FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAM MONTALVO; EVELYN 

MONTALVO,

Plaintiffs-Appellants, No. 05-15640

v.  D.C. No.

SPIRIT AIRLINES; THE BOEING CV-03-03181-VRW

COMPANY,

Defendants-Appellees. 

MARY BUXTON; JOSEPH BUXTON, 

Plaintiffs-Appellants,

v. No. 05-15703

CONTINENTAL  D.C. No. AIRLINES INC., a

corporation; THE BOEING COMPANY, CV-03-05634-VRW

a corporation,

Defendants-Appellees. 

DAVID WOODS, 

Plaintiff-Appellant,

v.

AMERICAN AIRLINES, INC., No. 05-15723

Defendant-Appellee,  D.C. No.

and CV-03-05186-VRW

THE BOEING COMPANY; WEBER

AIRCRAFT LP,

Defendants. 

14737
VARUN GUPTA, 

Plaintiff-Appellant,

v.

AMERICAN AIRLINES, INC.; THE No. 05-15724

BOEING COMPANY,  D.C. No.

Defendants-Appellees, CV-04-00412-VRW

and

WEBER AIRCRAFT LP,

Defendant. 

RICHARD JAFFE; ELLEN JAFFE, 

Plaintiffs-Appellants,

No. 05-15726

v.  D.C. No.

EL AL ISRAEL AIRLINES, LIMITED; CV-04-01807-VRW

AMERICAN AIRLINES, INC.,

Defendants-Appellees. 

TERESA STONESTREET, 

Plaintiff-Appellant,

v. No. 05-15732

AMERICAN  D.C. No. AIRLINES, INC., a

Corporation; THE BOEING CV-03-03845-VRW

COMPANY, a Corporation,

Defendants-Appellees. 

14738 MONTALVO v. SPIRIT AIRLINES
BARBARA A. HANSEN, 

Plaintiff-Appellant,

v.

AMERICAN AIRLINES, INC.; UNITED

AIR LINES, INC.; UAL No. 05-15736

CORPORATION,  D.C. No.

Defendants-Appellees, CV-04-00789-VRW

and

THE BOEING COMPANY; WEBER

AIRCRAFT LP,

Defendants. 

TRUDY HANSCHU; HARRY HANSCHU, 

Plaintiffs-Appellants,

v. No. 05-15746

AMERICAN  D.C. No. AIRLINES, INC., a

Corporation; THE BOEING CV-03-03849-VRW

COMPANY, a Corporation,

Defendants-Appellees. 

JAMES VARRIALE, 

Plaintiff-Appellant, No. 05-15889

v.  D.C. No.

JETBLUE AIRWAYS CORPORATION, CV-04-04166-VRW

Defendant-Appellee. 

MONTALVO v. SPIRIT AIRLINES 14739
ANTHONY R. TWARDOWSKI, an 

individual,

Plaintiff-Appellant, No. 05-15911

v.  D.C. No.

AMERICAN AIRLINES, INC.; AMERICA CV-05-00237-VRW

WEST AIRLINES, INC.,

Defendants-Appellees. 

EDWARD STETSER; RACHEL STETSER, 

Plaintiffs-Appellants, No. 05-15949

v. D.C. Nos.

AMERICA WEST AIRLINES, INC., a  CV-03-05144-VRW

corporation; THE MDL-04-1606- BOEING COMPANY,

a corporation, VRW

Defendants-Appellees. 

In re: DEEP VEIN THROMBOSIS 

LITIGATION,

RHONDA O. BELL,

Plaintiff-Appellant, No. 05-15953

v.  D.C. No.

CV-04-05491-VRW US AIRWAYS, INC., also known as

US Airways a Subsidiary of US

Airways Group, Inc.; US AIRWAYS

GROUP INC.,

Defendants-Appellees. 

14740 MONTALVO v. SPIRIT AIRLINES
In re: DEEP VEIN THROMBOSIS 

LITIGATION,

No. 05-15956

EUGENE VANARSDALE,

 D.C. No. Plaintiff-Appellant,

CV-04-01606-VRW

v.

US AIRWAYS, INC.,

Defendant-Appellee. 

