Hamilton v. United Airlines, Inc.
Filing
23
MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 12/19/2012.(ym, )
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MALCOLM HAMILTON,
Plaintiff,
v.
UNITED AIRLINES, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
No. 12 C 6821
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Plaintiff Malcolm Hamilton (“Plaintiff” or “Hamilton”) originally filed his complaint in
the Circuit Court of Cook County. Defendant United Airlines (“Defendant” or “United”) timely
removed. Presently before us is Plaintiff’s Motion to Remand (Dkt. No. 15), filed on September
20, 2012, pursuant to 28 U.S.C. § 1447(c).1
The Federal Airline Deregulation Act (“FADA”) explicitly preempts state regulation
“related to” an airline’s “price, route, or service.” 49 U.S.C. § 41713(b)(1) (2007). Plaintiff
argues that removal under 28 U.S.C. § 1441(a) was improper because his claims for
whistleblowing, retaliatory discharge, and a declaratory judgment are “at best peripherally”
related to United’s prices, routes, or services.2 (Mot. at 1.) Further, Plaintiff argues that the
1
In addition, on August 31, 2012, Defendant filed a Motion to Dismiss (Dkt. No. 7) pursuant to
Federal Rule of Civil Procedure 12(b)(6). Since Plaintiff’s Motion to Remand requires us to
determine whether we have subject matter jurisdiction to hear this case, we address it first. If we
find in the negative, we must decline to rule on Defendant’s motion altogether.
2
Both parties quote the language of FADA’s preemption clause as “rate, route, or service.” That
language was effective prior to 1994, when Congress amended the FADA preemption clause to
read “price, route, or service.” Travel All Over the World v. Saudi Arabia, 73 F.3d 1423, 1430,
n.7 (7th Cir. 1996). Congress did not intend the amendment to make any substantive change to
the meaning of the clause. Id. We use both versions interchangeably.
Whistleblower Protection Program (“WPP”) amendment to FADA does not expand the statute’s
preemptive force to include all whistleblowing claims relating to air safety. (Id. at 8.)
Defendant argues that FADA expressly preempts Plaintiff’s state law claims because: 1) they
relate to United’s “safety obligations, rates routes and services,” (Notice of Removal ¶ 12); and
2) “resolution of the claims requires an examination of United’s policies vis-à-vis federal law
and regulations.” (Resp. at 8.) In addition, Defendant suggests that the WPP amendment to
FADA bolsters the inference for preemption and provides an exclusive federal remedy for
Plaintiff’s claims. (Notice of Removal ¶ 11.)
For the reasons set forth below, we grant Plaintiff’s Motion to Remand.
BACKGROUND
United employed Hamilton from October 4, 1997 to July 12, 2010. For at least the last
three years prior to his discharge, Hamilton was a flight attendant. (Compl. ¶¶ 6–8.) Hamilton
alleges United fired him in retaliation for reporting what he believed to be United’s violations of
Federal Aviation Administration (“FAA”) regulations to an FAA official. (Id. ¶ 55.) As a flight
attendant, Hamilton recorded each flight’s “holding time,” the time between landing the aircraft,
deplaning passengers, cleaning the cabin, and re-boarding new passengers. (Id. ¶¶ 9–11.) FAA
regulations mandate that “when an aircraft carrying commercial passengers arrives at an airport
terminal, an inspection of the aircraft and a headcount be conducted before additional
commercial passengers may board the aircraft” and guide United’s internal “holding time”
regulations. (Id. ¶ 13.) Sometime in 2009, while waiting to assist a wheelchair bound passenger
in deplaning, Hamilton observed that new passengers had already begun to board.
(Id. ¶¶ 29–30.) Hamilton directed an FAA official standing nearby to observe the behavior. (Id.
-2-
¶ 32.) The FAA official interviewed Hamilton about United’s practice, recorded his name and
badge number, and spoke with the aircraft’s pilot. (Id. ¶¶ 35–36.)
Hamilton alleges that after this incident, United accused him of inflating his “holding
time” records to increase his pay and summoned him to several meetings with United’s human
resources department where United attempted to exert pressure on him to admit that he had
recorded the time inaccurately. (Id. ¶¶ 39–43.) Hamilton ultimately refused to make that
admission and United terminated him. (Id. ¶¶ 43–44.) Hamilton argues that United had no
lawful reason to fire him. (Id. ¶¶ 47–53.) He has brought suit alleging violations of the Illinois
Whistleblower Act 740 ILCS 174/1 and common law retaliatory discharge, and seeks a
declaratory judgment under 735 ILCS 5/2-701 ordering United, inter alia, to admit it had no
legitimate reason to fire Hamilton and to amend his employee file to omit any negative entries.
