     11-5464-cv
     In re Air Cargo Shipping Servs. Anitrust Litig.

 1                      UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2011
 6
 7
 8      (Argued: April 19, 2012              Decided: October 11, 2012)
 9
10                            Docket No. 11-5464-cv
11
12   - - - - - - - - - - - - - - - - - - - - - - -x
13
14   In re Air Cargo Shipping Services Antitrust
15   Litigation
16
17   - - - - - - - - - - - - - - - - - - - - - - -x
18

19          Before:       JACOBS, Chief Judge, KEARSE and HALL,
20                        Circuit Judges.
21          Plaintiffs (indirect purchasers of air freight shipping

22   services) allege that numerous foreign airlines conspired to

23   fix prices in violation of state antitrust, consumer

24   protection, and unfair competition laws.          The United States

25   District Court for the Eastern District of New York

26   (Gleeson, J.) accepted, in relevant part, the report and

27   recommendation of Magistrate Judge Pohorelsky, dismissing

28   those claims as expressly preempted by the Federal Aviation

29   Act.    49 U.S.C. § 41713(b)(1).         We agree that Plaintiffs’

30   claims are expressly preempted.

31          Affirmed.
32
 1   Christopher Lovell, Lovell Stewart
 2   Halebian Jacobson LLP (Steven N.
 3   Williams, Cotchett, Pitre &
 4   McCarthy; W. Joseph Bruckner,
 5   Lockridge Grindal Nauen P.L.L.P.;
 6   Craig C. Corbitt, Zelle, Hofmann,
 7   Voelbel, & Mason; Daniel E.
 8   Gustafson, Gustafson Gluek PLLC, on
 9   the brief), for Plaintiffs-
10   Appellants.
11
12   IAN SIMMONS (Jonathan D. Hacker,
13   Angela Thaler Wilks, Joshua Deahl,
14   Anton Metlitsky, on the brief),
15   O’Melveny & Myers LLP, for
16   Defendants-Appellees Asiana
17   Airlines, Inc.
18
19   Sanford M. Litvack, Eric J. Stock,
20   Hogan Lovells US LLP, for
21   Defendants-Appellees Air Canada and
22   AC Cargo.
23
24   George N. Tompkins Jr., Wilson Elser
25   Moskowitz Edelman & Dicker LLP, for
26   Defendants-Appellees Air China Ltd.
27   and Air China Cargo Co. Ltd.
28
29   Michael J. Holland, Roderick D.
30   Margo, Condon & Forsyth LLP, for
31   Defendants-Appellees Air New Zealand
32   Ltd.
33
34   Patrick J. Bonner, Freehill, Hogan &
35   Mahar, LLP and Charles J. Simpson,
36   Jr., James A. Calderwood, Jol A.
37   Silversmith, Zuckert, Scoutt &
38   Rasenberger, L.L.P., for Defendants-
39   Appellees All Nippon Airways Co.,
40   Ltd.
41
42   Harvey J. Wolkoff, Ropes & Gray LLP,
43   for Defendants-Appellees Atlas Air
44   Worldwide Holdings, Inc., Polar Air
45   Cargo, LLC, and Polar Air Cargo
46   Worldwide, Inc.

           2
 1   Daryl A. Libow, Sullivan & Cromwell
 2   LLP, for Defendants-Appellees
 3   British Airways Plc
 4
 5   Stephen Fishbein, Heather Kafele,
 6   Shearman & Sterling LLP, for
 7   Defendants-Appellees Cargolux
 8   Airlines International S.A.
 9
10   David H. Bamberger, DLA Piper LLP
11   (US), for Defendants-Appellees
12   Cathay Pacific Airways Ltd.
13
14   John F. Savarese, David B. Anders,
15   Wachtell, Lipton, Rosen & Katz, for
16   Defendants-Appellees El Al Israel
17   Airlines Ltd.
18
19   Terry Calvani, Freshfields Bruckhaus
20   Deringer US LLP, for Defendants-
21   Appellees Emirates
22
23   Gary A. MacDonald, John M. Nannes,
24   Skadden, Arps, Slate, Meagher & Flom
25   LLP, for Defendants-Appellees
26   Koninklijke Luchtvaart Maatschappij
27   N.V. (KLM Royal Dutch Airlines)
28
29   Barry G. Sher, Paul Hastings LLP,
30   for Defendants-Appellees Korean Air
31   Lines Co., Ltd.
32
33   James V. Dick, Squire Sanders (US)
34   LLP, for Defendants-Appellees Lan
35   Airlines, S.A., Lan Cargo, S.A. and
36   Aerolinhas Brasileiras, S.A.
37
38   Daniel G. Swanson, D. Jarrett Arp,
39   Gibson, Dunn & Crutcher LLP, for
40   Defendants-Appellees Martinair
41   Holland N.V.
42
43   John R. Fornaciari, Baker &
44   Hostetler LLP, for Defendants-
45   Appellees Nippon Cargo Airlines Co.,
46   Ltd.
47