JAMES MOYER, 

Plaintiff-Appellant, No. 05-16730

v.  D.C. No.

US AIRWAYS, INC., CV-05-02325-VRW

Defendant-Appellee. 

JAMES H. ENGLISH, 

Plaintiff-Appellant, No. 05-17180

v.  D.C. No.

US AIRWAYS INC., CV-05-03180-VRW

Defendant-Appellee. 

MONTALVO v. SPIRIT AIRLINES 14741
THOMAS F. HIND,  No. 05-17181

Plaintiff-Appellant, D.C. No.

v. CV-05-03181-VRW 

SOUTHWEST AIRLINES CO., ORDER AND

Defendant-Appellee. AMENDED

OPINION 

Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, District Judge, Presiding

Argued and Submitted

April 16, 2007—San Francisco, California

Filed October 4, 2007

Amended November 9, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,

Stephen S. Trott, Circuit Judge, and Barry Ted Moskowitz,*

District Judge.

Opinion by Chief Judge Schroeder

*The Honorable Barry Ted Moskowitz, U.S. District Judge for the

Southern District of California, sitting by designation. 

14742 MONTALVO v. SPIRIT AIRLINES
COUNSEL

Randy Baker, Seattle, Washington, and Brenda D. Posada,

Sterns & Walker, Oakland, California, for the plaintiffsappellants. 

William J. Boyce, Houston, Texas, for the defendantsappellees. 

Clem C. Trischler, Pittsburgh, Pennsylvania, for the

defendants-appellees. 

14744 MONTALVO v. SPIRIT AIRLINES
Stephen C. Kenney and Samantha D. Hilton, San Francisco,

California, for the defendants-appellees. 

ORDER

The Opinion filed in this matter on October 4, 2007, is

hereby amended to correct a typographical error. The caption

is amended to include the case number for Thomas F. Hind

v. Southwest Airlines, Case No. 05-17181. 

OPINION

SCHROEDER, Chief Circuit Judge: 

I. Introduction.

These consolidated appeals arise from fourteen plaintiffs’

negligence claims under California common law against various airlines (collectively “the Airlines” or “AirlineDefendants”) for failing to warn about the danger of developing deep vein thrombosis and for providing an unsafe seating

configuration on domestic flights. 

This case presents the question of whether and to what

extent the Federal Aviation Act of 1958 (the “FAA”), 49

U.S.C. § 40103, and its corresponding regulations promulgated by the Federal Aviation Administration regarding aviation safety, preempt state law standards of care, including any

state-imposed duty to warn about the risks of deep vein

thrombosis (“DVT”). We also address whether Plaintiffs may

recover for injuries sustained due to an allegedly unsafe seating configuration or whether such claims are preempted by

the Airline Deregulation Act of 1978 (the “ADA”), an economic measure designed by Congress to prevent states from

regulating airline prices, routes, and services. See 49 U.S.C.

MONTALVO v. SPIRIT AIRLINES 14745
§ 41713(b)(1) (previously codified at 49 U.S.C. app.

§ 1305(a)(1)). 

The district court found federal preemption in both

instances. It held that the FAA impliedly preempts the field

of preflight warnings, and the court dismissed Plaintiffs’ failure to warn claim as a matter of law. In re Deep Vein Thrombosis Litig., No. 04-1606, 2005 WL 591241, at *35, *47

(N.D. Cal. March 11, 2005). It observed that Congress’ intent

in passing the FAA was to preempt the entire field of air

safety. It also rested its dismissal on the conflict between federal safety standards governing passenger warnings and any

state-imposed duty to warn. The district court further held that

the ADA preempts Plaintiffs’ unsafe seating configuration

claim, because any seating reconfiguration would impermissibly affect airline prices. Id. 

