US Airways Case Dismissed

Well this case went out with a whimper.  After being remanded to the district court  by the 10th Circuit and having a trial date set for this April,  the parties in the US Airways lawsuit against New Mexico dismissed this case without prejudice.  Recall this case was challenge by US Airways to the propriety of New Mexico alcohol licensing powers.  The Joint Stipulation of Dismissal Without Prejudice can be accessed here.

I feel very confident that the legal issues raised in this litigation will reappear in another case in the future.


(earlier post)   10th Circuit Reverses and Remands US Airways Case Back To District Court


The 10th Circuit today reversed and remanded the district court’s decision which had ruled in favor of New Mexico.    When the district court gets this case again, it is instructed to balance both the state interests under the 21st Amendment and the federal interests under the Federal Aviation Act.   It is unclear if any party will try to appeal this to Supreme Court at this stage.  The 10th Circuit opinion can be found here.

(earlier post)

Oral Argument Set for September 20th in the 10th Circuit Appeal of USAIR Case

The oral argument of US Air’s appeal is set for September 20th in Denver before the 10th Circuit.   In a twist, the US Government has pushed to be allowed to participate in the oral argument and has been granted time. The motion the federal government filed to participate in oral argument is here.


Appellate Briefs have been filed in the 10th Circuit.   Retailers, Mothers Against Drunk Driving, State AGs, US Justice Dept, three of the past  U.S. Solicitor Generals representing corporate interests , the list is long!

Four briefs have been filed in support of the State of New Mexico by:
American Beverage Licensees , State AGs, Mothers Against Drunk Driving and Wine & Spirits Wholesalers of America

The state of New Mexico appellate brief is here.

The State AGs brief notes that the position of the USAir and appellants that they do not need to follow New Mexico alcohol laws would also support the amazing position that US Air could serve drinks to 11 year olds.

Four briefs have been filed in support of US Airways by:
Air Transport Association of America, Association of Flight Attendants, Ten Former Secretaries of the DOT, and The United States

(The below was written after the trial stage and before 10th Circuit filings)

If you sell liquor to consumers in New Mexico, you need to be licensed by the state to do so. Period.

United States District Judge M. Christinia Armijo has rejected US Airways claims that federal aviation statutes and regulations (specifically the Airline Deregulation Act and the Federal Aviation Act) preempt New Mexico laws requiring every person selling alcohol to secure a public service license.  In her decision Jude Armijo noted there was no basis to assume Congress intended federal law to regulate alcohol service and that state laws are not preempted.    She noted:

“In the present case, New Mexico has the authority to control US Airways’ distribution of alcohol in airplanes that are in New Mexico airspace for two reasons. First, New Mexico has concurrent jurisdiction with the federal government over events occurring in its airspace. Thus, the in-flight service of alcohol is “[t]he transportation or importation into any State. . . for delivery or use therein of intoxicating liquors.” U.S. Const. Amend. XXII, § 2. Second, even lacking concurrent jurisdiction, New Mexico has the authority to regulate liquor moving through its territory and may take “appropriate steps to prevent the unlawful diversion” of the alcohol into its regulated market.”
The state offered a vigorous defense and a strong lesson for all states facing this type of litigation.  The state did not concede an inch and conducted an extensive factual inquiry to develop a full record with various experts discussing how the NM licensing system works and the potential loophole the plaintiffs lawsuit would create.  The state’s answer is here.

Needless to say, the stakes are pretty high with this case and I personally expect an appeal by the Plaintiff in this case.    New Mexico is in the 10th Circuit.

This case further provides a strong rejection to the attempts to allow revisionist history to claim that the 21st Amendment essentially only allows a state to decide wet or dry issues.  The complaint implied that the 21st Amendment  allows a state “ONLY” to regulate the transportation or importation.  That very limited view of the 21st Amendment will not prevail.

Briefs have been filed in this case.

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