Ventress v. Japan Airlines

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARTIN VENTRESS, 
Plaintiff-Appellant,
No. 08-15731
v.
JAPAN AIRLINES; JALWAYS CO.,  D.C. No.
1:07-CV-00581-
LTD.; HAWAII AVIATION CONTRACT SPK/LEK
SERVICES, INC.,
Defendants-Appellees.


MARTIN VENTRESS, 
Plaintiff-Appellant, No. 08-16122
v. D.C. No.
JAPAN AIRLINES; JALWAYS CO.,  1:07-cv-00581-SPK-
LTD.; HAWAII AVIATION CONTRACT LEK
SERVICES, INC., OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
Samuel P. King, District Judge, Presiding

Submitted November 25, 2009*
San Francisco, California

Filed April 30, 2010

Before: Alfred T. Goodwin, Robert R. Beezer and
Richard C. Tallman, Circuit Judges.

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

6457
6458 VENTRESS v. JAPAN AIRLINES
Opinion by Judge Goodwin
 VENTRESS v. JAPAN AIRLINES 6461
COUNSEL

Martin Ventress, Pro se, Houston, Texas, for the plaintiff-
appellant.

Andrew L. Pepper, Carlsmith Ball, Honolulu, Hawaii, for
defendants-appellees Japan Airlines and Jalways, Co.; Carl
Osaki, Honolulu, Hawaii, for defendant-appellee Hawaii Avi-
ation Contract Services.

OPINION

GOODWIN, Senior Circuit Judge:

This pro se appeal tenders the only legal questions that
remain in flight engineer Martin Ventress’s dispute with
Japan Airlines and its subsidiary Jalways Co., Ltd. (collec-
tively, “JAL”) and Hawaii Aviation Contract Services, Inc.
(“HACS”) following the remand to the District of Hawaii in
his first appeal to this court. See Ventress v. Japan Airlines,
486 F.3d 1111 (9th Cir. 2007) (Ventress I).

In Ventress I, we held that the Friendship, Commerce, and
Navigation Treaty, U.S.-Japan, April 2, 1953, 4 U.S.T. 2063,
does not preempt California’s whistle blower protection laws,
and remanded the state-law claims to the District of Hawaii
for further proceedings. Ventress I, 486 F.3d at 1118. We also
affirmed venue in Hawaii, dismissed Ventress’s interlocutory
appeal of an order compelling arbitration of his claims against
HACS, and disposed of other then-pending matters that are no
longer in controversy. Id. at 1119.

In August 2007, Ventress and HACS concluded arbitration,
resulting in an award that denied Ventress’s claim for wrong-
ful termination and ordered him to pay costs to HACS. On
March 20, 2008, the district court denied Ventress’s motion
6462 VENTRESS v. JAPAN AIRLINES
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.

The district court severed Ventress’s case from that of pilot
Jack Crawford and severed HACS as a defendant. On March
14, 2008, the court denied Ventress’s motion to transfer venue
back to the Central District of California, holding that the
doctrine of the law of the case prevented it from reconsidering
an issue decided and affirmed on appeal by this court.

JAL moved for judgment on the pleadings, asserting com-
plete federal preemption by the 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 Ven-
tress’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 unmis-
takable that such claims are pre-empted.” Botz v. Omni Air
Int’l, 286 F.3d 488, 498 (8th Cir. 2002).

Ventress now appeals the judgments in favor of both
HACS and JAL. His appeal raises four questions: whether the
district court (1) erred in granting HACS’s motion to confirm
and denying Ventress’s motion to vacate the arbitration
award, (2) abused its discretion in dismissing Ventress’s
motion for transfer of venue, (3) abused its discretion in deny-
ing Ventress’s motion to amend the complaint, and (4) erred
in dismissing Ventress’s claims against JAL based on com-
plete federal preemption.

A. Arbitration Award

Ventress contends that the district court erred in granting
HACS’s motion to confirm and denying Ventress’s motion to
 VENTRESS v. JAPAN AIRLINES 6463
vacate the arbitration award because the arbitrator was biased
against him and failed to follow the law. On de novo review,
Coutee v. Barrington Capital Group, L.P., 336 F.3d 1128,
1132 (9th Cir. 2003), we affirm.

