Martin Ventress v. Japan Airlines, et al

Filing

FILED OPINION (MICHAEL DALY HAWKINS, M. MARGARET MCKEOWN and CARLOS T. BEA) AFFIRMED. Judge: MMM Authoring, Judge: CTB Concurring. FILED AND ENTERED JUDGMENT. [9035017]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN VENTRESS,
Plaintiff-Appellant,
v.

No. 12-15066
D.C. No.
1:07-cv-00581LEK-RLP

JAPAN AIRLINES; JALWAYS CO.,
LTD.; HAWAII AVIATION CONTRACT
SERVICES, INC.,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the District of Hawai‘i
Leslie E. Kobayashi, District Judge, Presiding
Submitted February 20, 2014*
Honolulu, Hawai‘i
Filed March 28, 2014
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge McKeown;
Concurrence by Judge Bea

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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SUMMARY**

Preemption / Federal Aviation Act
The panel affirmed the district court’s judgment in favor
of Japan Airlines based on the Federal Aviation Act’s
preemption of the pro se plaintiff’s state claims.
Plaintiff, a former flight engineer, alleged that Japan
Airlines retaliated against him for reporting safety concerns
and constructively terminated him for reasons related to his
medical and mental fitness.
The panel held that plaintiff’s California state law claims
were preempted by the Federal Aviation Act because they
required the factfinder to intrude upon the federally occupied
field of aviation safety by deciding questions of pilot medical
standards and qualifications. The panel also held that the
district court did not abuse its discretion in denying plaintiff’s
motion for reconsideration.
Judge Bea concurred in part because he believes that
plaintiff only appealed the district court’s decision denying
his motion for reconsideration, and therefore he only joined
that part of the majority’s opinion. Judge Bea does not
believe that the court needed to address the district court’s
conclusion concerning federal preemption.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Martin Ventress, pro se, Costa Mesa, California, for PlaintiffAppellant.
Steven M. Egesdal and William M. Harstad, Carlsmith Ball
LLP, Honolulu, Hawai‘i, for Defendants-Appellees.

OPINION
McKEOWN, Circuit Judge:
This aviation case is making its third trip to our court on
yet another preemption challenge, namely whether the
Federal Aviation Act of 1958 (the “FAA”), 49 U.S.C.
§ 40103 et seq., preempts pro se plaintiff Martin Ventress’s
California statutory and common law retaliation and
constructive termination claims (the “state law claims”).1
Ventress, a former flight engineer, alleges Japan Airlines and
Jalways Co., Ltd. (collectively “JAL”)2 retaliated against him
for reporting safety concerns and constructively terminated
him for reasons related to his medical and mental fitness.
In the first round of proceedings in this court, we held that
his state law claims are not preempted by the Friendship,
Commerce, and Navigation (“FCN”) Treaty. Ventress v.

1
In his complaint, Ventress raised additional causes of action, which
have since been dismissed and are not relevant to this appeal.
2

Ventress also named Hawaii Aviation Contract Services, Inc.
(“HACS”) as a defendant in this action. However, having concluded
arbitration with Ventress, HACS is no longer a party to this appeal.

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Japan Airlines (Ventress I), 486 F.3d 1111 (9th Cir. 2007).
In the second round, we held that the claims are not
preempted by the Airline Deregulation Act of 1978 (“ADA”).
Ventress v. Japan Airlines (Ventress II), 603 F.3d 676 (9th
Cir. 2010). In Ventress II, we noted that the parties had not
addressed whether Ventress’s claims are preempted by the
FAA, id. at 681, 683, which is now the issue before us in this
third appeal. Mindful that the FAA does not preempt all state
law tort actions touching air travel, Martin v. Midwest
Express Holdings, Inc., 555 F.3d 806, 809 (9th Cir. 2009), we
conclude that Ventress’s state law claims are preempted
because they require the factfinder to intrude upon the
federally occupied field of aviation safety by deciding
questions of pilot medical standards and qualifications. We
affirm the judgment of the district court.
BACKGROUND
The detailed procedural and factual background of this
decade-long case is amply set forth in Ventress I, Ventress II,
and the district court’s October 31, 2011 order granting JAL’s
motion for judgment on the pleadings. We therefore discuss
only the background necessary to address FAA preemption,
the sole issue in this appeal.
Ventress claims JAL retaliated against him for raising
safety concerns regarding fellow pilot Captain Jeff Bicknell’s
medical fitness to operate an aircraft during a June 2001
flight. Specifically, Ventress alleges JAL subjected him to
unnecessary psychiatric evaluations and prevented him from
working because he raised those safety concerns and
submitted two safety reports to several federal agencies.
Ventress maintains that JAL’s conduct constitutes unlawful
retaliation in violation of California’s whistleblower statute,