United removed the case to this court under the theory of “complete preemption” (Notice of
Removal ¶¶ 10–13) and now seeks dismissal of the complaint under Rule 12(b)(6).
STANDARD OF REVIEW
The “well-pleaded complaint” doctrine guides jurisdictional matters. Gully v. First Nat’l
Bank, 299 U.S. 109, 112–13, 57 S. Ct. 96, 97–98 (1936). The “allegations of the complaint
determine whether the claim arises under state or federal law,” making the plaintiff “master of
his pleadings.” Bartholet v. Reishauer A.G., 953 F.2d 1073, 1075 (7th Cir. 1992); see also
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429 (1987). Ordinarily,
federal preemption is a defense to a plaintiff’s suit and, as such, does not authorize removal
because it does not appear on the face of the complaint. Metro. Life Ins. Co. v. Taylor, 481 U.S.
58, 63, 107 S. Ct. 1542, 1546 (1987); Bartholet, 953 F.2d at 1075. An exception to both rules
-3-
exists “when a federal statute wholly displaces the state law cause of action through complete
pre-emption . . . [such that] a claim which comes within the scope of that cause of action, even if
pleaded in terms of state law, is in reality based on federal law.” Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 8, 123 S. Ct. 2058, 2063 (2003); see also Turek v. General Mills, Inc., 662
F.3d 423, 425 (7th Cir. 2011). In such a case, the “federal law so fills every nook and cranny
that it is not possible to frame a complaint under state law.” Bartholet, 953 F.2d at 1075.3
In cases of complete preemption, a defendant may remove the claim to district court
pursuant to 28 U.S.C. §1441(a) because the district court has original jurisdiction of the claim as
it “aris[es] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331;
Davila, 542 U.S. at 207, 124 S. Ct. at 2495. A defendant bears the “burden of establishing
3
The Supreme Court has found two statutes to have such extraordinary preemptive effect: § 301
of the Labor Management Relations Act (“LMRA”) and certain sections of the Employee
Retirement Income Security Act of 1974 (“ERISA”). See Beneficial Nat’l Bank, 539 U.S. at 8,
123 S. Ct. at 2063; see also Metro. Life Ins., 481 U.S. at 64, 107 S. Ct. at 1546 (citing Avco
Corp. v. Machinists, 390 U.S. 557, 88 S. Ct. 1235 (1968) in regard to the complete preemptive
effect of LMRA) and Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S. Ct. 2495, 2488
(2004) (stating that ERISA is a statute with complete preemptive effect). Even under these
statutes, however, there are exceptions. For example, if a state common law claim for retaliatory
discharge can be resolved without interpreting the collective bargaining agreement, it is not
preempted under LMRA. See Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 421, 108 S. Ct.
1877, 1883 (1988); Hughes v. United Air Lines, Inc., 634 F.3d 391, 394 (7th Cir. 2011). For
ERISA exceptions see, e.g., Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust, 481
U.S. 58, 17 S. Ct. 1542 (1987) (holding a suit about a welfare trust’s liability to state taxes not
preempted). Both parties seem to urge us to make our determination by analogizing to either:
1) exceptions under the LMRA (Reply at 10); or 2) the broad preemptive application of ERISA,
(Resp. ¶ 10). We decline to adopt as analogous to disputes under FADA the case law
surrounding either statute. We find other reasoning more persuasive. In addition, although the
Supreme Court analogized to ERISA when interpreting FADA’s “related to” language, Morales
v. TWA, 504 U.S. 374, 383–84, 112 S. Ct. 2031, 2037 (1992), the Seventh Circuit has not
considered that reliance to mean that the Supreme Court has extended its ERISA jurisprudence
to the air transportation field. S.C. Johnson, Inc. v. Transp. Corp. of America, No. 11-3577,
2012 U.S. App. LEXIS 19835, at *23 (7th Cir. Sept. 21, 2012); United Airlines, Inc. v. Mesa
Airlines, Inc., 219 F.3d 605, 608 (7th Cir. 2000).
