United States: First Circuit Affirms Dismissal Of Parental Child Abduction Case On ADA Preemption Grounds

Judy Nemsick is a Partner in our New York office.

In a significant decision for the airline industry, the U.S. Court of Appeals for the First Circuit affirmed the district court's summary judgment dismissal of common law tort claims against an airline arising out of a parental kidnapping of minor children. In Bower v. Egyptair Airlines Co.,1 the Court of Appeals held that the plaintiff's claims were preempted by the Airline Deregulation Act (ADA),2 which prohibits states from enacting or enforcing laws "related to a price, route, or service of an air carrier." The Bower court determined that the plaintiff's claims directly related to an airline's ticketing, boarding and check-in services, and would unfairly subject the airlines to a patchwork of state law requirements in contravention of the ADA's deregulatory objectives.

Bower is particularly important to airlines as it recognizes that in the highly regulated field of aviation, only the federal government may dictate a uniform approach to an airline's obligations, if any, when faced with circumstances of a potential parental abduction. The decision confirms the unworkable situation that results in enforcing laws that would require airlines to investigate or enforce the alleged custodial rights of parents traveling with children. Indeed, the federal government has acknowledged that airlines, as private entities, lack the authority to verify or enforce custody or court orders3 and has not enacted any regulations to address the issue to date. As the first appellate determination to find ADA preemption of state law tort claims relating to a parental kidnapping, the decision will likely discourage future lawsuits. Airlines are well served to take note of this First Circuit precedent and its persuasive value in other courts.

District Court's Dismissal Not Premised on ADA Preemption

The case arose from the kidnapping of two minor children by their Egyptian mother, who lived in Massachusetts and shared physical custody with her American ex-husband. While the children were in her custody, the mother drove to John F. Kennedy International Airport in New York, purchased one-way tickets to Cairo, and presented Egyptian passports for travel.

The children's father sued the airline individually and on behalf of the children, contending that the airline interfered with his custodial rights and was negligent in allowing the mother and children to board. The father argued that the airline had a duty to investigate the mother's right to leave the country with the two children based on alleged "red flags" — namely, the mother's cash purchase of three one-way, business class tickets, the lack of entry visas on the children's passports, different last names of the mother and her children, and the airline's failure to check for an I-94 form, a portion of which is provided to the airline upon departure. 

The district court dismissed the claims, holding that the airline did not owe a duty to investigate to the plaintiff. The district court notably had rejected the airline's ADA preemption argument, finding that although the claims implicated airline "services," they were more akin to personal injury tort claims that are generally not preempted and are considered too tenuously related to the ADA's deregulatory goals. The Court of Appeals,disagreed, as explained below.

Plaintiff's Claims Relate to Boarding, Ticketing and Check-In Services

After confirming the existence of federal diversity jurisdiction,4 the court addressed the plaintiff's claim that the district court erred in finding no duty to investigate by the airline. The Court of Appeals affirmed the grant of summary judgment, but on ADA preemption grounds.5 Consistent with U.S. Supreme Court and First Circuit precedent, the court applied a broad definition of the term "service" to hold that plaintiff's claims, which challenged the airline's ticketing, check-in and boarding procedures, were sufficiently related to an airline "service" under the ADA.

The court notably rejected the argument that an airline's decision to allow a passenger to board is too tenuously related to the ADA's deregulatory goals. The district court had found that the claims here resembled personal injury tort claims and the plaintiff's success would only have an incidental impact on airline operations and not place any one airline at a competitive disadvantage. The Court of Appeals soundly disagreed, distinguishing this case from common personal injury matters that are generally not preempted. 

Unlike, for example, Gill v. JetBlue Airways Corp., a personal injury suit that implicated boarding procedures, the Bower plaintiff did not suffer a physical injury. Additionally, unlike the standard duties of care implicated in run-of-the-mill personal injury cases that have little effect on an airline's day-to-day operations, the plaintiff's claims here would frustrate the ADA's objectives and have a regulatory effect on airline procedures. Were the court to hold that the airline violated a common law duty, it "would be imposing a fundamentally new set of obligations on airlines under the rubric of 'duty of care.' These would include heightened and qualitatively different procedures for the booking and boarding of certain passengers on certain flights."

Moreover, the court confirmed that the ADA preempts laws that regulate airline operations, regardless of the cost to the airline. What is relevant is whether the regulation imposes on the airline service obligations beyond what the market requires. 6The court rejected plaintiff's argument that his claims do no more than apply general tort principles to the airlines. Rather, as held by the court, "[u]nlike dealing with drunks, taking general care to avoid deplaning injuries, or preventing gambling/prostitution rings from being run out of their airport lounges, plaintiff's claims would impose duties on the airlines beyond what is expected of nearly every other business."

Preemption Prevents a "Patchwork" of State Regulations

Bower notably recognized the untenable and burdensome result if plaintiffs were to prevail. As stated by the First Circuit, international airlines departing from Massachusetts "would be forced to institute investigative procedures, define 'red flags,' and develop protocols to deal with international child abductions." Such duties would likely differ from airport to airport. The lack of a uniform approach further underscores the need for preemption. In sum, the court concluded that federal regulatory action would be more preferable than a "state-by-state (and potentially, jury-by-jury) determination of what, exactly, airlines must do when confronted with a possible abduction attempt."    

Footnotes

1__ F.3d __, 2013 WL 5452805 (1st Cir. Oct. 2, 2013). The author, with assistance from Sarah G. Passeri, prepared an amicus brief in support of the airline that argued for ADA preemption.  

2 49 U.S.C. §41713(b)(1).

3 See GAO Report to the Subcommittee on Aviation, Committee on Transportation and Infrastructure, H.R., GAO-11-602 (June 2011), available at http://www.gao.gov/new.items/d11602.pdf H.R., GAO-11-602 (June 2011).

4 On appeal, the plaintiff challenged the district court's finding of federal diversity jurisdiction, contending that the mother's domicile was the same as her children's (i.e., Massachusetts) because a fugitive's last-known domicile is the last pre-flight residence. The court disagreed, holding that it was undisputed that the mother had established a new legal domicile in Egypt because she was physically present there and intended to remain there with her sons. Thus, she satisfied the "presence plus intent" rule established by federal law.  Only when the current whereabouts of a fugitive are unknown does a court base domicile on the last domicile before fleeing. Additionally, the claims brought on the children's behalf did not defeat diversity because the children's domicile is deemed the same as that of the parent with legal custody —which, here, is the father's domicile of Massachusetts. 

5 The First Circuit applies a two-part analysis for ADA preemption, deciding first whether the  claim is based on a state law, regulation or other provision having the force and effect of law (the "mechanism" question), and second, whether it is sufficiently related to an airline price, route, or service (the "linkage" question). On the mechanism issue, the court had no issue finding that common law claims qualify as laws having the force and effect of law under the ADA. See Brown v. United Airlines, Inc., 720 F.3d 60 (1st Cir. 2013).

6 Citing Rowe v. N.H. Motor Transport Ass'n, 552 U.S. 364 (2008).

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