Ventress v. Japan Airlines et al
Filing
201
ORDER GRANTING DEFENDANT JAPAN AIRLINES' MOTION FOR JUDGMENT ON THE PLEADINGS (COMPLETE FEDERAL PREEMPTION UNDER THE FEDERAL AVIATION ACT): On the basis of the foregoing, JAL's 181 Motion for Judgment on the Pleadings (Complete Federal Preemption Under the Federal Aviation Act), filed June 24, 2011, is HEREBY GRANTED. The Court also notes that JALs 177 Motion for Summary Judgment or in the Alternative Judgment on the Pleadings (Counts 1 and 2) and 179 Motion for Summary Judgme nt that Defendant Jalways Co., Ltd. Was Not Plaintiffs Employer (Counts 1-2) (collectively "Motions for Summary Judgment"), filed June 24, 2011, are currently set for hearing on December 12, 2011. In light of this Court's ruling on JAL 's Motion for Judgment on the Pleadings, JAL's Motions for Summary Judgment are HEREBY DENIED AS MOOT. The hearing on the Motions for Summary Judgment is HEREBY VACATED. IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYAS HI on October 28, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARTIN VENTRESS,
)
)
Plaintiff,
)
)
vs.
)
)
JAPAN AIRLINES, ET AL.,
)
)
)
Defendants.
_____________________________ )
CIVIL NO. 07-00581 LEK
ORDER GRANTING DEFENDANT JAPAN AIRLINES’ MOTION
FOR JUDGMENT ON THE PLEADINGS (COMPLETE FEDERAL
PREEMPTION UNDER THE FEDERAL AVIATION ACT)
Before the Court is Defendant Japan Airlines’(“JAL”)
Motion for Judgment on the Pleadings (Complete Federal Preemption
Under the Federal Aviation Act) (“Motion”), filed on June 24,
2011.
Plaintiff Martin Ventress (“Ventress”) filed his
memorandum in opposition on September 26, 2011, and JAL filed its
reply on October 3, 2011.
October 17, 2011.
This matter came on for hearing on
Appearing on behalf of JAL were Steven
Egesdal, Esq., and William Hartstad, Esq., and appearing on
behalf of Ventress was Ira Dennis Lawver, Esq.
After careful
consideration of the Motion, supporting and opposing memoranda,
and the arguments of counsel, JAL’s Motion is HEREBY GRANTED for
the reasons set forth below.
BACKGROUND
Ventress and Jack Crawford (“Crawford”) originally
filed their Complaint for Damages (“Complaint”) on December 30,
2002 in the United States District Court for the Central District
of California.
The defendants were JAL, JALways Co., Ltd.
(“JALways”),1 and Hawaii Aviation Contract Services, Inc.
(“HACS”, all collectively “Defendants”).
The Complaint alleges
the following claims: a claim by Ventress against Defendants for
violation of California Labor Code § 1102.5 (“Count I”); a claim
by Ventress against Defendants for constructive termination in
violation of public policy (“Count II”); a claim by Crawford
against Defendants for termination in violation of public policy
(“Count III”); an intentional infliction of emotional distress
(“IIED”) claim by Ventress and Crawford against Defendants
(“Count IV”); and a negligent infliction of emotional distress
(“NIED”) claim by Ventress and Crawford against Defendants
(“Count IV”).
All of the claims were based on California law.
On August 20, 2003, the case was transferred to this
district court and assigned the Civil Number 03-00451.
The
parties later stipulated to sever Ventress’s claims and
Crawford’s claims.
Crawford’s claims remain in CV 03-00451.
[Stip. for Complete Severance Under Fed. R. Civ. P. 21 of Pltfs.’
Cases for All Purposes, filed 11/26/07 (dkt. no. 2).]
This
matter has already seen two appeals to the Ninth Circuit.
The relevant factual and procedural background is set
1
The Court will refer to JAL and JALways collectively as
“the JAL Defendants”.
2
forth in the Ninth Circuit’s first opinion:
JAL is a Japanese commercial air carrier
based in Tokyo. HACS, a Hawaii corporation with
its principal place of business in Honolulu,
provides contract flight crews to JAL. Ventress
and Crawford were employed by HACS to perform
services for JAL flights.[2] Plaintiffs’
employment agreements with HACS contain mandatory
arbitration provisions.
