United States Court of Appeals

For the First Circuit

No. 12-1543

JOSEPH BROWN ET AL.,

Plaintiffs, Appellants,

v.

UNITED AIRLINES, INC.,

Defendant, Appellee.

No. 12-2056

BEN MITCHELL ET AL.,

Plaintiffs, Appellants,

v.

US AIRWAYS, INC.,

Defendant, Appellee.

_____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Howard, Selya and Thompson,

Circuit Judges.

Shannon Liss-Riordan, with whom Hillary Schwab and Lichten &
Liss-Riordan, P.C. were on brief, for appellants.

Scott L. Nelson, Adina H. Rosenbaum, and Public Citizen

Litigation Group on brief for Public Citizen, Inc., amicus curiae.

Jonathan E. Nuechterlein, with whom Bruce H. Rabinovitz,

Daniel T. Deacon, and Wilmer Cutler Pickering Hale and Dorr LLP

were on brief, for appellee United Airlines, Inc.

Robert S. Span and Steinbrecher & Span LLP on brief for

Airlines for America, amicus curiae.

Michael McGuinness, with whom Robert Siegel, O'Melveny & Myers

LLP, Ellen C. Kearns, Jeffrey M. Rosin, and Constangy, Brooks &

Smith LLP were on brief, for appellee US Airways, Inc.

Jeffrey A. Lamken, Andrew M. Bernie, and MoloLamken LLP on

brief for Airlines for America, amicus curiae.

July 9, 2013
SELYA, Circuit Judge. These appeals pose a question of

first impression: Can the plaintiffs, skycaps affiliated with two

major airlines, maintain common-law actions for unjust enrichment

and tortious interference based on the airlines' imposition and

retention of baggage-handling fees for curbside service? 

Concluding, as we do, that the plaintiffs' actions intrude into a

no-fly zone demarcated by the preemption provision of the Airline

Deregulation Act (ADA), 49 U.S.C. § 41713(b)(1), we affirm the

district court's orders of dismissal.

I. BACKGROUND

These consolidated cases have a convoluted history. For

present purposes, however, a simplified account will do.

The cases comprise two putative class actions brought by

skycaps — a term of art used to describe "porters who provide

curbside service" at airports. DiFiore v. Am. Airlines, Inc., 646

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

the times relevant hereto, the skycaps toiled on behalf of air

carriers (either defendant US Airways, Inc. or defendant United

Airlines, Inc.).

By tradition, skycaps' remuneration depended largely on

tips. In the middle of the last decade, however, the defendants,

acting independently and at different times, each introduced a

$2.00 per bag fee for curbside service for departing passengers at

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airports. These baggage-handling fees did not inure to the benefit

of the skycaps.

Invoking diversity jurisdiction, see 28 U.S.C.

§ 1332(d)(2), the plaintiffs brought suit in the federal district

court. They asserted that their compensation "decreased

dramatically" after the baggage-handling fees were established, "as

some passengers thought the $2.00 charge was a mandatory gratuity,

and others declined voluntarily to tip in addition to paying the

$2.00 charge." Mitchell v. US Airways, Inc., 858 F. Supp. 2d 137,

148 (D. Mass. 2012). Relatedly, the plaintiffs faulted the

airlines for "not adequately notify[ing] passengers that this

charge was not a gratuity." Id.

The plaintiffs made a number of state law claims premised

on these averments. We rehearse here only the claims that have

continuing relevance: unjust enrichment and tortious interference

with advantageous relations.1

In the early going, this litigation encountered strong

headwinds, fueled by a byzantine series of procedural twists and

turns. This history need not concern us, so we fast-forward to the

point at which the ADA preemption issue came to the fore. The

1

 The plaintiffs in these cases seek to represent nationwide

classes of skycaps, not just skycaps who work in Massachusetts.

They assert that the common-law principles on which they rely are

universal, not state-specific. For ease in exposition, we

sometimes refer to Massachusetts case law to exemplify those

principles.

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district court heard oral argument and dismissed the unjust

enrichment and tortious interference claims as preempted. See id.

at 148-59. These timely appeals ensued.

