                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MICHELLE GILSTRAP , an individual,       No. 11-55271
               Plaintiff-Appellant,
                                            D.C. No.
                v.                       2:10-cv-06131-
                                            JHN-JC
UNITED AIR LINES, INC., a Delaware
Corporation,
               Defendant-Appellee.         OPINION


     Appeal from the United States District Court
         for the Central District of California
    Jacqueline H. Nguyen, District Judge, Presiding

               Argued and Submitted
          May 9, 2012—Pasadena, California

                 Filed March 12, 2013

       Before: Harry Pregerson, Susan P. Graber,
        and Marsha S. Berzon, Circuit Judges.

               Opinion by Judge Berzon
2                GILSTRAP V . UNITED AIR LINES

                           SUMMARY*


            Air Carrier Access Act / Preemption

    The panel affirmed in part and reversed in part the district
court’s dismissal of an action alleging causes of action under
California state tort law and Title III of the Americans with
Disabilities Act on the basis that an airline did not provide the
plaintiff with adequate assistance for moving through the
airport.

    Reversing in part, and adopting the framework used by
the Third Circuit, the panel held that the Air Carrier Access
Act, an amendment to the Federal Aviation Act, and its
implementing regulations preempt state standards of care
with respect to the circumstances under which airlines must
provide assistance to passengers with disabilities in moving
through the airport but do not preempt any state remedies that
may be available when airlines violate those standards. The
panel held that the ACAA and its implementing regulations
do not preempt state-law personal-injury claims involving
how airline agents interact with passengers with disabilities
who request assistance in moving through the airport.

    Affirming the dismissal of the ADA claim, the panel held
that an airport terminal is not a place of public
accommodation.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               GILSTRAP V . UNITED AIR LINES                  3

                         COUNSEL

Mark P. Meuser, Meuser Law Group, Inc., Walnut Creek,
California, for Appellant.

Richard G. Grotch, Coddington, Hicks & Danforth, Redwood
City, California, for Appellee.


                          OPINION

BERZON, Circuit Judge:

    Michelle Gilstrap has difficulty walking because of
osteoarthritis and other health problems. She alleges that, on
two airplane trips in 2008 and 2009, United Air Lines
(“United”) did not provide her with adequate assistance
moving through the airport and that she suffered physical and
emotional injuries as a result. Gilstrap sued United, alleging
several causes of action under California state tort law and a
violation of Title III of the Americans with Disabilities Act of
1990 (“ADA”). Our questions are (1) whether Gilstrap’s
state-law claims are preempted by the federal Air Carrier
Access Act (“ACAA”) and, if so, in what respect; and (2)
whether airport terminals are among the “places of public
accommodation” governed by Title III of the ADA.

    I. FACTUAL AND PROCEDURAL HISTORY

    Michelle Gilstrap has difficulty walking because she has
a collapsed disc in her back, one replaced knee, another knee
4                 GILSTRAP V . UNITED AIR LINES

that needs replacing, and osteoarthritis. In August 2008,1 she
flew on United from Los Angeles to Calgary, from Calgary
to Chicago,2 and finally from Milwaukee back to Los Angeles
(via Denver). Gilstrap again flew on United in December
2009, this time from Burbank, California, to Madison,
Wisconsin (via Denver).3 When booking both sets of flights,
Gilstrap requested that United provide her with wheelchair
assistance for moving through the airports.

     During both trips, United failed repeatedly to provide
Gilstrap with the assistance that she requested. At one airport,
Gilstrap located a wheelchair on her own; at other airports she
was provided a wheelchair by United only after prolonged
insistence and up to 45 minutes of waiting; and at others she
was never able to locate a wheelchair at all and had to walk.
Gilstrap alleges various physical injuries as a result of having
to walk, including, after the August 2008 trip, severe pain that
was treated with an epidural injection. Gilstrap also alleges
that United agents yelled at her, expressed skepticism that she
actually needed a wheelchair, and twice directed her to stand
in line (which she could not do because of her disabilities). At
one point during her travels, a United agent whom she asked


    1
   Because we are evaluating a district court’s dismissal pursuant to Rule
12(b)(6), we take the facts alleged in Gilstrap’s complaint as true and
construe them in the light most favorable to her. Cervantes v. United
States, 330 F.3d 1186, 1187 (9th Cir. 2003).

        2
     Gilstrap was originally scheduled to fly this leg from Calgary to
Milwaukee, but was transferred to a Calgary-Chicago flight in the course
of the interactions at issue in this lawsuit.

    3
   For one leg of this itinerary, Gilstrap’s United flight was cancelled and
United rebooked her on a Mesa Airlines flight. Because she was still
flying on a United ticket, this fact does not alter our analysis.
               GILSTRAP V . UNITED AIR LINES                  5

for assistance unilaterally rebooked her onto a later flight,
telling her that “this was what she got for refusing to stand in
line.”

    Gilstrap sued United, alleging several counts under
California tort law, including negligence, negligent
misrepresentation, breach of duty of a common carrier,
intentional infliction of emotional distress, and negligent
infliction of emotional distress. In addition, the complaint
maintains that United violated Title III of the ADA. Gilstrap
seeks compensatory damages for physical and emotional
injuries, including reimbursement for her medical bills,
exemplary and punitive damages, and litigation costs.
Gilstrap does not allege a cause of action under the ACAA
itself. Rather, her complaint cites the ACAA as relevant to
establishing her state-law negligence claims. Under the
California evidentiary rule of “negligence per se,” a violation
of “a statute, ordinance, or regulation” can support a
rebuttable presumption of failure to exercise due care. Cal.
Evid. Code § 669(a)(1).

    United filed a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). The district court granted the
motion in its entirety, dismissing Gilstrap’s complaint with
prejudice. The district court held that all of Gilstrap’s
California tort claims were both conflict- and field-preempted
by the ACAA.

