In the days of regulation the government had total control of routes, fares, gates and almost anything necessary to operate an airline.  It also created many barriers to entry which would prevent any new start up airline.  All the government would have to do is not allow them at any airports or not approve of any route application.  Economists complained that regulation was inefficient so in 1978 the Airline Deregulation Act was passed allowing the free market to dictate airline prices and schedules.

            The following thirty years have proved this to be a terrible mistake.  There are a wide range of facts when looking for the change in price of a ticket today compared to the airlines under regulation.  Some say the tickets are 20 % cheaper.  Others claim there is hardly a difference because one must account for the 10% travel agent fee that is avoided with today’s online booking.  So there is clearly no great ticket price benefit due to deregulation.  However in the past tickets were fully refundable and you could change your destination without numerous penalties.  Today people scour the internet for a discounted ticket which will usually mean a few stops along the way that may not be in the general direction of their destination.  Some passengers may have to fly into alternative airports to receive a discount.  Southwest airlines now flies into most major airports just as the legacy airlines do, however, in Southwest’s early days they broke into the freshly deregulated industry by basing their operation out of LUV field Dallas (not Dallas Ft. Worth International Airport) and flying to locations such as Burbank, CA.  The reason for this was because it is much cheaper to operate out of these airports to avoid paying high prices for gates and other airport fees.  Southwest also undercut the pay scales across the board.  They were the first low cost carrier.   By saving all this money they would be able to provide cheaper tickets to customers and the free market was beginning its control on the industry.  This started the domino effect of airlines entering the market.

            With a few major airlines doing most of the long haul flights many commuter airlines have started business with 100 seat type jets.  Most people will see US Airways Express and think it is a division of US Airways; however that airplane might be one of 4 or 5 airlines that fly under the US Airways paint scheme.  The air is absolutely saturated with all of these small jets. The air traffic control system needs to be upgraded because of this.  Instead of having 737’s make two or three  flights  a day on a short haul trip say from Philly to Buffalo, they will have these 100 seat regional jets make 5 or 6 flights a day.  With fuel prices soaring this does not seem efficient.  Safety of the consumer is also being endangered.  For the last year or so many small regional airlines were hiring a large amount of pilots due to a shortage.  The minimum flight time qualifications were dropped lower than they have ever been before.  Some new hires are getting in the cockpit with as little as 300 hours.  The average airline pilot has several thousand hours.  With flight training declining every year due to the high cost, commercial pilots are becoming scarcer.  When you add more airplanes while fewer pilots are being trained it creates a huge shortage.  The Federal Aviation Administration pushed the mandatory retirement age to 65 adding 5 more years to a pilots career if he chooses to stay which many aren’t and won’t, due to the terrible state of the industry and conditions they have been working in.  This is just a temporary fix that might stave off the shortage for a few years but hiring will start again and there won’t be enough pilots let alone enough experience pilots to fly all of these airplanes.

            Under regulation when oil quadrupled in the 70’s, the price was passed onto the consumer by raising ticket prices.  This is unfortunate but it is a part of the way our economy works.  Today with prices rising, the airlines will not raise prices and instead try to run other companies into the ground by lowering prices.  This is not healthy competition.  The airline industry lost 25 billion dollars from 2001-2005.  During that period airfares dropped 15 percent while 20 airlines went bankrupt.  US Airways and Northwest Airlines have removed their obligation to their pension funds by pleading in bankruptcy court that they couldn’t operate with out doing so.  This wiped out over 8,000 pilots retirement funds between the two of them.  Over 7000 Delta pilots have also since lost their retirements.  Pilots have conceded roughly 30-40% pay cuts along with losing their retirements in order to keep these airlines afloat and ensure the passenger gets a good deal on their ticket. 

            Within the past few weeks Aloha Airlines joined the ranks and went out of business continuing the downward spiral of the airline industry specifically over the last 10 years.  Delta and Northwest announced on April 14th a plan to merge which would create the largest airline in the world. There is also speculation of many more mergers and or bankruptcies to come.  Mergers are a sign of these companies being better off working together than separate.  That is certainly not the healthy competition the lawmakers of the 60’s and 70’s envisioned while forming this plan.  There has been recent talk of law makers on Capitol Hill revisiting the regulation idea due to the horrible state of the industry.  Hopefully they will work quickly and save the sinking ship before it’s too late.

Bibliography

1. L. Smith Jr., Fred. “Airline Deregulation.” Library of Economics and Liberty 25 Nov 2008 <http://www.econlib.org/library/Enc/AirlineDeregulation.html>.

2. Barnum, John. “What Prompted Airline Deregulation 20 Years Ago? What Were the Objectives of That Deregulation and How Were They Achieved?.” Find Law Library 08/15/1998 25 Nov 2008 <http://library.findlaw.com/1988/Sep/1/129304.html>.

3. Bailey, Elizabeth E. “Airline Deregulation Confronting the Paradoxes.” Regulation: The Cato Review of Business and Government 15, no. 3. Available online at: http://www.cato.org/pubs/regulation/regv15n3/reg15n3-bailey.html.

Air travelers who have been wronged may find that theres nothing more intimidating than seeking legal action against an airline or how to sue an airline. From the smaller inconveniences of flight delays and lost luggage to the overwhelming tragedies of personal injury and loss of life, a traveler or family must pit themselves against a seemingly faceless conglomerate. By knowing how to initiate the legal process, many consumers have found a resolution when suing an airline.

A traveler may choose to sue an airline in small claims court when they have been wronged in such a manner that additional expense is incurred and the airline refuses reimbursement. Most states limit monetary awards in small claims court to between $3,000 and $7,500. A traveler may not sue in small claims court when an airline loses property or damages goods.

Factors to consider when filing: Prior to pursuing action in small claims court for suing an airline, one must determine the following:

Is the amount of the claim smaller than the state or local law monetary limit?
Does the airline do business in the court in which you are filing?
Does the airline have a contract of carriage which must be followed?
Has the airline been given the opportunity to follow any of its obligations?
Can the dispute be settled out of court?
Is it a hardship for you to appear in court?

How to file a claim: Once you have decided to sue an airline carrier in small claims court, you should contact the clerk’s office for court procedures including filing fees, jurisdictional issues and ceiling on amount of money that can be awarded. It is also important to find out whether or not there is a time limit on filing the particular claim.

When filing out any small claims paperwork, it is critical to be honest and accurate. Remember to find out the legal address and official or corporate name of the airline. Then, make sure the airline has an office or has flights that leave from the area. This will give the courts jurisdiction or legal power over the airline to call them into court. It is important to be aware that the court will not be responsible for actually collecting any money for you. It is entirely your responsibility. Collecting the money owed is the most difficult part of the process so one has to learn to be patient.

With regard to flight delays: Sound legal ground also exists to sue an airline, when a plane pushes back from the blocks or leaves the gate on time but sits on the runway for an hour or more because of known flight delays. Airlines, in an attempt to repair their image in the midst of rampant flight delays, often resort to this tactic so they can show an on-time departure. If passengers can prove that this was the case, then they can sue. However, this is usually a tough one to prove. With rampant delays, it will be easier for passengers who sit on the runway for extended periods of time to prove that the airline was more concerned with protecting its image.

