IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-50779
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VERNON G. JOHNSON,
Plaintiff-Appellant,
VERSUS
BAYLOR UNIVERSITY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________r
June 22, 2000
Before POLITZ, SMITH, and DENNIS, and remand to the district court with
Circuit Judges. instruction to remand to state court.
JERRY E. SMITH, Circuit Judge: I.
Johnson, a pilot working for Baylor
Vernon Johnson appeals a judgment of dis- University (“Baylor”), was fired for chronic
missal, including an earlier denial of his motion obesity and poor grammar. He sued Baylor in
to remand to state court his state law claim for state court, alleging violations of the
tortious interference with contract. Americans with Disabilities Act and the
Concluding that the Pilot Records Sharing Act Rehabilitation Act. According to the
(“PRSA”), 49 U.S.C. § 44936, does not complaint, Johnson had been Baylor’s chief
completely preempt state law claims so as to pilot until his employment was terminated
create federal question jurisdiction, we reverse because of his chronic obesity. He alleged that
his termination constituted improper § 44936(f)(6) that he be notified of Kitty
discrimination on the basis of a disability. Bay- Hawk’s request and had not provided him with
lor removed to federal court, which granted an opportunity to request copies of the records
summary judgment in its favor, and we to be furnished, and (2) because it had not
affirmed. See Johnson v. Baylor Univ., 129 turned over Johnson’s personnel file, which in-
F.3d 607 (5th Cir. 1997). dicated that he was a skilled pilot whose
employment had been terminated solely
While the discrimination lawsuit was because of his appearance. In sum, Johnson’s
pending, Johnson obtained employment with argument was that while § 44936 constituted
Kitty Hawk Air Cargo, Inc. (“Kitty Hawk”), a possible defense to his tort action, that
and began training. When Kitty Hawk sought defense was unavailable to Baylor.
his employment records from Baylor, the
university replied that Johnson had been Baylor contended that jurisdiction in the
discharged for misconduct, that he was district court was proper because the field of
ineligible for rehire, and that his general aviation is heavily regulated by the federal
personnel records were unavailable. government. It also asserted that § 44936-
(g)(2)’s preemption provision impliedly
Johnson again sued in state court, alleging confers jurisdiction on the federal court,
tortious interference with employment, con- because if federal jurisdiction could be
tending that Baylor’s statements to Kitty defeated merely by an allegation that a person
Hawk were false and caused his employment had not sufficiently responded to an air
with Kitty Hawk to be terminated. Baylor carrier’s request for employment records, the
again removed to federal court, based on its preemptive scope of § 44936(g) would be
contention that Johnson’s state-law claim for gutted.
tortious interference was preempted by the
PRSA; Baylor also moved to dismiss for fail- The district court denied Johnson’s motion
ure to state a claim, reasoning that § 44936(g), to remand and held that § 44936(g) expressly
entitled “limitation on liability; preemption of and impliedly preempts state-law actions such
State law,” precluded Johnson’s state-law tort as Johnson’s. It also granted Baylor’s motion
action. It argued that § 44936(g)(3) allows for to dismiss, holding that Johnson’s claim is not
liability only when a person knowingly has encompassed by § 44936.
provided false information to an air carrier and
that information has been maintained in II.
violation of a federal criminal statute. Johnson argues that the district court did
not have removal jurisdiction and should have
Johnson moved to remand to state court, remanded, because no federal question is pre-
noting that § 44936(g)(1) operates to limit the sented on the face of his well-pleaded
liability only of “a person who has complied complaint. He asserts that § 44936 provides
with [a] request” from an air carrier for a per- only a federal defense to his state-court
son’s employment records. Accordingly, lawsuit, a defense that could be raised in state
Johnson argued that Baylor had not “com- court on remand. Specifically, he argues that
plied” with Kitty Hawk’s request, (1) because the PRSA effects not “complete” preemption
it had not followed the requirements of of state law, but, instead, only “ordinary”
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preemption. Section 44936 provides, in ing records in accordance with
pertinent part: subsection (f).