We affirm the district court’s dismissal of the failure to

warn claim, but remand the seating configuration claim for

further factual development. The FAA and the relevant federal regulations preempt Plaintiffs’ failure to warn claim,

because the FAA preempts the entire field of aviation safety

through implied field preemption. The FAA and regulations

promulgated pursuant to it establish complete and thorough

safety standards for air travel, which are not subject to supplementation by, or variation among, state laws. Some circuits

have considered whether federal law preempts discrete

aspects of air safety. See, e.g. French v. Pan Am Express, Inc.,

869 F.2d 1, 6-7 (1st Cir. 1989) (holding that the FAA governs

issues of pilot suitability, including submission to drug testing). The Third Circuit has gone one step further. See Abdullah v. American Airlines, Inc., 181 F.3d 363, 367-68 (3d Cir.

1999). We adopt the Third Circuit’s broad, historical

approach to hold that federal law generally establishes the

applicable standards of care in the field of aviation safety. Id.;

cf. Witty v. Delta Airlines, 366 F.3d 380, 384-86 (5th Cir.

2004). Because the FAA preempts the entire field of aviation

safety from state and territorial regulation, the Airlines are

14746 MONTALVO v. SPIRIT AIRLINES
under no obligation to warn of the risk of developing DVT,

absent a federal mandate to do so. Because there are no federal regulations requiring the Airlines to warn about the risks

of DVT, we affirm the district court’s dismissal of Plaintiffs’

failure to warn claim. 

The Airlines’ preemption argument on the seating configuration claim presents a closer question. The Airlines argue

that any reconfiguration of airplane seating would decrease

the number of seats and thus require a significant increase in

ticket prices to offset the loss in revenue. They assert that triggering this increase would amount to an indirect regulation of

airline fares, which is precluded by the ADA. While the Airlines may ultimately be correct, we remand this claim to the

district court for further development, because on the basis of

the record before us, there is an insufficient factual basis on

which to conclude that any seat reconfiguration would have

what the Supreme Court has described as the “forbidden significant effect” on airline ticket prices. See Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 388 (1992). 

II. Background.

Plaintiffs filed this suit on April 14, 2003, in state court

against Spirit Airlines, Northwest Airlines, El Al Limited,

American Airlines, Continental Airlines, America West Airlines, U.S. Airways, and Jetblue Airlines. The facts underlying each of plaintiffs’ claims are largely identical. Each

plaintiff allegedly developed DVT after taking a transcontinental or mid-continental flight. Each also claims that

prolonged, cramped seating during flight was the proximate

cause of his DVT. DVT is a medical condition that occurs

when a blood clot forms in a deep vein, usually in the leg. It

can cause serious complications if the clot breaks off and travels to an organ, most commonly to the lungs or brain. See

Witty, 366 F.3d at 382. Some of the plaintiffs in this litigation

are in fact deceased as a result of the clots spreading to a vital

organ. 

MONTALVO v. SPIRIT AIRLINES 14747
In their initial complaint, Plaintiffs raised common law personal injury claims against the Airlines, as well as breach of

warranty claims against various airplane manufacturers (the

“Manufacturer-Defendants”). They claimed that the AirlineDefendants failed to warn about the risk of developing DVT,

and that the Airlines failed to inform passengers about steps

they could have taken during flight to mitigate any risk. Plaintiffs argued that at the time they took the flights on which they

developed DVT, the Airlines were aware or reasonably

should have been aware that long-distance air travel can cause

DVT and that resulting blood clots can sometimes result in

serious injury or death. Plaintiffs asserted that the Airlines

were aware of several measures that could prevent passengers

from incurring DVT, such as walking around the cabin, exercising the legs while seated, or wearing special stockings.

Despite this alleged knowledge, the Airlines gave no warnings regarding DVT. 

In addition to the failure to warn claim, Plaintiffs alleged

that the Airlines provided an unsafe seating configuration by

limiting each passenger’s legroom. Apart from the claims

against the Airlines, Plaintiffs also brought suit against the

Manufacturer-Defendants, claiming they provided a seat

design that was defective for the same reason. 

Defendants collectively removed the actions to federal district court on the basis of diversity jurisdiction in July 2003.

On June 22, 2004, the Judicial Panel on Multidistrict Litigation transferred all actions to Judge Vaughn Walker of the

Northern District of California for coordinated pre-trial proceedings. In re Deep Vein Thrombosis Litig., 323 F. Supp. 2d

1378, 1380-81 (J.P.M.L. 2004). 