    The primary basis for the district court’s ruling was that
“[t]he ACAA does not expressly provide a private right of
action for violations of the statute or its regulations,” but
instead “provides for administrative investigation of
complaints.” On that ground, the district court concluded that
Congress intended the Federal Aviation Act administrative
6                GILSTRAP V . UNITED AIR LINES

enforcement scheme to be the exclusive remedy for violations
of the ACAA and its regulations and that state personal-injury
lawsuits against airlines would conflict with that
congressional intent. The district court further held that
Gilstrap’s claims were field-preempted by the ACAA
regulations pertaining to wheelchair assistance codified in
14 C.F.R. part 382, subpart G. As to Gilstrap’s ADA claim,
the district court held that Title III of the ADA does not apply
to airport terminals, because the statute applies only to
“places of public accommodation” and expressly excludes
terminals for aircraft from its definition of that phrase.

            II. STATUTORY AND REGULATORY
                      BACKGROUND

        A. The Air Carrier Access Act

    The ACAA is an amendment to the Federal Aviation Act
(“FAA”).4 The original FAA, passed in 1958, included a
requirement that air carriers not “subject any particular
person . . . to any unjust discrimination or any undue or
unreasonable prejudice or disadvantage in any respect
whatsoever.” 49 U.S.C. App. § 1374 (1982), repealed by Pub.
L. No. 103-272, 108 Stat. 745, 1141 (1994). This requirement
was repealed by the Airline Deregulation Act of 1978,
49 U.S.C. App. § 1301, repealed by Pub. L. No. 103-272, 108
Stat. 745, 1141 (1994), leaving passengers with disabilities
without express protection against discrimination by


    4
     The FAA and its various amendments, including the ACAA, are
codified in Title 49, Subtitle VII of the U.S. Code. See 49 U.S.C. § 40101
et seq. For ease of reference, we refer to these provisions collectively as
the FAA, except where we are discussing a specific amendment, such as
the ACAA.
               GILSTRAP V . UNITED AIR LINES                  7

commercial airlines. See Shinault v. Am. Airlines, Inc.,
936 F.2d 796, 802 (5th Cir. 1991).

     A different statute, § 504 of the Rehabilitation Act of
1973 provides generally that individuals with disabilities may
not be excluded from or discriminated against by federally-
funded programs. See U.S. Dep’t of Transp. v. Paralyzed
Veterans of Am., 477 U.S. 597, 599 (1986). In 1979, the Civil
Aeronautics Board, the federal agency then in charge of
airline regulation, promulgated regulations applying § 504 to
those commercial airlines that received direct federal
subsidies. Id. at 600–01. Organizations representing
individuals with disabilities (collectively, Paralyzed Veterans
of America, or “PVA”), challenged those regulations, seeking
to apply § 504 to all commercial airlines, on the ground that
airlines not receiving direct federal subsidies were indirect
recipients of federal funding for airport construction and for
the federally operated air traffic control system. Id. The
Supreme Court rejected PVA’s arguments, holding that
commercial airlines were “beneficiaries,” not “recipients,” of
federal grants for airport construction and that the air traffic
control system was not “a form of federal financial assistance
to airlines.” Id. at 607, 611.

    Congress responded to Paralyzed Veterans by passing the
ACAA. An amendment to the FAA, the ACAA “provide[d]
that prohibitions of discrimination against handicapped
individuals shall apply to air carriers.” Air Carrier Access Act
of 1986, Pub. L. No. 99-435, § 2(a), 100 Stat. 1080; see
Shinault, 936 F.2d at 802. In its original form, the ACAA
prohibited air carriers from “discriminat[ing] against any
otherwise qualified handicapped individual, by reason of such
handicap, in the provision of air transportation,” and directed
the Secretary of Transportation to “promulgate regulations to
8                GILSTRAP V . UNITED AIR LINES

ensure non-discriminatory treatment of qualified handicapped
individuals consistent with safe carriage of all passengers on
air carriers.” Air Carrier Access Act of 1986, Pub. L. No. 99-
435, § 3, 100 Stat. 1080.5

    In its current version, effective December 12, 2003, the
pertinent sections of the ACAA read as follows:

         § 41705. Discrimination against handicapped
         individuals

         (a) In general.–In providing air
         transportation, an air carrier, including
         (subject to section 40105(b)) any foreign air
         carrier, may not discriminate against an
         otherwise qualified individual on the
         following grounds:

            (1) the individual has a physical or mental
         impairment that substantially limits one or
         more major life activities.

            (2) the individual has a record of such an
         impairment.



   5
     Congress has amended the ACAA three times: in 1994, adding
provisions to clarify that “a separate violation occurs under [the statute]
for each individual act of discrimination prohibited” and to require the
Secretary of Transportation to “investigate each complaint of a violation,”
Pub. L. No. 103-272, § 1(e), July 5, 1994, 108 Stat. 1141; in 2000, to
expand its application to foreign air carriers, Pub. L. 106-181, Title VII,
§ 707(a), Apr. 5, 2000, 114 Stat. 61, 158; and in 2003, to make minor
technical changes. See Pub. L. No. 108-176, Title V, § 503(d)(1), Dec. 12,
2003, 117 Stat. 2490, 2559.
                GILSTRAP V . UNITED AIR LINES                      9

           (3) the individual is regarded as having
        such an impairment.

        (b) Each act constitutes separate
        offense.–For purposes of section 46301, a
        separate violation occurs under this section
        for each individual act of discrimination
        prohibited by subsection (a).

        (c) Investigation of complaints.--

            (1) In general.–The Secretary shall
        investigate each complaint of a violation of
        subsection (a).

49 U.S.C. § 41705. Although the ACAA itself no longer
includes an express directive that the Secretary of
Transportation promulgate regulations,6 it is covered by the
FAA’s general authorization that the Secretary “may take
action . . . consider[ed] necessary to carry out” the FAA’s
“Air Commerce and Safety” provisions, “including
conducting investigations, prescribing regulations, standards,
and procedures, and issuing orders.” Id. § 40113(a).