(g) Limitation on liability; preemption of For the district court to have removal jur-
State lawSS isdiction, 28 U.S.C. § 1441(a) requires that the
case be one over “which the district courts of
(1) Limitation on liability.SSNo action the United States have original jurisdiction.”
or proceeding may be brought by or on The original jurisdiction alleged by Baylor is
behalf of an individual who has applied “federal question” jurisdictionSSi.e., that the
for or is seeking a position with an air case is one “arising under the Constitution,
carrier as a pilot, and who has signed a laws, or treaties of the United States.”
release from liability, as provided for un- 28 U.S.C. § 1331. Accordingly, “[i]t is well-
der paragraph (2), againstSS settled that a cause of action arises under fed-
eral law only when the plaintiff’s well-pleaded
(A) the air carrier requesting the records complaint raises issues of federal law.” Hei-
of that individual under subsection mann v. National Elevator Indus. Pension
(f)(1); Fund, 187 F.3d 493, 499 (5th Cir. 1999).
(B) a person who has complied with A corollary to the well-pleaded complaint
such request; doctrine “is that Congress may so completely
preempt a particular area that any civil
(C) a person who has entered in- complaint raising this select group of claims is
formation contained in the individual’s necessarily federal in character.” Id. (quoting
records; or Metropolitan Life Ins. Co. v. Taylor, 481 U.S.
58, 63 (1987)). “Complete preemption,”
(D) an agent or employee of a person which creates federal removal jurisdiction, dif-
described in subparagraph (A) or (B); fers from more common “ordinary
preemption” (also known as “conflict
in the nature of an action for de- preemption”), which does not. Id.1 This
famation, invasion of privacy, distinction has led to the following
negligence, interference with contract, observation:
or otherwise, or under any Federal or
State law with respect to the furnishing Ordinarily, the term federal preemption
or use of such records in accordance refers to ordinary preemption, which is a
with subsection (f). federal defense to the plaintiff’s suit and
may arise either by express statutory term
(2) Preemption.SSNo State or political or by a direct conflict between the
subdivision thereof may enact, prescribe, operation of federal and state law. Being a
issue, continue in effect, or enforce any
law (including any regulation, standard,
or other provision having the force and 1
See also Giles v. NYLCare Health Plans,
effect of law) that prohibits, penalizes, Inc., 172 F.3d 332, 336-37 (5th Cir. 1999); Mc-
or imposes liability for furnishing or us- Clelland v. Gronwaldt, 155 F.3d 507, 515 (5th
Cir. 1998).
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defense, it does not appear on the face of a consideration of Johnson’s motion to remand.
well-pleaded complaint, and, thus, does not Rather than proceeding under the Heimann tri-
authorize removal to a federal court. By partite test for complete preemption, the court
way of contrast, complete preemption is merely relied on ordinary-preemption
jurisdictional in nature rather than an principles. Heimann makes plain that § 44936
affirmative defense to a claim under state does not meet any of the three required
law. As such, it authorizes removal to fed- criteria.
eral court even if the complaint is artfully
pleaded to include solely state law claims First, the PRSA contains no civil
for relief or if the federal issue is initially enforcement provision. The closest provision
raised solely as a defense. is § 44936(g)(3), which states that the
limitation-on-liabilit and state-law-preemption
y
Heimann, 187 F.3d at 500 (internal citations sections are not applicable to persons who fur-
omitted). nish false information that was “maintained in
violation of a criminal statute of the United
Complete preemption is a narrow States.” This provision does not create any
exception: “[T]he Supreme Court has clearly cause of action, however, nor does it replace
sanctioned the rule only in the area of federal state law tort claims,2 but it merely provides
labor relations and the Employee Retirement that the federal affirmative defense will not be
Income Security Act of 1974.” Waste Control available in certain instances.
Specialists, LLC v. Envirocare, Inc., 199 F.3d
781, 784 (5th Cir.), opinion withdrawn and Second, § 44936 does not provide a
superseded in part on reh’g on other grounds, specific jurisdictional grant to federal courts
207 F.3d 225 (5th Cir. 2000). To establish for enforcement of the air carriers’ rights.
complete preemption, Baylor must show that Indeed, subsection (g), like the rest of the
PRSA, is silent with respect to jurisdiction.3
(1) the statute contains a civil
enforcement provision that creates a Baylor concedes that the Act contains no
cause of action that both replaces and specific jurisdictional grant to the federal
protects the analogous area of state law;
(2) there is a specific jurisdictional grant
2
to the federal courts for enforcement of Cf. Aaron v. National Union Fire Ins. Co.,
the right; and (3) there is a clear Con- 876 F.2d 1157, 1164 (5th Cir. 1989) (holding there
gressional intent that claims brought un- was no express preemption, because the Longshore
der the federal law be removable. and Harbor Workers’ Compensation Act contains
no civil enforcement provision, and rejecting the
Heimann, 187 F.3d at 500. “[F]ew federal idea that an “express denial” of a state-law cause
of action was sufficient to grant removal
statutes can meet such an exacting standard.”
jurisdiction, else the well-pleaded complaint rule
Id. would have no vitality).