-4-
federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving
any doubt in favor of the plaintiff’s choice of forum in state court.” Schur v. LA Weight Loss
Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009).
ANALYSIS
In this case, Hamilton’s claims would be completely preempted and give rise to federal
subject matter jurisdiction if: 1) they relate to United’s prices, routes, or services; or 2) Congress,
through WPP, expressed a “clear and manifest” intent to occupy the field of whistleblowing
regulation pertaining to air safety complaints so fully that no state claim can exist alongside
them.
I.
Hamilton’s claims are not related to United’s prices, routes, or services.
The “touchstone” of federal preemption is Congressional intent. Travel All Over the
World, 73 F.3d at 1430. Congress may manifest its intent to displace state law from a particular
field by: 1) expressly including relevant language in the statute; or 2) through inference
“contained in [the statute’s] structure and purpose.” Morales, 504 U.S. at 383, 112 S. Ct. at 2036
(internal citations and quotations omitted). FADA’s express preemption clause provides:
Except as provided in this subsection, a State, political subdivision of a State, or
political authority of at least 2 States may not enact or enforce a law, regulation, or
other provision having the force and effect of law related to a price, route, or service
of an air carrier that may provide air transportation under this subpart.
49 U.S.C. 41713(b)(1). Congress passed FADA to “promote maximum reliance on competitive
market forces.” 49 U.S.C. 40101(a)(6); American Airlines, Inc. v. Wolens, 513 U.S. 219, 230,
115 S. Ct. 817, 824 (1995). Congress wanted to “ensure that the States would not undo federal
deregulation with regulation of their own.” Morales, 504 U.S. at 378, 112 S. Ct. at 2034.
-5-
Based on the plain language of the statute, the Supreme Court held that Congress
“express[ed] a broad pre-emptive purpose” in the area of airline regulation. Morales, 504 U.S. at
383, 112 S. Ct. at 2037. Thus, FADA preempts any state law or enforcement action that has “a
connection with or reference to, airline ‘rates, routes, or services.’” Id. at 384, 112 S. Ct. at
2037. However, “‘some state action may affect [airline fares] in too tenuous, remote, or
peripheral a manner’ to have preemptive effect.” Id. at 390, 112 S. Ct. at 2040 (quoting Shaw v.
Delta Airlines, 463 U.S. 85, 100, n.21, 103 S. Ct. 2890, 2901, n.21 (1983)); Travel All Over the
World, 73 F.3d at 1431.
Under Seventh Circuit jurisprudence, a state law or action “‘relates to’ airline rates,
routes, or services, either by expressly referring to them or by having a significant economic
effect upon them.” Travel All Over the World, 73 F.3d at 1432; Mesa Airlines, 219 F.3d at 609.
Thus, laws of general applicability, such as the Illinois Whistleblower Act, may still be
preempted by FADA if they significantly impact an airline’s prices, rates, or services. Yet even
broadly preemptive statutes do not reach all claims related to their subject matter. The “broad
applicability of the preemption statutes should be understood in light of their deregulatory
purpose.” S.C. Johnson, 2012 U.S. App. LEXIS 19835, at *41.
A.
Leading Supreme Court and Appellate Interpretations of FADA
The Supreme Court has considered FADA preemption three times. In Morales, the Court
held the marketing guidelines promulgated by the National Association of Attorneys General
preempted by FADA because the guidelines not only expressly referred to airline fares but
because any “state restrictions on fare advertising have the forbidden significant effect upon
fares.” Morales, 504 U.S. at 388, 112 S. Ct. at 2039. In Wolens, the Supreme Court found that
-6-
the Illinois Consumer Fraud Act impermissibly “guide[d] and police[d] the marketing practices
of the airlines” and, thus, FADA preempted its enforcement. Wolens, 513 U.S. at 228, 115 S. Ct.
at 823. In Rowe,4 the Court held a state law preempted because it “produce[d] the very effect
that the federal law sought to avoid, namely, a State’s direct substitution of its own governmental
commands for ‘competitive market forces’ in determining (to a significant degree)” what
services should be provided. Rowe, 552 U.S. at 372, 128 S. Ct. at 995 (internal citation omitted).