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Cal. Lab. Code § 1102.5(b), and resulted in his constructive
termination in violation of “the public policies expressed in
Government Code Section 12940(k), Labor Code Section
1102.5, 49 U.S.C. Section 40101(d)(1)–(2), and 49 U.S.C.
Section 42121.”
On remand after Ventress II, the district court held that
the FAA preempts Ventress’s state law claims because ruling
on the claims would necessarily “require the finder of fact to
consider whether or not Ventress was medically fit to carry
out his duties as a flight engineer.” “Determining whether
Ventress was medically qualified to work as a flight
engineer,” the district court reasoned, “would intrude in the
area of airmen medical standards, which Congress intended
to occupy exclusively.” The district court granted JAL’s
motion for judgment on the pleadings on preemption grounds.
Ventress filed a motion for reconsideration. In that
motion, Ventress argued for the first time that the FAA does
not preempt his claims because the incidents giving rise to his
state law claims did not occur in the United States or its
airspace, and because the FAA does not apply to foreign air
carriers like JAL. The district court rejected Ventress’s
newly raised arguments on the merits, finding that he failed
to allege JAL’s retaliatory conduct occurred in international
airspace and that the FAA applies to foreign air carriers. This
appeal followed.3

3

We deny Ventress’s motion to supplement the record on appeal and
reject JAL’s request that we impose sanctions on Ventress for filing that
motion. We likewise deny JAL’s request that we reject Ventress’s entire
opening brief due to procedural deficiencies.

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ANALYSIS

I. FAA Preemption4
Because the FAA does not expressly preempt state
regulation of air safety or prohibit states from imposing tort
liability for unlawful retaliation or constructive termination,
FAA “preemption, if any, must be implied.” See Montalvo v.
Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007). Implied
preemption comes in two forms: conflict preemption and
field preemption. Id. Conflict preemption applies “where
compliance with both federal and state regulations is a
physical impossibility,” and in “those instances where the
challenged state law stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Arizona v. United States, 132 S. Ct.
2492, 2501 (2012) (internal quotation marks omitted). Field
4

The concurrence maintains that we need not address Ventress’s general
preemption claim because his notice of appeal was limited to the order
denying his more limited motion for reconsideration. We disagree.
Where, as here, “a party seeks to argue the merits of an order that does not
appear on the face of the notice of appeal,” we consider two factors, both
of which weigh in favor of considering the preemption claim. E.g.,
Shapiro v. Paradise Valley Unified Sch. Dist., 374 F.3d 857, 863 (9th Cir.
2004) (internal quotation marks omitted). First, Ventress’s intent to
appeal the district court’s order granting JAL’s motion for judgment on
the pleadings can be fairly inferred from the arguments raised and cases
cited in his opening and reply briefs. See id. Second, after we remanded
this case to the district court to consider FAA preemption, JAL fully
addressed the preemption issue in the district court and in its answering
brief before this court and would not be prejudiced by a decision on the
merits. See id. The concurrence’s contrary approach sidesteps the real
issue on appeal solely on the basis of a technicality. See id. (“The policy
underlying this test is that it would violate the spirit of the Federal Rules
of Civil Procedure to avoid a decision on the merits on the basis of mere
technicalities.” (internal quotation marks omitted)).