     Pursuant to that authorization, the Department of
Transportation (“DOT”) issued regulations, codified at
14 C.F.R. Part 382, specifying the detailed requirements that
airlines must meet to comply with the ACAA. The
regulations impose four general duties on air carriers: “not
[to] discriminate against any qualified individual with a


 6
   That directive was removed when the FAA as a whole was reorganized
in 1994. See Revision of Title 49, United States Code Annotated,
“Transportation,” Pub. L. No. 103-272, July 5, 1994, 108 Stat. 745.
10                GILSTRAP V . UNITED AIR LINES

disability, by reason of such disability, in the provision of air
transportation”; “not [to] require a qualified individual with
a disability to accept special services . . . that the individual
does not request”; “not [to] exclude a qualified individual
with a disability from or deny the person the benefit of any air
transportation or related services that are available to other
persons,” with certain limited exceptions; and “not [to] take
any adverse action against an individual (e.g., refusing to
provide transportation) because the individual asserts, on his
or her own behalf or through or on behalf of others, rights
protected” by the regulations or the ACAA. 14 C.F.R.
§ 382.11(a).7

    With respect to assistance moving through the airport, air
carriers must “provide or ensure the provision of assistance
requested by or on behalf of a passenger with a disability . . .
in transportation between gates to make a connection to
another flight” and “in moving from the terminal entrance (or
a vehicle drop-off point adjacent to the entrance) through the
airport to the gate for a departing flight, or from the gate to
the terminal entrance (or a vehicle pick-up point adjacent to
the entrance after an arriving flight),” including “assistance
in accessing key functional areas of the terminal, such as
ticket counters and baggage claim.” Id. § 382.91(a)–(b). Such
assistance must include, if the passenger requires it,
assistance “with transporting [the passenger’s] gate-checked
or carry-on luggage.” Id. § 382.91(d). Carriers must also

  7
    The current regulations, effective M ay 20, 2009, replaced the less
detailed 1990 regulations. See Nondiscrimination on the Basis of
Disability in Air Travel, 73 Fed. Reg. 27614-01 (May 13, 2008). W e cite
throughout to the 2009 regulations. Gilstrap’s first trip was covered by the
1990 regulations, and her second by the 2009 regulations. For present
purposes, however, the differences do not matter, although they
conceivably could later in this litigation.
              GILSTRAP V . UNITED AIR LINES                 11

“promptly provide or ensure the provision of assistance
requested by or on behalf of passengers with a disability . . .
in enplaning and deplaning,” including, “as needed, the
services of personnel and the use of ground wheelchairs,
accessible motorized carts, boarding wheelchairs, and/or on-
board wheelchairs . . . and ramps or mechanical lifts.” Id.
§ 382.95(a).

    The DOT regulations also explain the training
requirements that air carriers must meet: Carriers must, for
example, train “all personnel who deal with the traveling
public, as appropriate to the duties of each employee,” in,
among other topics, the requirements of the ACAA
regulations; the airline’s procedures regarding passengers
with disabilities; “appropriate boarding and deplaning
assistance procedures that safeguard the safety and dignity of
passengers”; and “awareness and appropriate responses to
passengers with a disability.” Id. § 382.141(a).

    The ACAA is enforced through three administrative
mechanisms. First, the Act directs the Secretary of
Transportation to collect and publish data on disability-
related complaints and to report annually to Congress on all
complaints received. 49 U.S.C. § 41705(c)(2)–(3). Second,
the implementing regulations require that each airline
maintain an internal dispute resolution program for
collecting, responding to, and reporting passenger complaints
of discrimination on the basis of a disability. See 14 C.F.R.
§ 382.151 et seq.

    Finally, the FAA provides a general administrative
enforcement scheme for all its “Air Commerce and Safety”
provisions, which include the ACAA. Under this scheme, any
person may file a complaint with the Secretary of
12               GILSTRAP V . UNITED AIR LINES

Transportation about an alleged regulatory violation.
49 U.S.C. § 46101(a)(1). After investigation,8 notice, and an
opportunity for a hearing, the Secretary “shall issue an order
to compel compliance” if a violation is found. Id.
§ 46101(a)(4). The DOT may also impose civil penalties
upon air carriers of up to $25,000 per violation. Id.
§ 46301(a). Pursuant to certain procedural requirements, any
person “disclosing a substantial interest in an order issued by
the Secretary of Transportation” may petition for judicial
review of that order in a U.S. court of appeals. Id. § 46110.

    These remedies are not exclusive, however: The FAA
provision cautions that “[a] remedy under this part is in
addition to any other remedies provided by law,” id.
§ 40120(c), and requires DOT-certified air carriers to
maintain liability insurance sufficient to pay for bodily injury,
death, loss of property, or damage to property “resulting from
the operation or maintenance of the aircraft,” id. § 41112.

    We have not squarely decided in this circuit whether, in
addition to these administrative enforcement mechanisms, the
ACAA may be enforced through private lawsuits.9 Shortly
after its enactment, two circuits interpreted the ACAA to


     8
      Although the general FAA enforcement scheme provides for an
investigation only “if a reasonable ground appears,” 49 U.S.C.
§ 46101(a)(1)–(2), the ACAA itself requires the Secretary to investigate
all complaints of an ACAA violation, see id. § 41705(c)(1).

  9
    W ithout deciding the question, we addressed the merits of claims
brought under the ACAA in Newman v. American Airlines, Inc., 176 F.3d
1128 (9th Cir. 1999). Also, we held that the ACAA includes an implied
private cause of action in a non-precedential memorandum disposition.
See Adiutori v. Sky Harbor Int’l Airport, 103 F.3d 137 (9th Cir. 1996)
(unpublished), at *3. Both cases predate Alexander, 532 U.S. 275.
               GILSTRAP V . UNITED AIR LINES                   13

imply a private cause of action. Shinault, 936 F.2d at 800;
Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 570
(8th Cir. 1989). After those cases were decided, however,
Alexander v. Sandoval, 532 U.S. 275 (2001), narrowed the
framework for evaluating whether a statute implies a private
cause of action. All three circuits to consider the question
since Sandoval have concluded that the ACAA does not
imply a private cause of action. See Lopez v. Jet Blue
Airways, 662 F.3d 593, 596–97 (2d Cir. 2011); Boswell v.
Skywest Airlines, Inc., 361 F.3d 1263, 1269–71 (10th Cir.
2004); Love v. Delta Air Lines, 310 F.3d 1347, 1354–59 (11th
Cir. 2002). We need not, and do not, reach that question in
this opinion, because Gilstrap does not allege a cause of
action under the ACAA.