II. ANALYSIS

The plaintiffs' appeals hinge on the proposition that the

ADA does not preempt common-law claims, regardless of the

relationship between those claims and an air carrier's prices,

routes, or services. The district court rejected this proposition

as a matter of statutory construction, and we review its decision

de novo. See DiFiore, 646 F.3d at 85; Buck v. Am. Airlines, Inc.,

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

The Supremacy Clause sits at the epicenter of every

preemption question. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,

210-11 (1824). The Clause instructs that federal law "shall be the

supreme Law of the Land . . . any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding." U.S. Const. art.

VI, cl. 2. A state law that offends the Supremacy Clause "is a

nullity." Mass. Ass'n of Health Maint. Orgs. v. Ruthardt, 194 F.3d

176, 178 (1st Cir. 1999).

Federal preemption of state law may occur either

expressly or by implication. Grant's Dairy - Me., LLC v. Comm'r of

Me. Dep't of Agric., Food & Rural Res., 232 F.3d 8, 15 (1st Cir.

2000). The fact that the statute at issue here contains a specific

preemption clause, 49 U.S.C. § 41713(b)(1), streamlines our

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inquiry. The issue at hand is one of express preemption. But even

express preemption is not self-elucidating: it nonetheless falls to

the courts to identify which state laws are preempted. See

Medtronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996); Ruthardt, 194

F.3d at 179.

Congressional intent is the principal resource to be used

in defining the scope and extent of an express preemption clause. 

See Grant's Dairy, 232 F.3d at 14; Ruthardt, 194 F.3d at 179. In

this endeavor, we look to both the text and context of the

particular clause. See Ruthardt, 194 F.3d at 179. We also may

consider the clause's purpose and history, as well as the structure

of the statutory scheme in which it is housed. See Lohr, 518 U.S.

at 486; UPS, Inc. v. Flores-Galarza, 318 F.3d 323, 334 (1st Cir.

2003).

Our starting point is textual. See CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 664 (1993). The ADA preemption provision

reads in pertinent part: "[A] State, political subdivision of a

State, or political authority of at least 2 States may not enact or

enforce a law, regulation, or other provision having the force and

effect of law related to a price, route, or service of an air

carrier . . . ." 49 U.S.C. § 41713(b)(1). We must effectuate the

plain meaning of this language "unless there is good reason to

believe Congress intended the language to have some more

restrictive meaning." Cipollone v. Liggett Group, Inc., 505 U.S.

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504, 521 (1992) (plurality opinion) (internal quotation marks

omitted); see Morales v. Trans World Airlines, Inc., 504 U.S. 374,

383 (1992).

Reduced to bare essence, the question before us is

whether the quoted language preempts the plaintiffs' common-law

claims. Given the wording of the ADA preemption provision, this

question breaks down into two sub-questions. The first subquestion asks whether the arguably preempted claim is based on a

state "law, regulation, or other provision having the force and

effect of law." The second sub-question asks whether the claim is

sufficiently "related to a price, route, or service of an air

carrier." Put in shorthand, the first sub-question focuses on the

mechanism through which the claim is preferred; the second subquestion focuses on the linkage between the claim and the core

activities of the regulated industry. We address these two subquestions separately, but in reverse order.

Linkage is an open-and-shut matter here. For ADA

preemption to thrive, the state law, regulation, or other provision

sought to be enforced must "relate[] to a price, route, or service

of an air carrier." 49 U.S.C. § 41713(b)(1). Our decision in

DiFiore (a case that arose out of a remarkably similar set of

facts) conclusively resolves this point.

In DiFiore, skycap plaintiffs alleged that after the

defendant airline "began charging passengers a fee of $2 for each

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bag checked with [skycaps,] . . . passengers mistook the fee for a

mandatory gratuity for the skycaps and stopped tipping." 646 F.3d

at 82. We held preempted the plaintiffs' claims under the

Massachusetts Tips Act, Mass. Gen. Laws ch. 149, § 152A. See

DiFiore, 646 F.3d at 88-90. As part of this holding, we concluded

that an airline's "conduct in arranging for transportation of bags

at curbside into the airline terminal en route to the loading

facilities is itself a part of the 'service' referred to in the

[ADA preemption provision], and the airline's 'price' includes

charges for such ancillary services as well as the flight itself." 