For mishandled baggage: The main obstacle passengers encounter when seeking legal reparation or suing an airline for mishandled baggage claims is the large number of airline restrictions. The consumer must realize that the airlines have tariffs [or rules] that prohibit compensation for nearly everything when filing a claim. The tariffs differ for each airline but typically include items such as laptop computers, jewelry and electrical appliances. Tariffs are listed in the fine print on the back of each airline ticket and, as a result, many travelers are unaware of these exclusions. Travelers who have baggage claims arising out of international flights face an additional obstacle.

Luggage liability limits differ on international air travel due to the Warsaw Convention. Drafted in 1929, this treaty sets the limit at $9.77 per pound of baggage.

For domestic travel, airlines recently raised the luggage liability limit from $1,250 to $2,500 with their implementations of the Customers First plans. While it is very difficult to recover this amount, there are certain circumstances where tariffs would not apply. For example, e-tickets are an exception because consumers do not receive a paper ticket with the restrictions listed. If the airline loses your luggage without giving you the written restrictions, you could sue on the legal foundation of negligence.

This best selling book will teach you how to sue an airline, get legally compensated and show that you will not tolerate airline abuse. This 50 page comprehensive step by step book that will guide you in properly filing an airline complaint and receiving the compensation you deserve because of being mistreated by the rude, irresponsible, ignorant and careless behavior of airline staff.

The percentage amount differs according to the policies of credit card companies. On an average, these credit cards offer around one and a half percent on the purchase amount. Several airline companies offer airline credit cards with several attractive offers to lure passengers.

Some airline companies follow loyalty program systems too. For instance, if you use a particular airline credit card to purchase airline services, you become eligible for receiving loyalty rewards from that airline company too.

Things to Look For In Airline Credit Cards:

Before signing for an airline card, you need to read the terms and conditions thoroughly. Ensure to make a through research about these cards. This proves beneficial in choosing the right credit card. If you decide to buy such credit cards, then see whether the company is asking for any annual fee for approval purposes.

People applying for credit cards also need to see the rate of interest before signing up, since some airline companies charge high rate of interest. In addition, it is necessary to check the amount of money gained through free airline miles, because some airlines provide less free airline miles.

More significantly, consider the credit limit of these cards, because many airlines have a specific amount of free airline miles for a cardholder in a particular year. If you go beyond the credit limit, you may need to pay a high rate of interest and perhaps may loose your free airline miles too.

Remember to check the rate of flexibility for using free miles. This is important because, you are not permitted to make use of your accumulated free airline miles as per your wish at any time.

Ensure to check the rewards offered by the airline card. It is very important to know how much air miles the credit card offers and how much airline miles are necessary to receive free flights.

Make sure, if there is any expiry date for the free airline miles. Since on most airline credit cards, miles expire after a year, while on some other airline cards they never expire. This is why it’s important that you do your research before you apply for that first card.

Next, also check for rewarding points. These rewarding points vary from one airline credit card to other. Generally, these cards offer one airline mile per dollar. Only a few cards offer two air miles on per dollar basis.

Overview:

An ideal airline card is the one, which allows you to use its reward points for other purchases such as hotel rentals and car rentals, rather than just airline fares. Thus, you need to check for all these terms and conditions in an airline credit card before finalizing to buy a particular card.

The Evolution of Airline Credit Cards

Over time, airline miles credit cards began to evolve. Soon after the Citi AAdvantage MasterCard hit the market, the United Airlines Mileage Plus card was offered by through a partnership with United Airlines. Shortly after, Continental Airlines followed suit with the Continental Airlines World MasterCard. These leaders in the airline miles credit card industry started what has become a widespread credit card option for frequent travelers.

Partnering with Airlines

The partnerships formed between credit card companies and airlines put a new face on airline credit cards. Today, there are just as many airline credit cards to choose from as there are airlines. The majority of these airline credit cards pretty much the same, though the subtle nuances can vary from card to card. With all of these cards, the miles you earn are good for use with just the airline named on the card. The only exception to this is if the airline has sister companies. In this case, the miles may be good with the sister airlines as well.

Generic Airline Credit Cards

In addition to the vast number of airline credit cards that are formed in partnership with airlines, there are many generic credit cards. In this case, the word “generic” doesn’t stand for off brand or low quality. Rather, these cards allow you to earn airline miles that you can use with any airline of your choice. Usually, these cards work by assigning each airline mile a monetary value, usually 1 or 2 cents per mile. You can then use these miles to purchase a ticket through the credit card company that the company has acquired from the airline at a discounted price.

With generic airline credit cards, you are provided far more freedom in deciding which airline to use. This allows you to select the airline that is running a flight at the time and location that is best for you. It also allows you to take advantage of market fluctuations in ticket prices from one airline to the next.

Additional Perks

In addition to the number of miles it takes to earn free travel with airline credit cards, you should consider the additional perks offered. For example, so airline credit cards only provide special discounts for air travel. On the other hand, some cards allow you to redeem your points for other travel related necessities, such as car rentals, cruises, hotel stays, and vacation packages.

You should also pay attention to the special incentives offered by airline miles credit cards. Some allow you to earn bonus miles through certain purchases. For example, you might be able to earn bonus miles with a credit card that has partnered with a specific airline if you make purchases from that airline on the credit card.

In addition to incentives, some airline credit cards provide sign up bonuses. It is fairly common for an airline credit card to offer 5,000 bonus miles after using the card for the first time. The Gold Delta Skymiles Credit Card and American Express Credit Cards offer 10,000 bonus miles. Of course, you need to look out for how many miles it takes to earn a free ticket. The average number of miles needed with airline credit cards is 25,000, but you should always read all of the fine print first before making a decision.

Airline credit cards have not been around for as long as you may think. In fact, they are a fairly new option available to credit cardholders. Nonetheless, airline credit cards have quickly gained in popularity and can be found partnered with every major airline.

The First Airline Credit Card

The first airline credit card to be offered to consumers was the City AAdvantage MasterCard. When it came out, the card allowed consumers to earn miles with every purchase made. These miles could then be redeemed for free air travel through a variety of airlines. This card remains one of the major players in the airline credit card industry. Today, you can redeem your airline miles at over 25 different airlines. In addition, you can redeem miles for discounts at numerous hotels and car rental companies.

Airlines Follow Suit

Realizing what a great idea airline miles credit cards was, airlines started following suit and partnering with credit card companies to create their own airline credit card. The United Airlines Plus card was next. This card was the first airline credit card to be specific to an airline. Although the card did not offer the flexibility of receiving discounted tickets with numerous airlines, those who frequently traveled on United Airlines enthusiastically embraced this United Airlines credit card.

Not to be outdone, Continental Airlines unveiled its airline credit card, the Continental Airlines World MasterCard, shortly after United Airlines. Both airlines still offer their own airline miles credit cards, but provide their own special incentives to set them apart from the competition. Today, the United Airlines Plus Signature Visa Credit Card offers 17,500 bonus miles after the first purchase with the card, a certificate for a free one-way 1,000 mile one-class upgrade, and a $25 certificate for discount travel. The Continental Airlines World MasterCard offers 15,000 OnePass bonus miles after completing your first purchase. In addition, you can earn double OnePass miles with purchases made at Continental Airlines and with partner merchants and a 5% discount on Continental Fares purchased at their website using the card.