In all three cases, grounded by legislative history, the Supreme Court emphasized that FADA
prohibits state interference with an airline’s role as competitor in the air travel market. It
remains an open question how the Supreme Court may interpret FADA preemption when airlines
act in other roles, such as employers. Language in Rowe indicates that the analysis and effect of
the law may be different. See Rowe, 552 U.S. at 375, 128 S. Ct. at 997 (noting that a state law
may not be preempted if it affects truck drivers solely as members of the public).
The Seventh Circuit has not had the opportunity to rule on FADA’s (and WPP’s)
preemptive effect on state whistleblower statutes or retaliatory discharge claims. In most of its
cases to this point, the Seventh Circuit has resolved disputes between contractual parties under
various breach of contract and tort theories. See S.C. Johnson, 2012 U.S. App. LEXIS 19835, at
*2 (reversing the judgment of the district court finding preemption on all counts and remanding
4
This case concerned the preemptive effect of the Federal Aviation Administration Act
(“FAAA”), not FADA. However, the preemption language in FAAA exactly mirrors that in
FADA. Compare 49 U.S.C § 14501(c)(1) with 49 U.S.C. § 41713(b)(1). In Rowe, the Supreme
Court followed the principles established in Morales because “when judicial interpretations have
settled the meaning of an existing statutory provision repetition of the same language in a new
statute indicates, as a general matter, the intent to incorporate its judicial interpretation as well.”
Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 370, 128 S. Ct. 989, 994 (2008) (internal
citation and quotation omitted). The Seventh Circuit has adopted the same approach when
evaluating the FAAA. See S.C. Johnson, 2012 U.S. App. LEXIS 19835, at *19.
-7-
with instructions that fraudulent misrepresentation and conspiracy to commit fraud claims were
preempted but bribery and racketeering claims were not); ATA Airlines, Inc. v. Fed. Express
Corp., 665 F.3d 882, 883 (7th Cir. 2011) (reversing district court’s ruling that a claim of
promissory estoppel is preempted); Mesa Airlines, 219 F.3d at 609–611 (affirming district
court’s order finding preemption for claims of fraudulent inducement, breach of fiduciary duties,
and tortious interference with contract); Travel All Over The World, 73 F.3d at 1432–4
(reversing district court’s ruling finding preemption on all counts, with guidance on remand that
breach of contract, slander, and defamation claims were not preempted, while claims for tortious
interference, intentional infliction of emotional distress, and fraud were preempted). In all these
cases, the common focus was whether the state is in any way attempting to insert itself into the
parties’ bargain and substitute its own substantive determinations for theirs. See, e.g., S.C.
Johnson, 2012 U.S. App. LEXIS 19835, at *35–6, *38; ATA Airlines, 665 F.3d at 884; Mesa
Airlines, 219 F.3d at 610; Travel All Over the World, 73 F.3d at 1435.
The majority of other circuits that have analyzed the effect of FADA on state
whistleblower statutes have not found preemption under FADA’s express preemption clause.
See Ventress v. Japan Air Lines, 603 F.3d 676, 683 (9th Cir. 2011); Gary v. Air Group, Inc., 397
F.3d 183, 189 (3d Cir. 2005); Branche v. AirTran Airways, Inc., 342 F.3d 1248, 1250 (11th Cir.
2003).5 These circuits agreed that the whistleblower claims were too tenuously related to an
5
These cases dealt with preemption as a defense rather than with complete preemption as basis
of federal jurisdiction because, there, diversity jurisdiction existed. See, e.g., Gary, 397 F.3d at
185–86. For that reason, Defendant argues that the cases’ findings are not dispositive and, even
though they might be informative, do not apply to the present controversy. (Resp. at 5, 8.) We
agree that the cases are not dispositive but we do find them relevant. The analysis that courts
undergo for complete preemption does not seem to differ markedly from that of other forms of
preemption. Compare, e.g., Bartholet, 953 F.2d at 1076–7 (analyzing whether ERISA
completely preempts plaintiff’s state law claim) with Gary, 397 F.3d at 189–90 (analyzing
-8-
airline’s prices, routes, or services. See Ventress, 603 F.3d at 683; Gary, 397 F.3d at 189;
Branche, 342 F.3d at 1260, 1263. In addition, our district court has agreed that FADA does not
preempt a plaintiff’s retaliatory discharge claim. Meyer v. United Airlines, Inc., 624 F. Supp. 2d
923, 932 (N.D. Ill. 2008).6
The Eighth Circuit alone has held that FADA preempts the application of a state
whistleblower statute to airline safety claims.7 Botz v. Omni Air Int’l, 286 F.3d 488, 490 (8th
Cir. 2002). The state statute at issue in Botz empowered flight attendants to refuse assignments,
which according to the court jeopardized an airline’s “ability to complete its scheduled flight,”
thus interrupting airline services. Id. at 494–95. The court compared this statute to the
advertising guidelines in Morales and stated that, in both cases, a state “attempt[ed] to impose
[its] own public policies or regulatory theories on an air carrier’s operations, an imposition that
Congress intended the ADA to pre-empt.” Id. at 495. The other circuits distinguished the claims
whether FADA preempts plaintiff’s state whistleblower claim on a motion to dismiss).