    B. The Americans with Disabilities Act

    Congress passed the ADA in 1990 “to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.” Pub. L.
No. 101-336, 104 Stat. 327 (July 26, 1990), codified at
42 U.S.C. § 12101(b)(2). The ADA includes three main
sections — Title I, which concerns employment
discrimination, 42 U.S.C. § 12111 et seq.; Title II, which
governs access to public services, id. § 12131 et seq.; and
Title III, which governs access to privately operated public
accommodations, such as restaurants and movie theaters, id.
§ 12181 et seq.

    Title III prohibits discrimination against people with
disabilities in “public accommodations” and includes an
express list of the “private entities [that] are considered public
accommodations” for purposes of the statute. Id. § 12181(7).
The list includes “a terminal, depot, or other station used for
14               GILSTRAP V . UNITED AIR LINES

specified public transportation.” Id. § 12181(7)(G). The term
“specified public transportation” is defined, in turn, as
“transportation by bus, rail, or any other conveyance (other
than by aircraft) that provides the general public with general
or special service (including charter service) on a regular and
continuing basis.” Id. § 12181(10) (emphasis added).

    Recognizing that aircraft are expressly excluded from the
statutory definition of “specified public transportation” whose
terminals are governed by Title III, the Department of Justice
(“DOJ”), which implements the ADA, interprets Title III as
not covering “[t]he operations of any portion of any airport
that are under the control of an air carrier,” and specifies that
such areas “are covered by the Air Carrier Access Act,” not
the ADA, and thus under the regulatory jurisdiction of the
DOT, not the DOJ. See 28 C.F.R. pt. 36 app. C.10
Concomitantly, “[p]laces of public accommodation located
within airports,” but not under the control of air carriers,
“such as restaurants, shops, lounges, or conference centers,”
are covered by Title III. Id.11


 10
     In turn, the DOT’s ACAA-implementing regulations provide that air
carriers shall be “deemed to comply” with their ACAA obligation to make
air terminals accessible

         if the facilities meet requirements applying to places of
         public accommodation under Department of Justice
         (DOJ) regulations implementing Title III of the
         Americans with Disabilities Act (ADA).

14 C.F.R. § 382.51(a)(1).

 11
    The ADA regulations do note that airports operated by public entities
are covered by Title II of the ADA. 28 C.F.R. pt. 36 app. C. Gilstrap does
not make any claims under Title II, and the complaint does not allege that
any of the airports through which she traveled was publicly operated.
                  GILSTRAP V . UNITED AIR LINES                          15

                           III. ANALYSIS

    This case was dismissed at the pleading stage, for failure
to state a claim. Accepting the facts in the complaint as true
and in the light most favorable to the plaintiff, we must
determine whether the complaint’s factual allegations, taken
as true, state a claim for relief that is plausible on its face.
United States v. Corinthian Colls., 655 F.3d 984, 991 (9th
Cir. 2011).

       A. ACAA preemption and Gilstrap’s state-law claims

    Federal law may preempt state law in three ways. First,
“Congress may withdraw specified powers from the States by
enacting a statute containing an express preemption
provision.” Arizona v. United States, 567 U.S. —, 132 S. Ct.
2492, 2500–01 (2012). Second, “States are precluded from
regulating conduct in a field that Congress, acting within its
proper authority, has determined must be regulated by its
exclusive governance.” Id. at 2501. Finally, “state laws are
preempted when they conflict with federal law.” Id.
Regardless of the type of preemption involved — express,
field, or conflict — “[t]he purpose of Congress is the ultimate
touchstone of pre-emption analysis.” Cipollone v. Liggett
Grp., Inc., 505 U.S. 504, 516 (1992) (internal quotation
marks omitted).

   The ACAA does not contain an express preemption
provision.12 We therefore analyze whether it implies a


  12
     There are two limited preemption provisions in the FAA as a whole,
neither of which is implicated in this appeal. The Airline Deregulation Act
of 1978 preempts state regulations “related to a price, route, or service” of
airlines, 49 U.S.C. § 41713(b)(1), while the General Aviation
16               GILSTRAP V . UNITED AIR LINES

congressional intent to preempt state personal-injury lawsuits
under either field or conflict preemption and, if so, in what
respect.

         1. Field preemption

    Before analyzing whether the ACAA has any field-
preemptive effect upon state personal-injury lawsuits, we first
review our case law on field preemption under the FAA more
generally. The FAA includes two important statements
indicating a general congressional intent not to preempt state-
law tort suits against airlines: the savings clause providing
that “[a] remedy under this part is in addition to any other
remedies provided by law,” 49 U.S.C. § 40120(c), and the
requirement that airlines maintain liability insurance for
injuries and property damage, id. § 41112. The latter
requirement is important as to the statute’s preemptive status,
because “the FAA doesn’t create a federal cause of action for
personal injury suits”; the liability insurance clause therefore
“can only contemplate tort suits brought under state law.”
Martin ex rel. Heckman v. Midwest Express Holdings, Inc.,
555 F.3d 806, 808 (9th Cir. 2009).

    Reflecting these provisions, we have in several instances
held that state-law personal-injury claims are not displaced by
the FAA. For instance, we held in Charas v. Trans World
Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir. 1998) (en banc),
that the Airline Deregulation Act of 1978, which amended the
FAA to include an express preemption provision applicable



Revitalization Act of 1994 provides an eighteen-year statute of repose for
product liability claims against airplane manufacturers, 49 U.S.C. § 40101
note §§ 2(a)(2), 3(3).
                 GILSTRAP V . UNITED AIR LINES                         17

to certain state regulations,13 was “intended to preempt only
state laws and lawsuits that would adversely affect the
economic deregulation of the airlines” and not “to preempt
passengers’ run-of-the-mill personal injury claims.”
“Although Charas did not consider FAA preemption” in
general, its clear implication is that the FAA is not broadly
field-preemptive of state tort suits: Charas “reversed several
district court and panel decisions for interpreting [Airline
Deregulation Act] preemption too broadly,” a holding that
would have been unnecessary “if all the claims at issue were
preempted anyway by the FAA.” Martin, 555 F.3d at 811.