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preemption “can be inferred either where there is a regulatory
framework ‘so pervasive . . . that Congress left no room for
the States to supplement it’ or where the ‘federal interest [is]
so dominant that the federal system will be assumed to
preclude enforcement of state laws on the same subject.’”
Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir.
2013) (alteration in original) (quoting Arizona, 132 S. Ct. at
2501). “[W]hen an agency administrator promulgates
pervasive regulations pursuant to his [or her] Congressional
authority, we may infer a preemptive intent unless it appears
from the underlying statute or its legislative history that
Congress would not have sanctioned the preemption.”
Montalvo, 508 F.3d at 471.
In Montalvo, we delineated the preemptive scope of the
FAA and observed that “[t]he purpose, history, and language
of the FAA lead us to conclude that Congress intended to
have a single, uniform system for regulating aviation safety.”
Id. We held that the FAA, together with the federal aviation
regulations (“FARs”) promulgated by the Federal Aviation
Administration (the “agency”), “occupies the entire field of
aviation safety” and that Congress “clearly indicated its intent
to be the sole regulator” of this field. Id. at 473–76; see also
French v. Pan Am Express, Inc., 869 F.2d 1, 6–7 (1st Cir.
1989). Applying this principle, we concluded that claims
based on the airline crew’s failure to warn passengers about
blood clots were preempted by the FAA and corresponding
regulations. Montalvo, 508 F.3d at 469, 472–73.
Two years later in Martin, we circumscribed the
preemptive effect of the FAA. There, we clarified that “when
the agency issues ‘pervasive regulations’ in an area, like [the]
passenger warnings [at issue in Montalvo], the FAA preempts
all state law claims in that area” but that the state standard of

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care remains applicable in “areas without pervasive
regulations or other grounds for preemption.” 555 F.3d at
811. Because the FARs established no requirements for
airplane stairs, we held that the state tort claims involving
airplane stairs in Martin were not preempted by federal law.
Id. at 812.
Our review of the applicable FARs confirms that pilot
qualifications and medical standards for airmen,5 unlike
aircraft stairs, are pervasively regulated. Id. at 809 (“Claims
regarding . . . pilot qualifications . . . have been declared
preempted.”). Specifically, the FAA authorizes the agency to
issue airman certificates to individuals who are qualified and
physically able to perform the duties related to the certified
position. See 49 U.S.C. § 44702–44703. Absent such a
certificate, an individual may not serve as an airman for any
civil aircraft. 49 U.S.C. § 44711. Subject to limited
exceptions not applicable here, the agency requires an airman
to obtain a medical certificate. 14 C.F.R. § 61.3. The agency
has delegated the power to deny or issue such medical
certificates to the Federal Air Surgeon. 14 C.F.R. § 67.407.
The Federal Air Surgeon, in turn, is authorized to conduct
medical examinations of medical certificate applicants to
determine whether those applicants meet certain medical
standards. Id. § 67.407(a)(1). The agency has promulgated
detailed FARs regarding the issuance of medical certificates
for airmen. See 14 C.F.R. § 67.1–67.415. Among these are
FARs governing medical standards for mental, neurological,

5

An “airman” includes an “individual . . . in command, or as a pilot,
mechanic, or member of the crew, who navigates aircraft when under
way.” 49 U.S.C. § 40102(a)(8). Both Ventress and Captain Bicknell were
airmen under the FAA and applicable FARs.

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and general medical conditions.
§ 67.101–67.113; 67.201–67.313.

See 14

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C.F.R.

In light of this statutory and regulatory backdrop, and
guided by Montalvo and Martin, we conclude that the FAA
and accompanying FARs preempt Ventress’s retaliation and
constructive termination claims. This is so for two reasons:
the pervasiveness of federal safety regulations for pilots and
the congressional goal of a uniform system of aviation safety.
To begin, because the FAA and FARs occupy the field of
pilot qualifications, including the medical fitness of airmen,
federal law forecloses Ventress’s state law claims, which are
little more than backdoor challenges to JAL’s safety-related
decisions regarding his and Captain Bicknell’s physical and
mental fitness to operate civil aircraft. In its Answer, JAL
argues that even assuming Ventress were a JAL employee,6
its actions “were based on legitimate, non-discriminatory
business reasons.” Consequently, as the district court
appropriately found, adjudicating Ventress’s whistleblower
claims requires “the finder of fact to determine whether JAL
had ‘a legitimate, nonretaliatory explanation for its acts’ or its
‘explanation is merely a pretext for retaliation.’” This inquiry
into the medical fitness of Ventress and Captain Bicknell
intrudes upon the federally occupied field of pilot safety and
qualifications that Congress has reserved for the agency and
impermissibly subjects federal law to “supplementation by,
[and] variation among, state laws.” Montalvo, 508 F.3d at
468.
In a similar vein, by inviting the factfinder to pass on
questions of pilot qualification and medical fitness,
6

JAL disputes that Ventress was its employee but assumes that fact for
purposes of its legal argument.