6
Procedurally, Meyer did not concern complete preemption. There, the plaintiff’s Family and
Medical Leave Act claim provided subject matter jurisdiction, and the court exercised
supplemental jurisdiction to hear the retaliatory discharge claim. See Meyer, 624 F. Supp. 2d at
925.
7
Defendant argues that a Tenth Circuit case, Turgeau v. Admin. Rev. Bd., 446 F.3d 1052 (10th
Cir. 2006), also supports its position on preemption by implicitly affirming a favorable district
court judgment. (Resp. at 5.) That interpretation stretches the Tenth Circuit’s holding. The
circuit court was not deciding directly on the summary judgment motion entered by the district
court below, which held in favor of FADA preemption of a state wrongful discharge claim.
Rather, it ruled on the plaintiff’s appeal of the administrative complaint filed with the Secretary
of Labor after the dismissal of the plaintiff’s claim by the district court. Turgeau, 446 F.3d at
1055. The circuit court was statutorily empowered to hear that case. See 49 U.S.C.
§ 42121(b)(4)(A). The Tenth Circuit did not analyze the jurisdictional issue anew, but rather
expressed agreement with the district court’s ruling in the context of equitable tolling. See
Turgeau, 446 F.3d at 1061. We do not know how the Tenth Circuit would have ruled on the
jurisdictional issue had it been presented to the court directly.
-9-
before them from those in Botz on the grounds that the conduct underlying them did not interrupt
airline services. See, e.g., Gary, 397 F.3d at 189.
B.
Application
We conclude that Hamilton’s whistleblower and retaliatory discharge claims are not
preempted by FADA’s express preemption language. His claims are too tenuously related to any
price, route, or service provided by United to its customers. As the Seventh Circuit directs, we
look to the “underlying facts” of this case to determine whether there is preemption under
FADA. See Travel All Over the World, 73 F.3d at 1432.
Defendant argues that Plaintiff’s claims are related to “United’s safety obligations, rates,
routes and services” because: 1) length of “holding time” affects United’s operating costs and the
time of departure of each flight and, consequently, the rates that United charges its customers;
2) “holding time” affects the safety of the flight and is thus “service priority number one for any
airline;” and 3) it cannot be separated from the federal regulations on “holding time” requiring
“review and analysis of the FAA regulations governing holding time” by the state court. (Notice
of Removal ¶ 12; Resp. at 4.) Defendant mischaracterizes Hamilton’s claims.
First, Plaintiff’s claims stem purely from his employment relationship with United,
affecting Defendant in its role as employer rather than as airline competitor. Rowe, 552 U.S. at
375, 128 S. Ct. at 997; DiFiore v. American Airlines, Inc., 646 F.3d 81, 87 (1st Cir. 2011)
(“[T]he Supreme Court would be unlikely—with some possible qualifications—to free airlines
from most conventional common law claims for tort, from prevailing wage laws, and ordinary
taxes applicable to other businesses.”).8 Both the whistleblower statute and the common law
8
The First Circuit arrived at its conclusion by looking to federal appellate court cases on
employment discrimination, DiFiore, 646 F.3d at 87, n.6, whistleblower claims, id. at 87, n.7,
-10-
claim of retaliatory discharge “operate one or more steps away from the moment at which the
firm offers its customer a service for a particular price.” S.C. Johnson, 2012 U.S. App. LEXIS
19835, at *39. Although the application of these laws may, in the aggregate, affect the cost of an
airline’s work force and, thus, indirectly the price or service they provide to customers, they
affect United as an employer and do not render uncompetitive any area of its business. Other
courts have found that labor laws, such as a state prevailing wage statute, are not preempted by
FADA. See, e.g., Californians for Safe and Competitive Dump Truck Trans. v. Mendonca, 152
F.3d 1184, 1188 (9th Cir. 1998).