In December 2002, Ventress and Crawford
jointly filed a complaint against JAL and HACS in
the Central District of California. The complaint
alleged that JAL required a seriously ill pilot[3]
to fly in June 2001, in violation of American and
Japanese aviation laws as well as JAL’s own
operations manual. . . . In December 2001, . . .
Ventress submitted reports on the June incidents
to JAL, HACS and aviation regulators. Ventress
claimed repeated harassment from JAL thereafter,
including demands to undergo psychiatric
evaluations. Ventress has not been allowed to fly
since September 2001. . . .
In July 2003, the California district court
granted defendants’ motion to transfer the case to
the District of Hawaii. . . . After the venue
change, plaintiffs moved to amend the complaint to
replace their California law claims with Hawaii
law claims. A magistrate judge denied that
motion, and plaintiffs appealed to the Hawaii
district court.
In October 2004, the Hawaii district court
granted judgment on the pleadings for JAL on the
ground that all of plaintiffs’ claims were
preempted by the Friendship, Commerce, and
Navigation Treaty, U.S.-Japan, April 2, 1953, 4
U.S.T. 2063 (“Japan FCN Treaty”). The court
further held that the emotional distress claims
failed as a matter of California law, even if they
were not preempted. The court declined to rule on
plaintiffs’ appeal of the denial of leave to
amend, saying that the issue was mooted by its
2
Ventress was a flight engineer.
3
[Complaint at ¶ 10.]
The pilot was Captain Upgrade Jeff Bicknell.
at ¶¶ 12-16.]
3
[Complaint
decision on treaty preemption. The court then
severed the claims against HACS and entered a
stipulation and order staying further proceedings
pending arbitration. After Ventress and HACS
disputed the applicable arbitration rules, the
court entered an order compelling arbitration
under the commercial rules of the American
Arbitration Association (“AAA”).
Ventress v. Japan Airlines (“Ventress I”), 486 F.3d 1111, 1113-14
(9th Cir. 2007) (footnotes omitted).
In Ventress I, the Ninth Circuit, inter alia, reversed
the district court’s ruling that the Japan FCN Treaty preempted
California’s whistle blower protection laws and remanded for
further proceedings.
Id. at 1118.
In addition, the Ninth
Circuit dismissed Ventress’s appeal of the order compelling him
to arbitrate his claims against HACS, and directed the district
court on remand to consider Ventress’s and Crawford’s motion to
amend their complaint to state claims under Hawai`i state law.
Id. at 1119.
The relevant history of the case after the Ventress I
remand is set forth in the Ninth Circuit’s subsequent opinion.
In August 2007, Ventress and HACS concluded
arbitration, resulting in an award that denied
Ventress’s claim for wrongful termination and
ordered him to pay costs to HACS. On March 20,
2008, the district court denied Ventress’s motion
to vacate the award and granted HACS’s motion to
confirm it. Meanwhile, the district court issued
an order on November 28, 2007, denying Ventress’s
motion to amend the complaint to state claims
under Hawaii and federal law.
. . . .
JAL moved for judgment on the pleadings,
asserting complete federal preemption by the
4
Federal Airline Deregulation Act of 1978, 49
U.S.C. § 41713 (“ADA”), as amended by the
Whistleblower Protection Program, 49 U.S.C. §
42121 (“WPP”). The district court granted that
motion. The court held that the ADA, as amended
by the WPP, barred Ventress’s state-law whistle
blowing and public policy claims. Noting that
this circuit had yet to address ADA preemption of
state whistle blower protection laws, the district
court adopted the Eighth Circuit’s reasoning that
“the WPP makes it unmistakable that such claims
are pre-empted.” Botz v. Omni Air Int’l, 286 F.3d
488, 498 (8th Cir. 2002).
Ventress v. Japan Airlines (“Ventress II”), 603 F.3d 676, 678-79
(9th Cir. 2010).
In Ventress II, the Ninth Circuit, inter alia, affirmed
the confirmation of the arbitration award and the denial of
Ventress’s motion to vacate the award, as well as the denial of
the motion to amend.
Id. at 680-81.
The Ninth Circuit also
noted that the parties had not addressed “whether the protections
announced in the WPP should be categorized as falling within the
broader confines of the Federal Aviation Act of 1958 (‘FAA’), 49
U.S.C. § 40103, and whether the FAA preempts Ventress’s state-law
claims.”
Id. at 681 (citing Montalvo v. Spirit Airlines, 508
F.3d 464, 473-74 (9th Cir. 2007) (holding that the FAA and its
corresponding regulations impliedly preempt state laws governing
airline safety)).