Id. at 87. Thus, a state law that penalizes the imposition of

baggage-handling fees at airports "directly regulates how an

airline service is performed and how its price is displayed to

customers." Id. at 88.

DiFiore answers the linkage sub-question for us. Our

holding there signifies that the enforcement of a state law,

regulation, or other provision in a way that materially affects an

air carrier's imposition of baggage-handling fees relates to both

an air carrier's prices and services. That holding, unimpeached by

any supervening authority, is binding in this litigation. See,

e.g., United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991)

(explaining "that in a multi-panel circuit, prior panel decisions

are binding upon newly constituted panels in the absence of

-8-
supervening authority sufficient to warrant disregard of

established precedent").

The reason why DiFiore does not end our journey is

because the decision there turned entirely on the linkage subquestion. See 646 F.3d at 86-89. The mechanism sub-question was

not in issue because the plaintiffs' claims depended on positive

law in the form of a state statute (the Tips Act).2

 Here, however,

the claims pressed by the plaintiffs on appeal do not depend on a

state statute; rather, they are founded on the common law. 

Building on this distinction, the plaintiffs contend that common

law is not a mechanism that can be preempted under the ADA

preemption clause; that is, that common law is not a state "law,

regulation, or other provision having the force and effect of law"

within the purview of the ADA preemption clause. DiFiore did not

address this issue. Accordingly, this case requires us to delve

into that portion of the ADA preemption clause declaring that no

state may "enact or enforce a law, regulation, or other provision

having the force and effect of law." 49 U.S.C. § 41713(b)(1).

In an effort to score an early knockout, the plaintiffs

point to the Supreme Court's statement that the use of "law" and/or

"regulation" in a preemption provision, preceded by an indefinite

2

 To be sure, the DiFiore plaintiffs also mounted a common-law

tortious interference claim. But the panel concluded that, in the

circumstances of the case, all of the plaintiffs' claims "rest[ed]

critically" on whether the Tips Act was preempted. DiFiore, 646

F.3d at 89. 

-9-
article, refers only to state positive law. See Sprietsma v.

Mercury Marine, 537 U.S. 51, 63-64 (2002). But this is not a

knockout blow; the ADA preemption provision — unlike the provision

at issue in Sprietsma, see 46 U.S.C. § 4306 — goes beyond a bare

reference to state laws and regulations. The ADA also refers to

"other provision[s] having the force and effect of law." Thus, our

inquiry reduces to whether this additional language encompasses

state common law.

Seen in this light, we think that a more helpful

precedent is the Supreme Court's opinion in American Airlines, Inc.

v. Wolens, 513 U.S. 219 (1995). There, the Supreme Court stated,

albeit in dictum, that the words "having the force and effect of

law" are "most naturally read to refer to binding standards of

conduct that operate irrespective of any private agreement." Id.

at 229 n.5 (alteration and internal quotation marks omitted). It

cannot be gainsaid that common law functions as a set of binding

standards of conduct.

Wolens is not a waif in the wilderness. In a recent case

interpreting the preemption provision of the Federal Aviation

Administration Authorization Act of 1994 (FAAAA), 49 U.S.C.

§ 14501(c)(1) — a provision that stands in pari materia with the

preemption provision of the ADA, see DiFiore, 646 F.3d at 86 n.4 —

the Court took an expansive approach to the meaning of such

language. See Am. Trucking Ass'ns, Inc. v. City of Los Angeles,

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___ S. Ct. ___ (2013) [No. 11-798, 2013 WL 2631059]. There, the

Court held that the FAAAA preempted certain contractual

requirements, enforced by way of criminal penalties, that were

imposed on trucking companies by a municipal port authority. See

id. at *3. In so holding, the Court looked to the practical effect

of the requirements rather than their form: they forced businesses

"to alter their conduct by implementing a criminal prohibition." 

Id. at *6.

