National Federation of the Blind v. United Airlines Inc.

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).