The Ninth Circuit therefore did not address
the issue, but noted that the district court was free to consider
the issue on remand, if necessary.
Id.
The Ninth Circuit
reversed the ruling that the ADA, as amended by the WPP,
5
preempted Ventress’s California state law whistle blower claims.
Id. at 683.
On May 12, 2010, the JAL Defendants filed a Suggestion
of Bankruptcy Regarding Japan Airlines Corporation, Japan
Airlines International Co., Ltd., and JAL Capital Co., Ltd.
[Dkt. no. 127.]
On May 13, 2010, the district judge issued an
order administratively staying the case until further order.
[Dkt. no. 128.]
The Ninth Circuit’s Mandate was filed in this district
court on May 27, 2010.
[Dkt. no. 135.]
On July 6, 2010, the
district judge issued an order lifting the stay as to JALways and
leaving the stay in effect as to JAL.
[Dkt. no. 141.]
On December 3, 2010, the JAL Defendants filed a
Supplemental Corporate Disclosure Statement, stating that, as of
December 1, 2010, JAL and JALways merged.
entity.
JAL is the surviving
[Dkt. no. 155.]
On March 2, 2011, Ventress filed a Notice of
Stipulation and Agreed Order Resolving Motion to Lift Stay in
Defendant Japan Airlines’ et al. Bankruptcy Proceeding in Order
to Continue Case to Trial in the United States District Court for
the District of Hawai`i.
[Dkt. no. 162.]
This Court also
received a letter dated March 21, 2011 from counsel for JAL
stating, inter alia, that the bankruptcy stay had been lifted.
[Dkt. no. 170.]
This Court held a status conference on April 4,
6
2011 and issued an Amended Rule 16 Scheduling Order on April 6,
2011.
I.
[Dkt. nos. 173, 176.]
The instant Motion followed.
JAL’s Motion
JAL first emphasizes that, prior to Ventress I, the
district judge granted JAL’s motion to dismiss Count IV (IIED)
and Count V (NIED), and no party appealed that ruling.
those claims are no longer before this Court.
Motion at 2-3 & n.3.]
Thus,
[Mem. in Supp. of
Only Counts I and II remain in this case.
[Id. at 4.]
JAL argues that Count I and Count II, based on
California law, are preempted by federal aviation law in the FAA
and the regulations promulgated thereunder.
JAL emphasizes that
Ventress has not pled any breach of the applicable federal
regulations.
[Id. at 10-11.]
JAL argues that preemption applies
because “the federal government exercises supreme, unitary, and
exclusive control” over aviation safety because of the unique
[Id. at 12 (some citations
nature of the aviation industry.
omitted) (quoting Bigstone Broadcasting, Inc., v. Lindbloom, 161
F. Supp. 2d 1009, 1017 (D.S.D. 2001); City of Burbank v. Lockheed
Air Terminal, Inc., 411 U.S. 624, 633-34 (1973)).]
JAL argues
that FAA regulations on “Medical Standards and Certification”, 14
C.F.R. Part 67, preempt the field of Ventress’s state law claims
in this case.
[Id. at 14.]
7
Further, under Ninth Circuit law, “federal law
impliedly preempts state-law aviation safety standards and
establishes the standard of care in areas in which the FAA issues
‘pervasive regulations.’”
[Id. at 17 (citing Martin v. Midwest
Express Holdings, Inc., 555 F.3d 806, 811 (9th Cir. 2009);
Montalvo, 508 F.3d at 473).]
JAL acknowledges that the FAA does
not preempt all state law claims; the FAA does not preempt claims
in areas where there are no applicable federal regulations.
[Id.
at 18-19 (citing Martin, 555 F.3d at 810-11).]
Even assuming, for purposes of the Motion, that the
factual allegations in support of Ventress’s whistle blower
claims are true, the state laws he relies upon are preempted by
federal air safety regulations.
[Id. at 20.]
JAL argues that
preemption applies because there are pervasive federal
regulations governing the medical standards for flight deck
officers.
[Id. at 21-22 (quoting Schwartz v. Helms, 712 F.2d
633, 635 & nn.3-8 (D.C. Cir. 1983); Abdullah v. Am. Airlines,
Inc., 181 F.3d 363, 369 & n.6 (3d Cir. 1999); 14 C.F.R. § 61.3
(1996); 49 U.S.C. § 44703).]