           3
 1   Peter J. Kadzik, Dickstein Shapiro
 2   LLP, for Defendants-Appellees Saudi
 3   Arabian Airlines Ltd.
 4
 5   George D. Ruttinger, Crowell &
 6   Moring LLP, for Defendants-Appellees
 7   Scandinavian Airlines System
 8
 9   Margaret M. Zwisler, William R.
10   Sherman, Ashley M. Bauer, Latham &
11   Watkins LLP, for Defendants-
12   Appellees Singapore Airlines Cargo
13   PTE LTD and Singapore Airlines Ltd.
14
15   James R. Warnot Jr., Linklaters LLP,
16   for Defendants-Appellees Société Air
17   France
18
19   Sara E. Kropf, John M. Taladay,
20   Steve Weissman, Andreas Stargard,
21   Kimberly A. Murphy, Baker Botts LLP,
22   for Defendants-Appellees South
23   African Airways Ltd.
24
25   Rowan D. Wilson, Cravath, Swaine &
26   Moore LLP, for Defendants-Appellees
27   Thai Airways International Public
28   Co. Ltd.
29
30   W. Todd Miller, Baker & Miller PLLC,
31   for Defendants-Appellees Qantas
32   Airways Ltd.




           4
1    DENNIS JACOBS, Chief Judge:

2        Plaintiffs (indirect purchasers of air freight shipping

3    services) brought suit against numerous foreign airlines

4    (“Defendants”), alleging a conspiracy to fix prices in

5    violation of state antitrust, consumer protection, and

6    unfair competition laws.    The United States District Court

7    for the Eastern District of New York (Gleeson, J.) dismissed

8    those claims as expressly preempted by federal law.   The

9    Federal Aviation Act preempts state-law claims “related to a

10   price, route, or service of an air carrier.”   49 U.S.C.

11   § 41713(b)(1).   The question is whether “air carrier” in

12   that provision applies to foreign air carriers.   We conclude

13   that it does, and affirm.

14

15                               BACKGROUND

16       At least 22 foreign air carriers have been subject to

17   federal criminal charges in the United States in connection

18   with a global price-fixing conspiracy.   Some have settled,

19   agreeing to pay fines and penalties totaling almost $2

20   billion.

21       Plaintiffs bring this civil suit alleging that they

22   paid excessive prices when Defendants entered into that


                                     5
1    conspiracy, beginning in 2000, and began levying a number of

2    surcharges, including a fuel surcharge, a war-risk-insurance

3    surcharge, a security surcharge, and a United States customs

4    surcharge.   Plaintiffs, as indirect purchasers of air

5    freight shipping, dealt with the defendant airlines through

6    intermediaries, such as freight forwarders.   They bring

7    their claims under state law because indirect purchasers are

8    unable to obtain money damages under federal antitrust law.

9    See Ill. Brick Co. v. Illinois, 431 U.S. 720, 729 (1977).

10   Additional claims were brought by other plaintiffs who were

11   direct purchasers.   The claims of those direct-purchaser

12   plaintiffs remain in district court and are not before us.

13       Below, the district court accepted, in relevant part,

14   Magistrate Judge Pohorelsky’s recommendation to dismiss

15   Plaintiffs’ state claims on the ground that it was expressly

16   preempted by federal law.    The district court then entered

17   partial final judgment under Rule 54(b) of the Federal Rules

18   of Civil Procedure, so Plaintiffs could immediately appeal

19   the dismissal decision.   This appeal followed.