The Manufacturer-Defendants moved for summary judgment on the defective seat design claim, and the district court

granted the motion. Deep Vein Thrombosis Litig., No. 04-

1606, 2005 WL 591241, *14-15. With respect to the remaining state law claims, the Airline-Defendants filed a Joint

14748 MONTALVO v. SPIRIT AIRLINES
Report and Case Management Statement arguing that federal

law preempts the failure to warn and unsafe seating configuration claims. The district court treated the report as a motion

to dismiss under Federal Rule of Civil Procedure 12(b)(6) and

requested briefing from the parties. After considering the

arguments, the district court entered judgment for the Airlines

under Federal Rule of Civil Procedure 54(b). Id. It held that

the Airline Deregulation Act expressly preempts the unsafe

seating configuration claim, because any required reconfiguration of seats would impermissibly affect prices. Id. at

*4-10. It also held that the Federal Aviation Act impliedly

preempts the failure to warn claim, because Congress

intended to occupy exclusively the field of passenger warnings. Id. at *10-14. 

Plaintiffs pursue on appeal only the district court’s dismissal of their failure to warn claim and their unsafe seating

configuration claim. They do not appeal the district court’s

grant of summary judgment in favor of the ManufacturerDefendants for the defective seat design claim. 

III. Preemption of the Failure to Warn Claim. 

[1] It is well-established that Congress has the power to

preempt state law. U.S. CONST. ART. VI, cl. 2; Cipollone v.

Liggett Group, Inc., 505 U.S. 504, 516 (1992). It may do so

expressly or impliedly. Cipollone, 505 U.S. at 516. Congress’

intent may be “explicitly stated in the statute’s language or

implicitly contained in its structure and purpose.” (quoting

Jones v. Rath Packing Co., 403 U.S. 519, 525 (1997)) Id.

Nothing in the FAA expressly preempts state regulation of air

safety, so preemption, if any, must be implied. 

[2] There are two types of implied preemption: conflict preemption and field preemption. Courts may find conflict preemption when a state law actually conflicts with federal law

or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of

MONTALVO v. SPIRIT AIRLINES 14749
Congress in enacting the federal law. See Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 (1983) (holding that a state law

was preempted by ERISA insofar as the state law prohibited

practices that were lawful under ERISA); Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 373 (2000). Implied

preemption exists when federal law so thoroughly occupies a

legislative field “as to make reasonable the inference that

Congress left no room for the States to supplement it.” Cipollone, 505 U.S. at 516 (citing Fidelity Fed. Sav. & Loan Ass’n

v. de la Cuesta, 458 U.S. 141, 153 (1982)). Thus, field preemption occurs when Congress indicates in some manner an

intent to occupy a given field to the exclusion of state law.

Cipollone, 505 U.S. at 516. In this case, we conclude that

Congress has indicated its intent to occupy the field of aviation safety. 

While the comprehensiveness of a statute is one indication

of preemptive intent, it alone is generally not sufficient to find

that Congress intended to occupy the entire field. Skysign Int’l

Inc. v. Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002) (citing

Geier v. American Honda Motor Co., 529 U.S. 861, 884

(2000)). We may, however, also look to the pervasiveness of

the regulations enacted pursuant to the relevant statute to find

preemptive intent. Fidelity Fed. Sav. & Loan Ass’n, 458 U.S.

at 153 (“Federal regulations have no less preemptive effect

than statutes.”). This is because “[w]here . . . Congress has

entrusted an agency with the task of promulgating regulations

to carry out the purposes of a statute, as part of the preemption analysis we must consider whether the regulations

evidence a desire to occupy a field completely.” R.J. Reynolds

Tobacco Co. v. Durham County, 479 U.S. 130, 149 (1986)

(citation omitted). As a result, a regulation’s preemptive force

does not depend on express Congressional authorization to

displace state law. Id. Instead, when an agency administrator

promulgates pervasive regulations pursuant to his Congressional authority, we may infer a preemptive intent unless it

appears from the underlying statute or its legislative history

that Congress would not have sanctioned the preemption. Id.