Airline Miles Credit Cards Today

Today, airline credit cards are in abundance. Every major airline has partnered with a credit card company in order to bring their own airline credit card to the consumer. In addition, competition to gain and to retain flying customers is fierce. Therefore, airline credit cards offer a number of incentives, bonuses, and special deals to entice customers into acquiring their credit card.

In addition, the number of “generic” airline miles credit cards is on the rise. It is not unheard of for an airline credit card to allow the consumer to choose from over 200 different airlines when redeeming earned miles. Many of these airline credit cards also offer other discount options, such as hotel, car rental, and vacation package discounts that can be purchased with earned miles.

The Future of Airline Credit Cards

With the competition being so strong when it comes to airline customers and credit card customers, the future of airline credit cards looks bright for consumers. In all likelihood, the number of incentives and bonuses will continue to rise in order to draw in new cardholders. A trend that is currently starting to develop are special low APRs and annual fees. Traditionally, airline miles credit cards have had annual fees and high APRs when compared to credit cards without rewards programs. While this remains true, more and more airline credit cards are starting to offer competitive APRs and waiving annual fees in an attempt to attract more customers.

One thing is for certain: airline miles credit cards will continue to be popular among consumers, particularly for those that can pay off their balance in full at the end of each month and take full advantage of the special rewards.

You may have heard of frequent flyer programs, where participants earn points which award free airfares and benefits not available otherwise. But did you know that you do not have to actually fly in an airplane to earn these rewards?

There are many credit card companies today which offer customers the benefit of frequent flyer points. These credit cards have a special partnership with designated airline companies, awarding points to consumers based on certain types of purchases, cash advances, or other transactions. By making regular, everyday purchases, cardholders receive additional points. Different cards will offer different benefits or incentives. Participating cardholders commonly earn one or two free airline tickets every year.

Airline frequent flyer rewards credit cards come in two distinctive types. The first type of card is issued through an affiliated airline carrier, and is a good option for those who travel often. These cards are also wonderful for those who fly regularly for business purposes. If you have a tendency to use different airlines, or if you do not travel often, then you would be wise to choose the second type of card, which awards all-inclusive points. With this type of card, you will be allowed to use your frequent flyer points for travel on any airline, rather than being obligated to any one particular airline company.

Most major credit card companies offer frequent flyer incentive programs. For example, American Express offers a credit card with no expiration date on corresponding airline points, with double rewards for dining, travel, leisure, or entertainment purchases. A card through Bank of America offers no black out dates and rewards for all types of purchases. Visa, MasterCard, and Discover cards also have numerous cards through various companies, many of which also offer frequent flyer incentives.

If you are a frequent traveler, and tend to use credit cards during your excursions, then it makes logical sense to transfer your balances to a credit card which offers miles rewards. You will earn free travel incentives as a reward for what you are already doing, using your credit card! Airline credit cards also tend to offer exceptional interest rates, quality customer service, and amazing travel opportunities. Most cards also have no restrictions or blackout dates when it comes to using the accrued frequent flyer points.

Airline rewards credit cards are the most popular type of plastics, according to recent cardholder polls. Naturally so, since these cards were the original companies to offer rewards. In order to earn the very best incentives, there are a few tips and tricks to follow. Make sure to pay your bills in full every month. Choose a card with flexible reward schemes. Do you homework to discover the various benefit packages, such as special purchase incentive, redemption policies, or promotions.

Regardless of which frequent flyer airline rewards credit card that you choose, always remember that these cards have credit fees and a corresponding APR rate, just as any other card does. Keep careful records of your purchases and related point earnings, so that you always know where you stand. Pay close attention to the conditions and terms of the card, so that your hard earned rewards are not in vain!

After years of tight government control over the airline industry, Congress chose to pursue a policy of economic deregulation, enacting the Airline Deregulation Act of 1978 (ADA). Areas formerly controlled by the federal government, such as the awarding of routes, the entry of new air carriers, and the setting of fares, were left to the airlines and the free market to determine. Congress, concerned that States might attempt to circumvent federal airline deregulation through their own state enforcement actions, included an express preemption clause in the ADA, which bars States from enforcing laws “related to a price, route, or service of an air carrier.” This apparently innocuous provision continues to cause confusion and divide courts over exactly what causes of action are preempted by the ADA.

Top-ranked Chicago personal injury attorney, Matthew A. Passen, examines one class of state-law based actions, intentional tort claims, and considers whether such actions are sufficiently “related to” an airline “service” for preemption under the ADA. For example, can a passenger who was refused boarding on a commercial airline and strapped to an immobile chair in the waiting area sue the airline for false imprisonment? Can a passenger detained by airline employees upon landing of an aircraft, wrongfully accused of stealing another passenger’s ring, and arrested by police, seek recourse against the airline for false arrest, intentional infliction of emotional distress or slander? Can an airline racially discriminate against a passenger or airline employee with impunity?

As the following discussion reveals, the answer to these questions often depends entirely on how broad or narrow courts interpret the ADA’s statutory phrase, “related to a . . . service of an air carrier.” If a narrow reading is adopted, plaintiffs will have their day in court. If, on the other hand, a court interprets the preemption provision broadly, airlines will essentially receive immunity from state-law intentional tort actions.

Often, the best answer to such questions of statutory interpretation is found by reconsidering the purpose of the underlying statute containing the preemption provision. Here, the purpose of the ADA is straightforward: economic deregulation of the airline industry.

BRIEF HISTORY OF THE ADA’s PREEMPTION CLAUSE

Prior to 1978, the federal government heavily regulated the airline industry.1 Beginning with the Federal Aviation Act (FAA) of 1958,2 Congress created a regulatory organization, known as the Civil Aeronautics Board (CAB), to serve three main functions: award routes to airlines, control the entry of air carriers into new markets, and regulate fares for consumers.3 Still, Congress preserved state common law actions against airlines by including a “saving clause,” which provided: “Nothing contained 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.”4

In 1978, however, Congress changed courses with respect to airline regulation, determining that “maximum reliance on competitive market forces would best further ‘efficiency, innovation, and low prices’ as well as ‘variety [and] quality . . . of air transportation services.”5 Accordingly, Congress enacted the Airline Deregulation Act of 1978 (ADA),6 which gradually ended economic regulation of the airline industry in a series of steps over the years, including the elimination of the CAB.7

The ADA, unlike its predecessor, contained express federal preemption clause to ensure that “States would not undo federal deregulation with regulation of their own.”8 The ADA’s preemption clause states:

Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce any law, regulation, or other provision having the force and effect of law related to a price, route, or service of any air carrier that may provide air transportation under this subpart.9

This preemption standard, while simply stated, has proven far more difficult to apply than Congress could have anticipated.