Second, it is unclear whether “holding time” falls squarely within the Seventh Circuit’s
definition of “service.” The Seventh Circuit defined “service” as “generally represent[ing] a
bargained-for or anticipated provision of labor from one party to another . . . lead[ing] to a
concern with the contractual arrangement between the airline and the user of the service.”
Travel All Over The World, 73 F.3d at 1433 (adopting the Fifth Circuit’s definition of “service”
in Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995)). These bargained-for
elements include transportation, “ticketing, boarding procedures, provision of food and drink,
and baggage handling.” Id. Hamilton’s claims do not impact any contractual agreements
between United and its customers.
Hamilton’s claims are at least one step removed from the services for which passengers
bargain directly with the airline. In his state suit, he is not challenging the “holding time”
procedures themselves. Rather, he is challenging the reasons for his discharge. Neither the fact
that he may or may not have been discharged unlawfully, nor the relief he seeks as remedy,
and personal injury claims, id. at 87, n.8, none of which found preemption by FADA.
-11-
would significantly impact the customer-airline bargain. Hamilton is not seeking injunctive
relief directing United to act in any particular way toward its customers. As Judge Kendall has
previously held, if a plaintiff seeks no injunctive relief and the relief which he does seek does not
result in a binding judicial finding as to how an airline should maintain or service its aircraft,
there is no impact on airline services. See Meyer, 624 F. Supp. 2d at 931.
Defendant argues that “holding time” is an element of air safety. (Notice of Removal
¶ 12.) It is arguable whether “safety” equates to “service.” The Seventh Circuit has not given an
opinion on this matter. It has relatedly ruled that a tort action against an airline for a crash that
raises issues of air safety may be litigated in state court. See Bennett v. Southwest Airlines Co.,
484 F.3d 907, 912 (7th Cir. 2007). The Seventh Circuit rejected the position that air-crash
litigation, even though implicating federal aviation standards, necessarily arises under federal
law. Id. at 911. It opined that the tort litigation required the resolution of “fact-bound
question[s]” in regard to the pilot’s behavior before the crash rather than a “context-free” inquiry
into federal law. Id. at 909, 911. This analysis is instructive here. Resolution of Hamilton’s
claims will turn on specific factual inquiries into United’s behavior surrounding his discharge
rather than an evaluation of FAA regulations.
In addition, the Eleventh Circuit has held that safety is not an element over which airlines
compete but is an implicit understanding that each airline undertakes to ferry its passengers
safely to their chosen destination. See Branche, 342 F.3d at 1260. We find this reasoning
persuasive, especially when considered alongside the passage of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century, Pub. L. No. 106–181, 114 Stat. 61 (codified as
amended in scattered sections of 49 U.S.C.), which introduced the WPP program. The relevant
-12-
legislative discussion reveals that Congress considered safety a non-negotiable part of air travel.
See, e.g., 146 Cong. Rec. 1255, 1257 (2000) (“As our skies and runways become more crowded
than ever, it is crucial that we redouble our commitment to safety. Passengers deserve the most
up to date in safety measures.”). Congress presumably would not tolerate airlines competing for
passengers by offering lower prices in exchange for acceptance of a greater safety risk or viceversa. For all the abovementioned reasons, Hamilton’s claims are not related to United’s prices,
routes, or services.
Third, and as alluded to earlier, a state court judge entertaining Hamilton’s claims would
not need to make any definitive factual finding regarding United’s actual compliance with FAA
regulations on “holding time.” Under the Illinois Whistleblower Act, a state court need
determine only whether: 1) Hamilton’s belief that a violation had occurred was “reasonable;”
and 2) whether reporting this belief caused his discharge. See 740 ILCS 174/15 (2012).
Logically, a judge would need to reference the federal regulations for context but she would not
need to rest her analysis on, or adjudicate United’s actual compliance with, the regulation. The
mere reference to a federal rule does not mandate a conclusion of complete preemption or
otherwise create subject matter jurisdiction in this case.