     Later, in Martin, we developed with more precision than
in Charas the overall principles of FAA field preemption.
First, Martin considered whether an earlier case, Montalvo v.
Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), had determined
that all state-law personal injury claims related to aviation are
broadly field-preempted by the FAA. In Montalvo, we had
concluded that the plaintiffs’ negligence claims, premised on
a failure-to-warn theory, were preempted by the FAA. Id. at
470–74. Noting that the FAA’s implementing regulations
required certain warnings, we held in Montalvo that the
plaintiffs’ state-law failure-to-warn tort theory was
preempted, because it would have established through state
tort liability a more stringent warning requirement for airlines
than that established by federal law. Id. In the course of so
deciding, Montalvo, relying on Abdullah v. American
Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), contained some
broad language concerning the reach of FAA preemption. See
Montalvo, 508 F.3d at 473.



  13
     The Airline Deregulation Act preempts state regulations “related to a
price, route, or service” of airlines. 49 U.S.C. § 41713(b)(1).
18             GILSTRAP V . UNITED AIR LINES

    Martin clarified that Montalvo should not be read as
expansively holding “that the FAA preempts all state law
personal injury claims.” Martin, 555 F.3d at 810. Rather,
Martin held that where there are “‘pervasive regulations’ in
an area, like passenger warnings, the FAA preempts all state
law claims in that area.” Id. at 811. “In areas without
pervasive regulations or other grounds for preemption,”
however, “the state standard of care remains applicable.” Id.
In so concluding, Martin relied in part on the FAA non-
preemption and insurance provisions quoted earlier; in part on
a second aspect of Montalvo, remanding for further
consideration other tort claims that would have been
preempted had the FAA preempted all airline-related personal
injury claims; and in part on the observation that the Charas
holding could not coexist with a holding that all airline-safety
related state tort claims are preempted. See id. at 808, 809–11.

    Applying its nuanced standard, Martin held that the FAA
did not preempt a state tort lawsuit involving aircraft stairs
because, in contrast to the lengthy list of federal regulations
on passenger warnings, “the only [federal] regulation on
airstairs is that they can’t be designed in a way that might
block the emergency exits.” Id. at 812. That stray regulation,
we held, was not enough to deem aircraft stairs “pervasively
regulated.” Id. at 811.

    As noted in Martin, the Third Circuit has taken a slightly
different approach to FAA field preemption. See id. The
Third Circuit’s leading FAA field preemption case, Abdullah,
181 F.3d 363, held that “federal law establishes the applicable
standards of care in the field of air safety,” but does not
preempt state remedies. Id. at 367 (emphasis added). In so
holding, Abdullah followed the Supreme Court’s reasoning in
Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), which
                 GILSTRAP V . UNITED AIR LINES                        19

established, in the context of atomic energy regulation, that
“[f]ederal preemption of [state and territorial] standards of
care can coexist with state and territorial tort remedies.”
Abdullah, 181 F.3d at 375.

    In our own FAA preemption cases, we have cited
Abdullah approvingly, see Montalvo, 508 F.3d at 473, and
neutrally, see Martin, 555 F.3d at 809, 811. We have also
adopted Abdullah’s holding “that federal law generally
establishes the applicable standards of care in the field of
aviation safety.” Montalvo, 508 F.3d at 468 (emphasis added).
But we have not adopted Abdullah’s implicit distinction
between safety and other airline regulations, elaborated in
Elassaad v. Independence Air, Inc., 613 F.3d 119 (3d Cir.
2010). The FAA governs not only aviation safety, but also
aviation commerce. The breadth of the FAA is relevant in this
case, because the ACAA — which is codified under the
“economic regulation,” not the “safety,” subpart of the FAA;
see 49 U.S.C. subt. VII, pt. A, subt. II — is an
antidiscrimination imperative, not a safety regulation.14

    Nor, before now, have we clearly indicated whether we
would follow Abdullah’s distinction between the FAA’s
preemptive effect upon standards of care and remedies — i.e.,
whether we would agree that it may sometimes be possible
for state remedies to survive FAA preemption even where the
state standard of care has been preempted. Neither Montalvo


  14
      T his is not, of course, to imply that airlines’ compliance with the
ACAA does not also have safety implications for passengers with
disabilities, only that the ACAA is not designed primarily to regulate the
safe operation of aircraft. Rather, it is designed primarily to regulate
airlines’ interactions with their customers who have disabilities. On this
point, see generally Elassaad, 613 F.3d at 131–32.
20               GILSTRAP V . UNITED AIR LINES

nor Martin needed to reach this question: In Montalvo, the
plaintiffs sought to impose a higher standard of care than the
federal standard, rather than to combine the federal standard
of care with state remedies as in Abdullah, so their suit was
preempted altogether. And Martin held that the plaintiff’s tort
suit was not preempted at all, either as to the standard of care
or the remedy.15

    We find persuasive, and here adopt, Abdullah’s division
of the FAA’s field preemptive effect into two components:
state standards of care, which may be field-preempted by
pervasive regulations, and state remedies, which may survive
even if the standard of care is so preempted. As Abdullah
persuasively reasoned, the Supreme Court has held in other
regulatory contexts that “[f]ederal preemption of [state and
territorial] standards of care can coexist with state and
territorial tort remedies.” 181 F.3d at 375 (citing Silkwood).
Although Abdullah relied upon Silkwood, an atomic energy
case, the same principle emerges from the series of Supreme
Court preemption cases arising under the Medical Device Act
(“MDA”). In those cases, the Supreme Court has established
“that the MDA does not preempt a state-law claim for
violating a state-law duty that parallels a federal-law duty
under the MDA.” Stengel v. Medtronic Inc., 704 F.3d 1224,
—, No. 10-17755, slip op. at *9 (9th Cir. Jan. 10, 2013) (en
banc) (construing Medtronic, Inc. v. Lohr, 518 U.S. 470

 15
    There are passing indications, however, that Martin may have ascribed
to Abdullah’s distinction. For instance, in construing Montalvo, Martin
states that, “[i]n areas without pervasive regulations or other grounds for
preemption, the state standard of care remains applicable,” Martin,
555 F.3d at 811 (emphasis added). This statement would seem to imply
that, by contrast, “pervasive regulations or other grounds for preemption”
would have a preemptive effect only upon the standard of care and not
upon the remedy. Id.
              GILSTRAP V . UNITED AIR LINES                 21

(1996), and subsequent cases). The MDA cases are not
precisely on point with those applying the FAA; unlike the
FAA, the MDA contains an express preemption provision
specifying that states may not impose requirements “different
from, or in addition to,” the MDA’s requirements for medical
devices. 21 U.S.C. § 360k(a)(1); see Stengel, slip op. at *8–9.
However, these cases do proceed from the general premise
that states may “‘provide a traditional damages remedy for
violations of common-law duties when those duties parallel
federal requirements,’” Stengel, slip op. at *9–10 (quoting
Lohr, 518 U.S. at 495), absent any express or implied
congressional indication otherwise in the statutory scheme at
issue. Here, not only is there no adverse indication, but the
FAA sections expressly preserving state remedies and
requiring insurance coverage support the conclusion that state
law damages actions remain available even when state
substantive standards are displaced. We therefore so hold.