One source of confusion is Congress’ retention of the “saving clause,” which provides that “[a] remedy under this part is in addition to any other remedies provided by law.” 10 Some courts have found Congress preserved this clause in order to protect the states’ ability to control non-economic matters involving airlines within their respective borders.11 Still, the Supreme Court has referred to the saving clause as “a relic of the pre-ADA/no pre-emption regime,” without power to supersede the specific substantive preemption provision of the ADA. 12

The greatest source of confusion surrounding the ADA’s preemption clause concerns the ambiguous language of the statute itself. In particular, courts have struggled to advance a coherent framework for what types of causes of action are “related to a price, route, or service” for preemption under the ADA. Congress neither defined the terms nor specified what types of state action are preempted, and the Supreme Court has not drawn any distinct preemption lines.13 Consequently, lower courts have been left to apply their own, often conflicting, interpretations of the ADA’s preemption clause. Regardless of statutory interpretation, courts remain guided by fundamental principles of preemption doctrine.

BRIEF INTRODUCTION TO PREEMPTION DOCTRINE

The foundation for federal preemption of state law is based on the Supremacy Clause of Article VI of the Constitution, which provides: “This Constitution and the laws of the United States . . . shall be the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding.”14 As a general rule, federal law preempts state law in three situations:15 (1) Express preemption: where Congress has explicitly preempted state law;16 (2) Field preemption: where Congressional intent to preempt may be inferred generally from the pervasiveness of a federal regulatory scheme in a particular area;17 and (3) Conflict preemption: where state law conflicts with federal law or interferes with the achievement of congressional objectives.18

Where Congress has included an express preemption clause in a statute, courts “typically do not consider the issue of implied pre-emption,” and instead simply “determine whether the state law in question falls within the scope of the statute expressly promulgated by Congress.”19 In other words, according to the Supreme Court:

When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue . . . ‘there is no need to infer congressional intent to pre-empt state laws from the substantive provisions’ of the legislation. Such reasoning is a variant of the familiar principle of expression unius est exclusio alterius: Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted.20

Because Congress included an express preemption clause in the ADA, courts look to the specific statutory language in order to determine whether a particular state action is preempted. Unfortunately, the literal text of the ADA’s preemption clause is ambiguous; and the Supreme Court has not resolved the uncertainty.

SUPREME COURT INTERPRETATION OF

THE ADA’s PREEMPTION CLAUSE

The United States Supreme Court has interpreted the ADA’s preemption provision only twice since 1978. In Morales v. Trans World Airlines, Inc.,21 the Court decided whether the ADA preempts States from regulating deceptive airline fare advertisements through enforcement of state consumer protection statutes.22 The Court held such actions were indeed preempted by the ADA.23

In reaching its decision, the Court focused on the statutory phrase “related to” in the ADA’s preemption provision. First, the Court looked to Black’s Law Dictionary for guidance, concluding that “the words thus express a broad pre-emptive purpose.”24

Second, the Court examined the similarly worded preemption provision of the Employee Retirement Income Security Act of 1974 (ERISA),25 which the Court had previously interpreted as having a “broad scope.”26 Therefore, the Court held: “Since the relevant language of the ADA is identical [to the ERISA preemption clause], we think it appropriate to adopt the same standard here: State enforcement actions having a connection with or reference to airline ‘rates, routes, or services’ are pre-empted” by the ADA.27 Although the Court in Morales declined to define with particularity the circumstances under which a state law “relates to” airline services, it held the state consumer protection guidelines at issue were sufficiently “related to” airline “price[s]” because enforcement of such guidelines would compel or restrict airline price advertising.28

Notably, however, the Court recognized there are limits to the scope of the ADA’s preemption clause.29 Specifically, the Court explained that state action affecting the airlines in “too tenuous, remote, or peripheral a manner” will not be preempted by the ADA.30 The Court declined to expand on this notion, instead stating, “[t]he present litigation plainly does not present a borderline question, and we express no views about where it would be appropriate to draw the line.”31

In 1995, the Supreme Court revisited the ADA’s preemption clause in American Airlines, Inc. v. Wolens.32 Here, the plaintiffs brought claims against American Airlines for breach of contract and for violations of the Illinois Consumer Fraud Act following the airline’s unilateral devaluation of frequent flyer mileage credits earned by the plaintiffs.33 Rather than focusing on the “related to” language of the ADA’s preemption clause, the Court examined the phrase “enact or enforce any law” in the provision.34

First, in accord with Morales, the Court held that the plaintiffs’ claims based on the Illinois Consumer Fraud Act were preempted by the ADA.35 The purpose of the Illinois statute, according to the Court, was “to guide and police the marketing practices of the airlines; the Act does not simply give effect to bargains offered by the airlines and accepted by airline customers.”36 Therefore, because the plaintiffs sought to “enforce [a] law” regulating “the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services,” the plaintiffs’ claims under the Consumer Fraud Act were preempted.37

Second, the Court carved out an exception to ADA preemption for the plaintiffs’ breach of contract claim. The Court explained: “We do not read the ADA’s preemption clause, however, to shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline’s alleged breach of its own, self-imposed undertakings.”38 Because the plaintiffs’ breach of contract claim (based on American’s modification of its frequent flyer program) sought to enforce the terms of a voluntary undertaking by the airlines, and did not seek to “enforce any law,” the claim was not preempted by the ADA.39

COURTS OF APPEALS’ CONFLICTING DEFINITION OF “SERVICE”

Although the Supreme Court interpreted the “related to” phrase in Morales, and the “enact or enforce any law” language in Wolens, the Court has not defined the term “service” of an airline, as it is used in the ADA’s preemption clause. Instead, the United States Courts of Appeals have been left to define the term, resulting in conflicting approaches.

In Charas v. Trans World Airlines, Inc., the Ninth Circuit adopted a relatively narrow definition of “service.”40 Because the term “service” is inherently ambiguous, the court looked to the purpose behind the ADA, which Congress enacted to protect “the economic deregulation of the airlines and the forces of competition within the airline industry.”41 As such, only state laws that interfere with economic deregulation and the forces of competition within the airline industry should be preempted.42 Conversely, ADA preemption should not “displace state tort law in actions that do not affect deregulation in more than a ‘peripheral manner.’”43

With these principles in mind, the Ninth Circuit defined “service,” as referring to “the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail.”44 This definition includes “such things as the frequency and scheduling of transportation, and to the selection of markets to or from which transportation is provided.”45 This definition of “service” does not, however, encompass things such as “the pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or like functions,” which the court found only peripherally affect airline deregulation or competition.46 Any broader a definition, according to the court, “effectively would result in the pre-emption of virtually everything an airline does. It seems clear to us that that is not what Congress intended.”47 This approach to ADA preemption has been followed by the Third Circuit.48

In contrast, the Fifth Circuit adopted a much broader definition of “service.”49 In Hodges v. Delta Airlines, Inc., a female passenger was injured when another passenger opened an overhead compartment and dislodged a case of rum. She brought a state law personal injury claim against Delta Airlines based on alleged negligent operation of the aircraft.50 In order to determine whether the plaintiff’s claim was preempted by the ADA, the Fifth Circuit adopted the following definition of “service”:

“Services” generally represent a bargained-for or anticipated provision of labor from one party to another . . . Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provisions of food and drink, and baggage handling, in addition to the transportation itself. These matters are all appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline. It is these [contractual] features of air transportation that we believe Congress intended to de-regulate as “services” and broadly to protect from state regulation.51

This definition of “service” is clearly far broader than the Ninth Circuit’s definition in Charas.