The Federal Aviation Administration
has established a “Federal Air Surgeon”, who is authorized “(i)
to perform medical examinations; and (ii) to issue, review, and
deny medical certificates, which are required before issuing
airman certificates.”
67.407(a)).]
[Id. at 22 (citing 14 C.F.R. §
Further, federal regulations specify the standards
8
for medical certificates in three different classes.
(citing 14 C.F.R. Part 67, Subparts B, C, and D).]
[Id. at 23
JAL argues
that the pervasiveness of these regulations establishes that
Congress intended to occupy the field of medical standards for
flight deck officers.
Insofar as Ventress has not alleged a
violation of federal aviation regulations, his whistle blower
claims must fail.
[Id. at 24-25.]
JAL also argues that this Court can consider the effect
on the aviation industry if a rule allowing the state law claims
in this case were applied on a more widespread basis.
[Id. at
28-29 (citing French v. Pan Am Express, Inc., 869 F.2d 1, 6 (1st
Cir. 1989); Abdullah, 181 F.3d at 372).]
JAL argues that
“[a]llowing Ventress’s California state law claims to proceed
would risk ‘fractionalized control’ of the ‘Medical Standards and
Certification’ aspect of aviation safety by the Federal Aviation
Administration.”
[Id. at 29.]
JAL therefore urges the Court to grant judgment on the
pleadings in its favor as to Counts I and II.
II.
Ventress’s Memorandum in Opposition
Ventress emphasizes that the FAA does not preempt all
state law claims.
[Mem. in Opp. at 1-3 (citing cases).]
Ventress argues that, under Abdullah, although federal
regulations preempt ordinary standards of care, state law
remedies and claims are still available.
9
[Id. at 3-4 (quoting
Abdullah, 181 F.3d at 368).]
Ventress also argues that complete
preemption does not apply to the FAA, and therefore it does not
preempt his state law claims.
the Motion.
Ventress urges the Court to deny
[Id. at 4-6.]
III. JAL’s Reply
JAL points out that Ventress does not dispute that his
claims involve aviation safety in general, and specifically
medical standards for flight deck officers, nor does he dispute
that there are pervasive federal regulations on the medical
standards for flight deck officers.
Further, Ventress did not
address the controlling Ninth Circuit authority, including Martin
and Montalvo.
[Reply at 1.]
The only Ninth Circuit case
Ventress cited is Charas v. Trans World Airlines, Inc., 160 F.3d
1259 (9th Cir. 1998), which addresses ADA preemption, not FAA
preemption.
Ventress relies on the statement in Charas that
Congress did not preempt “run of the mill personal injury
claims”, but JAL argues that Montalvo rejected this argument.
[Id. at 2.]
Further, other district courts within the Ninth
Circuit have applied the Martin and Montalvo analysis instead of
Charas.
[Id. at 3 (citing Johnson v. Northwest Airlines, Inc.,
2010 WL 5564629, at *6 (N.D. Cal. May 05, 2010); Brown v. Alaska
Air Group, Inc., 2011 WL 2746251, at *3 (E.D. Wash. July 14,
2011)).]
10
JAL also argues that Ventress’s reliance on Abdullah is
misplaced.
Although that case allowed a tort claim to go
forward, the Third Circuit applied the federal standard of care
instead of the state standard of care.
Ventress fails to
recognize that Abdullah stands for the proposition that FAA
preempts any claims that are not based on the federal standard.
JAL argues that federal courts, including the Ninth Circuit in
Montalvo, have applied this interpretation of Abdullah.
3-5.]
[Id. at
JAL asserts that “[w]hile states may retain the right to
specify what remedies apply, states have no right to provide a
cause of action against a commercial airline if no federal law
provides a cause of action.”
omitted).]
[Id. at 8 (footnotes and emphases
JAL acknowledges that, if Ventress had pled that JAL
violated a federal aviation regulation, he could have sought a
state remedy for the violation.
so.
Ventress, however, did not do
[Id. at 9.]
JAL also argues that each of the other cases that
Ventress cites from outside of the Ninth Circuit is inapplicable
to the present case.
[Id. at 10-15.]
JAL therefore reiterates
that Ventress’s claims fail as a matter of law and that the Court
should grant the Motion.
STANDARD
Fed. R. Civ. P. 12(c) states: “After the pleadings are
closed--but early enough not to delay trial--a party may move for
11
judgment on the pleadings.”
