     21
    
    Id. 22 Barapind,
    400 F.3d at 759 (Rymer, J., concurring in the judgment in
    part and dissenting in part).