Still, the Fifth Circuit held the plaintiff’s claims were not preempted by the ADA. The court distinguished between claims related to the “operation and maintenance of the aircraft,” and claims related to airline “services,” holding that claims falling in the former category are not preempted by the ADA.52 With respect to the plaintiff’s claims, the court explained: “One uses the overhead luggage racks or the food and beverages provided in aircraft operation just as one uses the cigarette lighter or built-in cooler compartment in an automobile, and all these devices are available to support the general purpose of navigation.”53 The court rejected Delta’s arguments that the plaintiff’s injuries arose out of the “service” of baggage handling and boarding.54 Instead, the court found: “Whether certain luggage may be placed in overhead bins and whether the flight attendants properly monitor compliance with overhead rack regulations are matters that pertain to the safe operation of a flight.”55

Thus, while the Fifth Circuit adopted a broad definition of “service,” it added another layer of confusion with an almost untenable distinction between “service” and “operation and maintenance.” 56 Nevertheless, at least three other Circuit Courts of Appeals have adopted the Hodges court’s definition of “service.”57

SUPREME COURT DECLINES TO DEFINE “SERVICE”

In late 2000, the Supreme Court declined the opportunity to resolve the conflict concerning the appropriate definition of “service” within the meaning of the ADA’s preemption clause.58 Earlier that year, in Duncan v. Northwest Airlines, Inc., the Ninth Circuit held that a class-action lawsuit challenging Northwest’s smoking policy was not preempted by the ADA.59 Relying on its earlier narrow definition of “service” in Charas, the Ninth Circuit held that allowing smoking on Northwest flights does not constitute a “service” because such decision does not deal with “the frequency and scheduling of transportation, [or] the selection of markets to or from which transportation is provided.”60 Northwest appealed the Ninth Circuit’s decision, and the Supreme Court denied the petition for a writ of certiorari.61

Justice O’Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented to the Court’s denial of certiorari. In her dissent, she notes how the Courts of Appeals have “taken directly conflicting positions on this question of statutory interpretation.”62 Given these contradictory interpretations, the dissenting Justices would have granted certiorari in order to “provide needed certainty to airline companies.”63

APPLICATION OF THE ADA PREEMPTION CLAUSE

TO STATE-LAW INTENTIONAL TORT CLAIMS

Also in her dissent to the Court’s denial of certiorari in Duncan, Justice O’Connor suggests that while the underlying case involved a state law personal injury claim based on an airline’s smoking policy, “the legal principle at stake,” namely, the correct definition of “service” within the meaning of the ADA’s preemption clause, “has ramifications for a host of other tort actions against airline,” including “false imprisonment,” “intentional infliction of emotional distress,” and “defamation.”64 This section examines how courts have analyzed and should analyze these types of actions. Such cases often include state law discrimination claims.

DISCRIMINATION CLAIMS

The United States Supreme Court has not decided whether actions against airlines alleging state discrimination violations are preempted by the ADA.65 For lower courts examining this issue, the preemption outcome largely depends on the court’s definition of “service.”

A. Employment Discrimination Actions

Generally, discrimination suits brought by former airline employees bear “too tenuous, remote or peripheral” a relation to airline rates or services for preemption under the ADA, regardless of the court’s definition of “service.”66 Courts refusing to preempt such actions stress the purpose of the ADA, which “was concerned with the states’ attempt to regulate airline fares, routes and services, not employment practices.” 67

For example, in the racial discrimination context, courts generally agree that neither air safety nor market efficiency is appreciably diminished by the operation of state laws forbidding racial discrimination.68 As the Second Circuit explained in Abdu-Brisson: “Unlike the regulation of marketing practices at issue in Morales or the regulation of frequent flyer programs at issue in [Wolens], whether an airline discriminates on the bases of age (or race or sex) has little or nothing to do with competition or efficiency.”69

In other contexts, however, enforcement of state discrimination laws may appreciably “relate to” airline “services,” warranting preemption by the ADA. For instance, in 1996, the Michigan Court of Appeals held that state law weight discrimination claims brought by a baggage handler who was terminated for failure to comply with the airline’s height and weight standards were preempted by the ADA.70 Applying the Supreme Court’s broad interpretation of the phrase “related to” in Morales, the Michigan Court of Appeals held the plaintiff’s discrimination claims “related to” the “services of an air carrier,” and were preempted accordingly.71 In this case, as well as in other disability discrimination actions where the state law arguably “relates to” airline “service,” the scope attached to these statutory terms ultimately determines the preemption outcome.

B. Passenger Discrimination Actions

Cases addressing the scope of ADA preemption in discrimination actions brought by airline passengers provide a less coherent body of case law.72 Ultimately, whether or not a discrimination claim is preempted depends on the court’s definition of “service.”

Generally, courts have found such claims entirely unrelated to the performance of airline services, and therefore outside the scope of ADA preemption.73 For example, in Doricent v. American Airlines, Inc., a male passenger alleged that prior to his flight’s departure from Haiti, American Airlines employees referred to him using racial epithets, threatened to remove him from the plane, and physically assaulted him.74 The court held the plaintiff’s state law race discrimination claims did not “relate to” airline “services” under the Supreme Court’s precedent in Morales.75 While the airline employees’ behavior might “arguably constitute ‘services’—poor services, to be sure,” the court found this behavior had “nothing whatsoever to do with any legitimate or quasi-legitimate industry-wide practice of affording airline service.”76

Still, in other contexts, discrimination claims may have some legitimate bearing on an airline’s ability to render safe and efficient “service.”77 In such cases, even those involving alleged race discrimination, the plaintiff’s discrimination claims might be preempted by the ADA.

For instance, in Huggar v. Northwest Airlines, Inc., the United States District Court for the Northern District of Illinois held that an airline passenger’s race discrimination claims against Northwest were preempted by the ADA.78 The plaintiff, a 21-year-old black male was removed from a Northwest flight after removing another passenger’s luggage from an overhead bin and throwing it on the floor, threatening to physically assault the passenger, and claiming he could “buy” the passenger.79 The plaintiff’s ten-count claim against Northwest alleged that his ejection from the flight was racially motivated, and included a claim for a violation of the Illinois Human Rights Act.80

In determining whether the plaintiff’s state law race discrimination claims related to Northwest’s “service” of providing airline transportation, the court employed the following analysis: “the critical inquiry is [sic] the underlying nature of the actions taken, not the manner in which they were accomplished. Therefore, a court should not look to the subjective motivations of the employees because they are irrelevant to determining what constitutes ‘services’ within the meaning of the [ADA].”81 According to the majority, because the plaintiff’s actions clearly posed a safety threat to the other passengers, the airline’s decision to eject him from the flight “related to” the “service” of boarding and seating passengers, notwithstanding the airline employee’s subjective, allegedly discriminatory motivations.