[T]he standard governing the Rule 12(c) motion for
judgment on the pleadings is the same as that
governing a Rule 12(b)(6) motion. See McGlinchy
v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.
1988); Luzon v. Atlas Ins. Agency, Inc., 284 F.
Supp. 2d 1261, 1262 (D. Haw. 2003). As a result,
a motion for judgment on the pleadings for failure
to state a claim may be granted “‘only if it is
clear that no relief could be granted under any
set of facts that could be proven consistent with
the allegations.’” McGlinchy, 845 F.2d at 810
(quoting Hishon v. King & Spalding, 467 U.S. 69,
73 (1984)); see also Dworkin v. Hustler Magazine,
Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) (“The
principal difference between motions filed
pursuant to Rule 12(b) and Rule 12(c) is the time
of filing. Because the motions are functionally
identical, the same standard of review applicable
to a Rule 12(b) motion applies to its Rule 12(c)
analog.”).
Thus, “[a] judgment on the pleadings is
properly granted when, taking all allegations in
the pleading as true, the moving party is entitled
to judgment as a matter of law.” Enron Oil
Trading & Transp. Co. v. Walbrook Ins. Co., 132
F.3d 526, 528 (9th Cir. 1997) (citing McGann v.
Ernst & Young, 102 F.3d 390, 392 (9th Cir. 1996)).
“Not only must the court accept all material
allegations in the complaint as true, but the
complaint must be construed, and all doubts
resolved, in the light most favorable to the
plaintiff.” McGlinchy, 845 F.2d at 810.
As noted, to withstand a motion to dismiss, a
plaintiff must allege “enough facts to state a
claim to relief that is plausible on its face.”
[Bell Atlantic Corp. v.] Twombly, 550 U.S. [544,]
570 [(2007)]. A claim has “facial plausibility”
if the plaintiff pleads facts that allow “the
court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
[Ashcroft v.] Iqbal, 129 S. Ct. [1937,] 1940
[(2009)]. Although the court must accept all
well-pleaded factual allegations as true,
“[t]hread-bare recitals of the elements of a cause
of action, supported by mere conclusory
statements, do not suffice.” Id. Nor must the
12
court “accept as true a legal conclusion couched
as a factual allegation.” Id. (quoting Twombly,
550 U.S. at 555).
Andrews v. Cnty. of Hawaii, CV. No. 10–00749 DAE–KSC, 2011 WL
4381763, at *2-3 (D. Hawai`i Sept. 20, 2011) (some alterations in
Andrews).
DISCUSSION
The sole issue currently before this Court is whether
the FAA preempts Ventress’s claims.
The FAA, 49 U.S.C. § 40103,
states, in pertinent part:
(a) Sovereignty and public right of transit.–
(1) The United States Government has exclusive
sovereignty of airspace of the United States.
. . . .
(b) Use of airspace. . . .
(2) The Administrator shall prescribe air
traffic regulations on the flight of aircraft
(including regulations on safe altitudes) for-(A) navigating, protecting, and
identifying aircraft;
(B) protecting individuals and property
on the ground;
(C) using the navigable airspace
efficiently; and
(D) preventing collision between
aircraft, between aircraft and land or
water vehicles, and between aircraft and
airborne objects.
“Under the Supremacy Clause, U.S. Const. art. VI, cl.
2, Congressional intent to preempt state law can either be
expressed in statutory language or implied from the scheme of
federal regulation.”
Gaeta v. Perrigo Pharm. Co., 630 F.3d 1225,
13
1230 (9th Cir. 2011) (citing Hillsborough Cnty., Fla. v.
Automated Med. Labs., Inc., 471 U.S. 707, 712–13, 105 S. Ct.
2371, 85 L. Ed. 2d 714 (1985)).
preemption clause.
The FAA does not have an express
Martin ex rel. Heckman v. Midwest Exp.
Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009).
The Court
must therefore look to the two forms of implied preemption: field
preemption and conflict preemption.
Field preemption occurs when the federal
regulation is sufficiently comprehensive to leave
no room for supplementary state regulation.
[Automated Med. Labs.,] [471 U.S.] at 713, 105 S.
