In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3486
MARIKO L.A. BENNETT, et al.,
Plaintiffs-Appellants,
v.
SOUTHWEST AIRLINES CO.,
THE BOEING COMPANY, and
CITY OF CHICAGO,
Defendants-Appellees.
____________
On Petition for Rehearing
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DECIDED JUNE 27, 2007
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Before EASTERBROOK, Chief Judge, and BAUER and
WOOD, Circuit Judges.
PER CURIAM. Southwest Airlines’ petition for rehear-
ing asserts that it presented an argument that our opin-
ion overlooked: “whether the 1958 Federal Aviation Act,
49 U.S.C. § 40101 et. [sic] sec. [sic], preempts State
authority to establish non-uniform and individual State
standards for aviation safety.”
We had not overlooked this argument; we just thought
it too feeble to require comment. Southwest does not rely
on any particular section of the Federal Aviation Act, so
this argument collapses to the contention, which our
opinion considered at length, that the FAA’s establish-
2 No. 06-3486
ment of uniform federal standards for many aspects of
air transportation means that the suit arises under
federal law.
Restated as an argument for preemption—but not
“complete preemption” of the field, as Southwest does
not deny that state law controls damages, if not other
subjects—the contention is weaker than the one our
opinion addressed. For it has long been understood that
preemption is an affirmative defense. An argument that
one or another state law is preempted does not permit
removal, because the arising-under jurisdiction depends on
the claim for relief rather than potential defenses. See,
e.g., Holmes Group, Inc. v. Vornado Air Circulation
Systems, Inc., 535 U.S. 826, 830-32 (2002); Franchise Tax
Board v. Construction Laborers Vacation Trust, 463 U.S.
1, 9-12 (1983); Taylor v. Anderson, 234 U.S. 74, 75-76
(1914); Chicago v. Comcast Cable Holdings, L.L.C., 384
F.3d 901 (7th Cir. 2004). Nothing in Grable changes that
rule.
The petition for rehearing is denied, and no judge has
asked for a vote on the petition for rehearing en banc.*
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
*Judge Flaum did not participate in the consideration or
decision of this case.
USCA-02-C-0072—6-27-07