United States Court of Appeals,

Fifth Circuit.

No. 91-6070.

Charles E. Gene SMITH and Joan Smith, et al., Plaintiffs- Appellants,

v.

AMERICA WEST AIRLINES, INC. and Connie Lynn Weaver, Defendants- Appellees.

Feb. 15, 1995.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This appeal presents the question whether 49 U.S.C.App. §

1305(a)(1), the express preemption section of the Airline

Deregulation Act of 1978, preempts a state law claim for negligence

and gross negligence relating to the airline's alleged failure to

prevent a would-be hijacker from boarding an airplane as a

passenger. The district court, relying on our then-binding

precedent, held that the plaintiffs' causes of action were

preempted and dismissed the complaint. Our analysis of the

preemptive scope of § 1305(a)(1) has significantly changed in the

companion en banc case Hodges v. Delta Airlines, Inc., No. 91-6037,

--- F.3d ---- (5th Cir. 1995), decided today. Reviewing this case

in light of Hodges, we reverse the dismissal.

I. BACKGROUND

On January 16, 1990, America West flight 727 was hijacked en

1 route to Las Vegas from Houston. The hijacker forced the pilot to

land the aircraft in Austin, Texas, so that it could be refueled

and flown to Cuba. At the Austin airport, police overpowered the

hijacker and placed him under arrest.

Passengers on the airplane brought a lawsuit in state court

against America West and Connie Lynn Weaver claiming that the

defendants were negligent in permitting the hijacker to board the

aircraft. The defendants removed the action to federal court and

promptly moved to dismiss on the ground that the plaintiffs' state

law tort claims were preempted by the Airline Deregulation Act of

1978 (ADA), 49 U.S.C.App. § 1301 et seq., and that no implied cause

of action existed under the Federal Aviation Act. The district

court granted the defendants' motion and dismissed the complaint.

The plaintiffs appeal.1

The petition here alleges several acts or omissions of

negligence and gross negligence by America West and Weaver. These

allegations generally accuse the airline and its local supervisor

of failing to warn or protect ticketed passengers against hazards

which were known or should have been known to them by allowing Jose

1 The Smiths preliminarily contend that the federal court lacked removal jurisdiction over this case, in which no federal claim or cause of action appeared on the face of the well-pleaded complaint and in which both they and the America West supervisor were Texas citizens for diversity purposes. If those were the only salient facts relevant to diversity jurisdiction, appellants might well be correct. Appellants omit to state, however, that America West entered Chapter 11 bankruptcy protection three weeks after the case was removed to federal court, and America West shortly afterward filed a notice of supplemental removal based on

and Bankruptcy Rule 9027. Appellants have never contested this fully defensible basis of federal jurisdiction.

2 Manuel Gonzales-Gonzales to board Flight 727 at Houston

Intercontinental Airport. The plaintiffs allege that America West

and Weaver negligently failed to use boarding practices stringent

enough to prevent Gonzales-Gonzales from boarding the aircraft,

failed to train their employees and failed to warn the passengers,

as a result of which they were endangered and injured.

II. DISCUSSION

In Hodges, this court analyzed congressional intent in

preempting any state law, rule, regulation standard or other

provision "relating to rates, routes or services" of any air

carrier. Construing this language in light of pre-existing

statutory usage, the interpretation of regulatory agencies that had

or have jurisdiction over the airline industry, and the intent of

the ADA, this court concluded that "services" include:

Elements of the air carrier service bargain ... items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself.

Hodges, --- F.3d at ----. This court also reiterated its holding

in O'Carroll v. American Airlines, Inc.,

(5th Cir.),

cert. denied,

,

,

(1989), in which a passenger's suit for wrongful eviction from a

flight because of his alleged intoxication was held preempted by §

1305(a)(1).

America West asserts that this case, a suit for wrongful

boarding of a passenger who should have been evicted, is the

converse of O'Carroll. In each case, America West contends,

enforcement of state law claims against the carrier would "result

3 in significant de facto regulation of the airlines' boarding

practices ..." Hodges, --- F.3d at ----. Consequently, the claims

asserted here by appellants are "related to" the airline's services

and would have the "forbidden significant effect" that compels §

1305(a)(1) preemption. Morales v. Trans World Airlines, Inc., ---

U.S. ----, ----,

,

(1992).

Appellants construe O'Carroll as more narrowly focusing on the

airline's economic regulations, while the instant case, by

contrast, seeks redress for the airline's failure to insure the

safety of its passengers. See Margolis v. United Airlines, Inc.,

(E.D.Mich. 1993). Appellants contend that

lawsuits for negligent rendition of services are not preempted by

§ 1305(a)(1).

Applying the Hodges framework, it first appears that the

scope of § 1305(a)(1) preemption will not be affected by 49

U.S.C.App. § 1371(q), which requires airlines to carry insurance to

cover personal injury arising out of the operation or maintenance

of aircraft. Neither the alleged failure of America West's ticket

agent to perceive that the hijacker was deranged when she sold him

a ticket nor appellants' other allegations of negligence are part

of the operation or maintenance of aircraft.