As the above case highlights, the preemption outcome in passenger discrimination cases often depends entirely on whether a particular jurisdiction employs a broad or narrow definition of “service.” In order to find the plaintiff’s claims preempted by the ADA, the Huggar court first had to include “boarding and seating decisions” as cognizable “services” under the ADA’s preemption clause. In a similar case, the U.S. District Court for the District of Massachusetts held that a passenger’s lawsuit alleging he was discriminated against on account of his handicap in connection with boarding on a particular flight was preempted by the ADA.82 Necessary to the court’s decision was its reliance on the Fifth Circuit’s broad definition of “service,” which explicitly refers to “boarding.”

Conversely, jurisdictions employing the Ninth Circuit’s narrow definition of “service” will reach the opposite result under identical scenarios. For instance, the Ninth Circuit held a plaintiff’s disability discrimination claim against American Airlines based on the airline’s refusal to allow the plaintiff to board without a doctor’s certificate (she was in a wheelchair and had a heart problem) was not preempted by the ADA.83 The court’s analysis was probably over-simplistic; it simply held, “the term ‘service’ does not refer to alleged discrimination to passengers due to their disabilities.”84 Consequently, whether a passenger discrimination lawsuit is preempted by the ADA may ultimately depend on the court’s definition of “service.”

FALSE ARREST/ IMPRISONMENT

Several courts have addressed the issue of whether the ADA preempts false imprisonment and false arrest claims, reaching divergent conclusions.85 These cases can, however, be reconciled.

Where the courts have held a plaintiff’s claim for false arrest or false imprisonment is preempted by the ADA, such cases involve incidents where the airline refused or failed to provide a service relating to the transportation of a passenger.86 In these cases, “where the crux of the claim was the airline’s refusal to transport the passenger,” the courts have concluded that the claims related to the services of the airlines, and were therefore preempted by the ADA.87 This makes sense because all Circuit Courts of Appeals agree that “transportation” of passengers is a cognizable “service” under the ADA.

Conversely, where the basis of a false arrest or false imprisonment claim “is that the airline caused the passenger to be arrested by authorities without a proper factual basis,” courts have held that such claims are not “related to” an airline “service.”88 For example, if “an airline held a passenger without a safety or security justification, a claim based on such actions would not relate to any legitimate service and would not be preempted.”89

OTHER INTENTIONAL TORT CLAIMS

The Circuit Court of Appeals for the Seventh Circuit, in Travel All Over The World, Inc., examined whether a travel agency’s intentional tort claims against Saudi Arabian Airlines, arising out of the travel agency’s unsuccessful attempts to arrange flights to Saudi Arabia for its clients, were preempted by the ADA’s express provision.90 The court organized the plaintiff’s claims into two categories: (1) defamation and slander; and (2) “other” intentional tort claims.91

With respect to the first category, the Seventh Circuit acknowledged that courts have reached “divergent results” concerning whether claims for slander and defamation are preempted by the ADA.92 Here, the plaintiff based its defamation and slander claims on the airline employees’ making knowingly false verbal and written statements about the travel agency to the agency’s clients; specifically, that the agency “was not a reputable company, that [the agency] had not booked seats on Saudi for many of them, that [the agency] often lied to its clients about reserving seats for them, and that” the agency’s president would not be there to help them.93

Even after adopting the Fifth Circuit’s broad definition of “service,” the Seventh Circuit held the statements themselves were not airline “services” within the meaning of the ADA.94 Citing the Supreme Court’s opinion in Morales, the court explained: “It is difficult for us to envision how tort claims based on an airline’s knowingly false statements about a travel agency would have even a ‘tenuous, remote or peripheral’ economic effect on the rates, routes, or services that the airline offers.”95 Furthermore, although the statements refer to the travel agency’s services, the court held they certainly do not refer to the airline’s rates, routes, or services.96 Therefore, the plaintiff’s defamation and libel claims were not preempted by the ADA.

With respect to the second category of “other” intentional tort claims, including intentional infliction of emotional distress, tortious interference and fraud, the Seventh Circuit reached a different opinion. Only where these claims are based upon the same slanderous and defamatory comments that the court already found not preempted, could such claims withstand preemption scrutiny.97

Yet, the Seventh Circuit doubted this would hold true for the plaintiff in Travel All, as with most plaintiffs. Instead, the “other” intentional tort claims were most likely “based, at least in part, on [the airline’s] canceling the confirmed tickets of [the agency’s] clients and requiring these clients to purchase their tickets directly through [the airline].”98 To the extent that the plaintiff’s intentional tort claims rely on this “conduct” of the airline, rather than the airline employee’s allegedly slanderous and defamatory “comments,” the court held such claims “expressly refer to airline ‘services,’ which include ticketing as well as the transportation itself,” and are therefore preempted by the ADA.99 Again, this holding depends entirely on the court’s adoption of the Fifth Circuit’s broad “service” definition in Hodges, as opposed to the Ninth Circuit’s narrow definition of “service” in Charas.

CONCLUSION

The ADA’s preemption clause continues to cause confusion and divergent opinions throughout our nation’s courtrooms. The fundamental problem concerns the seemingly benign phrase “related to a price, route, or service” of an air carrier. The Supreme Court has done little to clear the fog surrounding this issue. Aside from expressly declining the opportunity to define “service,” the Court’s interpretation of the phrase “related to” has recently come into question.

In Morales, the Supreme Court interpreted the “related to” language of the ADA broadly, based largely on the “broad scope” previously applied to the similarly worded ERISA preemption clause.100 Yet, in recent years the Supreme Court has been narrowing the reach of ERISA’s preemption provisions.101 Indeed, the phrase “related to” in ERISA’s preemption clause “appears to be developing, to some degree, to mean whether state law actually ‘interferes’ with the purposes of the ERISA legislation.”102 Although the literal text of ERISA’s preemption clause is “clearly expansive,” like the ADA, the Supreme Court has held that for practical purposes the statute must be interpreted more narrowly, “lest its reach stop nowhere.”103 Analogously, it is unclear whether the ADA’s “related to” phrase should likewise receive a narrower interpretation to mean: whether state law actually interferes with the purpose of the ADA.

The larger question involving the ADA preemption clause concerns the proper definition of “service.” The Supreme Court has expressly declined to answer the question, despite the objections of three Justices.104 If the Court is not going to answer this question, Congress should. A clear definition of “service,” from either the Supreme Court or the Legislature, “would provide needed certainty to airline companies.”105

The question becomes: What definition of “service” should the Supreme Court or Congress adopt for the ADA’s preemption clause? This question must be answered in light of the fundamental purpose behind the underlying statute—courts should look to the objectives of the ADA as a guide to the scope of state law that should survive. The ADA is an economic deregulation statute designed to promote competitive rates, routes and services among the nation’s airlines.106 As such, only those actions directly impacting the airlines’ ability to provide competitive rates, enter new markets, and provide effective transportation to consumers should be preempted by the ADA.