20

21                               DISCUSSION

22       We review de novo a dismissal for failure to state a

23   claim upon which relief can be granted.   Harris v. Mills,

                                     6
1    572 F.3d 66, 71 (2d Cir. 2009).   We also review de novo

2    questions of statutory interpretation, Bodansky v. Fifth on

3    the Park Condo, LLC, 635 F.3d 75, 82 (2d Cir. 2011), and

4    questions of preemption, New York SMSA Ltd. Partnership v.

5    Town of Clarkstown, 612 F.3d 97, 103 (2d Cir. 2010).

6        The relevant provision of the Federal Aviation Act is

7    as follows:

8        Except as provided in this subsection, a State,

9        political subdivision of a State, or political

10       authority of at least 2 States may not enact or enforce

11       a law, regulation, or other provision having the force

12       and effect of law related to a price, route, or service

13       of an air carrier that may provide air transportation

14       under this subpart.

15   49 U.S.C. § 41713(b)(1).   Plaintiffs’ claims undoubtedly

16   arise under state law and are related to “price.”    Id.    The

17   dispositive question, then, is whether foreign air carriers

18   (such as Defendants) are “air carrier[s]” under

19   § 41713(b)(1) (the “preemption provision”).

20

21                                 I

22       We begin “‘with the language employed by Congress and

23   the assumption that the ordinary meaning of that language

                                   7
1    accurately expresses the legislative purpose.’”    United

2    States v. Aleynikov, 676 F.3d 71, 76 (2d Cir. 2012) (quoting

3    United States v. Albertini, 472 U.S. 675, 680 (1985)).        The

4    ordinary, everyday meaning of “air carrier” includes both

5    domestic and foreign air carriers.

6        That would usually end the analysis, but “[w]hen a

7    statute includes an explicit definition,” we generally

8    follow that definition, “even if it varies from that term’s

9    ordinary meaning.”   Stenberg v. Carhart, 530 U.S. 914, 942

10   (2000).   “‘Statutory definitions control the meaning of

11   statutory words, of course, in the usual case.’”     Nw. Austin

12   Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 206 (2009)

13   (quoting Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198,

14   201 (1949)).   The Federal Aviation Act defines an “air

15   carrier” as “a citizen of the United States undertaking by

16   any means, directly or indirectly, to provide air

17   transportation.”   49 U.S.C. § 40102(a)(2).   A “foreign air

18   carrier” is separately defined as “a person, not a citizen

19   of the United States, undertaking by any means, directly or

20   indirectly, to provide foreign air transportation.”    Id.

21   § 40102(a)(21).

22       Plaintiffs contend that this is the “usual case” where

23   the statutory definitions should control.     The statutory

                                   8
1    definitions are consistent with this Court’s authority that

2    the terms “air carrier” and “foreign air carrier” are

3    “mutually exclusive” because an entity cannot be both a

4    citizen and not a citizen of the United States.   United

5    States v. Keuylian, 602 F.2d 1033, 1040 (2d Cir. 1979).

6    That observation is sound as far as it goes; but there are

7    occasions when statutory definitions yield to context and

8    the development of the statutory wording over time.    In any

9    event, while an entity cannot be both an air carrier and a

10   foreign air carrier (i.e., the terms are mutually

11   exclusive), nothing in the statutory definitions prevents

12   the statutory preemption provision from applying to both

13   domestic air carriers and foreign air carriers, which is the

14   matter at issue here.

