          United States Court of Appeals
                     For the First Circuit



No. 14-1869

                      DARYL OVERKA, ET AL.,

                     Plaintiffs, Appellants,

                               v.

                    AMERICAN AIRLINES, INC.,

                      Defendant, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

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



                             Before

                       Lynch, Chief Judge,
               Kayatta and Barron, Circuit Judges.



     Shannon Liss-Riordan, with whom Lichten & Liss-Riordan, P.C.
was on brief, for appellants.
     Michael Vance Powell, with whom Amy C. Mariani, David J.
Volkin, and Fitzhugh & Mariani LLP were on brief, for appellee.



                          June 12, 2015
          BARRON, Circuit Judge.      For the third time in recent

years, "skycaps" -- airport porters who, among other things, assist

passengers with curbside check-in -- ask us to decide whether they

may sue an airline for alleged violations of state law arising out

of the imposition at airports of a $2.00 per-bag, curbside check-

in fee.   As in those previous cases, and on the basis of those

prior precedents and intervening precedent, we hold that federal

law preempts these skycaps' state statutory and common law claims.

                                I.

          The suit before us began on April 24, 2008, when a class

of skycaps working at Logan Airport in Boston, Massachusetts, and

at other airports throughout the country, brought suit against

American Airlines.   The suit arose after American began charging

passengers $2.00 per bag to use curbside check-in services at

airports across the country. According to the plaintiffs, American

failed to adequately notify customers that skycaps would not

receive the proceeds from the new charge.    The plaintiffs further

claimed that their compensation "decreased dramatically" following

the introduction of the new charge, as fewer passengers tipped

skycaps on top of paying the per-bag charge.

          The plaintiffs thus sued American, on behalf of the

Massachusetts skycaps, for violations of the Massachusetts Tips

Law, Mass. Gen. Laws. ch. 149 § 152A.     The plaintiffs also sued


                              - 2 -
American on behalf of both those skycaps and the others in the

class for tortious interference with the "implied contractual

and/or advantageous relationship that exists between skycaps and

[American's] customers" and unjust enrichment or quantum meruit.1

           American filed a motion to dismiss in May of 2014 after

the case was reopened following two stays.   American argued that

two recent circuit precedents, DiFiore v. American Airlines, Inc.,

646 F.3d 81 (1st Cir. 2011), and Brown v. United Airlines, Inc.,

720 F.3d 60 (1st Cir. 2013), cert. denied, 134 S. Ct. 1787 (2014),

compelled the conclusion that the Airline Deregulation Act, 49

U.S.C. § 41713(b)(1), preempted each of the skycaps' claims.   The

District Court agreed.   Following a short hearing on American's

motion, the District Court issued an order of dismissal in August

of 2014.   The plaintiffs now appeal that decision.

                                II.

           In 1978, "as part of a wave of deregulatory measures,"

DiFiore, 646 F.3d at 85, Congress enacted the Airline Deregulation


     1 The plaintiffs also brought a retaliation claim under state
law, see Mass. Gen. Laws ch. 149 § 148A, alleging that American
had implemented a "no-tipping" policy in response to skycaps'
pursuing such claims. The plaintiffs later agreed to waive this
claim, however, in light of American's decision to rescind the
"no-tipping" policy.   In addition, the plaintiffs -- who seek
restitution and statutory damages -- initially sought injunctive
relief as well, but they voluntarily withdrew all of their claims
for injunctive relief after American agreed to stop charging the
per-bag curbside check-in fee.

                               - 3 -
Act (ADA), "which largely deregulated domestic air transport," Am.

Airlines, Inc. v. Wolens, 513 U.S. 219, 222 (1995). The ADA sought

to promote "efficiency, innovation, and low prices" in the airline

industry through "maximum reliance on competitive market forces

and    on   actual   and   potential    competition."    49   U.S.C.

§§ 40101(a)(6), (12)(A).     "To ensure that the States would not

undo federal deregulation with regulation of their own," Morales

v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992), Congress

included an express preemption clause in the ADA, which provides

that

            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   that   may   provide   air
            transportation under this subpart.

49 U.S.C. § 41713(b)(1).2

            Our Circuit has in recent years twice applied that

provision to preempt claims brought by skycaps arising out of


       2The original version of the ADA contained a preemption
clause that used slightly differently wording. See Pub. L. No.
95-504, § 4(a), 92 Stat. 1705, 1707-08 (1978) (codified at 49
U.S.C. app. § 1305(a)(1) (1982)) (preempting state laws "relating
to rates, routes, or services"). The changes in wording -- which
were made when Title 49 was recodified -- were merely stylistic
and were "not intend[ed] to impair the applicability of prior
judicial case law interpreting these provisions." H.R. Rep. No.
103-677, at 83 (1994) (Conf. Rep.), reprinted in 1994 U.S.C.C.A.N.
1715, 1755.

                                - 4 -
airlines' introduction of fees for curbside check-in services.

