February 2011

California District Court Requests Input From the U.S. and DOT on Preemption Issues Involving Automated Check-In Kiosks

Holland & Knight Newsletter
Marc L. Antonecchia

Federal district courts continue to assess whether and to what extent the Air Carrier Access Act1 and the Airline Deregulation Act (ADA)2 preempt state statutes and common law claims relating to airline services provided to individuals with disabilities. A pending action in the Northern District of California3 is particularly noteworthy because the district court has requested the U.S. and the U.S. Department of Transportation (DOT) to provide input as to whether DOT comprehensively regulates the extent to which alternative facilities are made available to blind individuals at airports in the United States from the ticketing section through the departure/arrival gates. This input will likely have a significant effect on the outcome of the litigation because in dispute is whether the defendant airline's use of a certain type of automated kiosk violates California's anti-discrimination statutes or whether such state law claims are expressly preempted by the ADA or impliedly preempted by the ACAA regulations.

Nature of the Dispute

The National Federation of the Blind and three blind individuals commenced a class action on behalf of an asserted "Kiosk Class," alleging that United Airlines ("United") violated California's Unruh Civil Rights Act and Disabled Persons Act because it uses automated ticketing kiosks in California airports. The kiosks are inaccessible to blind customers because they use visual computer screen prompts and touch-screen navigation without translating the prompts into a medium accessible to the blind, such as audio output. According to the plaintiffs, the kiosks allow passengers to access information about flights, check-in for flights, print tickets and boarding passes, select seats, upgrade to business or first class, check baggage and perform other transactions relevant to air travel. The plaintiffs allege that technology exists for the kiosks to be accessible to the blind but that United has refused to employ such technology, which includes an audio interface, tactile keyboard, or interactive screen reader technology for use with touch screens.

In December 2010, United filed a motion to dismiss on the grounds that (1) the Air Carrier Access Act (ACAA) and DOT's implementing regulations impliedly preempt, through field preemption4 or conflict preemption,5 claims relating to access by people with disabilities to ticketing, boarding and baggage-handling services; (2) the Airline Deregulation Act expressly preempts any state law claims that relate to a service of an air carrier, including the airline's check-in kiosk services; and (3) the complaint does not allege a violation of either California's Unruh Civil Rights Act or Disabled Persons Act.

Field Preemption Under the ACAA

United asserts that the ACAA occupies the field of nondiscrimination against disabled passengers in all relevant aspects of commercial air travel, and that regulations adopted by DOT expressly address automated kiosks and require carriers to provide equivalent service to customers unable to use them. United cites to 14 CFR § 382.57, which provides:

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).

United contends that DOT considered whether the final rule should require automated kiosks to be accessible to passengers with disabilities, but chose not to require kiosk accessibility because of cost and technical issues.6 As such, United argues that the regulations occupy the subject area of the complaint and, therefore, that an airline satisfies its obligations under the law by complying with these regulations.

The plaintiffs assert that there is no field preemption because DOT's final rule is described in the Federal Register as an "interim measure" and because DOT plans to issue a notice of proposed rulemaking in July 2011 to "seek information from the public on ... whether automated kiosks operated by carriers in airports and elsewhere should be required to be accessible" under the ACAA.7 According to the plaintiffs: "Because the regulations are unfinished in this regard means that the federal scheme is anything but exclusive for purposes of field preemption."8

Conflict Preemption Under the ACAA

As to conflict preemption, United contends that the state law claims "stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the federal law."9 United again points out that DOT chose not to enact a regulation requiring the accessibility of automated kiosks because of cost and technical issues, and that applying California law would override DOT's judgment. The plaintiffs stress that DOT did not reject such a requirement, but rather announced that it would solicit further comment on cost and technical issues. The plaintiffs cite the interim measures as an indication "that the regulations are not pervasive for purposes of conflict preemption."10

Preemption Under the Airline Deregulation Act

United separately asserts that the Airline Deregulation Act expressly preempts regulation of airline services, arguing that the U.S. Supreme Court has made clear that the phrase "services of an air carrier" covers a broad field that includes more than "the frequency and scheduling of transportation" or "the selection of markets to or from which transportation is provided."11 United argues that an automated kiosk is a "service of an air carrier" because it "is unambiguously part of a provision of labor from United to its passengers and is a boarding procedure."12

The plaintiffs contend that the Ninth Circuit's more limited definition of "service" controls and has not been overruled by the Supreme Court. The Ninth Circuit has specified that "'service" does not refer to "assistance to passengers in need" and reasoned that interpreting "service" any more broadly than the provision of air transportation from one place to another would "ignore the context of its use; and, it effectively would result in the preemption of virtually everything an airline does."13 Alternatively, the plaintiffs argue that even if kiosks are a service, the limited effect that the California state statutes have on United's provision of kiosks does not rise to the level Congress intended to preempt. The plaintiffs note that the cost of the kiosks is too small compared to the revenue United enjoys from operating in California to invoke preemption.14

