United States: In Latest Massachusetts Skycap Case, First Circuit Holds That ADA Preempts Common Law Claims

Judy Nemsick is a Partner in our New York office

Resolving an issue of first impression, the U.S. Court of Appeals for the First Circuit in Brown v. United Airlines, Inc.1 affirmed the district court's holding that common law claims, like statutory claims, are subject to preemption under the Airline Deregulation Act (ADA).2 The ADA expressly preempts a state from enacting or enforcing a "law, regulation, or other provision having the force and effect of law related to a price route, or service of an air carrier..." In Brown, the court addressed whether the phrase "other provision having the force and effect of law" includes common law claims for unjust enrichment and tortious interference brought by a putative class of skycaps working at U.S. airports nationwide against airlines that had imposed a $2-per-bag fee for curbside check-in. The skycaps argued that the curbside fee improperly reduced their compensation because many passengers presumed the fee was a mandatory gratuity.

Previous Preemption Rulings

The opinion is the latest of multiple preemption decisions issued by various courts in the First Circuit, beginning with Travers v. JetBlue Airways, Inc., which had dismissed both state statutory and common law claims on preemption grounds.3 The Brown court recognized that a recent First Circuit opinion based on similar facts,DiFiore v. Am. Airlines, Inc.,4 had found preempted a group of skycaps' statutoryclaims under the Massachusetts Tip Law (Tip Law), but had not directly addressed the skycaps' common law claims.

The DiFiore court had determined that enforcement of the Tip Law "impermissibly regulate[d]" the airline's check-in baggage service along with the "price" it charges because the airline would have to alter the manner in which it provided and advertised curbside check-in to ensure that the baggage fee would not constitute a "service charge" owed to skycaps under the Tip Law.5 The DiFiore court, however, did not address preemption of the skycaps' common law tortious interference claim because the jury award on that claim was inherently premised on the jury's finding of a violation of the Tip Law.

Additionally, while the First Circuit's previous holding in Buck v. Am. Airlines, Inc.6 dismissed on ADA preemption grounds a variety of common law claims, including breach of contract and unjust enrichment, it made no distinction between claims rooted in statutory law and those in common law. As a result, the Brown court was left to squarely decide the issue.

First Circuit: Common Law, Like Positive Law, Sets Standards of Conduct

As a threshold matter, the First Circuit found "highly significant dictum" in Am. Airlines, Inc. v. Wolens,7 which recognized that the phrase "having the force and effect of law" was "most naturally read to refer to binding standards of conduct that operate irrespective of any private agreement." According to the court, state common law acts as a "set of binding standards of conduct" and, just like positive (i.e., statutory) law, it can "effectively strong-arm regulated entities to alter their business practices." Accordingly, following the expansive and pragmatic approach to ADA preemption advocated by the U.S. Supreme Court, most recently in Am.Trucking Inc v. City of Los Angeles,8 the First Circuit concluded that common law clearly has "the force and effect of law."

The purpose and history of the ADA preemption clause further supported the circuit court's ruling. Prior to amendments in 1994, the ADA preemption clause contained the terms "law, rule, regulation, standard or other provision" — terms that typically include the common law. With the amendment, Congress made clear that the revised language was not intended to effect any substantive change. Therefore, the First Circuit deduced that the "only plausible reading" is that the ADA continues to preempt common law rules and standards.

Common sense also mandated this result because common law claims create just as much uncertainty and inconsistency in the "carefully calibrated federal regulatory framework [of aviation] as can state legislatures enacting statutes or state agencies promulgating regulations." In affirmatively finding that "other provision" includes common law claims, the First Circuit joins the Seventh Circuit, which had squarely addressed the issue in United Airlines, Inc. v. Mesa Airlines,9 and is in accord with several other circuits that have found preemption of common law claims without expressly addressing the issue.10


The skycaps have moved for a stay of the First Circuit's mandate pending the decision by the U.S. Supreme Court in Northwest Airlines, Inc. v. Ginsberg, No. 12-462,11which will address whether a claim for breach of the implied covenant of good faith and fair dealing is preempted under the ADA. The skycaps contend that Ginsberg, like their case, hinges on whether common law claims are preempted by the ADA. A temporary stay was issued. United was permitted to, and did file, an objection to a longer stay, arguing that the decision in Ginsberg is unlikely to affect the skycaps' case and that a decision on whether the two cases are sufficiently related to warrant a delay here should be made by the Supreme Court, not the First Circuit. A ruling on the skycaps' motion is pending.


1 __ F.3d __, 2013 WL 3388904 (1st Cir. July 9, 2013).

2 49 U.S.C. §41713(b)(1).

3 No. 1:08-cv-10730-GAO, 2009 WL 2242391 (D. Mass. July 23, 2009); see also previous articles by us reporting on the skycaps cases: The Massachusetts Skycaps Cases: An Update on Recent Developments, Aviation Centerline, May 2010 at http://www.hklaw.com/publications/The-Massachusetts-Skycap-Cases-An-Update-on-Recent-Developments-05-10-2010/; District Splits on Express ADA Preemption in Massachusetts Skycap Cases, Aviation Centerline October 2009, at http://www.hklaw.com/publications/District-Splits-on-Express-ADA-Preemption-in-Massachusetts-Skycap-Cases-10-29-2009/.

4 646 F.3d 81, 82 (1st Cir.), cert. denied, 132 S. Ct. 761 (2011).

5 646 F.3d at 88.

6 476 F.3d 29, 32 (1st Cir. 2007).

7 513 U.S. 219, 229 n.5 (1995).

8 133 S. Ct. 2096 (2013).

9 219 F.3d 605, 607 (7th Cir. 2000).

10 Cf., e.g, Onoh v. Northwest Airlines, Inc., 613 F.3d 596, 599-60 (5th Cir. 2010); Weiss v. El Al Israel Airlines, Inc., 309 Fed. App'x 483, 484-85 (2d Cir. 2009) (per curiam); Koutsouradis v. Delta Air Lines, Inc., 427 F.3d 1339, 1344 (11th Cir. 2005) (per curiam).

11 See our July 30, 2013 article, U.S. Supreme Court Grants Certiorari on Significant Aviation Issues, at http://www.hklaw.com/publications/US-Supreme-Court-Grants-Certiorari-on-Significant-Aviation-Issues-07-30-2013/.

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