This pragmatic emphasis on function over form offers

guidance here. Even though a suit at common law is most often

brought by one private party against another, that suit is backed

by the weight of the state judiciary enforcing state law.3 Common

law, like positive law, can effectively strong-arm regulated

entities to alter their business practices. We think it clear,

therefore, that common law — no less than positive law — has the

force and effect of law.

The plaintiffs persist. They say that, whatever the

import of the phrase "having the force and effect of law," the term

"other provision," as used in the phrase "law, regulation, or other

provision," does not include common law. We do not agree.

3 It makes no difference that the plaintiffs in this case are

attempting to enforce state common law in a suit brought in federal

court. See Riegel v. Medtronic, Inc., 552 U.S. 312, 320, 324-25

(2008).

-11-
A statute need not use the words "common law" in order to

preempt common-law claims. See, e.g., Riegel v. Medtronic, Inc.,

552 U.S. 312, 324-25 (2008); CSX Transp., 507 U.S. at 664;

Cipollone, 505 U.S. at 521-23 & n.22 (plurality opinion). 

Preemption of common law need not be in haec verba.

Both the Supreme Court and this court have consistently

given a wide interpretive sweep to ADA preemption. See, e.g.,

Wolens, 513 U.S. at 223; Morales, 504 U.S. at 383-87; DiFiore, 646

F.3d at 86; Buck, 476 F.3d at 34-35. In Buck, we faced a variation

of the mechanism sub-question that confronts us today. There, the

plaintiffs' complaint asserted a gallimaufry of common-law claims,

including breach of contract, unjust enrichment, breach of an

implied covenant of good faith and fair dealing, breach of

fiduciary duty, and civil conspiracy. See Buck, 476 F.3d at 32. 

Although we made no particular distinction between claims rooted in

positive law and claims rooted in common law, we found that ADA

preemption foreclosed these common-law claims. See id. at 34-35.

Our intuition that the "other provision" language

encompasses common law is bolstered by the purpose and history of

the ADA preemption clause and the structure of the statutory

scheme. The evolution of the preemption provision informs its

purpose. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 542

(2001) ("We are aided in our interpretation by considering the

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predecessor pre-emption provision and the circumstances in which

the current language was adopted.").

Prior to its revision in 1994, the preemption provision

read: "[N]o State or political subdivision thereof . . . shall

enact or enforce any law, rule, regulation, standard, or other

provision having the force and effect of law relating to rates,

routes, or services of any air carrier . . . ." Pub. L. No. 95-

504, § 4(a), 92 Stat. 1705, 1707-08 (1978). We think it telling

that Congress used words such as "rule" and "standard" to describe

the state law that could be preempted. Those words typically

include common law. See, e.g., CSX Transp., 507 U.S. at 664

(finding the phrase "law, rule, regulation, order, or standard" to

include common law); Drake v. Lab. Corp. of Am. Holdings, 458 F.3d

48, 59 & n.10 (2d Cir. 2006) (finding the words "rule" and

"standard" to include common law). It is, therefore, conspicuously

clear that the pre-1994 version of the preemption provision

included common law as a mechanism eligible for preemption.

This is a highly significant datum. Congress amended the

ADA in 1994 and, as a part of this recodification, reworded the

preemption provision. Though reworded, the purpose of the new

preemption provision remained to "ensure that the States would not

undo federal deregulation [of the airline industry] with regulation

of their own." Morales, 504 U.S. at 378. While the rewording did

not repeat the words "rule" and "standard," the revised language

-13-
was not meant to effect any substantive change. See Wolens, 513

U.S. at 223 n.1; Flores-Galarza, 318 F.3d at 334-35 n.17; see also

H.R. Conf. Rep. No. 103-677, at 83 (1994), reprinted in 1994

U.S.C.C.A.N. 1715, 1755 (confirming that Congress "intend[ed] no

substantive change to the previously enacted preemption provision"

and "d[id] not intend to alter the broad preemption interpretation

adopted by the United States Supreme Court in" Morales).

Silhouetted against this backdrop, the only plausible reading of

the ADA preemption provision is that it continues to preempt rules

and standards and, thus, continues to preempt common law. We hold

that, to the extent that a state common-law claim relates to a

price, route, or service of an air carrier, it is preempted by the

ADA.