Appellants' claims are thus preempted only if they "relate

to" "services" within the scope of § 1305(a)(1). We conclude that

they do not relate to preempted services and that this case is not

simply the converse of O'Carroll. As explained in Hodges, §

1305(a)(1) assured the economic deregulation of the airlines by

4 rendering them immune from rate and service regulation by the

states after the demise of federal regulation. Neither the

language nor history of the ADA implies that Congress was

attempting to displace state personal injury tort law concerning

the safety of the airline business. The Supreme Court counsels

that courts should not lightly infer in federal actions an attempt

to preempt traditional state police powers. California v. ARC

America Corp.,

,

,

(1989). Under these circumstances, it is reasonable to

interpret the "service" of boarding to be limited to economic

decisions concerning boarding, e.g., overbooking or charter

arrangements, and contractual decisions whether to board particular

ticketed passengers.

Consistent with this line of reasoning, O'Carroll's claim was

preempted under § 1305(a)(1). His suit for wrongful eviction from

a flight involved an alleged breach of the airline's duty to

transport the plaintiff. If O'Carroll's judgment had remained

intact, it would interfere with the economic deregulation of

airline services by imposing a state-law-based duty to transport

ticketed passengers.

The Smiths' claim issues from a different perspective that has

nothing to do either with the airlines' economic practices

regarding boarding or with the boarding practices that America West

applied to the Smith appellants. Instead, the Smiths' claim is

that the safety of their flight was jeopardized by the airline's

permitting a visibly deranged man to board. If appellants

5 ultimately recover damages, the judgment could affect the airline's

ticket selling, training or security practices, but it would not

regulate the economic or contractual aspects of boarding. Any such

effect would be "too tenuous, remote or peripheral" to be preempted

by § 1305(a)(1). Morales, --- U.S. at ----,

(quoting Shaw v. Delta Airlines, Inc.,

, 100 n. 21,

, 2901 n. 21,

(1983)).

As this discussion intimates, we hold that the Smiths' claim

is not preempted, but we do not accept the broadest version of

their argument, which is that a claim for the negligent rendition

of services by an air carrier is not preempted. This argument was

rejected in Morales, which held that state laws of general

applicability are preempted whenever they "relate to" the subject

of federal legislation. --- U.S. at ----,

. The

real question, is the scope of "services" that were deregulated:

those services include boarding practices in their economic or

contractual dimension but not insofar as the safety of the flight

is involved.2

For these reasons, the Smiths' claims are not preempted by §

1305(a)(1), and the case is REVERSED and REMANDED for further

proceedings.

E. GRADY JOLLY, Circuit Judge, specially concurring:

In this case, the majority modifies its interpretation of the

2 As in Hodges, we do not decide whether Federal Aviation Administration safety regulations may exert some preemptive effect over the Smith appellants' claims. See Hodges, --- F.3d - ---, n. 13.

6 ADA preemption provision announced today in Hodges v. Delta

Airlines to differentiate further between the economic aspects and

the safety aspects of a service. I do not think this distinction

is defensible in the light of American Airlines v. Wolens,

, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----. American

Airlines determined that the term "service" in the preemption

provision includes all services, both essential and unessential.

, --- U.S. at ----, --- S.Ct. at ----. Given that fact,

it is likely that the Supreme Court would view the term "service"

as encompassing claims relating to the safety as well as the

economic or contractual aspects of a service. Nonetheless, for the

reasons stated in my special concurring opinion in Hodges, I concur

in the judgment of the court.

PATRICK E. HIGGINBOTHAM, Circuit Judge with whom EMILIO M. GARZA, Circuit Judge, joins dissenting:

In Hodges v. Delta Airlines, Inc., --- F.3d ----, ---- (5th

Cir. 1995) (en banc), I explained that I would test the preemptive

reach of § 1305(a)(1) of the Airline Deregulation Act of 1978 as

follows:

The first inquiry is whether the claim, with regulatory effect, relates to "rates, routes or services." 49 U.S.C.App. § 1305(a)(1). If the claim relates to services, then it is preempted unless it also results from "the operation or maintenance of aircraft." Id. § 1371(q)(1). If there is doubt as to whether the claim results from the operation or maintenance of the aircraft, that doubt is to be resolved in favor of the operation or maintenance category.

I am persuaded that the Smiths' claim is preempted. A claim

alleging that an airline negligently failed to prevent a visibly

deranged passenger, holding an otherwise valid ticket, from

7 boarding the aircraft relates to boarding procedures, which are

inextricably part of providing air travel services. The next

inquiry then is whether this claim results from the operation or

maintenance of the aircraft. As the majority indicates, "[n]either

the alleged failure of America West's ticket agent to perceive that

the hijacker was deranged when she sold him a ticket nor

appellants' other allegations of negligence are part of the

operation or maintenance of aircraft." For me, the analysis ends

there, and the correct result is that the Smiths' claim relates to

services and, therefore, is preempted.

The majority suggests that affecting an airline's ticket

selling, training, or security practices is "too tenuous, remote or

peripheral" to be preempted by § 1305(a)(1) and has nothing to do

with the economic practices regarding boarding. This does not

comport with the plain meaning of the term services, and I am not

persuaded of the relevance or force of the proffered economic

analysis. The regulatory bite of tort laws is direct. I cannot

find in the words of the statute a wholesale exception for claims

of personal injury nor any exception for tort claims with a

contract in the background. The state is enforcing its own

standards, policies, and duties, not the obligations of private

contract—just as surely as Illinois was regulating an airline

service by applying its rules against fraudulent acts to a frequent

flier mile program. See American Airlines, Inc. v. Wolens, No. 93-

1286,

, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---

- (U.S. Jan. 18, 1995).

8 I would affirm.

9