14750 MONTALVO v. SPIRIT AIRLINES
Here, the regulations enacted by the Federal Aviation Administration, read in conjunction with the FAA itself, sufficiently

demonstrate an intent to occupy exclusively the entire field of

aviation safety and carry out Congress’ intent to preempt all

state law in this field. 

[3] We begin with Congress’ intent, because our analysis

of the scope of the statute’s preemption is guided by the oftrepeated comment that the purpose of Congress is the ultimate

touchstone in every preemption case. Id.; Cipollone, 505 U.S.

at 516. The Congressional purpose must be clear, for we are

mindful of the adage that Congress does not cavalierly preempt state law causes of action. Medtronic, Inc. v. Lohr, 518

U.S. 470, 485 (1996). In this case, however, we are addressing an area of the law that has long been dominated by federal

interests. As we have observed, regulation of this country’s

airspace has “a history of significant federal presence.” Skysign Int’l Inc., 276 F.3d at 1116; Fidelity Fed. Sav. & Loan

Ass’n, 458 U.S. at 153 (holding that preemptive intent is more

readily inferred when the statute governs an area of the law

where the federal interest is dominant). 

The purpose, history, and language of the FAA lead us to

conclude that Congress intended to have a single, uniform

system for regulating aviation safety. The catalytic events

leading to the enactment of the FAA helped generate this

intent. The FAA was drafted in response to a series of fatal

air crashes between civil and military aircraft operating under

separate flight rules. See United States v. Christensen, 419

F.2d 1401, 1404 (9th Cir. 1969). To avoid future disasters

and, as we have expressed it, “to promote safety in aviation

and thereby protect the lives of persons who travel on board

aircraft,” In re Mexico City Aircrash of October 31, 1979, 708

F.2d 400, 406 (9th Cir. 1983), Congress enacted the FAA,

“the whole tenor [of which was] to create and enforce one

unified system of flight rules.” Christensen, 419 F.2d at 1404;

see also World Airways, Inc. v. Int’l Brotherhood of Teamsters, Airline Div., 578 F.2d 800 (9th Cir. 1978). In discussing

MONTALVO v. SPIRIT AIRLINES 14751
the impetus for the FAA, the Supreme Court has also noted

that regulating the aviation industry requires a delicate balance between safety and efficiency. It is precisely because of

“the interdependence of these factors” that Congress enacted

“a uniform and exclusive system of federal regulation.” City

of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 638-

39 (1973) (citations omitted); see also id. at 644 (J. Rehnquist, dissenting) (“The paramount substantive concerns of

Congress in enacting the FAA were to regulate federally all

aspects of air safety, . . . and, once aircraft were in ‘flight,’

air-space management . . . .”); Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303 (1944) (J. Jackson, concurring)

(“Planes do not wander about in the sky like vagrant clouds.

They move only by federal permission, subject to federal

inspection, in the hands of federally certified personnel and

under an intricate system of federal commands.”). 

[4] The legislative history of the FAA further illustrates

Congress’ intent to make the Federal Aviation Administration

the sole arbiter of air safety. The House Report for the FAA

explained in a section entitled “Purpose of Legislation,” that

“the administrator of the new Federal Aviation Agency (1)

would be given full responsibility and authority for the . . .

promulgation and enforcement of safety regulations . . . .”

H.R. REP. NO. 2360, 85th Cong., 2d Sess., 22, reprinted in

1958 U.S.C.C.A.N. 3741, 3741. In a letter to the House Committee on Interstate and Foreign Commerce, included as part

of the House Report, a representative of the Executive Branch

wrote:

It is essential that one agency of government, and

one agency alone, be responsible for issuing safety

regulations if we are to have timely and effective

guidelines for safety in aviation. 

Id. at 3761. Congress thus intended to ensure that the agency

alone would have the power, if it chose to exercise it, to frame

the rules for the safe and efficient use of the nation’s airspace.

14752 MONTALVO v. SPIRIT AIRLINES
Air Line Pilots Ass’n, Int’l v. Quesada, 276 F.2d 892, 894 (2d

Cir. 1960). 