The Ninth Circuit’s narrow definition of “service,” which encompasses the “prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo or mail,” best aligns with the purpose of the underlying ADA statute. Furthermore, this definition comports with the Supreme Court’s approach to express preemption clause analysis: “the familiar principle of expression unius est exclusio alterius.”107

Neither the language nor the history of the ADA suggests that Congress was attempting to displace all state law tort causes of action against the airlines; nor should the preemption clause act as a safe harbor against claims having only a tenuous impact on airline services.108 The vast majority of state law intentional tort claims cannot be said to frustrate the goal of economic deregulation in the airline industry. Furthermore, such claims do not affect a particular airline’s competitive posture any more so than a lawsuit affects any corporation in America. Accordingly, such actions should fall outside the scope of federal preemption under the ADA.

1 For a good discussion of the ADA’s legislative history, see Daniel H. Rosenthal, Legal Turbulence: The Court’s Misconstrual of the Airline Deregulation Act’s Preemption Clause and the Effect on Passengers’ Rights, 51 Duke L.J. 1857, 1869-1872 (2002).

2 Pub. L. No. 85-726, 72 Stat. 731 (later codified as amended at 49 U.S.C. §§ 40010-44310 (1994)).

3 Matt Andersson, The New Airline Code 62-64 (iUniverse, Inc. 2005).

4 49 U.S.C. § 1506 (current version at 49 U.S.C. § 40120 (c)).

5 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992) (citing 49 U.S.C.App. §§ 1302 (a)(4), 1302 (a)(9)).

6 49 U.S.C. app. §§ 1301-1557 (1988).

7 Matt Andersson, The New Airline Code 67 (iUniverse, Inc. 2005).

8 Morales, 504 U.S. at 378; See also Trinidad v. American Airlines, Inc., 932 F. Supp. 521 (S.D.N.Y. 1996) (stating that the purpose of ADA’s preemption clause was to prevent states from interfering with the development of an air transportation system driven to higher levels of innovation and efficiency by economic competition).

9 49 U.S.C. § 41713 (1997) (emphasis added).

10 49 U.S.C. § 40120 (c); Chrissafis, 940 F. Supp at 1296.

11 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 337 (5th Cir. 1995); Morales, 504 U.S. at 425 (Stevens J., dissenting).

12 Morales, 504 U.S at 385.

13 See Matthew J. Jelly, Federal Preemption by the Airline Deregulation Act of 1978: How do State Tort Claims Fare?, 49 Cath. U. L. Rev. 873 (2000).

14 U.S. const. art. VI § 1, cl. 2.

15 See Susan D. Hall, Preemption Analysis After Geier v. American Honda Motor Co., 90 Ky. L.J. 251 (2002).

16 Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 (1983).

17 Rice v. Santa Fe Elevator Corp, 331 U.S. 218, 230 (1947).

18 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).

19 Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1253 (11th Cir. 2003).

20 Id.; Cipollone v. Liggert Group, Inc. 505 U.S. 504, 517 (1992) (quoting Malone v. White Motor Corp., 435 U.S. 497, 505 (1978)); compare Grier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000) (existence of express preemption provision does not mean that implied preemption cannot exist where the express preemption does not apply).

21 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).

22 Id. at 378.

23 Id. at 391.

24 Id. at 383.

25 29 U.S.C. § 1144 (a).

26 Morales, 504 U.S. at 384 (citing Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985).

27 Id. (emphasis added).

28 Id. at 390.

29 See John T. Houchin, Harris v. American Airlines: Flying Through the Turbulence of Federal Preemption and the Airline Deregulation Act, 51 U. Miami L. Rev. 955, 966 (1997).

30 504 U.S. at 390 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 (1983) (emphasis added)).

31 Id.

32 American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995).

33 Id. at 224.

34 Id. at 226.

35 Id at 228.

36 Id.

37 Id. (emphasis added).

38 Id. at 228 (emphasis added); see also Williams v. Midwest Airlines, Inc., 321 F. Supp. 2d 993, 996 (E.D.Wisc. 2004) (holding the plaintiffs’ breach of contract claim was not preempted because the airline’s agreement to transport plaintiffs to New York City “was a self-imposed undertaking, and plaintiffs’ attempt to enforce it does not involve the enforcement of any state law”).

39 Wolens, 513 U.S. at 232-33. The Court stated that this distinction makes sense in light of the ADA’s saving clause, which does not prevent states from “affording relief to a party who claims and proves that an airline dishonored a term that the airline itself stipulated.” Id.

40 Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998) (en banc).

41 Id. at 1261.

42 Id. at 1263 (citing Gee v. Southwest Airlines, Inc., 110 F.3d 1400, 1410 (9th Cir. 1997) (O’Scannlain, J., concurring).

43 Id. at 1265.

44 Id. at 1261.

45 Id. at 1265-66.

46 Charas, 160 F.3d at 1266.

47 Id.

48 See Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 195 (3d Cir. 1998); Duncan, 531 U.S. 1058; compare Abdulla v. American Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999) (holding that the entire aviation industry is field preempted).

49 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc).

50 Id. at 335.

51 Id. at 336 (citations omitted) (emphasis added).

52 Hodges, 44 F.3d at 336-37. The court found that claims relating to the “operation and maintenance of the aircraft” concern matters of “air navigation.” Id. at 338 (citing 49 U.S.C.App. § 1301(31) (1998)).

53 Id. (emphasis added)

54 Id. at 338-39.

55 Id. at 339.

56 The Firth Circuit admits that “the provinces of ‘services’ and ‘operation and maintenance of aircraft’ overlap somewhat conceptually; no strict dichotomy exists.” Id. at 339.

57 See Duncan, 531 U.S. 1058; Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1257 (11th Cir. 2003).

58 Northwest Airlines, Inc. v. Duncan, 531 U.S. 1058 (2000) (cert denied)

59 Duncan v. Northwest Airlines, Inc., 208 F.3d 1112 (9th Cir. 2000).

60 Id. at 1115 (quoting Charas, 160 f.3d at 1265-66).

61 Duncan, 531 U.S. 1058 (2000) (cert denied).

62 Id.

63 Id.

64 Id.

65 Lynette M. Bledsaw, The Express Preemption Provision of the Federal Aviation Administration Authorization Act Does Not Reach State Civil Rights Claims of Race Discrimination, American Bar Association (2000).

66 See Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003) (former airline employee’s state court claim for retaliatory discharge was not preempted by the ADA); Wellons v. Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir. 1999) (former airline employee’s race discrimination claim was not preempted); Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1467-68 (11th Cir. 1998) (plaintiff’s age discrimination claim was not preempted by the ADA); Aloha Islandair Inc. v. Tseu, 128 F.3d 1301, 1303 (9th Cir. 1997) (holding Hawaii law barring physical disability discrimination was not preempted by the ADA); Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77, 84 (2d Cir. 1997) (holding New York age discrimination action was not preempted by the ADA).

67 Id.; (citing Delta Air Lines, Inc. v. New York State Div. of Human Rights, 652 N.Y.S2d 253, 257 (1996);

68 Ryan L. Bangert, When Airlines Profile Based On Race: Are Claims Brought Against Airlines Under State Anti-Discrimination Laws Preempted By the Airline Deregulation Act?, 68 J. Air L. & Com. 791, 801 (2003); see Thomas v. United Parcel Service, 241 Mich. App. 171 (2000) (holding that former African-American employee’s race discrimination claim was not preempted by the ADA).