15       To demonstrate that Congress has been careful to

16   distinguish between the two terms, Plaintiffs cite 51 places

17   in the Federal Aviation Act where Congress distinguished

18   between an “air carrier” and a “foreign air carrier” by

19   using both terms.   At the same time, Plaintiffs concede that

20   there are numerous provisions in the Federal Aviation Act

21   where Congress was not so careful and used the term “air

22   carrier” generically to reference air carriers, both




                                   9
1   domestic and foreign.1   See In re Korean Air Lines Co. Ltd.,

        1
           For example, 49 U.S.C. § 44901(i) applies to “an air
    carrier providing air transportation under a certificate
    issued under section 41102 of this title or a permit issued
    under section 41302.” 49 U.S.C. § 44901(i) (emphasis
    added). Because only foreign air carriers may obtain “a
    permit under section 41302 of this title,” “air carrier” in
    Section 44901 must include foreign air carriers.
         Section 44940(a)(2)(B)(ii) provides that “[t]he amount
    of fees collected under this paragraph from an air carrier
    described in subparagraph (A) for each of fiscal years 2002,
    2003, and 2004 may not exceed the amount paid in calendar
    year 2000 by that carrier for screening passengers and
    property.” 49 U.S.C. § 44940(a)(2)(B)(ii). Defining “air
    carrier” in this statute to mean only domestic air carriers
    contradicts the Department of Transportation’s regulation
    enforcing the provision. See Aviation Security
    Infrastructure Fees, 67 Fed. Reg. 7926-01, 7927 (Feb. 20,
    2002) (“For fiscal years 2002 through 2004, the fee imposed
    on each air carrier and foreign air carrier is limited to
    the amount that carrier paid for screening passengers and
    property in calendar year 2000, as determined by the Under
    Secretary.” (emphasis added)).
         Section 44925(a) requires the Secretary of Homeland
    Security to deploy explosives screening to “detect
    . . . weapons and explosives that terrorists would likely
    try to smuggle aboard an air carrier aircraft.” 49 U.S.C.
    § 44925(a). Congress did not intend to require explosives
    screening only for domestic air carriers but not foreign air
    carriers. Subsection (d) of that same statute requires the
    Assistant Secretary for Homeland Security, on an interim
    basis, to provide screening of particular individuals on
    “aircraft operated by an air carrier or foreign air carrier
    . . . .” Id. § 44925(d).
         The original wording of 49 U.S.C. § 40118(d) governed
    the payment for air travel by an officer or employee of the
    State Department “between two places both of which are
    outside the United States . . . aboard air carriers which do
    not hold certificates under Section 1371 of this title.” 49
    U.S.C. § 1518 (1982). But the legislative history made
    clear that the term “air carriers which do not hold
    certificates” meant “foreign air carriers.” See H.R. Rep.
    No. 95-1535, at 45 (1978) (Conf. Rep.). Congress later
    corrected the language through an amendment not intended to
                                  10
1    Anti-Trust Litig., 642 F.3d 685, 692 (9th Cir. 2011); Port

2    Auth. of N.Y. & N.J. v. Dep’t of Transp., 479 F.3d 21, 32

3    (D.C. Cir. 2007).

4        Since the Federal Aviation Act used the statutory

5    definition in some places, and in other places used the

6    normal, everyday meaning, this is the “unusual case” in

7    which the statutory definitions do not have compulsory

8    application.   Nw. Austin Mun. Util. Dist. No. One, 557 U.S.

9    at 206-07 (internal quotation marks omitted).   Because it

10   has been “‘established that a statutorily defined term has

11   different meanings in different sections, the term standing

12   alone is necessarily ambiguous and each section must be

13   analyzed to determine whether the context gives the term a

14   further meaning that would resolve the issue in dispute.’”

15   Korean Air Lines, 642 F.3d at 692-93 (brackets omitted)

16   (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 343-44

17   (1997)).   To dispel this ambiguity, we look to “other

18   sources, including the legislative history, to discern

19   Congress’s meaning.”   Slayton v. Am. Express Co., 604 F.3d

20   758, 771 (2d Cir. 2010); accord Nw. Austin Mun. Util. Dist.

21   No. One, 557 U.S. at 206-07; Robinson, 519 U.S. at 343-44;



     make a substantive change. In re Korean Air Lines Co. Ltd.,
     Anti-Trust Litig., 642 F.3d 685, 693 n.5 (9th Cir. 2011).
                                   11
1    Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755,

2    764 (1949); Lawson, 336 U.S. at 201; see also Philko

3    Aviation, Inc. v. Shacket, 462 U.S. 406, 411 (1983)

4    (refusing to use statutory definition of “conveyance” in the

5    Federal Aviation Act because it would “defeat the primary

6    congressional purpose for” enacting the provision).

7        Resort to context and legislative history is

8    particularly appropriate in this instance.   When the Federal

9    Aviation Act was originally enacted, it “defined ‘air

10   carrier’ as being a U.S. citizen ‘unless the context

11   otherwise require[d].’”    Korean Air Lines, 642 F.3d at 693

12   n.5 (emphasis added) (quoting Pub.L. No. 85-726, 72 Stat.