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Ventress’s state law claims impinge on Congress’s goal of
ensuring “a single, uniform system for regulating aviation
safety.” Id. at 471; see also City of Burbank v. Lockheed Air
Terminal, Inc., 411 U.S. 624, 639 (1973) (noting that “a
uniform and exclusive system of federal regulation” is
required “if the congressional objectives underlying the
[FAA] are to be fulfilled”). Permitting indirect challenges to
aviation safety decisions under the guise of state law
whistleblower claims interferes with the agency’s authority
to serve as the principal arbiter of aviation safety. Montalvo,
508 F.3d at 472; Abdullah v. Am. Airlines, Inc., 181 F.3d 363,
369 (3d Cir. 1999) (“[The] legislative history reveals that
Congress intended the Administrator, on behalf of the Federal
Aviation Administration, to exercise sole discretion in
regulating air safety. And this is exactly what Congress
accomplished through the FAA.”). Entertaining such state
law claims may also risk creating a fragmented patchwork of
aviation safety standards under state law, thereby
undermining the legislative goal of ensuring uniformity over
aviation safety regulation. See Montalvo, 508 F.3d at 473.
In reaching this conclusion, we need not, and do not,
suggest that the FAA preempts all retaliation and constructive
termination claims brought under California law. Indeed, we
recognize that Congress has not occupied the field of
employment law in the aviation context and that the FAA
does not confer upon the agency the exclusive power to
regulate all employment matters involving airmen. Instead,
we hold that federal law preempts state law claims that
encroach upon, supplement, or alter the federally occupied
field of aviation safety and present an obstacle to the

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accomplishment of Congress’s legislative goal to create a
single, uniform system of regulating that field.7
II. Applicability of the FAA
In a final effort to elude the FAA’s preemptive scope,
Ventress argues, as he did in his motion for reconsideration,
that the FAA does not apply to this case because the conduct
giving rise to his claims “did not occur in U.S. airspace.”
This assertion is belied by Ventress’s pleadings. The
gravamen of Ventress’s complaint is that JAL allegedly
retaliated against him after he voiced safety concerns
regarding Captain Bicknell. Although the safety concerns
reported by Ventress involved events that took place during
a June 2001 international flight, nothing in Ventress’s
complaint suggests that JAL’s retaliatory conduct took place
outside of the United States. To the contrary, in his
7

Seeking to avoid the FAA’s preemptive effect, Ventress relies upon the
FAA’s savings clause, 49 U.S.C. § 40120(c), and the Third Circuit’s
reasoning in Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir.
1999). Neither source alters our conclusion that his claims are preempted
by federal law. The FAA’s savings clause and Abdullah establish that
state law remedies remain available even where federal law preempts state
law standards of aviation safety. For example, the FAA’s savings clause
provides that any “remedy under [the statute] is in addition to any other
remedies provided by law.” 49 U.S.C. § 40120(c) (emphasis added).
Consonant with the savings clause, Abdullah held that even though federal
law preempted state law standards of aviation safety, “traditional state and
territorial law remedies continue to exist for violation of those standards.”
181 F.3d at 375 (emphasis added). The difficulty with Ventress’s claims,
however, is that he does not identify—much less allege a violation
of—any FAR or other federal aviation safety standard. As such, even if
state remedies hypothetically remain available to him under the FAA’s
savings clause and Abdullah, Ventress has failed to allege a cognizable
legal claim under any applicable federal standard. The district court did
not err in dismissing his claims.