Similarly, in Illinois, the success of a claim for retaliatory discharge does not rest on the
actual unlawfulness of the underlying conduct. Belline v. K-Mart Corp., 940 F.2d 184, 188 (7th
Cir. 1991); Palmateer v. Int’l Harvester Co., Ill.2d 124, 132–33, 421 N.E.2d 876, 880 (1981).
Hamilton need not prove that United actually violated federal regulations, only that he
“reasonably believed” a violation had occurred at the time of his whistleblowing. See Bourbon
v. Kmart Corp., 223 F.3d 469, 472 (7th Cir. 2000) (citing Belline, 940 F.2d at 188). In
-13-
adjudicating the retaliatory discharge claim, a state court must decide whether the discharge
violated a clear mandate of public policy. Belline, 940 F.2d at 186. A state court may choose to
look to federal law when making that decision. See Brandon v. Anesthesia & Pain Mgmt.
Assocs., 277 F.3d 936, 942 (7th Cir. 2002) (citing Russ v. Pension Consultants Co., 182 Ill. App.
3d 769, 775, 538 N.E.2d 693, 697 (1st Dist. 1989); Johnson v. World Color Press, Inc., 147 Ill.
App. 3d 746, 748–49, 498 N.E.2d 575, 576 (5th Dist. 1986); and discussing Wheeler v.
Caterpillar Tractor Co., 108 Ill. 2d 502, 485 N.E.2d 372 (1985)). Still, the possibility that a
federal law may be discussed as part of public policy analysis is not enough to grant federal
question jurisdiction in this case.
II.
Congress did not showcase a clear and manifest intent to wholly preempt state
whistleblower claims through its passage of WPP.
Even if not expressly preempted under FADA, Defendant argues that the inclusion of
WPP within the FADA regulatory scheme manifests a clear intent on the part of Congress to
preempt all state whistleblower claims in regard to air safety. (Notice of Removal ¶ 11). We
disagree.
Where an explicit preemption clause exists, it is generally unnecessary “‘to infer
congressional intent to pre-empt state laws from the substantive provisions. . . . Congress’
enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond
that reach are not pre-empted.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S. Ct.
2608, 2618 (1992) (citing Cal. Fed. Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282, 107 S.
Ct. 683, 690 (1987)). Further, federal courts should not infer preemption lightly in matters
traditionally carried out under a state’s police power, such as employment. Fort Halifax Packing
Co. v. Coyne, 482 U.S. 1, 21, 107 S. Ct. 2221, 2223 (1987). In a case where the field said to be
-14-
preempted includes areas of traditional state power, Congress must display “clear and manifest”
intent to supersede state laws. English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S. Ct. 2270, 2274
(1990) (internal citations omitted).
In 1999, Congress amended FADA by incorporating WPP, which provided federal
administrative protection to airline employees for reporting alleged air safety violations. 49
U.S.C. § 42121(a)(1) (2007).9 The WPP does not include an express preemption conclusion, nor
was FADA’s preemption clause expressly amended or expanded pursuant to the passage of the
WPP.
Three circuits agree that the addition of WPP did not expand FADA preemption, for two
reasons. Ventress, 603 F.3d at 683; Gary, 397 F.3d at 190; Branche, 342 F.3d at 1264. The
WPP created an additional, rather than an exclusive, remedy. See, e.g., Branche, 342 F.3d at
1264.10 First, “the plain language of the WPP is wholly silent on preemption,” which renders
9
The WPP states:
No air carrier or contractor or subcontractor of an air carrier may discharge an
employee or otherwise discriminate against an employee with respect to
compensation, terms, conditions, or privileges of employment because the employee
(or any person acting pursuant to a request of the employee) –
(1) provided, caused to be provided, or is about to provide (with any knowledge of
the employer) or cause to be provided to the employer or Federal Government
information relating to any violation or alleged violation of any order, regulation,
or standard of the Federal Aviation Administration or any other provision of Federal
law relating to air carrier safety under this subtitle or any other law of the United
States; does not include a separate preemption provision and the FADA preemption
statute was not amended to incorporate explicitly whistleblower claims.