13   731 (1958)).    The proviso was removed in 1994 in an

14   amendment that was intended to make “‘no substantive change

15   in the law.’”   Id. (quoting S. Rep. No. 103-265, at 5

16   (1994)); see also Act of July 5, 1994, Pub. L. No. 103-272,

17   § 1, 108 Stat. 745.   We therefore consult context and

18   legislative history to ascertain the meaning of “air

19   carrier” in the preemption provision.

20

21                                  II

22       A review of the Federal Aviation Act, the various

23   amendments to it, and the legislative history and purpose of

                                    12
1    the preemption provision confirms that the preemption

2    provision should be read to preempt state-law antitrust

3    suits against foreign as well as domestic air carriers.

4    Korean Air Lines, 642 F.3d at 693-95.   We start with the

5    preemption provision.

6

7

8                                 A

9        The preemption provision was part of the Airline

10   Deregulation Act,2 which amended the Federal Aviation Act to

11   “encourage, develop, and attain an air transportation system

12   which relies on competitive market forces to determine the

13   quality, variety, and price of air services,” Pub. L. No.

14   95-504, (Preamble) 92 Stat. 1705 (1978), while still

15   preserving the significant regulatory authority of the

16   federal Civil Aeronautics Board (“CAB”), see Morales v.

17   Trans World Airlines, Inc., 504 U.S. 374, 379 (1992); see

18   also 49 U.S.C. §§ 1374(b), 1381 (1982) (providing authority

19   for CAB to, inter alia, bar anti-competitive conduct).

20   Previously, the Federal Aviation Act provided that

21   “[n]othing . . . in this chapter shall in any way abridge or

         2
           49 U.S.C. § 1305(a)(1) (1978) (preemption provision
     before it was relocated and renumbered during the re-
     enactment of Title 49 in 1994).
                                  13
1    alter the remedies now existing at common law or by statute,

2    but the provisions of this chapter are in addition to such

3    remedies.”   49 U.S.C. § 1506 (1978).

4        The preemption provision was included in the Airline

5    Deregulation Act “[t]o ensure that the [s]tates would not

6    undo federal deregulation with regulation of their own.”

7    Morales, 504 U.S. at 378; Korean Air Lines, 642 F.3d at 694

8    (“‘In addition to protecting consumers, federal regulation

9    insures a uniform system of regulation and preempts

10   regulation by the states’ in a field where state-based

11   variations ‘would be confusing and burdensome to airline

12   passengers, as well as to the airlines.’”) (quoting H.R.

13   Rep. No. 98-793, at 4 (1984), reprinted in 1984 U.S.C.C.A.N.

14   2857, 2860).   This also resolved “uncertainties and

15   conflicts” in the law created by conflicting or overlapping

16   regulations issued by the federal and state governments.

17   H.R. Rep. No. 95-1211 at 16 (1978), reprinted in 1978

18   U.S.C.C.A.N. 3737, 3751.   Accordingly, the preemption

19   provision conferred on the federal government exclusive

20   authority to regulate a carrier’s routes, rates, and

21   services.    Id. at 16 (explaining that the Airline

22   Deregulation Act “will prevent conflicts and inconsistent

23   regulations by providing that when a carrier operates under

                                    14
1    authority granted pursuant to . . . the Federal Aviation

2    Act, no state may regulate that carrier’s routes, rates or

3    services”).

4        The Airline Deregulation Act achieved domestic

5    deregulation, and the original preemption provision applied

6    only to “air carrier[s] having authority . . . to provide

7    interstate air transportation.”    49 U.S.C. § 1305(a)(1)

8    (1978) (emphasis added).   Interstate air transportation is

9    transportation between two states (or the District of

10   Columbia) within the United States.   49 U.S.C. § 1301(24)(a)

11   (1978).   Because only domestic air carriers were authorized

12   to engage in “interstate air transportation,” 49 U.S.C.

13   § 1301(22) (1978); Korean Air Lines, 642 F.3d at 694, the

14   preemption provision, as originally drafted, was aimed at

15   preemption of state laws and regulations aimed at domestic

16   air carriers, only.

17

18                                 B

19       The International Air Transportation Competition Act of

20   1979 (“IATCA”), Pub. L. No. 96-192, 94 Stat. 35 (1980),

21   extended deregulation and the market-oriented regulatory

22   approach of the Airline Deregulation Act to foreign air

23   transportation.   Korean Air Lines, 642 F.3d at 694.