Common sense supports this holding. After all, courts

adjudicating common-law claims can create just as much uncertainty

and inconsistency in a carefully calibrated federal regulatory

framework as can state legislatures enacting statutes or state

agencies promulgating regulations. See, e.g., Geier v. Am. Honda

Motor Co., 529 U.S. 861, 871 (2000); DiFiore, 646 F.3d at 88. It

defies logic to think that Congress would disregard real-world

consequences and give dispositive effect to the form of a clear

intrusion into a federally regulated industry.4 See Am. Trucking,

4 We note in passing that at least one jurisdiction has

codified claims for unjust enrichment and tortious interference. 

See P.R. Laws Ann. tit. 31, §§ 5121-5127; id. § 5141. Were we to

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___ S. Ct. at ___ [2013 WL 2631059, at *5] (finding preemption

despite form of requirement imposed when municipality "exercise[s]

classic regulatory authority").

The case law in other circuits, while not precisely on

point, is compatible with our holding. A number of courts have

found common-law claims preempted by the ADA, albeit without

explicitly ruling on the scope of the phrase "other provision." 

See, e.g., Onoh v. Nw. Airlines, Inc., 613 F.3d 596, 599-601 (5th

Cir. 2010); Weiss v. El Al Israel Airlines, 309 F. 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); Weber v.

USAirways, Inc., 11 F. App'x 56, 56-58 (4th Cir. 2001) (per

curiam); Anderson v. USAir, Inc., 818 F.2d 49, 57 (D.C. Cir. 1987). 

The cases that have held claims not preempted appear to have been

decided on the linkage sub-question; that is, the litigated claims

did not relate to prices, routes, or services of an air carrier. 

See, e.g., Wellons v. Nw. Airlines, Inc., 165 F.3d 493, 494-96 (6th

Cir. 1999); Taj Mahal Travel, Inc. v. Delta Airlines Inc., 164 F.3d

186, 194-95 (3d Cir. 1998); Charas v. Trans World Airlines, Inc.,

adopt the plaintiffs' view, the viability of skycaps' unjust

enrichment and tortious interference claims would depend on where

those claims arose. In a jurisdiction like Puerto Rico, such

claims would be statutory and thus preempted, whereas identical

claims, arising in a jurisdiction like Massachusetts, would not be

preempted. Congress surely could not have intended so haphazard a

result in an industry that inherently involves constant movement

from state to state. 

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160 F.3d 1259, 1261, 1265-66 (9th Cir. 1998) (en banc), amended by

169 F.3d 594 (9th Cir. 1999) (en banc).

The only reported circuit court decision that squarely

addresses the question of whether the "other provision" language

extends to state common law answers that question in the

affirmative. In United Airlines, Inc. v. Mesa Airlines, Inc., 219

F.3d 605 (7th Cir. 2000), the Seventh Circuit concluded that

"[s]tate common law counts as an 'other provision having the force

and effect of law' for purposes of [the ADA preemption clause]." 

Id. at 607. We see no valid reason to depart from this view and in

doing so create a circuit split.

In their search for a friendly face in the crowd, the

plaintiffs place heavy reliance on the decision in Spinrad v.

Comair, Inc., 825 F. Supp. 2d 397 (E.D.N.Y. 2011). This reliance

is mislaid: Spinrad turned on the district court's conclusion that

the plaintiff's claim was not preempted because of lack of linkage. 

In other words, it was insufficiently "related to" prices, routes,

or services. See id. at 413-14. The court's speculation about

whether or not ADA preemption reaches state common-law claims is

unhelpful dictum.

The plaintiffs create no fewer than six pockets of

turbulence in an effort to steer us in a different direction. This

turbulence is mostly hot air, and none of it disrupts our flight

path.

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As a threshold matter, the plaintiffs argue that the

plain meaning of the word "provision" does not encompass common law

and, by like token, that courts do not "enforce" common law. The

first part of this premise is simply wrong. The word "provision,"

though inexact, is elastic enough to encompass common law. See,

e.g., Veiga v. McGee, 26 F.3d 1206, 1215 n.10 (1st Cir. 1994)

(noting that "[t]here are specific . . . common law provisions that

regulate breaches of the peace"); Smith v. Pasqualetto, 246 F.2d

765, 769 (1st Cir. 1957) (discussing "common law provision"). 