[5] The language of the Act itself also illustrates that Congress “left open the door” for the Administrator to choose to

preempt subfields of air commerce, including but not limited

to aviation safety, “through the use of its authority to develop

regulations. . . .” Skysign Int’l Inc., 276 F.3d at 1116 (citing

49 U.S.C. § 40103(b)(1)-(2) (1994)). The FAA not only

authorizes but affirmatively directs the Administrator of the

Federal Aviation Administration to promulgate regulations for

the “safe flight of civil aircraft in air commerce.” 49 U.S.C.

§ 44701. Congress also wrote into the FAA a catch-all provision, which directs the Administrator to regulate any “other

practices, methods, and procedure the Administrator finds

necessary for safety in air commerce and national security.”

Id.

[6] Thus, when we look to the historical impetus for the

FAA, its legislative history, and the language of the Act, it is

clear that Congress intended to invest the Administrator of the

Federal Aviation Administration with the authority to enact

exclusive air safety standards. Moreover, the Administrator

has chosen to exercise this authority by issuing such pervasive

regulations that we can infer a preemptive intent to displace

all state law on the subject of air safety. See Fidelity Fed. Sav.

& Loan Ass’n, 458 U.S. at 153. These regulations codified in

Title 14 of the Code of Federal Regulations, cover, inter alia,

airworthiness standards, crew certification and medical standards, and aircraft operating requirements. The regulations

also include a general federal standard of care for aircraft

operators, requiring that “no person may operate an aircraft in

a careless or reckless manner so as to endanger the life or

property of another.” 14 C.F.R. § 91.13(a) (2003). Most pertinently, a number of specific federal regulations govern the

warnings and instructions which must be given to airline passengers. See 14 C.F.R. pt. 25 (2005); 14 C.F.R. pt. 121

(2005). These regulations require, for example, that “no

MONTALVO v. SPIRIT AIRLINES 14753
smoking” placards be placed in lavatories, id. § 25.791(d)

(2004), that “no smoking” signs be illuminated during the

entire flight on non-smoking flights, id. § 121.317(c) (2003),

and that the “fasten seat belt” sign “shall be turned on during

any movement on the surface, for each takeoff, for each landing, and at any other time considered necessary by the pilot

in command,” id. § 121.317(b). In addition, the Federal Aviation Administration has published regulations, id. §§ 121.571,

121.585, and an advisory circular setting out in detail the oral

briefings, familiar to all domestic air travelers, which flight

attendants or other flight personnel must give passengers, as

well as the information that must be included in passenger

safety briefing cards. These briefings include warnings for

passenger safety, such as “seat backs [must be] in an upright

position before takeoff and landing.” Id. § 125.327(a)(3). The

comprehensiveness of these regulations demonstrates that the

Administrator has exercised his authority to regulate aviation

safety to the exclusion of the states. 

If the FAA did not impliedly preempt state requirements

for passenger warnings, each state would be free to require

any announcement it wished on all planes arriving in, or

departing from, its soil, or to impose liability for the violation

of any jury’s determination that a standard the jury deems reasonable has been violated. Such a “patchwork of state laws in

this airspace . . . would create a crazyquilt effect.” French,

869 F.2d at 6. Congress could not reasonably have intended

an airline on a Providence-to-Baltimore-to-Miami run to be

subject to certain requirements in, for example Maryland, but

not in Rhode Island or in Florida. See id. It is equally as

doubtful that Congress would have intended the sufficiency of

the Airlines’ warnings to hinge on where each passenger on

each flight was likely to file suit. As the district court noted,

such a result would be an anathema to the FAA. In re Deep

Vein Thrombosis Litig., No. 04-1606, 2005 WL 591241, at

*13. 

The uniqueness of the aviation industry further mandates

the need for a centralized authority. See, e.g., S. REP. NO.

14754 MONTALVO v. SPIRIT AIRLINES
1811, 85th Cong., 2d Sess. 5 (1958) (“Aviation is unique

among transportation industries in its relation to the federal

government—it is the only one whose operations are conducted almost wholly within federal jurisdiction, and are subject to little or no regulation by States or local authorities.”).