                                   15
1    Although more limited than domestic deregulation, the IATCA

2    was also intended to increase market competition in order to

3    reduce pricing in foreign air transportation.   Id. (citing

4    IATCA, § 102(a)(4)).3

5

6                                 C

7        The Civil Aeronautics Board Sunset Act of 1984 (“Sunset

8    Act”), Pub. L. No. 98-443, 98 Stat. 1703 (1984), included an

9    amendment to the preemption provision that deleted the term

10   “interstate”; so the provision preempted state laws relating

11   to price, route, or service of “‘any air carrier having

12   authority . . . to provide air transportation.’”   See Korean

13   Air Lines, 642 F.3d at 694 (alteration in original) (quoting

14   49 U.S.C. § 1305(a)(1) (1984)).   The Sunset Act conferred

15   upon the United States Department of Transportation the

16   authority to “‘preserve the competitive direction adopted in


         3
           Plaintiffs argue that we should disregard Defendants’
     reliance on the IATCA because those arguments were not
     raised below. There is no new argument; the IATCA is
     additional support for Defendants’ position. “Once a
     federal claim is properly presented, a party can make any
     argument in support of that claim; parties are not limited
     to the precise arguments they made below.” Yee v. City of
     Escondido, 503 U.S. 519, 534 (1992). In any event, the
     Ninth Circuit’s intervening decision in Korean Air Lines
     relied on the IATCA’s amendments to the Federal Aviation
     Act. Defendants are certainly privileged to cite that case
     and to urge its persuasiveness.
                                  16
1    the [Airline Deregulation Act] and the IATCA,’” which makes

2    “clear that the ramifications of the IATCA were in the minds

3    of the Sunset Act’s drafters” when they deleted “interstate”

4    from the preemption provision.     Korean Air Lines, 642 F.3d

5    at 695 (quoting H.R. Rep. No. 98-793 at 8, reprinted in 1984

6    U.S.C.C.A.N. at 2864).   This legislative history leads to

7    the “conclu[sion] that Congress intended to expand the

8    [Airline Deregulation Act’s] preemptive scope to cover state

9    regulation of ‘foreign air carriers.’”    Id. (internal

10   brackets omitted).

11       The legislative history of the Sunset Act justifies

12   preemption.   Although the following text concerns domestic

13   deregulation, the point that is made is just as applicable

14   to foreign air carriers.   The House’s report explained:

15       Federal regulation insures a uniform system of

16       regulation and preempts regulation by the states.      If

17       there was no federal regulation, the states might begin

18       to regulate these areas, and the regulations could vary

19       from state to state.   This would be confusing and

20       burdensome to airline passengers, as well as to the

21       airlines.

22   H.R. Rep. No. 98-793 at 4, reprinted in 1984 U.S.C.C.A.N. at

23   2860.   By the same token, the “purpose [of deregulation]

                                   17
1    would be undermined if states could regulate foreign air

2    carriers.”   Korean Air Lines, 642 F.3d at 694.     Reading the

3    statutory scheme to permit “regulation of foreign air

4    carriers would create a confusing patchwork of regulations

5    for airline passengers to navigate . . . .     Such a result

6    would not be consonant with Congress’s express purpose in

7    enacting the statute.”      Id.

8

9                                      D

10       Plaintiffs argue that the removal of a single word from

11   the preemption provision--“interstate”--cannot support

12   expansion of the preemption provision to cover foreign air

13   carriers.    We disagree.   It had been beyond dispute that the

14   preemption provision only applied to domestic air carriers.

15   The Sunset Act, however, was enacted on the heels of the

16   IATCA, which expanded deregulation of the domestic airline

17   industry to foreign air carriers.      In light of the clear

18   signals from Congress that deregulation was to continue

19   unabated--and not be frustrated by re-regulation by the

20   states--Congress’s removal of “interstate” was intended to

21   expand the preemption bar to state regulation of foreign air

22   carriers.