Everything depends on context, and when read in context, the word

"provision" in the ADA preemption clause can most appropriately be

construed to include common law.

The second part of the plaintiffs' premise is errant

nonsense, which we reject without extended comment. Suffice it to

say that one wonders how the plaintiffs expect their common-law

claims to be vindicated if not by a court.

The plaintiffs next seek refuge in the venerable

presumption against preemption. See, e.g., United States v. Texas,

507 U.S. 529, 534 (1993); Ruthardt, 194 F.3d at 179. That refuge

is beyond their reach.

The so-called presumption against preemption stems from

the Supreme Court's admonition "that statutes which invade the

common law are to be read with a presumption favoring the retention

of long-established and familiar principles, except when a

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statutory purpose to the contrary is evident." Texas, 507 U.S. at

534 (alterations and internal quotation marks omitted). With

respect to the ADA, such a purpose is apparent and the presumption

against preemption does not apply. See DiFiore, 646 F.3d at 86;

Flores-Galarza, 318 F.3d at 336.

Moreover, as we noted in Flores-Galarza, the presumption

against preemption "only arises . . . if Congress legislates in a

field traditionally occupied by the states." 318 F.3d at 336. In

matters of air transportation, the federal presence is both

longstanding and pervasive; that field is simply not one

traditionally reserved to the states. The Supreme Court has not

suggested that the presumption against preemption should be

interposed in that field, nor has the Court been hesitant to give

force to the ADA preemption provision. We see no reason to

hesitate here.

The plaintiffs' third attempt to stall a finding of

preemption invokes the doctrine of ejusdem generis. This doctrine

teaches that "when a general term follows [] specific one[s], the

general term should be understood as a reference to subjects akin

to the one[s] with specific enumeration." Norfolk & W. Ry. Co. v.

Am. Train Dispatchers' Ass'n, 499 U.S. 117, 129 (1991). The

plaintiffs asseverate that, because "common law" is a broader

category than "law" and "regulation," the ADA's "other provision"

terminology cannot reasonably be understood to include common law.

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This asseveration fails for at least three reasons. 

First, we believe that, categorically speaking, "common law" is

fairly comparable to "law" and "regulation." The trilogy of

statutes, regulations, and common law comprises a natural grouping,

with each component having roughly equal weight. Cf. Cipollone,

505 U.S. at 522 (plurality opinion) (explaining that "the phrase

'state law' [] include[s] common law as well as statutes and

regulations").

Second, the principle of ejusdem generis should be

applied only when it furnishes meaningful interpretive assistance,

not when it defenestrates Congress's clear purpose and discernable

intent. See Norfolk, 499 U.S. at 129; United States v. Alpers, 338

U.S. 680, 682 (1950). Defenestration would be the result of

applying ejusdem generis here.

Third, it is settled law that courts should strive to

breathe life into every word and phrase in a statute. See United

States v. Menasche, 348 U.S. 528, 538-39 (1955); United States v.

Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir. 1985). This

construct dictates that we should, if possible, "give meaning to

each element of the pre-emption provision." Lorillard Tobacco, 533

U.S. at 542. The doctrine of ejusdem generis "cannot be employed

to render general words meaningless." Alpers, 338 U.S. at 682.

Under this approach, the term "other provision" in the

ADA preemption clause must have some purpose apart from referring

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to the positive enactments encompassed by "law" and "regulation." 

The most obvious purpose is that Congress intended to include

common law. The plaintiffs have not offered us any persuasive

reason for overlooking this purpose.5

The plaintiffs' fourth argument centers on a statutory

saving clause, 49 U.S.C. § 40120(c). We pause to place this clause

into perspective.

The ADA is nested within a sprawling, multi-part scheme

regulating aviation. See, e.g., 49 U.S.C. §§ 40101-46507. The

saving clause appears within this scheme, but it is not directly

tied to the ADA's preemption provision.

