jonbrissman@verizon.net
Senior Member
Posts: 377
Joined: Oct 2003
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Monday January 19, 2009 4:43 PM
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Hi, J. Sullivan. There has been no litigation about 49 U.S.C. 41713(b) [the Airline Deregulation Act, or ADA] in the WCAB, but California civil and appellate courts have extensive experience in interpreting the statute. In Romano v. Am. Trans Air, 48 Cal. App. 4th 1637 (1996), the Court of Appeal analyzed the statute thusly:
"The foundational underpinning of any preemption issue is Congressional intent. (See Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516 [120 L. Ed. 2d 407, 422, 112 S. Ct. 2608] [the purpose of Congress is the "ultimate touchstone" of the preemption analysis].) Indeed, concepts of federalism and respect for state sovereignty create a presumption that Congress intends to permit the states to devise their own remedies for common law damage claims and, in the absence of an express congressional command, state law is preempted only if it actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field by a pervasive and complex regulatory system as to make reasonable the inference that Congress left no room for the states to supplement it. ( Fidelity Federal Sav. & Loan Assn. v. De La Cuesta (1982) 458 U.S. 141, 153 [73 L. Ed. 2d 664, 675, 102 S. Ct. 3014]; Solorzano v. Superior Court (1992) 10 Cal. App. 4th 1135, 1139 [13 Cal. Rptr. 2d 161].) "
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I cannot see how a state's enforcement of a maximum fee schedule conflicts with federal law, since there is no federal fee schedule for the services. Also, a state fee schedule establishes a ceiling, not a floor, so healthy deregulated competition (the intent of the ADA) can occur.
Pay per the fee schedule and tell them that you'll litigate any remaining balance they claim is due.
JCB
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