March/April 2011

U.S. Files Statement of Interest in California District Court Litigation Concerning Preemption Issues Involving Automated Check-In Kiosks

Holland & Knight Newsletter
Marc L. Antonecchia

The Northern District of California is adjudicating whether United Airlines' 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 Airline Deregulation Act (ADA) or impliedly preempted by the Air Carrier Access Act (ACAA).[10] (See the February 2011 issue of Centerline.) On April 8, 2011, the United States filed a Statement of Interest asserting that the plaintiffs' state law claims are (1) field preempted by the ACAA; (2) conflict preempted by the ACAA; and (3) expressly preempted by the ADA.1

Field Preemption by the ACAA

The Statement of Interest asserts that the issuance of "pervasive regulation" by the Department of Transportation (DOT) is a decisive factor for the Ninth Circuit's consideration of field preemption. In this instance, the U.S. agrees with United's position and points to the DOT's issuance of two regulations pursuant to the ACAA that are relevant to the case. First, the 1990 final rule, Nondiscrimination on the Basis of Handicap in Air Travel,2 provides:

[a] carrier shall not, directly or though contractual, licensing, or other arrangements ... [e]xclude a qualified handicapped individual from or deny the person the benefit of any air transportation or related services that are available to other persons, even if there are separate or different services available for handicapped persons except when specifically permitted by another section of this part.

Second, the 2008 final rule of the same name3 provides:

[a]s 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 art the check-in counter).

The U.S. maintains that DOT has "sought to avoid a patchwork of state regulation and to provide consistent and predictable treatment and service" by implementing regulations applicable to U.S. and foreign air carriers, most notably the 2008 final rule. It points to three recent rulings by California district courts finding that ACAA nondiscrimination regulations are extensive and imply an intent by Congress to preempt state law.4

Conflict Preemption by the ACAA

The Statement of Interest agrees with United's position that mandating airlines to use kiosks accessible to the blind in California in the manner sought by the plaintiffs "would upset the balance DOT has struck regarding the costs and technical feasibility of making kiosks accessible in the manner desired by Plaintiffs." The U.S. points to the fact that DOT, "at least for now," has declined to require kiosks in the manner sought by the plaintiffs but recognizes the existence of unresolved concerns about costs and technical issues: "The proposed publication reflects the agency's belief that, in light of advances in technology, modification of the current rule, including possible design standards for kiosks, may well be appropriate."

The Statement of Interest recognizes that the 2008 final rule is an interim measure and that DOT plans to seek further comment about kiosks in a supplemental notice of proposed rulemaking (SNPRM) scheduled for publication by September 30, 2011. But at the same time, it argues that mandating the installation of kiosks as sought by the plaintiffs prior to DOT evaluating the costs and technical feasibility of such a requirement would be "an obstacle to the accomplishment and execution of the full purpose and objectives of Congress."

Express Preemption by the ADA

Again agreeing with United, the Statement of Interest asserts that the Supreme Court's holding in Rowe v. New Hampshire Motor Transport Ass'n,5 creates a conflict with the Ninth Circuit's narrow definition of "service"6 because Rowe held that the "essential details" of a carrier's transportation system are "services" for purposes of the ADA. The U.S. view is that kiosks fall under the broader definition of "service"7 contemplated by the Supreme Court because the kiosks are an "essential detail" of an airline's system of transporting passengers from one location to another and because airlines compete by providing customers with access to information available via the kiosks.8


On April 11, 2011, the District Court issued a further Order requiring the plaintiffs and United to submit a response to the Statement of Interest no later than April 18, 2011. We expect that the plaintiffs' response will focus on highlighting the interim nature of the final rule cited by both United and the U.S., and refuting the applicability of Rowe. Centerline will continue to provide updates on this litigation and the SNPRM due to be published in September 2011.

1 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 violated California's Unruh Civil Rights Act and Disabled Persons Act by using automated ticketing kiosks in California airports 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.

2 The Statement of Interest was filed pursuant to the Court's February 7, 2011 Order requesting the input of the United States and DOT.

3 55 Fed. Reg. 8008, 8047 (March 6, 1990) (codified at 14 C.F.R. § 382.7(a)(3)(1990)).

4 14 C.F.R. § 382.57.

5 See Johnson v. Northwest Airlines, Inc., No. C 08-02272 VRW, 2010 WL 5564629 (N.D. Cal. May 5, 2010) (ACAA regulations specify a carrier's obligations to provide disabled passengers with assistance); Russell v. Skywest Airlines, Inc., No. C 10-0450, 2010 WL 2867123 (N.D. Cal. Aug. 11, 2010) (ACAA regulations preempt state law claims of passengers with visual impairments); 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).

6 552 U.S. 364 (2008). In Rowe, the Supreme Court construed a federal preemption provision (similar to the ADA's) governing the regulation of motor carriers.

7 Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998) ("service" refers to the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo or mail).

8 Alternatively, the U.S. asserts that even if the Court relied on the Charas definition of "services," the plaintiffs' claims are still preempted by the ADA because Charas involved passengers seeking compensation for past tortious conduct rather than a challenge to a state statute creating an affirmative requirement as in Rowe. The prospective nature of the plaintiffs' claims distinguish them from those preempted by Charas.

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