Ginsberg

Opinion by Judge BEEZER; Concurrence by Judge RYMER.

OPINION

Plaintiff brought suit against an airline alleging a common law breach of contract under the implied covenant of good faith and fair dealing. The district court held that Plaintiffs claim was preempted by the Airline Deregulation Act (“ADA”), 49 U.S.C. § 41713 (b)(1), and dismissed the claim pursuant to Fed.R.Civ.P. 12(b)(6). We conclude that the ADA does not preempt this common law contract claim, and reverse the district court.

When Congress passed the ADA, it dismantled a federal regulatory structure that had existed since 1958. By including a preemption clause, Congress intended to ensure that the States would not undo the deregulation with regulation of their own. Congress’s “manifest purpose” was to make the airline industry more efficient by unleashing the market forces of competition — it was not to immunize the airline industry from liability for common law *1035 contract claims. Congress did not intend to convert airlines into quasi-government agencies, complete with sovereign immunity.

The purpose, history, and language of the ADA, along with Supreme Court and Ninth Circuit precedent, lead us to conclude…

concurring in the judgment:

I join the court’s holding because it is compelled by West v. Northwest Airlines Inc., 995 F.2d 148 (9th Cir.1993). There we determined that the plaintiffs claim for breach of the covenant of good faith and fair dealing was not preempted because state contract law was “too tenuously connected” to airline prices and services. See id. at 151 . Ginsberg similarly alleges a breach of the implied covenant of good faith and fair dealing. Thus, his claim survives preemption under West .

Whether West is “clearly irreconcilable” with American Airlines, Inc. v. Wolens, 513 U.S. 219 , 115 S.Ct. 817 , 130 L.Ed.2d 715 (1995), is a very close call. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). The Court, in Wolens , held that a breach of contract claim may relate to prices and services, depending on the facts alleged. See 513 U.S. at 226 , 115 S.Ct. 817 . The breach claim in that case related to prices and services because the alleged facts referenced ticket-pricing and access to flights. Id. West’s rule for contract claims seems out of step with the Supreme Court’s holding. This rule also places us in tension with the Seventh Circuit. See…

Thatcher A. Stone, New York, NY, Harold M. Hewell, Hewell Law Firm, San Diego, CA, for the plaintiff-appellant.

Richard T. Williams, Holland & Knight LLP, Los Angeles, CA, Christopher G. Kelly, and Judith R. Nemsick, Holland & Knight LLP, New York, NY, for the defendants-appellees.

Before: ROBERT R. BEEZER, STEPHEN S. TROTT, and PAMELA ANN RYMER, Circuit Judges.

Opinion by Judge BEEZER; Concurrence by Judge RYMER.

BEEZER, Circuit Judge:

Plaintiff brought suit against an airline alleging a common law breach of contract under the implied covenant of good faith and fair dealing. The district court held that Plaintiff's claim was preempted by the Airline Deregulation Act ("ADA"), 49 U.S.C. § 41713 (b)(1), and dismissed the claim pursuant to Fed.R.Civ.P. 12(b)(6). We conclude that the ADA does not preempt this common law contract claim, and reverse the district court.

When Congress passed the ADA, it dismantled a federal regulatory structure that had existed since 1958. By including a preemption clause, Congress intended to ensure that the States would not undo the deregulation with regulation of their own. Congress's "manifest purpose" was to make the airline industry more…