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complaint, Ventress alleges his constructive termination
occurred in Honolulu, Hawai‘i, and he concedes on appeal
that the safety warning he gave regarding Captain Bicknell’s
health—the alleged reason for JAL’s unlawful conduct—
occurred “in Hawaii.” Accordingly, the district court did not
abuse its discretion in denying Ventress’s motion for
reconsideration.8
AFFIRMED.

BEA, Circuit Judge, concurring in part:
I concur with the majority opinion’s affirmance of the
district court. However, I write separately because I believe
this court need not address the district court’s conclusion that
the FAA preempts Ventress’s state law claims. The district
court reached that conclusion in its order granting JAL’s
motion for judgment on the pleadings. Ventress does not
appeal that decision of the district court. Rather, according to

8
Ventress also asserts in passing that the FAA does not apply to
“foreign” air carriers like JAL. We decline to address this undeveloped
argument, which is not supported by citations to the record, argument, or
any legal authority. See, e.g., Western Radio Servs. Co. v. Qwest Corp.,
678 F.3d 970, 979 (9th Cir. 2012) (“We will not do an appellant’s work
for it, either by manufacturing its legal arguments, or by combing the
record on its behalf for factual support.”); United States v. Graf, 610 F.3d
1148, 1166 (9th Cir. 2010) (“Arguments made in passing and not
supported by citations to the record or to case authority are generally
deemed waived.”). Although we are sensitive to Ventress’s pro se status
on appeal and construe his arguments liberally, our leniency is not without
limit and does not excuse his utter failure to provide any legal support or
argument for this contention.

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Ventress’s Notice of Appeal, Ventress appeals only the
district court’s decision denying his motion for
reconsideration. I therefore join only Part II of the majority’s
opinion, which correctly rejects Ventress’s arguments that he
made in his motion for reconsideration, for the “cardinal
principle of judicial restraint” is that “if it is not necessary to
decide more, it is necessary not to decide more.” PDK Labs.
Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in the judgment), cited in
Morse v. Frederick, 551 U.S. 393, 431 (2007) (Breyer, J.,
concurring in the judgment in part and dissenting in part), and
Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1030 (9th Cir.
2013) (Bea, J., concurring in part and dissenting in part).
I agree with the majority that this Court may consider
Ventress’s arguments that he made in response to JAL’s
motion for judgment on the pleadings if (1) Ventress’s intent
to appeal the district court’s order granting JAL judgment on
the pleadings can be “fairly inferred” from the arguments
raised in his opening brief, and (2) if JAL would not be
prejudiced. See Shapiro, 374 F.3d at 863; Maj. Op. at 6 n.4.
However, I do not believe that Ventress’s intent to appeal the
district court’s order granting judgment on the pleadings can
be “fairly inferred” from the arguments raised in Ventress’s
opening brief. In the sections of Ventress’s informal opening
brief entitled “4. State the claim or claims you raised at the
originating court” and “5. What issues are you raising on
appeal?”, Ventress failed to mention the arguments he made
before the district court at the judgment on the pleadings
stage. Instead, Ventress relied on arguments that he made in
his motion for reconsideration relating to the more narrow
issue of whether the FAA applies to “foreign carriers.”
Although Ventress did discuss preemption more generally in
his section entitled “7. What law supports these issues on

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appeal?”, Ventress did not reference the district court’s order
granting JAL judgment on the pleadings, nor did Ventress
address the reasoning of that order. In particular, Ventress
did not even mention the federal aviation regulations, upon
which the district court’s judgment on the pleadings placed so
much emphasis. As a result, I do not believe that it can be
“fairly inferred” that Ventress intended to appeal the district
court’s order granting judgment on the pleadings.
The American legal system is premised on the adversarial
process. Courts “rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of
matters the parties present.” Greenlaw v. United States,
554 U.S. 237, 243 (2008). Here, a pro se individual filed an
informal opening brief which addressed the narrow
arguments that he made with respect to the district court’s
denial of his motion for reconsideration but did not even
discuss the complex issue of law addressed in the district
court’s judgment on the pleadings. Such circumstances
present a particularly poor vehicle to address that issue of
law. Rather, we should await a properly presented and
argued appeal before making a broad pronouncement on
preemption.

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