[1] The Hawaii Supreme Court has noted that “[b]ecause
of the legislative policy to encourage arbitration and thereby
discourage litigation, judicial review of an arbitration award
is confined to ‘the strictest possible limits.’ ” Gadd v. Kelley,
667 P.2d 251, 258 (Haw. 1983) (quoting Mars Constructors,
Inc. v. Tropical Enters, Ltd., 460 P.2d 317, 319 (Haw. 1969)).
A court may therefore vacate an arbitration award only for the
limited reasons specified by statute. See id. One such reason
is “[e]vident partiality by an arbitrator appointed as a neutral
arbitrator.” Haw. Rev. Stat. § 658A-23(a)(2)(A). “Evident
partiality” may exist where there is actual bias on the part of
the arbitrator, or where undisclosed facts demonstrate a rea-
sonable impression of partiality. See Daiichi Hawai’i Real
Estate Corp. v. Lichter, 82 P.3d 411, 425-26 (Haw. 2003).
“ ‘The burden of proving facts which would establish a rea-
sonable impression of partiality rests squarely on the party
challenging the award.’ ” Id. at 425 (quoting Sheet Metal
Workers Int’l Ass’n Local Union 420 v. Kinney Air Condition-
ing Co., 756 F.2d 742, 745 (9th Cir. 1985)).

[2] Hawaii law also allows a court to vacate an arbitration
award if “[a]n arbitrator exceeded the arbitrator’s powers.”
Haw. Rev. Stat. § 658A-23(a)(4). An arbitrator does not
exceed the arbitrator’s powers by misunderstanding or incor-
rectly applying the law. See Tatibouet v. Ellsworth, 54 P.3d
397, 407 (Haw. 2002). Vacatur may be proper, however,
“where the parties provide proof that the arbitrators intention-
ally and plainly disregarded” the relevant substantive law. Id.
at 411.

[3] Ventress argues that the arbitrator was biased against
him because he had previously filed a motion to disqualify the
arbitrator and because he is African American. Ventress
6464 VENTRESS v. JAPAN AIRLINES
claims that the arbitrator is a trustee for the Office of Hawai-
ian Affairs, which Ventress believes demonstrates an ideology
of “rational nationalism;” is a graduate of the Kamehameha
School, which offers preference to Native Hawaiian appli-
cants and from which HACS’s owner also graduated; and
belongs to the Mormon Church, which Ventress claims “had
a long-standing reputation of racial bias against blacks.”
These affiliations, he asserts, establish “evident partiality” by
the arbitrator. The district court, however, correctly concluded
that Ventress “has offered only bald allegations of partiality
without any, much less persuasive, evidence to support these
claims.”

In the absence of evidence of actual bias, the filing and
denial of a motion to disqualify an arbitrator in one arbitration
does not establish bias in a subsequent arbitration. Moreover,
the arbitrator’s supposed affiliations, and Ventress’s unsup-
ported assertions about their ideologies, do not establish bias.
Nor does the fact that the arbitrator and HACS’s owner gradu-
ated from the same school, apparently some thirteen years
apart, establish bias or a conflict of interest.

[4] Ventress also argues that the arbitrator allowed HACS
to serve procedurally improper subpoenas, permitted HACS
to submit an untimely supplement to its final arbitration argu-
ment, and denied Ventress an alleged right to be represented
by a non-attorney. As the district court correctly noted, how-
ever, even assuming that the arbitrator erred in applying the
law, Ventress has not shown that he “intentionally and plainly
disregarded” the law. We therefore affirm confirmation of the
arbitration award and denial of the motion to vacate it.

B. Motion to Transfer Venue

[5] Ventress argues that the district court erred in denying
his motion to transfer venue from the District of Hawaii to the
Central District of California because he thinks racial and res-
idential factors make California a better venue for him. These
 VENTRESS v. JAPAN AIRLINES 6465
are the same arguments that Ventress made in Ventress I,
where we held that the district court’s decision to transfer
venue was not an abuse of discretion. 486 F.3d at 1118-19.
The district court correctly concluded that it could not recon-
sider that question. See City of L.A. Harbor Div. v. Santa
Monica Baykeeper, 254 F.3d 882, 888-89 (9th Cir. 2001).

C. Motion to Amend

Ventress also argues that the district court erred in denying
his motion to amend the complaint to substitute Hawaii
claims for California claims and add a federal claim. We
review for abuse of discretion the district court’s denial of a
motion to amend a complaint. Chappel v. Lab. Corp. of Amer-
ica, 232 F.3d 719, 725 (9th Cir. 2000). “A district court acts
within its discretion to deny leave to amend when amendment
would be futile, when it would cause undue prejudice to the
defendant, or when it is sought in bad faith.” Id. at 725-26.

[6] We conclude that the district court acted within its dis-
cretion. As to the state-law claims, it concluded that, because
venue was transferred under 28 U.S.C. § 1404(a), the substan-
tive law of the transferor state—California—applies. See Mul-
doon v. Tropitone Furniture Co., 1 F.3d 964, 965 (9th Cir.
1993). It also noted that Ventress and Crawford chose to bring
only California state-law claims, argued strenuously that Cali-
fornia’s interests were paramount, waited nearly a year—until
a substantive motion was pending against their complaint—
before attempting to amend it, and did not show that the law
of the two states was different on the merits. As to the federal
claim, the WPP provides no private right of action, Williams
v. United Airlines, Inc., 500 F.3d 1019, 1023-24 (9th Cir.
2007), and Ventress provided no evidence that he had
exhausted the prescribed administrative remedies. We there-
fore hold that there was no error in the denial of the motion
to amend.
6466 VENTRESS v. JAPAN AIRLINES
D. Federal Preemption

Finally, Ventress contends that the district court erred in
granting JAL’s motion for judgment on the pleadings on the
basis of complete federal preemption. Ventress argues that the
ADA, as amended by the WPP, does not preempt his claim
under the state whistle blower protection statute, California
Labor Code § 1102.5(b),1 and his state-law claim for wrongful
termination in violation of the public policy protecting whistle
blowers. Neither party addresses 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. See 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).