23

                                       18
1        Since the removal of “interstate” must be given some

2    effect, Plaintiffs propose a congressional intent to expand

3    the preemption provision to domestic air carriers that only

4    had authority to provide overseas air transportation4 and

5    thus were not protected by the wording of the original

6    enactment (“air carrier[s] having authority . . . to provide

7    interstate air transportation,” 49 U.S.C. § 1305(a)(1)

8    (1978)).   However, by 1984, that category of domestic air

9    carrier no longer existed.   Before 1982, if an air carrier

10   provided overseas--but not interstate--transportation, the

11   CAB would issue an authorizing certificate limited to air

12   transportation overseas.   The CAB’s authority to issue such

13   certificates expired on December 31, 1981, Airline

14   Deregulation Act of 1978, Publ L. No. 95-504, § 40, 92 stat

15   1705, 1744-47; starting January 1, 1982, the CAB issued

16   certificates for domestic air carriers that authorized

17   “interstate and overseas air transportation . . . between

18   all points in the United States, its territories and

19   possessions (without regard to point listings).”   In re

20   Certificate Formats in 1982, CAB Order No. 81-11-23, at 2

         4
           Overseas air transportation is air transportation
     between a state (or the District of Columbia) and a
     territory or possession of the United States or between two
     territories or possessions of the United States. 49 U.S.C.
     § 1301(24)(b) (1982).
                                   19
1    (Nov. 3, 1981); see also Proposals to Provide Essential Air

2    Service at Natchez, Mississippi, CAB Order No. 81-12-132, at

3    1 (Dec. 22, 1981) (making final the proposed orders and

4    findings set out in the November 3, 1981, Order).

5        Plaintiffs also argue that deregulation was a domestic

6    initiative; so an expansion of the preemption provision to

7    protect foreign air carriers does not flow from

8    deregulation.   However, the IATCA was aimed at foreign air

9    carriers, and the Sunset Act was intended to preserve the

10   pro-competition policy approach of the IATCA as well as the

11   Airline Deregulation Act.   See Korean Air Lines, 642 F.3d at

12   695 (citing H.R. Rep. No. 98-793 at 8, reprinted in 1984

13   U.S.C.C.A.N. at 2864).

14       Plaintiffs argue that the IATCA has no bearing on the

15   question before us because it mainly redistributed the

16   administration of federal regulatory authority among federal

17   agencies, and therefore was not deregulatory.   This is

18   incorrect.   The IATCA (and, later, the Sunset Act) continued

19   the deregulation of the airline industry and expanded

20   deregulation to foreign air carriers.   Some regulatory

21   authority that was deemed critical was preserved and

22   transferred from the CAB to the Department of

23   Transportation, Korean Air Lines, 642 F.3d at 694-95 (citing

                                   20
1    H.R. Rep. No. 98-793, at 2, 8, 13, reprinted in 1984

2    U.S.C.C.A.N. at 2857, 2858, 2864, 2869), but deregulation is

3    an incremental process, not an annihilation.   Maintaining

4    some federal regulatory authority had the not-incidental

5    effect of filling holes for which state regulation was to be

6    excluded. See Korean Air Lines, 642 F.3d at 694.

7        Finally, Plaintiffs point out that Congress chose to

8    omit from the IATCA any preemption provision specifically

9    for foreign air carriers.   That does not matter because we

10   conclude above that Congress achieved that result by other

11   means.5

12

13                                III

14       The legislative history of the preemption provision and

15   the amendments to it confirm that Congress intended the term

16   “air carrier” in the preemption provision to mean domestic

         5
           Plaintiffs point to a proposed (but rejected)
     amendment to the preemption provision from 1981 that would
     have expanded protection for any air carrier providing
     interstate air transportation by removing the phrase,
     “having authority under subchapter IV of this chapter to.”
     Plaintiffs argue that this amendment is significant because
     it would not have protected foreign air carriers. That
     Congress considered (and rejected) an amendment entirely
     unrelated to foreign air carriers is of no moment. In any
     event, this amendment (even if enacted) would not advance
     Plaintiffs’ position because it preceded the Sunset Act,
     which removed “interstate” from the preemption provision and
     expanded the provision’s protection to foreign air carriers.
                                   21
1    and foreign air carriers alike.     A contrary result would

2    undermine Congress’s purpose in enacting the preemption

3    provision and the various deregulation statutes.    See Philko

4    Aviation, 462 U.S. at 411; accord Lawson, 336 U.S. at 201

5    (rejecting mechanical use of a statutory definition that

6    would “destroy one of the major purposes of” enacting the

7    provision).