Congress originally enacted the saving clause as part of

the Civil Aeronautics Act of 1938, Pub. L. No. 75-706, § 1106, 52

Stat. 973, 1027, and later recodified it as part of the Federal

Aviation Act of 1958 (FAA), Pub. L. No. 85-726, 72 Stat. 731. This

clause states that "[a] remedy under this part is in addition to

any other remedies provided by law." 49 U.S.C. § 40120(c). 

Despite the fact that the saving clause antedates the preemption

clause and has no direct connection to it, the plaintiffs assert

5

 The plaintiffs suggest that "other provision" might mean

such things as travel guidelines and compacts between air carriers

and governmental or quasi-governmental authorities. This may be

true, but it is hard to imagine that, in drafting the ADA

preemption clause, Congress would have focused on such relatively

obscure possibilities while ignoring common law.

-20-
that the saving clause protects against the preemption of commonlaw claims.

This assertion is groundless. In ADA cases, the Supreme

Court has not put much stock in the saving clause, dismissing it as

"a relic of the pre-ADA/no pre-emption regime." Morales, 504 U.S.

at 385. The Court reasoned that, given the evolution and framework

of the statutory scheme, a "general 'remedies' saving clause cannot

be allowed to supersede the specific substantive pre-emption

provision" of the ADA. Id.; see Wolens, 513 U.S. at 232-33.

We add a coda. The field of aviation is regulated under

an intricate framework of rules promulgated by the federal

sovereign, so the Supreme Court's reluctance to accord decretory

significance to the saving clause is of a piece with the Court's

repeated refusal "to give broad effect to saving clauses where

doing so would upset [a] careful regulatory scheme established by

federal law." Geier, 529 U.S. at 870 (internal quotation marks

omitted).

This is not to say — as the plaintiffs would have it —

that rejecting their argument is tantamount to consigning the

saving clause to the scrap heap. As the district court astutely

observed, when the saving clause is juxtaposed with the preemption

provision it "ought properly be read to carve out all common law or

statutory claims not related to an airline's prices, routes or

services." Mitchell, 858 F. Supp. 2d at 154.

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The cases cited by the plaintiffs in furtherance of their

position largely turn on the distinction noted by the court below.

See, e.g., Taj Mahal Travel, 164 F.3d at 194-95; Charas, 160 F.3d

at 1261, 1265-66. The same distinction — between claims that are

related to the price, route, or service of an air carrier and those

that are not — accounts for language, improvidently relied upon by

the plaintiffs, concerning the preservation of common-law claims

under the ADA. See, e.g., Morales, 504 U.S. at 390 (explaining

that "some state actions may affect airline fares in too tenuous,

remote, or peripheral a manner to have pre-emptive effect"

(alterations and internal quotation marks omitted)); DiFiore, 646

F.3d at 87 ("[T]he Supreme Court would be unlikely — with some

possible qualifications — to free airlines from most conventional

common law claims for tort . . . .").

We give short shrift to the plaintiffs' importuning that

the presence of a saving clause in a statute necessarily implies

that there are numerous common-law claims to be saved. In support,

the plaintiffs cite Sprietsma and Geier. In those cases, however,

the saving clause specifically applied to the preemption provision

at issue. See Sprietsma, 537 U.S. at 63; Geier, 529 U.S. at 867-

68. That is not true of the relationship between the FAA saving

clause and the ADA preemption provision.

Here, the saving clause extends to a more wide-ranging

statutory scheme. Indeed, it is not even in the same subpart of

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the statutory title as the preemption provision. Given both this

structure and the fact that the saving clause long predates the

preemption provision, there is no logical basis for transforming

the saving clause into a monkey wrench designed to impede the work

of the preemption provision.

The plaintiffs' fifth argument attempts to build upon the

Supreme Court's decision in Wolens. There, the Justices held that

although "the ADA's preemption prescription bars state-imposed

regulation of air carriers, [it] allows room for court enforcement

of contract terms set by the parties themselves." Wolens, 513 U.S.

at 222. Consequently, the ADA does not preempt "suits alleging no

violation of state-imposed obligations, but [rather] seeking

recovery solely for the airline's alleged breach of its own, selfimposed undertakings." Id. at 228. This isthmian exception is

justified because, in a Wolens scenario, a court is confined "to

the parties' bargain, with no enlargement or enhancement based on

state laws or policies external to the agreement." Id. at 233.