    In sum, then, our cases culminating in Martin, combined
with the division between standards of care and remedies
discussed above, establish a two-part framework for
evaluating field preemption under the FAA. First, we ask
whether the particular area of aviation commerce and safety
implicated by the lawsuit is governed by “pervasive [federal]
regulations.” See Martin, 555 F.3d at 811. If so, then any
applicable state standards of care are preempted. Even in
those areas, however, the scope of field preemption extends
only to the standard of care. “Local law still govern[s] the
other negligence elements (breach, causation, and damages),
as well as the choice and availability of remedies.” Elassaad,
22               GILSTRAP V . UNITED AIR LINES

613 F.3d at 125 (construing Abdullah).16 And because the
ACAA is an amendment to the FAA and includes no
indication that it should be treated independently for
preemption purposes, we apply that framework here.

    Applying that framework, then, we first look to the area
of aviation commerce and safety at issue in this case —
assistance for passengers with disabilities — and determine
whether, and in what respects, it is pervasively regulated.
Taking Gilstrap’s allegations as true and in the light most
favorable to her, as we are required to do given the procedural
posture, her claims concern two aspects of the service
provided by United. First, United did not provide the
assistance that Gilstrap requested for moving through the
airports. Second, United agents were hostile to Gilstrap
throughout her travels. We consider the ACAA regulations’
preemptive effect, if any, upon each theory of liability in
turn.17

    First, as to assistance in moving through the airport: The
ACAA regulations are pervasive as to when and where air
carriers must provide such assistance. The regulations spell
out in detail that air carriers must provide assistance when a
passenger with a disability requests it for moving “between
gates to make a connection to another flight,” 14 C.F.R.


  16
     W e cite Elassaad here only for its helpful restatement of the Third
Circuit’s Abdullah holding. In Elassaad, the Third Circuit also considered
the question of ACAA preemption but, as noted earlier, we do not fully
adopt Elassaad’s analysis on that question.

 17
    Again, Gilstrap’s first set of flights took place in August 2008, under
the 1990 regulations, while her second set of flights took place in
December 2009, after the 2009 regulations became effective. As noted, the
difference is not material, at least at this stage of the litigation.
                  GILSTRAP V . UNITED AIR LINES                          23

§ 382.91(a); “moving from the terminal entrance (or a vehicle
drop-off point adjacent to the entrance) through the airport to
the gate for a departing flight, or from the gate to the terminal
entrance (or a vehicle pick-up point adjacent to the entrance
after arriving flight),” including “accessing key functional
areas of the terminal, such as ticket counters and baggage
claim,” id. § 382.91(b); and for “enplaning and deplaning,”
id. § 382.95(a). “This assistance must include, as needed, the
services of personnel and the use of ground wheelchairs,
accessible motorized carts, boarding wheelchairs, and/or on-
board wheelchairs . . . , and ramps or mechanical lifts.” Id.18

    Gilstrap’s negligence and breach-of-duty-of-a-common-
carrier claims challenge United’s failure to provide her with
assistance at all in traversing the air terminal before, between,
and after flights. The ACAA and its implementing regulations
establish the standard of care — or duty — that United owed
to Gilstrap regarding that activity, and so preempt any
different or higher standard of care that may exist under
California tort law.

    But Gilstrap may still rely on California tort law to prove
the other elements of her claims — breach, causation,
damages, and remedies. In other words, if the evidence at trial
shows that United provided Gilstrap with all the assistance
required under the ACAA and its implementing regulations,
then United cannot be held liable under state law for failing
to do anything further. If the evidence at trial shows that
United fell short of compliance with the ACAA and its


 18
    Similarly, but in less detail, the 1990 regulations required air carriers
to provide such assistance when a passenger with a disability requested it
for “enplaning and deplaning” as well as for “making flight connections
and transportation between gates.” 14 C.F.R. § 382.39 (2008).
24                GILSTRAP V . UNITED AIR LINES

implementing regulations, then whether Gilstrap may recover
for any injuries that she may be able to prove were caused by
United’s breach will depend upon the degree to which
California tort law recognizes the ACAA standard of care as
applicable in negligence and common carrier claims premised
on duties to disabled passengers.

    Second, Gilstrap alleges that United agents were
repeatedly hostile to her throughout her travels. To the extent
that Gilstrap challenges the manner in which United agents
responded to her requests for assistance, as in her negligent
infliction of emotional distress and intentional infliction of
emotional distress claims, field preemption is not implicated.
The ACAA regulations say nothing about how airline agents
should interact with passengers.19 Whether Gilstrap’s
complaint makes out a prima facie case of either negligent or
intentional infliction of emotional distress under California
law is, of course, a separate matter.

    Because the district court held Gilstrap’s claims entirely
preempted, it did not determine whether the California causes
of action would survive under California tort law,
incorporating the ACAA standards as to negligence and duty
of common carriers but not as to negligent and intentional
infliction of emotional distress. We leave those issues to be
determined in the first instance on remand.




 19
    The regulations do require that airlines train employees in appropriate
responses to passengers with disabilities, see, e.g., 14 C.F.R. § 382.141(a),
but, at least at this juncture, Gilstrap’s theory of liability is not that the
airline failed to train the employees whom she encountered.
               GILSTRAP V . UNITED AIR LINES                 25

       2. Conflict preemption

     Even if state remedies are not field-preempted by the
ACAA, they may still be barred if they would create an
“actual[] conflict[]” between state and federal law. Cipollone,
505 U.S. at 516. Conflict preemption occurs when “it is
impossible for a private party to comply with both state and
federal requirements, or where state law stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of Congress.” English v. Gen. Elec. Co., 496 U.S.
72, 79 (1990) (citation and internal quotation marks omitted).