Aviation transportation requires more national coordination

than any other public transportation and also poses the largest

risks. Id. Regulation on a national basis is required because air

transportation is a national operation. 

For all of these reasons, the Third Circuit became the leading circuit to recognize that federal law preempts the entire

field of aviation safety. Abdullah, 181 F.3d at 367-68. The

plaintiffs in that case were passengers who were injured when

an airline encountered turbulence. They sued the airline for

negligence for failing to warn the passengers about the turbulence. In determining whether the plaintiffs’ claims were preempted, the Third Circuit concluded that “because of the need

for one, consistent means of regulating aviation safety, the

standard applied in determining if there has been careless or

reckless operation of an aircraft, should be federal; state or

territorial regulation is preempted.” Id. at 372. The plaintiffs

could therefore recover only if they could prove that the airlines violated a federal standard of care. Id.

[7] We similarly hold that federal law occupies the entire

field of aviation safety. Congress’ intent to displace state law

is implicit in the pervasiveness of the federal regulations, the

dominance of the federal interest in this area, and the legislative goal of establishing a single, uniform system of control

over air safety. This holding is fully consistent with our decision in Skysign, 276 F.3d 1109, where we considered whether

federal law preempted state regulation of aerial advertising

that was distracting and potentially dangerous to persons on

the ground. In upholding the state regulations, we held that

federal law has not “preempt[ed] altogether any state regulation purporting to reach into the navigable airspace.” Id. at

1116. While Congress may not have acted to occupy excluMONTALVO v. SPIRIT AIRLINES 14755
sively all of air commerce, it has clearly indicated its intent

to be the sole regulator of aviation safety. 

[8] The FAA, together with federal air safety regulations,

establish complete and thorough safety standards for interstate

and international air transportation that are not subject to supplementation by, or variation among, states. The district court

correctly held that because there is no federal requirement that

airlines warn passengers about the risk of developing DVT,

Plaintiffs’ negligence claim fails as a matter of law. 

IV. Preemption of the Unsafe Seating Configuration Claim.

Plaintiffs’ second claim is that the Airlines were negligent

in providing an unsafe seating configuration, which caused

blood clots to form in Plaintiffs’ bodies from a lack of adequate legroom. The district court dismissed the claim under

Federal Rule of Civil Procedure 54(b), holding that it was preempted by the Airline Deregulation Act, 49 U.S.C.

§ 41713(b)(1). In re Deep Vein Thrombosis Litig., No. 04-

1606, 2005 WL 591241, at *4-8. The court accepted the position of the Airlines, who posited that to provide more legroom, they would have to reduce the number of seats per

aircraft and then materially increase ticket prices to offset the

decreased revenue. The court found that there would be a

price increase and it would amount to a forbidden indirect

regulation of the aviation industry under the ADA. Id. at *8-

10. 

[9] The ADA, unlike the FAA, contains an express preemption provision. See 49 U.S.C. § 41713(b)(1). It prohibits states

from indirectly regulating air commerce by enacting laws that

have a significant effect on airline prices, routes, or services.

Id. Preemption provisions are narrowly and strictly construed. Charas v. Trans World Airlines, Inc., 160 F.3d 1259,

1265 (9th Cir. 1998). In deciding whether the ADA expressly

preempts Plaintiffs’ claim, we must first “ascertain and give

effect to the plain meaning of the language used.” Id. at 1264

14756 MONTALVO v. SPIRIT AIRLINES
(quoting Hughes Air Corp. v. Public Utils. Comm’n, 644 F.2d

1334, 1337 (9th Cir. 1981)). We may then “look to the provisions of the whole law[ ] and to its object and policy.” Id.

(quoting Kelly v. Robinson, 479 U.S. 36, 43 (1986)). And, as

always, we must keep in mind that Congress’ intent is the ultimate touchstone of every preemption case. Id. at 1265. 

Congress enacted the ADA in 1978 as an amendment to the

FAA. The Act’s purpose was to encourage airlines to compete

in the marketplace by deregulating the aviation industry.

Morales, 504 U.S. at 378. Before deregulation, Congress had

authorized the Civil Aeronautics Board to regulate entry into

the interstate airline industry, set routes that airlines could fly,

and choose rates that the airlines could charge consumers. Id.

