                                                                                FILED
                           NOT FOR PUBLICATION                                  JAN 05 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


SPENCER R. MCMULLEN,                             No. 08-17435

             Plaintiff - Appellant,              D.C. No. 3:08-cv-01523-JSW

  v.
                                                 MEMORANDUM *
DELTA AIR LINES, INC.,

             Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                    Jeffrey S. White, District Judge, Presiding

                       Argued and Submitted May 5, 2009
                              Pasadena, California

Before: RYMER, KLEINFELD and SILVERMAN, Circuit Judges.

       McMullen filed suit, on behalf of himself and a proposed class, against Delta

Air Lines alleging it unlawfully charged and collected a Mexican tax at the time he

purchased a ticket for a flight from California to Mexico. The district court

granted Delta’s motion to dismiss. We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Assuming McMullen’s breach of contract claim survives preemption, either

because it is not “related to a price, route, or service of an air carrier,” 49 U.S.C.

§ 41713(b)(1), or it falls within the exception articulated by American Airlines, Inc.

v. Wolens, 513 U.S. 219 (1995), it fails because it does not refer to any contractual

language that obligates Delta not to collect the Mexican tax from all passengers to

Mexico, regardless of whether they are exempt from the tax.1 In any event,

McMullen never requested a refund from Delta for the Mexican tax, even though

Rule 90 of the Contract of Carriage provides a mechanism for passengers to

request refunds of this nature.

      On appeal, McMullen did not pursue his claim for breach of the implied

covenant of good faith and fair dealing in his opening brief. Therefore, it is

waived. See Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036,




      1
         McMullen relies on two provisions in Delta’s International Contract of
Carriage. Rule 1, which states: “These Conditions of Carriage are applicable
except to the extent that they are contrary to applicable laws, government
regulation, or orders, in which even the contrary law, regulation or order shall
prevail. If any provision of these Conditions of Carriage is invalid under any
applicable law, the other provisions shall remain valid.” And Rule 55, which
states: “Insofar as any provision contained or referred to in the ticket or in the tariff
may be contrary to a law, government regulation, order or requirement which
severally cannot be waived by agreement of the parties, such provisions shall
remain applicable and be considered as part of the contract of carriage to the extent
only that such provision is not contrary thereto. The invalidity of any provision
shall not affect any other part.”
1046 n. 7 (9th Cir.1999) (issues not raised in an opening brief are deemed waived).

      AFFIRMED.
                                                                              FILED
McMullen v. Delta Airlines, 08-17435                                           JAN 05 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS



Kleinfeld, Circuit Judge, dissenting:



      I respectfully dissent for the reasons stated in my dissenting opinion in

Sanchez v. Aerovias de Mexico, ___ F.3d ___ (9th Cir. ____) (No. 08-55588).