    It is certainly not impossible for an airline both to comply
with federal regulations and to pay damages in state tort suits.
The question is whether allowing state tort remedies would
pose an obstacle to the achievement of the ACAA’s
objectives. United argues, and the district court agreed, that
Gilstrap’s claims are conflict-preempted because Congress
did not provide a private cause of action to enforce the
ACAA. Therefore, United argues, and the district court
concluded, allowing state tort litigation against airlines would
pose an obstacle to Congress’s objective of making the FAA
administrative enforcement scheme the exclusive remedy for
ACAA violations.

    We need not, and do not, reach here the question of
whether the ACAA provides a private cause of action
because, as a general matter, we do not agree that conflict-
preemption analysis turns on whether a statute provides a
federal cause of action. That Congress has not chosen to
provide a federal cause of action to enforce a statute does not
necessarily mean that all conceivably related state personal-
injury claims are displaced.
26             GILSTRAP V . UNITED AIR LINES

    The district court relied on Aetna Health Inc. v. Davila,
542 U.S. 200 (2004), to connect the absence of a federal
cause of action to conflict preemption of state remedies.
Davila, however, interpreted the Employee Retirement
Income Security Act. That statute expresses “clear
congressional intent to make [its] remedy exclusive,” Davila,
542 U.S. at 209, and so is not an apt comparison to the FAA
statutory scheme, which, as noted, states precisely the
opposite — that “[a] remedy under this part is in addition to
any other remedies provided by law,” 49 U.S.C. § 40120(c).
The determination whether state remedies conflict with the
objectives of a federal enforcement scheme must always be
tailored to the specific statutory and regulatory context at
issue.

     Two Supreme Court cases, read together, provide some
guidance in identifying the federal regulatory schemes with
which state tort remedies would necessarily impermissibly
conflict: Silkwood, 464 U.S. 238, and Buckman Co. v.
Plaintiffs’ Legal Comm., 531 U.S. 341 (2001). Silkwood
considered the preemptive effect of federal nuclear safety
regulations, holding that the federal government had
preempted the field of nuclear safety with respect to the
substantive standard of care. But Silkwood added that state
remedies are foreclosed only if “there is an irreconcilable
conflict between the federal and state [liability] standards or
. . . the imposition of a state standard in a damages action
would frustrate the objectives of the federal law.” See
464 U.S. at 256. In Silkwood, there was no such conflict:
Congress’s stated purpose was to promote atomic energy only
“to the extent it is consistent with the health and safety of the
public.” Id. at 257 (internal quotation marks omitted).
Awarding state damages for plaintiffs injured through nuclear
development would not frustrate that cabined purpose. Id.
               GILSTRAP V . UNITED AIR LINES                  27

    Buckman, by contrast, did find a conflict between federal
regulations and any state tort liability, where the tort claim at
issue was uniquely dependent on the federal regulatory
regime. Alleging that a regulatory consulting company had
defrauded the Federal Drug Administration (“FDA”) in the
course of obtaining pre-market approval for its client’s
medical device, the Buckman plaintiffs brought a state-law
“fraud-on-the-FDA” claim. 531 U.S. at 343–44, 347.

    The Buckman Court distinguished Silkwood in two ways.
First, the state claims in Silkwood were based “on traditional
state tort law principles.” Buckman, 531 U.S. at 352. In
contrast, the very “existence” of the relevant federal
enactments was “a critical element” of the Buckman
plaintiffs’ fraud-on-the-agency claim. Id. at 353; see also
Stengel, slip op. at *24 (Watford, J., concurring) (“Central to
the Court’s reasoning in Buckman was that the state law claim
asserted there ‘exist[ed] solely by virtue’ of the federal
enactments[.]” (quoting Buckman, 531 U.S. at 353 (first
alteration and emphasis in original))). Second, the federal
statute at issue in Silkwood provided “specific statutory
evidence” that Congress did not intend to preclude state-law
remedies. Buckman, 531 U.S. at 352. The federal statute at
issue in Buckman, however, provided “clear evidence that
Congress intended that [it] be enforced exclusively by the
Federal Government.” Id. (citing 21 U.S.C. § 337(a)).

     Applying these distinctions, our case is considerably
closer to Silkwood than to Buckman, on both fronts. First,
here as in Silkwood, the plaintiff’s claims rely on traditional
state tort law. Under California law, proving that United
violated the ACAA regulations may help Gilstrap to establish
certain rebuttable presumptions regarding the scope of an
airline’s duty to individuals in Gilstrap’s circumstances. But
28            GILSTRAP V . UNITED AIR LINES

if the ACAA and its implementing regulations did not exist,
she could still have alleged the same claims, albeit with state
law supplying the entirety of the applicable standard of care.
The existence of the ACAA is not a critical element of
Gilstrap’s claims in the way that the existence of the FDA is
a logical sine qua non of a fraud-on-the-FDA claim.

    Second, here as in Silkwood, there is statutory evidence
that Congress did not intend to achieve the objectives of the
ACAA through methods that would preclude personal-injury
suits. The FAA’s savings clause and its liability insurance
requirement, both of which cover the ACAA, suggest that
Congress did not intend any of the FAA administrative
enforcement schemes to be exclusive of state-law remedies.
While a savings clause is not a per se bar to conflict
preemption, see Geier v. Am. Honda Motor Co., 529 U.S.
861, 869 (2000), the FAA’s longstanding savings clause and
its liability insurance requirement for air carriers, taken
together, express a congressional intent not to preempt state
tort remedies in the fields of aviation operation covered by
the statutory scheme.