Congress terminated this practice to encourage the airlines to

be more autonomous competitors in our capitalist society. 

Congress feared, however, that states would attempt to

undo federal deregulation with regulation of their own. Id.;

see also Charas, 160 F.3d at 1265. To prevent states from

doing indirectly what Congress proscribed directly, Congress

included an express preemption provision in the ADA. The

provision provides, subject to certain exceptions not relevant

here, that:

A State . . . 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 any air

carrier that may provide air transportation under this

subpart. 

49 U.S.C. § 41713(b)(1). 

The Supreme Court has twice addressed the scope of this

preemption clause, first in Morales, 504 U.S. 374, and again

in American Airlines v. Wolens, 513 U.S. 219 (1995). The

Court in Morales held that the ADA preempted the attempts

of several state attorneys general to enforce state laws prohibMONTALVO v. SPIRIT AIRLINES 14757
iting deceptive advertising by airlines, because advertising

fostered competition, which in turn affected airline prices. In

so holding, the Court paid particular attention to the use of the

phrase “related to.” The Court interpreted the phrase to mean

any state regulation “having a connection with, or reference

to, airline ‘rates, routes, or services.’ ” Morales, 504 U.S. at

384. The Court, however, was careful to limit the reach of the

preemptive effect to regulation that has some long-term material impact. It emphasized that only those regulations that

have “the forbidden significant effect” upon rates, routes, or

services are preempted. Id. at 388. 

We have applied Morales and Wolens to an ADA preemption case in order to address whether certain state tort claims

that related to the negligent performance of in-flight duties by

flight attendants were preempted. See Charas, 160 F.3d 1259.

We noted that the Supreme Court has held preempted only

state regulation that has a significant effect on prices, routes,

and services, because Congress’ intent in deregulating the aviation industry was to “encourage the forces of competition,”

not to obviate all tort claims under state law that might in

some peripheral way impact the airlines. See id. at 1266. We

held that state claims that do not “significantly impact federal

deregulation” are not preempted. Id. at 1265-66. Clarifying

some confusion in our cases, we held that preemption of regulation related to “services” refers to the regularity or frequency of flights between given destinations, not to the

onboard services rendered by a flight crew. 

In Witty, 366 F.3d 380, which presented the same legal

issues before us now, the Fifth Circuit dismissed the plaintiffs’ seating configuration claim on preemption grounds,

observing that the plaintiffs effectively conceded that any seat

reconfiguration would materially affect costs, leading to a significant increase in airfares. Id. at 383. In this case, however,

Plaintiffs have not conceded that any seating reconfiguration

would result in a significant effect on airline ticket prices or

would interfere with the forces of competition. The Airlines

14758 MONTALVO v. SPIRIT AIRLINES
have not yet produced any evidence on this issue, and we

have no factual basis on which to judge the effect of any seating reconfiguration on prices. We thus cannot determine

whether a seat reconfiguration would materially impact federal deregulation, which this court has determined is a prerequisite for finding preemption. See Charas, 160 F.3d at 1265-

66. 

[10] The Supreme Court has instructed that only those state

laws that have a significant effect on prices are preempted by

the ADA. Morales, 504 U.S. at 384. Without more factual

development, we cannot determine whether the preemptive

reach of Morales extends as far as the seating configuration

issue presented in this case. We therefore remand the reconfiguration claim to the district court for further proceedings.

V. Conclusion.

[11] We hold that Plaintiffs’ failure to warn claim is preempted by the Federal Aviation Act, which together with the

regulations promulgated by the Federal Aviation Administration, exclusively governs the entire field of aviation safety.

We thus affirm the district court’s judgment in favor of the

Airlines on this claim. The judgment in favor of the Airlines

on the seating configuration claim is reversed, and that claim

is remanded for further factual development, because on the

basis of the record before us, we are unable to determine to

what extent seat reconfiguration would affect airline prices.

Each party shall bear its own costs. 

AFFIRMED IN PART; REVERSED AND REMANDED

IN PART. 

MONTALVO v. SPIRIT AIRLINES 14759