Split Widened: What Constitutes a Service Under the Airline Deregulation Act?

Per Air Transp. Ass’n of Am. v. Cuomo, No. 07-5771-cv, *9-13 (2d Cir. Mar. 25, 2008)

Ever sat inside a plane on the runway for hours on end? Not a pleasant experience. If you have traveled out any of New York City’s three major airports, that feeling is certainly familiar; they are three of the four worst major airports in terms of on time performance. New York State passed the Passenger Bill of Rights in order to ameliorate the delay – it requires airlines to provide adequate food, drinking water, fresh air, lights, and sanitary services to passengers who have been delayed on the tarmac for more than three hours. The Air Transport Association, the representative organization of the airline industry, brought suit seeking declaratory and injunctive relief, arguing that the Passenger Bill of Rights was preempted by the federal Airline Deregulation Act and violated the dormant Commerce Clause.

The Airline Deregulation Act expressly preempts any state law or regulation concerning “a price, route, or service of an air carrier.” This Second Circuit panel holds that the Passenger Bill of Rights concerns the services of an air carrier. “Although this Court has not yet defined ‘service’ as it is used in the ADA, we have little difficulty concluding that requiring airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays relates to the service of an air carrier.”

In so holding, the panel recognizes that it is widening a circuit split. The CAs 3,9 have construed ‘service’ more narrowly – excluding any amenities and limiting ‘service’ to mean the prices, schedules, and airports served by the airline. CAs 1,4,5,7,11 (and now 2) all take a broader view of ‘service,’ defining it to include any anticipated provision of l>abor from the airline to its passengers.

Additional coverage from Wait a Second!. While that entry contends that this case is a “perfect” cert candidate, I disagree. In dicta, the panel noted that the Federal Aviation Act of 1958 may preempt the entire field of airline regulation. On this point, the CAs 3,9 are in line with the other circuits. Moreover, the cases in which the CAs 3,9 took their narrow view of the express preemption clause concerned personal injury torts, which even this decision recognizes might not be preempted. Although several states have proposed similar Bills of Rights, the Department of Transportation has requested comment on regulations setting a similar national standard, making this case unlikely to be repeated. Finally, I think that the Court may decide to give its recent preemption decisions (including one relied on in this case - Rowe) time to percolate through the circuits before taking up a case on the issue.