    Finally, we note one additional distinction between
Buckman and our case: The FDA itself is “amply
empower[ed] . . . to punish and deter fraud.” Buckman,
531 U.S. at 348. By pressing a “fraud-on-the-FDA” claim,
then, the Buckman plaintiffs were superimposing their own
efforts on top of the FDA’s own fraud deterrence efforts. As
a result, “complying with the FDA’s detailed regulatory
regime in the shadow of 50 States’ tort regimes [would]
dramatically increase the burdens facing potential applicants”
for FDA approval. Id. at 350. By contrast, Gilstrap’s claims
would not duplicate or interfere with the relevant agency’s
own enforcement procedures. The FAA administrative
               GILSTRAP V . UNITED AIR LINES                  29

enforcement scheme provides only for the investigation of
ACAA violations per se and civil fines against the airlines,
paid to the DOT; it does not provide any mechanism for
resolving or compensating individual personal-injury claims.
Nor would state damages liability premised in part on ACAA
violations increase the burdens facing airlines, as they already
must plan for and comply with state tort law for negligence
in the operation of airlines. “Like contract principles, the
standard of ordinary care is a general background rule against
which all individuals order their affairs.” Am. Airlines, Inc. v.
Wolens, 513 U.S. 219, 236–37 (Stevens, J., concurring in part
and dissenting in part).

        3. Conclusion

    In sum, we hold, first, that the ACAA and its
implementing regulations preempt state and territorial
standards of care with respect to the circumstances under
which airlines must provide assistance to passengers with
disabilities in moving through the airport. The ACAA does
not, however, preempt any state remedies that may be
available when airlines violate those standards. For instance
— but only insofar as state law allows it — tort plaintiffs may
incorporate the ACAA regulations as describing the duty
element of negligence, and rely on state law for “the other
negligence elements (breach, causation, and damages), as
well as the choice and availability of remedies.” Elassaad,
613 F.3d at 125 (construing Abdullah). Second, we hold that
the ACAA and its implementing regulations do not preempt
state-law personal-injury claims involving how airline agents
interact with passengers with disabilities who request
assistance in moving through the airport.
30             GILSTRAP V . UNITED AIR LINES

    At this early stage of the litigation, we are limited to the
face of the complaint. There is no record evidence of the
severity of Gilstrap’s injuries. Taking the complaint as true
and in the light most favorable to Gilstrap, her most serious
injury was pain, and much of the alleged injury was due to
insensitive treatment. We do not know whether a court
applying California law will hold that state law provides a tort
remedy for such largely dignitary injuries, rooted in
important, but statutorily grounded, anti-discrimination
norms.

    We note, however, that the likely availability of a state
tort remedy may be more evident in other circumstances. In
Elassaad, for instance, a passenger with an amputated leg fell
and suffered “severe injuries, including torn cartilage in his
shoulder that required surgical repair,” when flight attendants
did not provide him the necessary assistance deplaning. Id. at
122. Reading the ACAA in light of the FAA’s savings clause
and liability insurance requirement, we cannot conclude that
Congress intended to strip such passengers of available state
remedies for their injuries. As Justice Stevens observed when
construing another FAA-amending statute, “[s]urely Congress
did not intend to give airlines free rein to commit negligent
acts subject only to the supervision of the Department of
Transportation, any more than it meant to allow airlines to
breach contracts with impunity.” Wolens, 513 U.S. at 237
(Stevens, J., dissenting in part and concurring in part).

     B. Gilstrap’s ADA claim

   The district court dismissed Gilstrap’s ADA claim on the
ground that airport terminals are not “places of public
accommodation” under Title III of the ADA. In evaluating
whether dismissal of Gilstrap’s ADA claim was proper, we
               GILSTRAP V . UNITED AIR LINES                   31

begin with the text of Title III, which prohibits discrimination
“on the basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a
place of public accommodation.” 42 U.S.C. § 12182(a). The
statutory definition of “public accommodation” includes “a
terminal, depot, or other station used for specified public
transportation.” Id. 12181(7)(G) (emphasis added).
“Specified public transportation” is, in turn, defined as
“transportation by bus, rail, or any other conveyance (other
than by aircraft).” Id. § 12181(10) (emphasis added).

    Fitting these statutory pieces together, the result is that “a
terminal . . . used for . . . transportation” “by aircraft” is
excluded from definition as a Title III-covered “place of
public accommodation.” Accord Lopez v. Jet Blue Airways,
662 F.3d 593, 599 (2d Cir. 2011); Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004). The
statute is unambiguous on this point, so we need not turn to
agency interpretations for clarification. See Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842
(1984) (“If the intent of Congress is clear, that is the end of
the matter[.]”). We note, however, that our reading of the
statute is confirmed by the complementary regulatory
frameworks established by the DOJ, which implements the
ADA, and the DOT, which implements the ACAA. The
DOJ’s ADA-implementing regulations state that “[t]he
operations of any portion of any airport that are under the
control of an air carrier are covered by the Air Carrier Access
Act,” not the ADA. 28 C.F.R. § 36 app. C. Similarly, the
32             GILSTRAP V . UNITED AIR LINES

DOT’s ACAA-implementing regulations provide that air
carriers are “deemed to comply” with their ACAA obligation
to make air terminals accessible

        if the facilities meet requirements applying to
        places of public accommodation under
        Department of Justice (DOJ) regulations
        implementing Title III of the Americans with
        Disabilities Act (ADA).

14 C.F.R. § 382.51(a)(1). There would be no need for the
DOT to incorporate the DOJ’s Title III regulations by
reference here if Title III already applied to air terminals
directly.

    Therefore, Gilstrap’s ADA claim was properly dismissed.
In so holding, we need not decide the extent of the ADA’s
applicability in airports generally. Title III of the ADA
applies to many types of public accommodations, including
restaurants and stores. See 42 U.S.C. § 12181(7). There is no
indication in the statute — and United does not argue — that
a restaurant or other non-air-carrier-affiliated facility located
within an airport would not be covered by Title III. Nor need
we decide here whether an air carrier might be liable under
the ADA if it owned, leased, or operated a public
accommodation other than an airport terminal. See Lopez,
662 F.3d at 599 n.8.

                     IV. CONCLUSION

    For the reasons above, we affirm the district court’s
dismissal of Gilstrap’s ADA claim. We reverse the district
court’s dismissal of Gilstrap’s state-law claims and remand to
the district court for further proceedings on those claims
              GILSTRAP V . UNITED AIR LINES                 33

consistent with this opinion. The district court evaluated only
whether the state-law claims were preempted. We, therefore,
express no opinion on whether Gilstrap’s state-law claims
would survive dismissal on other grounds.

    AFFIRMED in part; REVERSED and REMANDED
in part. Parties to bear their own costs on appeal.