First, in DiFiore v. American Airlines, Inc., which was decided in

2011,       we   held   that   the   ADA    preempted   skycaps'   claims   that

American's per-bag fees violated the Massachusetts Tips Law.3                646

F.3d at 87-90.          In so holding, we explained that the 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 federal statute, and

the airline's 'price' includes charges for such ancillary services

as well as the flight itself."             Id. at 87.   We thus concluded that,

as applied in the case, the Tips Law "directly regulates how an

airline service is performed and how its price is displayed to

customers," which was precisely what the ADA sought to avoid.                Id.

at 88.

                 Two years later, we resolved the further question of

whether the same result follows for certain common law claims that

targeted the same $2.00 charge.               In that case, Brown v. United

Airlines, Inc., a separate set of skycaps had brought common law

claims for unjust enrichment and tortious interference arising out




        3
        The DiFiore plaintiffs, in addition to their claims under
the Tips Law, initially brought common law claims identical to the
ones now before us. By the time their case reached this Court,
however, only their Tips Law claims remained. See 646 F.3d at 84,
89.

                                       - 5 -
of two airlines' imposition of $2.00 baggage fees for curbside

service.     720 F.3d at 62.       We held that the ADA preempted these

common law claims.

             We   explained   in    Brown   that    DiFiore     "conclusively

resolves" in the airlines' favor the "linkage" issue -- i.e., the

issue   of   whether   laws   regulating    the    imposition    of   baggage-

handling fees "relate[] to a price, route, or service of an air

carrier" within the meaning of the ADA preemption clause.              Id. at

64.     We further concluded that the common law, "no less than

positive law," constitutes a "provision having the force and effect

of law" within the meaning of that same clause.            Id. at 64-65; see

49 U.S.C. § 41713(b)(1) ("Except as provided in this subsection,

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 that may provide air

transportation     under   this    subpart."   (emphasis    added)).      And,

finally, we held that the skycaps' claims did not fit within the

so-called "Wolens exception" to preemption under the ADA.              Brown,

720 F.3d at 70-71.

             That exception comes from the Supreme Court's decision

in American Airlines, Inc. v. Wolens.             There, the Supreme Court

held that the ADA did not preempt breach of contract claims arising


                                    - 6 -
out of an airline's frequent flyer program because those claims

had sought remedies for violations of self-imposed, not state-

imposed, obligations.     See 513 U.S. at 228-33.

          The    plaintiffs   in    the    present   case    argue     that,

notwithstanding DiFiore and Brown, their claims -- which are for

violations of the Massachusetts Tips Law (like in DiFiore) and

tortious interference and unjust enrichment (like in Brown) -- are

not preempted.   They rely on intervening precedents to explain why

neither   DiFiore   nor   Brown    controls,   despite      their    seeming

applicability.   But the plaintiffs' arguments are unconvincing.

                                    A.

          With respect to the common law unjust enrichment and

tortious inference claims, the plaintiffs argue that the Supreme

Court's recent decision in Northwest, Inc. v. Ginsberg, 134 S. Ct.

1422 (2014), undermines Brown's holding that skycaps' "unjust

enrichment and tortious interference claims fall outside [the

Wolens exception's] confines," Brown, 720 F.3d at 70.

          The Supreme Court in Ginsberg held that the ADA preempted

a customer's claim alleging that an airline had breached the

implied covenant of good faith and fair dealing.                The claim

asserted that the airline had committed the breach by terminating

the customer's membership in the airline's frequent flyer program

on what the customer deemed to have been arbitrary or unlawful


                                   - 7 -
grounds.   134 S. Ct. at 1430-32.    In finding that claim preempted,

the Court held that the Wolens exception did not apply to the

customer's claim.   The Court explained that Minnesota law -- the

relevant law in the case, see id. at 1427 n.1 -- disabled parties

from contracting out of the implied covenant of good faith and

fair dealing, and thus that the covenant was a "state-imposed

obligation" rather than a self-imposed one under Wolens.          Id. at

1432.   Consistent with that characterization, the Court also noted

that Minnesota imposed the implied covenant on all contracts except

employment contracts, which illustrated that "the application of

the implied covenant depends on state policy choices."          Id.

           The plaintiffs, in arguing that Ginsberg undermines

Brown, rely on the fact that Ginsberg characterized the Wolens

exception as turning on whether a common law claim "is based on a

state-imposed   obligation   or     simply   one   that   the     parties

voluntarily undertook," id. at 1431, and as extending to common

law claims "based on the parties' voluntary undertaking," id. at

1430, rather than to only "routine breach-of-contract claims,"

Wolens, 513 U.S. at 232.       According to the plaintiffs, this

description of the Wolens exception undermines Brown's holding

that deemed preempted skycaps' unjust enrichment and tortious

interference claims arising out of airport baggage fees identical

to those currently at issue.      But we do not agree.


                                  - 8 -
           The    plaintiffs       are     of     course    correct      that       an

intervening,     on-point       Supreme    Court     opinion     can    erode      the

precedential value of a prior panel opinion.                   See, e.g., United

States v. Rodriguez, 311 F.3d 435, 438-39 (1st Cir. 2002).                         And

the Supreme Court's decision in Ginsberg does postdate Brown. But,

contrary to the plaintiffs' contentions, Ginsberg did not cast

doubt on Brown.    If anything, Ginsberg supports Brown's reasoning.