10
The Eighth Circuit disagreed and held that WPP provided “powerful evidence of Congress’s
clear and manifest intent to pre-empt state-law whistleblower claims related to air safety.” Botz,
286 F.3d at 496.
-15-
Congressional intent “ambiguous at best and thus should not serve as a basis for expanding ADA
preemption.” See, e.g., Gary, 397 F.3d at 190. The section of the WPP that empowers
employees to file complaints with the Secretary of Labor does not indicate that it is an
employee’s sole remedy. See 49 U.S.C. § 42121(b)(1). Currently, that section reads:
A person who believes that he or she has been discharged or otherwise discriminated
against by any person in violation of subsection (a) may, not later than 90 days after
the date on which such violation occurs, file (or have any person file on his or her
behalf ) a complaint with the Secretary of Labor alleging such discharge or
discrimination.
49 U.S.C. § 42121(b)(1) (emphasis added). Had Congress intended the WPP to be an exclusive
remedy, it likely would have chosen strong language to mandate it. Later in the same section,
for example, Congress directs that the Secretary of Labor “shall notify, in writing, the person
named in the complaint.” 49 U.S.C. § 42121(b)(1) (emphasis added). This usage of both
permissive and commanding verbs in the same section shows Congress’s awareness of the
differing impact of the two. There is no reason to infer that Congress meant for both verbs to
mean the same thing. Our district has previously agreed. See Meyer, 624 F. Supp. 2d at 930
(“[T]his Court adopts an interpretation of the WPP that remains true to the text of FADA: a
cause of action under the WPP preempts a state retaliatory discharge cause of action when the
claim relates to airline prices, routes, or services.”).
Second, “courts should not lightly infer preemption . . . especially in the employment law
context” as it falls within a state’s traditional state powers. See, e.g., Gary, 397 F.3d at 190. In
our opinion, the legislative record does not indicate a “clear and manifest” intent on the part of
Congress to preempt all state laws as they relate to air safety whistleblowing. In passing this
section, Congress discussed the importance of protecting whistleblowers in order to enhance air
-16-
safety. See 146 Cong. Rec. S. 1255, 1257 (2000) (“We also have provided whistleblower
protection to aid in our safety efforts and protect workers willing to expose safety problems.”).
However, Congress did not promote WPP as an exclusively federal remedy that would facilitate
that goal better than the availability of both state and federal forums for whistleblowing claims.
All in all, the existence of two plausible alternatives reveals that Congress’s intent is not
so “clear and manifest” as to fully displace state law in this case. Given this ambiguity, we join
the Third, Ninth, and Eleventh Circuits, and Judge Kendall, in deciding that—without Supreme
Court or Seventh Circuit guidance to the contrary—WPP did not expand FADA’s preemption
scope.11
11
On a related note—even if Congress had intended WPP to completely preempt all state
whistleblowing claims—a district court would not be the most appropriate venue. If we accept
that WPP is a detailed and comprehensive regulatory scheme, then aggrieved employees should
follow the procedure it has set out for the filing and adjudication of the claims it governs. Under
WPP, an employee first files a complaint with the Secretary of Labor, not a district court. 49
U.S.C. § 42121(b)(1). The Secretary has the primary responsibility for adjudicating the
complaint. See 49 U.S.C. § 42121(b)(2)(A). A final order may be reviewed by the circuit court
“for the circuit in which the violation, with respect to which the order was issued, allegedly
occurred or the circuit in which the complainant resided on the date of such violation.” 49
U.S.C. § 42121(b)(4)(A). In a case of complete preemption, the appropriate argument by
Defendant would seem to be a failure to exhaust administrative remedies. If Congress had
intended to minimize a “patchwork” of state enforcement, then following the statutorily
prescribed approach would seem to serve those purposes better than adjudication by district
courts. Compare, e.g., Meyer, 624 F. Supp. 2d at 932 and Ulysee v. AAR Aircraft Component
Serv., et. al, 841 F. Supp. 2d 659, 673–74 (E.D.N.Y. 2011) (holding against preemption) with
Wright v. NORDAM Group, Inc., No. 07-0699, 2008 WL 802986 (N.D. Okla. March 20, 2008)
(holding in favor of preemption).
-17-
CONCLUSION
In removal actions, courts should resolve any doubt as to the existence of federal subject
matter jurisdiction in favor of the plaintiff’s choice of forum. Schur, 577 F.3d at 758. For the
reasons set forth above, we grant Plaintiff’s Motion to Remand. Since we lack subject matter
jurisdiction in this case, we strike Defendants’ Motion to Dismiss. It is so ordered.
________________________________
Honorable Marvin E. Aspen
U.S. District Court Judge
Dated: December 19, 2012
-18-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?