The District Court's Request for U.S. and DOT Input

On February 7, 2011, the district court issued a Request for Input seeking the views of the U.S. and DOT on the following issues: (1) whether 14 C.F.R. § 382.57 preempts application of California state law as to requiring blind-accessible kiosks at airports; and (2) whether the Airline Deregulation Act preempts state anti-discrimination laws related to airline service as to blind patrons regarding kiosks. The Court stated that it "is interested in whether DOT comprehensively regulates the extent to which alternative facilities are made available to blind individuals at airports in the United States from the ticketing section through the departure/arrival gates." The Court requested that the U.S. and DOT respond within 45 days of the date of the request.

By letter to the Court dated February 17, 2011, the United States Attorney for the Northern District of California stated that on or before March 24, 2011, it would advise the Court of the views of the U.S. and DOT, if any, on the preemption issues or, if necessary, how long it will take to respond to the request.

The input from the U.S. and DOT will be significant because, at least as requested by the Court, it should address the preemption issues that are at the root of United's arguments. The statement also may provide insight on the Notice of Proposed Rulemaking (NPRM) presently expected to be published in July 2011 that will address whether automated kiosks operated by carriers in airports and elsewhere must be accessible to blind passengers.

Centerline will provides updates on this litigation and the NPRM as they become available.


1 Recent decisions addressing preemption in the context of the ACAA regulations have reached somewhat inconsistent conclusions. Compare Elassaad v. Independence Air, Inc., 613 F.3d 119, 131-132 (3d Cir. 2010) (ACAA regulations do not control the standard of care from the standpoint of airline safety); Hodges v. Delta Air Lines, Inc., No. C09-1547-BAT, 2010 WL 5463832, at *4 (W.D. Wash. Dec. 29, 2011) (negligence claim relating to movement of a disabled passenger from an airplane seat to a wheelchair not regulated by ACAA) with Gilstrap v. United Air Lines, Inc., No. 2:10-cv-06131-JHN-JCx (C.D. Cal. Jan. 21, 2011) (ACAA regulations impliedly preempt state law claims arising from wheelchair assistance while traveling through the terminal); Johnson v. Northwest Airlines, Inc., No. C 08-02272 VRW, 2010 WL 5564629, at *5-6 (N.D. Cal. May 5, 2010) (ACAA regulations specify a carrier's obligations to provide disabled passengers with assistance and therefore preempt the state law standard of care); Russell v. Skywest Airlines, Inc., No. C 10-0450, 2010 WL 2867123, at *4-5 (N.D. Cal. Aug. 11, 2010) (ACAA regulations provide the applicable federal standard of care and preempt state law claims of passengers with visual impairments).

2 See, e.g., Seymour v. Continental Airlines, Inc., No. 09-526-ML, 2010 WL 3894023 (D.R.I. Oct. 4, 2010) (plaintiff's claims under California's Unruh Civil Rights Act and Disabled Persons Act held preempted by the ADA because boarding policies and procedures constitute "services" under the ADA).

3 National Federation of the Blind et al v. United Airlines Inc., Docket No. C 10-04816 (WHA) (N.D. Cal.).

4 "Field preemption" occurs "where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992).

5 "Conflict preemption" applies where a state law creates an obstacle to achieving Congress's purpose in enacting a federal law. Id.

6 See Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 27614 (May 13, 2008).

7 See Report on DOT Significant Rulemakings, November 2010, #71.

8 Plaintiffs' Mem. of Points and Authorities in Support of Opposition ("Plaintiffs' Mem."), at p. 15.

9 United's Mem. of Points and Authorities in Support of Motion to Dismiss ("United's Mem."), at p. 6-7 (quoting Montalvo v. Spirit Airlines, Inc., 508 F.3d 464, 470 (9th Cir. 2007)).

10 Plaintiffs' Mem., at p. 15.

11 United relies on Rowe v. New Hampshire Motor Transport Ass'n, 552 U.S. 364 (2008), in which the Supreme Court construed a federal preemption provision governing the regulation of motor carriers.

12 United's Mem., at p. 8.

13 Plaintiffs' Mem., at p. 5 (quoting Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1266 (9th Cir. 1998) (en banc)).

14 Aside and apart from the preemption issue, United contends that California's Unruh Civil Rights Act and Disabled Persons Act do not apply because neither statute requires identical treatment of passengers with disabilities. United further contends that neither of these statutes require modification of or alteration of United's kiosks. The plaintiffs, however, argue that they are not afforded the full and equal access to which they are entitled under the statutes because they cannot quickly and independently move through the check-in process as do other travelers, but must either wait for a United employee to perform the transactions or alternatively provide sensitive information to sighted strangers in order to conduct the transactions.

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