Air Transport Association of America, Inc. v. Andrew Cuomo (2d Cir. (N.Y.) Mar. 25, 2008). New York’s airline passenger “Bill of Rights” required that airlines provide passengers with food, water, electricity and working restrooms during ground delays over three hours. The Second Circuit held that 49 U.S.C. § 41713(b)(1), the preemption provision of the Airline Deregulation Act of 1978 (“the ADA”), preempted the Bill of Rights, which had gone into effect on January 1, 2008. Accordingly, the appeals court reversed the December 20, 2007 decision of the trial court upholding the Bill of Rights.
The ADA’s preemption provision prohibits a state from enacting or enforcing “a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” The Second Circuit joined the majority of circuit courts in construing the term “service” broadly, as encompassing “matters such as boarding procedures, baggage handling, and food and drink – matters incidental to and distinct from the actual transportation of passengers.” The court held that the minority circuit court view construing “service” narrowly is inconsistent with the U.S. Supreme Court’s pro-preemption decision in Rowe v. New Hampshire Motor Transport Association, which – in a stroke of very bad timing for Bill of Rights proponents – was issued just two weeks before the oral argument in the Second Circuit case. In Rowe, the Supreme Court broadly construed a similarly-worded federal preemption statute regarding motor carriers.
In the Bill of Rights case, the trial court had held that “the provision of fresh air, water, food and lavatory access to passengers trapped for hours on a motionless plane is a health and safety issue” that has no bearing on the “service” provided by airlines. Consistent with its broad construction of the term “service,” the Second Circuit rejected the trial court’s distinction, holding that “onboard amenities, regardless of whether they are luxuries or necessities, still relate to airline service and fall within the express terms of the preemption provision.”
The Second Circuit also reasoned (quoting Rowe) that state statutes like the Bill of Rights could lead to a “patchwork of state service-determining laws, rules, and regulations” that would be inconsistent with Congress’ intent to leave service-related matters “to the competitive marketplace.” The appeals court concluded its opinion by stating that even though the goals of the Bill of Rights “are laudable,” and that “the circumstances motivating its enactment deplorable,” only the federal government has the authority to enact a law concerning ground delays.
New York’s only recourse is to petition the U.S. Supreme Court to hear the case, but the court is unlikely to accept another preemption case so soon after Rowe. It will be interesting to see the effect of the Second Circuit’s decision on the ground delay bills now pending in Arizona, California, Florida, Indiana, Michigan, New Jersey, Pennsylvania, Rhode Island and Washington. If state ground delay legislation is enacted and upheld by other circuit courts (such as the passenger-friendly Ninth Circuit, which includes California), then the preemption issue might ultimately find its way back to the Supreme Court.