See Ginsberg, 134 S. Ct. at 1429 (approvingly citing Brown, 720

F.3d at 68, for the proposition that the ADA preemption provision

extends to common law claims).

           Ginsberg    concluded      in    no     uncertain    terms    that      the

implied   covenant    of   good    faith    and    fair    dealing     was   not    an

obligation to which the parties had agreed, that the covenant

instead   constituted       a    "state-imposed       obligation"       under      the

applicable law, and thus that "the reasoning of Wolens" meant that

the ADA preempted the customer's implied covenant claim.                     Id. at

1432.   Nothing in Ginsberg, therefore, undermines our reasoning in

Brown about the application of the Wolens exception to the common

law claims the plaintiffs press here, as those claims, too, seek

to enforce a similarly "state-imposed" obligation. In that regard,

Brown held first that the unjust enrichment claims fell outside

the Wolens exception because they were "predicated on the lack of

any agreement" between the parties and instead turned on external


                                     - 9 -
considerations by which the parties had not agreed to be bound.

720   F.3d     at     71.   And     Brown    held   second    that    the   tortious

interference claims likewise fell outside the Wolens exception

because they "sound[ed] in tort, not contract," and "[t]ort law is

not a privately ordered obligation," but rather is imposed by the

state.   Id.        The District Court was thus correct to conclude that

the plaintiffs' common law claims, which the plaintiffs concede

are the same claims brought in Brown, are preempted under the ADA.

                                            B.

               That     leaves      the     plaintiffs'      claims    under     the

Massachusetts Tips Law.           See Mass. Gen. Laws. ch. 149 § 152A.           The

plaintiffs      contend     that,    notwithstanding      DiFiore     v.    American

Airlines, Inc., we must reverse and remand the District Court's

decision with respect to their Tips Law claims in light of this

Court's recent decision in Massachusetts Delivery Association v.

Coakley, 769 F.3d 11 (1st Cir. 2014).

               In Massachusetts Delivery Association, we summarized the

Supreme Court's holding in Ginsberg and explained that the Court's

preemption analysis in that case "focused not on the claim in the

abstract, but on the underlying facts."                   769 F.3d at 18.        We

likewise concluded that, in answering the preemption question

under    the     Federal    Aviation        Administration    Authorization      Act




                                          - 10 -
(FAAAA)    --    which      contains    a    preemption       provision4      "generally

construed       in   pari    materia"       with    the    ADA's     nearly    identical

provision, Tobin v. Fed. Express Corp., 775 F.3d 448, 454 n.4

(2014) -- a "court must engage with the real and logical effects

of the state statute, rather than simply assigning it a label."

Mass. Delivery Ass'n, 769 F.3d at 20.

            The       plaintiffs        take        from     these     passages        that

Massachusetts        Delivery      Association        "held"       that     analysis    of

preemption under the FAAAA or ADA "requir[es] an evidentiary

record."        Appellant Br. 24.            DiFiore, the plaintiffs contend,

decided the "linkage" question -- i.e., that the skycaps' Tips Law

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

-- without the benefit of an evidentiary record "regarding what

actual    effect      it    had,   or       would    have,    on     the    airlines    to

discontinue" the baggage fee.                Appellant Br. 24.             And thus, the

plaintiffs argue, DiFiore is no longer binding in a case like this

where there is also no factual record of the impact that applying




     4  See 49 U.S.C. § 14501(c)(1) ("[A] State, political
subdivision of a State, or political authority of 2 or more 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 any motor carrier (other than a carrier affiliated with
a direct air carrier covered by section 41713(b)(4)) or any motor
private carrier, broker, or freight forwarder with respect to the
transportation of property.").

                                        - 11 -
the remedies afforded by the state tipping law would have on the

airline's prices or services.

              But Massachusetts Delivery Association did not announce

a categorical rule that an airline always needs a record on the

effect of the plaintiffs' claim on its prices or services in order

to defeat preemption under the FAAAA, let alone the ADA.         Rather,

in    deciding   the   preemption    question,   Massachusetts   Delivery

Association explicitly reaffirmed our previous holding "allow[ing]

courts to 'look[] to the logical effect that a particular scheme

has on the delivery of services or the setting of rates.'"           769

F.3d at 21 (second alteration in original) (quoting N.H. Motor

Transp. Ass'n v. Rowe, 448 F.3d 66, 82 n.14 (1st Cir. 2006), aff'd,

552    U.S.    364   (2008)).   Massachusetts     Delivery   Association

therefore supplies no basis for declining to follow DiFiore, which

relied on just that logical effect in finding preemption of

identical claims under the Massachusetts Tips Law.        And so DiFiore

controls here and requires that we affirm the District Court's

ruling that the plaintiffs' claims under the Massachusetts Tips

Law are preempted.

                                     III.

              Contrary to the plaintiffs' contentions, both DiFiore

and Brown -- which together hold that the Airline Deregulation Act




                                    - 12 -
preempts the claims before us -- remain good law.   We thus affirm

the District Court's decision to dismiss the plaintiffs' claims.




                             - 13 -