Ct. 2371. Conflict preemption, in turn, arises
when: (1) “‘compliance with both federal and state
regulations is a physical impossibility,’” or (2)
“state law ‘stands as an obstacle to the
accomplishment and execution of the full purposes
and objectives of Congress.’” Id. (citations
omitted). The conflict might be with a federal
statute or an “agency regulation with the force of
law.” [Wyeth v.] Levine, [555 U.S. 555, 576,] 129
S. Ct. [1187,] 1200 [(2009)].
Gaeta, 630 F.3d at 1230-31.
In ruling on an airplane manufacturer’s argument that
the FAA preempted a passenger’s personal injury claim based on
the allegedly defective design of the airplane’s stairs, the
Ninth Circuit addressed whether implied field preemption applied.
The touchstone of preemption is congressional
intent. Cipollone v. Liggett Group, Inc., 505
U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407
(1992). To find field preemption here, we must
infer that Congress intended to exclude all state
law personal injury suits from the area of air
travel, even though it didn’t say so. The FAA
betrays no such intention. It expressly preserves
state remedies, declaring “[a] remedy under this
14
part is in addition to any other remedies provided
by law.” 49 U.S.C. § 40120(c). . . .
. . . .
While the FAA did not displace all state tort
law touching air travel, neither did it leave
states free to impose tort liability on all
aspects of airplane operations. Citing “the
pervasive nature of the scheme of federal
regulation of aircraft noise,” City of Burbank v.
Lockheed Air Terminal, 411 U.S. 624, 633, 93 S.
Ct. 1854, 36 L. Ed. 2d 547 (1973), held that the
FAA and the Noise Control Act preempted a noise
ordinance prohibiting planes from taking off
between 11 p.m. and 7 a.m. Aircraft noise, the
Court reasoned, is inextricably linked to the
movement of aircraft, which is under exclusive
federal control. . . .
Following Burbank, the circuits have
generally analyzed FAA preemption by looking to
the pervasiveness of federal regulations in the
specific area covered by the tort claim or state
law at issue. Claims regarding airspace
management, pilot qualifications and failure to
warn have been declared preempted. French v. Pan
Am. Express, Inc., 869 F.2d 1 (1st Cir. 1989);
Kohr v. Allegheny Airlines, Inc., 504 F.2d 400
(7th Cir. 1974); Witty v. Delta Air Lines, Inc.,
366 F.3d 380 (5th Cir. 2004). But several
defective product claims, such as the claim here,
have not. Cleveland v. Piper Aircraft Corp., 985
F.2d 1438 (10th Cir. 1993); Public Health Trust of
Dade County, Fl. v. Lake Aircraft, Inc., 992 F.2d
291 (11th Cir. 1993). See also Air Transp. Ass’n
of Am. v. Cuomo, 520 F.3d 218 (2d Cir. 2008) (“we
have acknowledged that the FAA does not preempt
all state law tort actions”).
Martin, 555 F.3d at 808-09 (some alterations in Martin) (emphasis
added).
In the present case, Ventress alleges that he was
retaliated against, and constructively terminated, because he
submitted safety reports about the two June 2001 flights that
Captain Bicknell piloted even though he appeared medically unfit
15
to do so.
The pervasive federal aviation regulations do not
contain regulations prohibiting employment discrimination and
retaliation, and JAL recognizes that the FAA does not preempt all
retaliation claims.
See, e.g., Aloha Islandair Inc. v. Tseu, 128
F.3d 1301, 1303 (9th Cir. 1997) (“we see no congressional purpose
that would be served by denying to FAA-certified pilots, in the
name of preemption, the protection of Hawaii’s law from
employment discrimination based on physical disability” (citation
omitted)).
JAL argues that FAA preemption applies because ruling
on Ventress’s claims would require the finder of fact to
determine whether or not Captain Bicknell was medically fit to
fly.
This would intrude upon the extensive federal regulations
about air safety in general, and the medical qualifications of
flight crews in particular.
JAL emphasizes that Ventress has not
alleged any violations of the federal standards.
The Ninth
Circuit’s in discussion in Martin of Montalvo and Charas,
however, appears to preclude JAL’s argument for a broad
interpretation of the FAA that preempts all claims related to
aviation safety unless the claim alleges a violation of a federal
regulation.