Because Heimann was decided after the 3
Cf. id. at 1165 (contrasting the LHWCA to
district court dismissed Johnson’s claim, it did ERISA and the LMRA, which have specific
not have the benefit of that holding in its jurisdictional grants and which completely preempt
state law in some circumstances).
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courts, but it argues that this prong was . . . to maintain uniformity and to avoid the
intended to apply only to ERISA claims like confusion and burdens that would result if
the one presented in Heimann. But Heimann interstate and international airlines were
was not so limited. Significantly, its three-part required to respond to standards of individual
test was considered to be a “general” one, and states.” Id. (emphasis added, internal
the court noted that “[t]his test should be quotation marks omitted).
‘applied with circumscription to avoid difficult
issues of federal-state relati ons,’ and Here, there is no similar showing of
accordingly few federal statutes can meet such congressional intent with respect to removal.
an exacting standard.” Id. (internal citations Likewise, there is no serious danger that al-
omitted). The court did not mention ERISA lowing Johnson’s tortious interference claim
or any other statute in establishing the three will result in confusion or undue burdens on
factors, and, accordingly, Baylor has presented air carriers.
us with no reason not to apply those factors to
the PRSA. A remand to state court does not
undermine Baylor’s protections under
FinallySSunder the third prongSSthere are § 44936. Instead, Baylor still is free to assert
no indications in the PRSA or its legislative § 44936 as a federal defense to Johnson’s state
history of a clear congressional intent that law claim. And to the extent that Baylor
these types of claims should be removable. In- complied with subsection (f)(1)’s requirements
stead, Baylor makes a more general argument for providing pilot information following Kitty
that “there is probably no other area in which Hawk’s request, Baylor still will be immune
there is more federal regulation than in the from liability under either federal or state law
field of aviation.” It also relies heavily on in accordance with § 44936(g)(1).
Trans World Airlines, Inc. v. Mattox, 897 F.2d
773, 787 (5th Cir. 1990), for the proposition Finally, our caselaw refutes the idea that
that “Congress may so completely preempt a aviation is generally a field of complete
particular area, that any civil complaint raising preemption. In Hodges v. Delta Airlines, Inc.,
this select group of claims is necessarily 44 F.3d 334, 338 (5th Cir. 1995) (en banc),
federal in character.” we held that a plaintiff’s state law negligence
claim for damages was not preempted by the
Trans World is not controlling. First, a re- Airline Deregulation Act (“ADA”), 49 U.S.C.
citation of the general complete-preemption § 1305(a)(1). We reasoned that “neither the
principle, without application of the specific ADA nor its legislative history indicates that
tripartite test, is no longer sufficient after Hei- Congress intended to displace the application
mann, which requires a clear statement by of state tort law to personal physical injury in-
Congress that state-law claims will be flicted by aircraft operations, or that Congress
removable. Moreover, Trans World’s even considered such preemption.” Id.
interpretation was of the Federal Aviation Act, Important to this conclusion was the fact that
not the PRSA, and its holding should extend the ADA did not contain federal causes of
only to the principle that “Congress did intend action like those provided for in ERISA
to preempt completely the particular area of legislation. Id. at 338 n.8. So too for the
state laws relating to rates, routes, or services PRSASSit confers no federal cause of action,
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and there is no evidence that Congress
intended to make state law claims removable.
Thus, § 44936’s preemption provision and
resulting affirmative defense are insufficient,
without more, to create federal question
jurisdiction. Because the PRSA does not meet
any of the three required criteria under
Heimann, it does not completely preempt state
law, and removal was improper.
The judgment is REVERSED and
REMANDED with instruction to remand to
state court.
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