The plaintiffs posit that their claims can be squeezed

into the narrow confines of the Wolens exception. In their view,

the defendants incurred a privately ordered obligation by

"promis[ing] customers that the $2 per bag charges they paid would

be kept by the skycaps as tips." The plaintiffs were allegedly

harmed by the breach of that promise and the defendants were

unjustly enriched. And because passengers paid the baggage fees

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based on "misleading representations," thus "making the $2 charge

appear to be the skycaps' tip," the defendants tortiously

interfered with the plaintiffs' advantageous relations.

The Wolens exception is very narrow, see Buck, 476 F.3d

at 36-37, and the plaintiffs' unjust enrichment and tortious

interference claims fall outside its confines. As we explain more

specifically below, those claims are alleged to arise out of stateimposed obligations, not private terms agreed to by the parties.

The doctrine of unjust enrichment exists in the hazy

realm of quasi-contract and restitution. See, e.g., Metro. Life

Ins. Co. v. Cotter, 984 N.E.2d 835, 850 (Mass. 2013); Salamon v.

Terra, 477 N.E.2d 1029, 1031 (Mass. 1985); Restatement (Third) of

Restitution & Unjust Enrichment § 1 (2011). "Ordinarily, a claim

of unjust enrichment will not lie where there is a valid contract

that defines the obligations of the parties." Cotter, 984 N.E.2d

at 849 (internal quotation marks omitted). This makes good sense

because unjust enrichment is based on "an obligation created by law

for reasons of justice, without any expression of assent and

sometimes even against a clear expression of dissent." Salamon,

477 N.E.2d at 1031 (internal quotation marks omitted).

Unjust enrichment claims do not fall within the Wolens

exception. Virtually by definition, unjust enrichment turns on

sources external to any agreement between the parties — such as

"considerations of equity and morality," Cotter, 984 N.E.2d at 850

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(alteration and internal quotation marks omitted) — and is

predicated on the lack of any agreement. A fortiori, the Wolens

exception does not apply.

The plaintiffs' claims of tortious interference fare no

better. Such claims sound in tort, not contract. See, e.g.,

United Truck Leasing Corp. v. Geltman, 551 N.E.2d 20, 21-22 (Mass.

1990); Restatement (Second) of Torts §§ 766-767 (1979). Tort law

is not a privately ordered obligation, and tortious interference

claims therefore cannot trigger the Wolens exception.

Grasping at straws, the plaintiffs next suggest that the

Supreme Court's recent decision in Dan's City Used Cars, Inc. v.

Pelkey, 133 S. Ct. 1769 (2013), somehow changed the landscape and

reshaped preemption doctrine to favor their position. This

suggestion represents a triumph of hope over reason.

The Supreme Court decided Dan's City — a case that

implicated the preemption provision in the FAAAA, 49 U.S.C.

§ 14501(c)(1) — on a nuanced reading of the "related to" preemption

component (what we have called the linkage component). See Dan's

City, 133 S. Ct. at 1775, 1778-79. The Court in no way retreated

from existing precedent but, rather, reiterated and cited with

approval a representative sampling of its earlier decisions. See,

e.g., id. at 1775 (citing Morales); id. at 1778-80 (citing Rowe v.

N.H. Motor Transp. Ass'n, 552 U.S. 364 (2008)). Fairly read, Dan's

City does not advance the plaintiffs' cause by so much as an inch.

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III. CONCLUSION

We need go no further.6

 We have said before, and today

reaffirm, that "[p]reemption is strong medicine, not casually to be

dispensed." Grant's Dairy, 232 F.3d at 18. Here, the district

court appropriately prescribed that strong medicine: a searching

appraisal of statutory language, congressional intent, and case law

leads unwaveringly to the conclusion that the ADA preempts the

plaintiffs' common-law claims.

Affirmed.

6 The plaintiffs make other arguments, but none of them

warrants discussion. We simply reject those other arguments out of

hand.

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