Air Transport Ass'n of America v. City & County of San Francisco

Opinion by Judge FISHER; Dissent by Judge WALLACE

The Air Transport Association of America, Airline Industrial Relations Conference, Federal Express Corporation, and United Air Lines, Inc. (together, “Airlines”) appeal from a summary judgment in favor of the City and County of San Francisco (“City”). The Airlines argue that Chapter 12B of the San Francisco Administrative Code (“Ordinance”) is preempted by the Airline Deregulation Act, the Railway Labor Act and California law. The Ordinance conditions all City contracts, including airport property lease agreements, on the contractor’s promise not to discriminate on the basis of race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity, disability, HIV/AIDS status, domestic partner status or marital status. This promise not to discriminate also extends to the provision of employment benefits to the domestic partners of employees, either married or registered with a government entity. The district court had jurisdiction under 28 U.S.C. § 1331 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

I.

The City, through its Airport Commission, owns and operates the San Francisco…

dissenting:

I respectfully disagree with the majority’s analysis in Part II.B, in which the majority holds that the City and County of San Francisco (City) may, consistent with the Airline Deregulation Act (Act), use its monopoly over property at the San Francisco International Airport (Airport) to compel the Arlines to provide benefits on an equal basis to their employees. Because I believe that the Act preempts the City’s use of its monopoly power to enforce Chapter 12B of the San Francisco Administrative Code (Ordinance), I would reverse the judgment of the district court without reaching the other issues discussed by the majority.

I.

First, I address the suggestion made in the majority opinion that the Airlines failed to raise the Airport monopoly argument in the district court. See Majority Opinion at 12820. The district court explained that “[the Airlines] argue that carriers will be forced to cease operating out of the Arport if they refuse to accept the contract terms required by the Ordinance.” Air Transp. Ass’n of Am. v. City & County of S.F., 992 F.Supp. 1149, 1187 (N.D.Cal.1998). Thus, the Arlines did argue before the district court that the City’s control over…