69 Abdu-Brisson, 128 F.3d at 84; Wellons, 165 F.3d at 496; Thomas, 241 Mich.App. at 181; see also Wellons v. Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir. 1999) (“State law claims of racial discrimination—as opposed to claims of discrimination on the basis of physical characteristics that might have some bearing on the individual’s ability to render service safely and efficiently—are not preempted, in our view; they bear ‘too tenuous, remote, or peripheral’ a relation to airline rates or services.”); Thomas, 241 Mich.App. 171, 181 (2000) (“Plaintiffs’ race and gender are wholly unrelated to defendants’ services”).

70 Bledsaw, supra note 65; Fitzpatrick v. Simmons Airlines, Inc., 218 Mich. App. 689 (1996).

71 Fitzpatrick, 218 Mich. App. At 692. See also Belgard v. United Airlines, 857 P.2d 467, 471 (Colo.App.1992) (“any law or regulation that restricts an airline’s selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one ‘relating to,’ the services to be rendered by the airline”)

72 Bangert, supra note 22 at 803.

73 Bledsaw, supra note 65 at 5.

74 Doricent v. American Airlines, Inc., 1993 WL 437670 (D.Mass 1993).

75 Id.

76 Id. at *5.

77 Bledsaw, supra note 65 at 5.

78 Huggar v. Northwest Airlines, Inc., 1999 WL 59841 (N.D. Ill. 1999).

79 Id. at *1; see also Bangert, supra note 22 at 805-06.

80 Id.

81 Id. (citations omitted).

82 DeTerra v. America West Airlines, Inc., 226 F. Supp. 2d 274 (D.Mass. 2002).

83 Newman v. American Airlines, Inc., 176 F.3d 1128, 1131 (9th Cir. 1999).

84 Id. at 1131;

85 Chrissafis v. Continental Airlines, Inc., 940 F. Supp. 1292, 1298 (N.D. Ill. 1996).

86 Id.; see Williams v. Express Airlines I Inc.,, 825 F. Supp. 831, 832-33 (W.D. Tenn. 1993) (holding that plaintiff’s claim for false imprisonment after he was denied admittance to a flight and then strapped to an immobile chair in the airline waiting area was preempted by the ADA); Lawal v. British Airways, PLC, 812 F. Supp. 713, 715 (S.D. Tex. 1992) (holding that plaintiff’s false arrest and false imprisonment claims where airline personnel detained the plaintiff and forced him to purchase a new ticket were preempted); Galbut v. American Airlines, Inc., 27 F. Supp. 2d 146 (E.D. N.Y. 1997) (holding that plaintiff’s false arrest and false imprisonment claims arising out of airline’s refusal to permit plaintiff to upgrade using stickers the airline had falsely alleged were stolen and the demand for payment for the upgrade were preempted by the ADA); Smith v. Comair, Inc., 134 F.3d 254 (4th Cir. 1998) (passenger’s claim for false imprisonment based on the airline’s refusal to permit him to board due to the airline’s failure to ask for photo identification at the point of original departure was preempted).

87 Chrissafis, 940 F. Supp. at 1298.

88 Id.; see Diaz Aguasviva v. Iberia Lineas Aereas 902 F. Supp. 314, 316 (D. Puerto Rico 1995) (permitting a passenger to pursue a claim that airline personnel falsely identified the passenger as an illegal alien, causing police and customs agents to arrest and detain her); Curley v. American Airlines, Inc., 846 F. Supp. 280, 281-82 (S.D.N.Y. 1994) (holding that plaintiffs claim that the flight crew had falsely arrested the passenger for smoking marijuana, causing him to be strip-searched, was not preempted); Bayne v. Adventure Tours USA, Inc., 841 F. Supp. 206, 207 (N.D.Tex 1994) (refusing to preempt a passenger’s claim that an airline pilot made misrepresentations to police, causing the plaintiff to be taken into custody, detained, and subjected to a luggage search); Rombom v. United Airlines, Inc., 867 F. Supp. 214, 224 (S.D.N.Y. 1994) (finding that false imprisonment claims stemming from the airline’s decision to have plaintiff arrested, allegedly motivated by spite, were not preempted).

89 Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Chrissafis v. Continental Airlines, Inc., 940 F. Supp. 1292, 1289-99 (N.D. Ill. 1996)

90 Travel All Over The World, Inc., v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996).

91 Id.; see also Chrissafis , 940 F. Supp. 1292 (recognizing this distinction). In addition to defamation and slander, the “other” intentional tort claims included tortious interference with a business relationship, fraud, intentional infliction of emotional distress, and tortuous interference with a business relationship.

92 Travel All Over The World, Inc., 73 F.3d. at 1433; compare Fenn v. American Airlines, Inc., 839 F. Supp. 1218, 1223 (S.D. Miss. 1993) (finding claims for slander unrelated to airline “services”) with Chukwu v. Board of Directors of British Airways, 889 F. Supp. 12, 14 (D.Mass. 1995) (finding specific claims for slander related to airline “services”) and Pearson v. Lake Forest Country Day Sch., 262 Ill.App.3d 228 (1994) (same).

93 Id.

94 Id. at 1433.

95 Id. citing Morales, 504 U.S. at 383-85.

96 Id. at 1433.

97 Travel All Over The World, Inc., 73 F.3d at 1434..

98 Id.

99 Id. (citing Hodges, 44 F.3d at 336); see also DeTerra, 226 F. Supp. 2d at 277 (finding handicapped passenger’s claims for intentional and negligent infliction of emotional distress in connection with his denial of boarding on a particular flight was preempted); Chukwu v. Board of Directors British Airways, 889 F. Supp. 12, 13 (D.Mass. 1995) (concluding that plaintiff’s claim for intentional infliction of emotional distress based on the allegation that he had been improperly denied boarding on a flight was preempted by the ADA).

100 Morales, 504 U.S. at 384.

101 See Abdu-Brisson, 128 F.3d 77, 82 (2d Cir. 1997); DeBuono v. NYSA-ILA Medical and Clinical Serv., 520 U.S. 806, 816 (1997).

102 Abdu-Brisson, 128 F.3d at 82 (emphasis added); citing New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995); Boggs v. Boggs, 520 U.S. 833 (1997) (“We can begin, and in this case end, the analysis by simply asking if state law conflicts with the provisions of ERISA or operates to frustrate its objects).

103 Travelers Ins. Co., at 655 (Too expansive an interpretation of “relate to,” according to the Court, “would be to read Congress’s words of limitation as mere sham, and to read the presumption against pre-emption out of the law whenever Congress speaks to the matter with generality. That said, we have to recognize that our prior attempt to construe the phrase ‘relate to’ does not give us much help drawing the line here”).

104 See Duncan, 531 U.S. 1058 (cert denied).

105 Id.

106 See Morales, 504 U.S. at 378.

107 See Cipollone, 505 U.S. at 517 (quoting Malone, 435 U.S. at 505).

108 Smith v. America West Airlines, Inc., 44 F.3d 344, 346-47 (5th Cir. 1995).