8        The intent of Congress in deregulating the industry and

9    in enacting the preemption provision was “[t]o ensure that

10   the [s]tates would not undo federal deregulation with

11   regulation of their own.”   Morales, 504 U.S. at 378.    The

12   preemption provision protects air carriers against state

13   regulation relating to prices, routes, and services, 49

14   U.S.C. § 41713(b)(1); so re-regulation could comprehensively

15   defeat the federal effort to reduce regulation.

16       Plaintiffs’ reading of the preemption provision, which

17   would preempt only state regulation of domestic air

18   carriers, would allow states to regulate the routes, prices,

19   and services of foreign air carriers that operate all over

20   the world.    That would risk subjecting foreign air carriers

21   and their customers to “a confusing patchwork” of state-by-

22   state regulation, such as different rules for purchase of

23   otherwise identical international flights if one ticket is

                                    22
1    from an American air carrier and the other from a foreign

2    carrier.   See Korean Air Lines, 642 F.3d at 694 (explaining

3    that, in the context of domestic deregulation, state-by-

4    state re-regulation would subject air carriers and their

5    customers to “state-based variations [which] ‘would be

6    confusing and burdensome to airline passengers, as well as

7    to the airlines.’” (quoting H.R. Rep. No. 98-793 at 4,

8    reprinted in 1984 U.S.C.C.A.N. at 2860)).

9        Allowing the states to regulate only foreign air

10   carriers would be particularly peculiar since “[f]oreign

11   commerce is pre-eminently a matter of national concern.”

12   Japan Line, Ltd. v. Cnty. of L.A., 441 U.S. 434, 448-49

13   (1979).    Apart from that oddity, a preemption provision that

14   favors domestic air carriers by subjecting only foreign air

15   carriers to state regulation would likely be viewed as

16   “discriminat[ion] against foreign air carriers” in violation

17   of the United States’ treaty obligations.   Korean Air Lines,

18   642 F.3d at 696.6   Interpreting the preemption provision in

         6
           See, e.g., Convention on International Civil
     Aviation, art. 11, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S.
     295 (providing for application of laws and regulation
     “without distinction as to nationality” of airlines of
     signatory states); Air Transport Agreement, U.S.-S. Kor.,
     art. 11, June 9, 1998, State Dept. No. 98-111, 1998 WL
     468488, at *7 (“Each Party shall allow a fair and equal
     opportunity for the designated airlines of both Parties to
     compete in providing the international air transportation
                                    23
1    such a manner “offend[s] the longstanding principle that

2    statutes should be construed in accordance with

3    international law.”   Id. (citing Murray v. Schooner Charming

4    Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)).7

5

6

7                                * * *

8        In sum, the ambiguity of Congress’s use of the term

9    “air carrier” in the preemption provision necessitates

10   review of the legislative history of the preemption

11   provision and the various statutes deregulating the airline

12   industry.   That legislative history (confirmed by additional

13   canons of statutory construction) leads us to conclude that

14   “air carrier” in the preemption provision means both


     governed by this Agreement.”); Treaty of Friendship,
     Commerce and Navigation, U.S.-S. Kor. art. I, Nov. 28, 1956,
     8 U.S.T. 2217 (“Each Party shall at all times accord
     equitable treatment to the persons, property, enterprises
     and other interests of nationals and companies of the other
     Party.”).
         7
           Plaintiffs contend that none of the treaties cited,
     supra note 6, is violated by a regulatory system that
     discriminates between domestic and foreign air carriers.
     This argument was rejected in Korean Air Lines, 642 F.3d at
     696. In any event, even without an outright violation, the
     treaties demonstrate a commitment by the United States to
     regulating domestic and foreign air carriers in a similar
     fashion. Subjecting only foreign air carriers to suits under
     an overlapping patchwork of state laws does not comport with
     that principle.
                                   24
1   domestic and foreign air carriers.    Plaintiffs’ state law

2   claims are therefore expressly preempted, and the district

3   court correctly granted Defendants’ motion to dismiss.

4       Because Plaintiffs’ claims are expressly preempted, we

5   need not consider whether they are impliedly preempted.

6

7                            CONCLUSION

8       For the foregoing reasons, the judgment of the district

9   court is affirmed.




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