[T]he manufacturer argues that the FAA preempts
all personal injury claims by airline passengers,
except claims based on violations of specific
federal regulations. However, this argument
conflicts with the second part of Montalvo, which
considered a claim that the seating configuration
was too cramped, putting passengers at risk of
blood clots. [508 F.3d] at 474. The passengers
16
didn’t allege that the seating violated a federal
regulation, id.; see 14 C.F.R. § 23.785, and yet
we didn’t hold that the FAA preempted the claim,
which would follow from a broad reading of the
first section. Indeed, we didn’t consider FAA
preemption at all. Instead, we reversed the
district court’s holding that the Airline
Deregulation Act preempted the claim and remanded
for consideration whether providing roomier
seating would significantly affect ticket prices
or competition between airlines-a required element
for ADA preemption. 508 F.3d at 475.
In a third claim, the Montalvo plaintiffs
alleged that the airplane seats were defectively
designed. The district court held that the FAA
impliedly preempted the claim because seat designs
were pervasively regulated, noting that “the FAA
Administrator has enacted a wealth of federal
regulations governing the design, maintenance,
structure and position of aircraft seats.” In re
Deep Vein Thrombosis Litig., 2005 WL 591241 at *14
(N.D. Cal. 2005). The plaintiffs did not appeal
that holding. Our analysis of Montalvo does not
depend . . . on any analogy between the seating
design and configuration claims. Rather, it
springs from Montalvo’s different treatment of the
seating configuration and failure to warn claims.
If Montalvo had held that the FAA preempts all
state law personal injury claims, it would have
been unnecessary to reverse the district court’s
dismissal of the seating configuration claim and
remand for further consideration of ADA
preemption.
Furthermore, the manufacturer’s broad reading
of Montalvo, precluding any claim not based on a
violation of a specific federal regulation, is in
tension with our en banc decision in Charas.
Charas considered several state law personal
injury claims based on aircrews’ negligent
actions, such as leaving luggage in the aisles and
hitting passengers with the beverage cart. Id. at
1261. Charas even considered a claim similar to
the one here, that the aircrew negligently allowed
a passenger to fall from a stairway with only one
handrail. Id. at 1261-62. That passenger also
brought the exact claim at issue here, that the
stair design was defective, but the district court
held that the claim was not preempted and the
17
airline did not appeal. Id. Reading the ADA’s
preemption provision narrowly, we overruled
several district courts, and two of our own
decisions, and held that Congress “did not intend
to preempt passengers’ run-of-the-mill personal
injury claims,” drawing no distinction between
state remedies and state standards of care. Id.
at 1261, 1265. Although Charas did not consider
FAA preemption, it reversed several district court
and panel decisions for interpreting ADA
preemption too broadly. This holding would be
moot if all the claims at issue were preempted
anyway by the FAA.
Id. at 810-11 (emphases added) (some citations omitted).
It is undisputed that there are pervasive federal
regulations governing the medical standards applicable to
airmen.4
See 14 C.F.R. Chapter I, Subchapter D., Part 67.
This
Court cannot conclude, in the context of judgment on the
pleadings, that considering Ventress’s claims would necessarily
require this Court to intrude into the area of the medical
standards for airmen, which Congress clearly intended that
federal law would occupy exclusively.
Based on the pleadings
alone, this Court cannot conclude that ruling on Ventress’s
claims would require it to determine whether Captain Bicknell was
or was not medically fit to pilot the two June 2001 flights in
question.
In order to determine whether ruling on the merits of
Ventress’s claims requires consideration of Captain Bicknell’s
4
The term “airmen” includes: “Pilots, Flight Instructors,
and Ground Instructors”; 14 C.F.R. Chapter I, Subchapter D., Part
61; “Flight Crewmembers Other Than Pilots”; id., Part 63; and
others; id., Part 65.
18
medical fitness, this Court must consider the facts supporting
both Ventress’s claims and JAL’s defenses.
Such a fact-specific
inquiry is not possible at the judgment on the pleadings stage.
The Court’s preemption inquiry, however, does not end
there.
The Complaint alleges, in pertinent part:
19. On November 20, 2001, Defendants JAL
required Plaintiff MARTIN VENTRESS to be examined
by Japanese Psychiatrists who deemed him
“medically disqualified”, although Plaintiff had
been declared “fit for duty” by a United States
psychiatrist and medical doctor.
. . . .
21. On December 26 and 28, 2001, Plaintiff
MARTIN VENTRESS submitted two Safety Reports to
Defendants JAL and [HACS] regarding the June
incidents. Plaintiff MARTIN VENTRESS also
submitted the two Safety Reports to approximately
25 agencies, including the Federal Aviation
Administration . . . .
