line companies that operate within their boundaries and what,
if any, rights airline passengers should be able to assert after
they board their flights.
The Federal Airline Deregulation Act of 1978
The Federal Airline Deregulation Act was passed in 1978 in an
effort to limit government “regulation of the airline industry after
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.’” 5 Prior to the passage
of the Act, all domestic interstate air transport was under the authority of the Civil Aeronautics Board, a government agency that
approved and set airline rates, routes, and operating procedures.
One effect of that deregulatory effort of the Federal Air-
line Deregulation Act was to preclude states from enforcing
any law or provision that affects the price or route of an air-
line carrier. The law’s preemptive effect is expressly noted in
§ 41713(b)( 1), which provides:
(b) Preemption.--( 1) 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 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.A. § 41713(b)( 1).
Historically, this provision has been read quite broadly. In
Morales v. Trans World Airlines, Inc., 6 for example, the U.S. Supreme
Court found that state consumer protection laws regarding advertising were “related to” the business of air transportation and,
therefore, preempted by the federal law. Going further, in Brown v.
United Airlines, 7 the Court of Appeals for the First Circuit rejected
the argument that even common law claims, such as unjust enrichment and tortious interference, could be exempted from the
Airline Deregulation Act’s preemptive effect. As such, as a general matter, state courts and state legislatures face an uphill battle
when seeking to reign in airline companies through state law.
Are passenger rights states’ rights?
Washington’s proposed Passenger Bill of Rights for airline passengers, however, provides a unique challenge to the traditional
line of judicial thinking regarding federal authority over interstate airline travel.
The U.S. Supreme Court has established that if the federal
government seeks to pre-empt state law “in a field which the
States had traditionally occupied,” any pre-emption analysis
must start with the presumption that “the historic police powers
of the States were not to be superseded by [a] Federal Act unless
that was the clear and manifest purpose of Congress.” 8
One of the most well-recognized police powers of the states
has always been the “health and safety of their citizens.” 9 Indeed, because of the historically clear state authority in this area,
there is a “presumption that state or local regulation of matters related to health and safety [are] not invalidated under the
Supremacy Clause’” or pre-emption doctrines. 10 As such, the
protections sought by a “Passenger Bill of Rights” — food, water,
and medical attention during extended delays — might reasonably be considered a “health and safety” provision that is within
the scope of traditional state authority and thereby escape the
pre-emptive effect of the Federal Airline Deregulation Act.
In fact, a similar argument was adopted by the District Court
for the Northern District of New York when considering a state-law Passenger Bill of Rights in Air Transport Association of
America, Inc. v. Cuomo, which held that “the policy goal of the
[the Federal Airline Deregulation Act] was to increase competition . . . the provisions of the Passenger Bill of Rights are not . . .
issues [that affect competition between airlines]; they are consumer health and safety issues.” 11
The future of the Washington Passenger Bill of
That reasoning in Cuomo was ultimately rejected by the Second
Circuit Court of Appeals, which found that § 41713(b)( 1) expressly pre-empts state law regarding the “services” provided
by an airline which — read broadly — can include “provision of
labor from the airline to its passengers and encompasses matters such as boarding procedures, baggage handling, and food
and drink — matters incidental to and distinct from the actual
transportation of passengers.” 12
But other circuits, including the Ninth, have found that
the term “services … should, instead, be limited to ‘the prices
scheduled, origins and destinations of the point-to-point transportation of passengers, cargo, or mail’ but not the ‘provision
of in-flight beverages, personal assistance to passengers, the
handling of luggage, and similar amenities.’” 13
As such, a cleverly-worded and argued Passenger Bill of
Rights for travelers in Washington that is expressly limited in
its application to only “non-services” might fare better against
a pre-emption challenge in federal court. NWL
MICHAEL W. MEREDITH is a recent graduate of the University of Washington School of Law and an associate attorney
at the Seattle-based firm of Keller Rohrback L.L.P., where he
practices in complex litigation. He can be contacted at 206-
428-0615 or email@example.com.
1. Akiko Fujita, “Airline Passenger ‘Bill of Rights’ Proposed for Washington,” KOMO News (2008), available: http://komonews.com/news/local/
4. Portland Business Journal, “Alaska Airlines to Oppose U.S. Passenger ‘Bill of Rights’ Mandate (2007),” available; www.bizjournals.com/
5. Air Transp. Ass’n of Am., Inc. v. Cuomo, 520 F.3d 218, 222 (2d Cir. 2008).
6. 50 U.S. 374 (1992).
7. 720 F.3d 60 (2011).
8. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700
9. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347, 121 S.Ct. 1012, 148
L.Ed.2d 854 (2001).
11. Air Transp. Ass’n of Am., Inc. v. Cuomo, 528 F. Supp. 2d 62, 67 (N.D.N. Y.
2007), rev’d and remanded, 520 F.3d 218 (2d Cir. 2008).
12. Air Transp. Ass’n of Am., Inc. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008).
13. Northwest Airlines, Inc. v. Duncan, 531 U. S. 1058, 121 S.Ct. 650, 148 L. Ed.2d
571 (2000) (quoting Duncan v. Northwest Airlines, Inc., 208 F.3d 1112,
1114-1115 (9th Cir.2000)).