22. After Plaintiff MARTIN VENTRESS
submitted the two Safety Reports, Plaintiff MARTIN
VENTRESS was subjected to a pattern of harassing
conduct by Defendants JAL and its employees
including, but not limited to, questioning
Plaintiff MARTIN VENTRESS’ mental competency,
requiring unnecessary psychiatric evaluations and
preventing him from working.
23. On April 12, 2002, Plaintiff MARTIN
VENTRESS visited Defendant [HACS]’s offices in
Honolulu, and noticed his name on a “status board”
under the “Termination List”. . . .
[Complaint at pgs. 4-5.]
The Complaint also alleges that
Ventress was employed by both the JAL Defendants and HACS.
at ¶ 27.]
[Id.
The JAL Defendants admitted, in response to paragraph
19 of the Complaint, that Japanese psychiatrists from JAL’s
Medical Services Department examined Ventress.
[CV 03-00451,
Japan Airlines and JALways Co., Ltd.’s Answer to Complaint
19
(“Answer”), filed 9/9/03 (dkt. no. 26), at ¶ 15.]
In considering
the instant Motion, this Court must accept the material factual
allegations of the Complaint as true.
See Andrews v. Cnty. of
Hawaii, CV. No. 10–00749 DAE–KSC, 2011 WL 4381763, at *2 (D.
Hawai`i Sept. 20, 2011) (quoting McGlinchy v. Shell Chemical Co.,
845 F.3d 802, 810 (9th Cir. 1988)).
In essence, the Complaint alleges that, in response to
Ventress’s reports about the June 2001 incidents, the JAL
Defendants retaliated against him by subjecting him to
psychiatric evaluations questioning his mental competency to work
and by constructively terminating him.
One of JAL’s defenses is
that, even assuming arguendo, that Ventress was its employee, its
“actions with respect to [Ventress] were based on legitimate,
non-discriminatory business reasons.”
33.]
[CV 03-00451, Answer at ¶
In order to rule on Ventress’s retaliation claims, the
finder of fact will have to determine whether JAL had “a
legitimate, nonretaliatory explanation for its acts” or whether
its “explanation is merely a pretext for retaliation.”
See
Mokler v. Cnty. of Orange, 68 Cal. Rptr. 3d 568, 580 (App. Dist.
2007) (citations omitted).
That inquiry will require the finder
of fact to consider whether or not Ventress was medically fit to
carry out his duties as a flight engineer.
an airman under FAA regulations.
A flight engineer is
14 C.F.R., Subchapter D.
(Airmen), Part 63 (Certification: Flight Crewmembers Other Than
20
Pilots), Subpart B. (Flight Engineers).
Determining whether
Ventress was medically qualified to work as a flight engineer
would intrude in the area of airmen medical standards, which
Congress intended to occupy exclusively.
Cf. Martin, 555 F.3d at
809 (“Claims regarding airspace management, pilot qualifications
and failure to warn have been declared preempted.” (emphases
added) (citing French v. Pan Am. Express, Inc., 869 F.2d 1 (1st
Cir. 1989); Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th
Cir. 1974); Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th
Cir. 2004))).
The Court therefore CONCLUDES that the FAA
preempts Counts I and II, the only claims remaining in Ventress’s
Complaint.
CONCLUSION
On the basis of the foregoing, JAL’s Motion for
Judgment on the Pleadings (Complete Federal Preemption Under the
Federal Aviation Act), filed June 24, 2011, is HEREBY GRANTED.
The Court also notes that JAL’s Motion for Summary
Judgment or in the Alternative Judgment on the Pleadings (Counts
1 and 2) and Motion for Summary Judgment that Defendant Jalways
Co., Ltd. Was Not Plaintiff’s Employer (Counts 1-2) (collectively
“Motions for Summary Judgment”), filed June 24, 2011, are
currently set for hearing on December 12, 2011.
In light of this
Court’s ruling on JAL’s Motion for Judgment on the Pleadings,
JAL’s Motions for Summary Judgment are HEREBY DENIED AS MOOT.
21
The hearing on the Motions for Summary Judgment is HEREBY
VACATED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 28, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MARTIN VENTRESS V. JAPAN AIRLINES, ET AL; CIVIL NO. 07-00581 LEK;
ORDER GRANTING DEFENDANT JAPAN AIRLINES’ MOTION FOR JUDGMENT ON
THE PLEADINGS (COMPLETE FEDERAL PREEMPTION UNDER THE FEDERAL
AVIATION ACT)
22
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