“A judgment on the pleadings is properly granted when,
taking all the allegations in the non-moving party’s pleadings
as true, the moving party is entitled to judgment as a matter
of law.” Fajardo v. County of L.A., 179 F.3d 698, 699 (9th
Cir. 1999). We review de novo a district court’s grant of judg-
ment on the pleadings. Id. We conclude that the ADA does
not preempt Ventress’s state-law claims.

However, because the parties did not raise the issue of FAA
preemption before us or before the district court, we do not
address that issue. See Cascade Health Solutions v. Peace-
health, 515 F.3d 883, 916 n.27 (9th Cir. 2008). As we explain
1
California Labor Code § 1102.5(b) provides:
An employer may not retaliate against an employee for dis-
closing information to a government or law enforcement agency,
where the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute, or a
violation or noncompliance with a state or federal rule or regula-
tion.
 VENTRESS v. JAPAN AIRLINES 6467
below, the district court is free to consider that separate ques-
tion in further proceedings on remand if necessary.

[7] Congress enacted the ADA to “further ‘efficiency,
innovation, and low prices’ as well as ‘variety [and] quality
. . . of air transportation services.’ ” Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 378 (1992) (citation omitted). To
prevent states from “undo[ing] federal deregulation with regu-
lation of their own,” id., it included a preemption provision,
providing that “a State . . . 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 . . . .”
49 U.S.C. § 41713(b)(1).2 In 2000, Congress enacted the WPP
as an amendment to the FAA, providing a detailed administra-
tive scheme to protect airline employees from being dis-
charged in retaliation for whistleblowing. See Williams, 500
F.3d at 1021. The WPP provides, in relevant part:

No air carrier . . . may discharge an employee or oth-
erwise discriminate against an employee with respect
to compensation, terms, conditions, or privileges of
employment because the employee . . . 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.

49 U.S.C. § 42121(a)(1).
2
Until 1994, this provision was codified at 49 U.S.C. § 1305(a)(1) and
prohibited the enforcement of any state law “related to rates, routes, or ser-
vices of an air carrier.” Because “Congress intended this amendment to be
‘without substantive change,’ ” Am. Airlines, Inc. v. Wolens, 513 U.S. 219,
238 n.1 (1995) (citation omitted), courts refer to the two versions inter-
changeably.
6468 VENTRESS v. JAPAN AIRLINES
In determining whether the ADA preempts state-law
claims, we “must give effect to [the preemption clause’s]
plain language unless there is good reason to believe Con-
gress intended the language to have some more restrictive
meaning.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97
(1983). In conducting that analysis, “[t]he purpose of Con-
gress is the ultimate touchstone.” Retail Clerks Int’l Assoc.,
Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 103
(1963). Our preemption analysis is also guided by the pre-
sumption that “because the States are independent sovereigns
in our federal system, . . . Congress does not cavalierly pre-
empt state-law causes of action.” Medtronic, Inc. v. Lohr, 518
U.S. 470, 485 (1996). This is especially true in the area of
employment law, which “falls within the traditional police
power of the State.” Fort Halifax Packing Co., Inc. v. Coyne,
482 U.S. 1, 21 (1987).

[8] Because there is no contention that the activities at
issue here relate to a price or route, whether the ADA pre-
empts state whistleblower protection laws depends on
whether the actions protected by those laws are “related to a
. . . service.” The Supreme Court defines “related to” as “hav-
ing a connection with or reference to” prices, routes, or ser-
vices, Morales, 504 U.S. at 383, but has not defined “service”
under the ADA.

[9] Our circuit has adopted a relatively narrow definition,
defining “service,” for purposes of ADA preemption, as “the
prices, schedules, origins and destinations of the point-to-
point transportation of passengers, cargo, or mail.” Charas v.
Trans World Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir.
1998) (en banc); cf. Hodges v. Delta Airlines, Inc., 44 F.3d
334, 336 (5th Cir. 1995) (adopting a broader definition of
“service,” including “items such as ticketing, boarding proce-
dures, provision of food and drink, and baggage handling, in
addition to the transportation itself”).

[10] Although the question appears in this circuit for its
first review, the Eighth, Eleventh, and Third Circuits have
 VENTRESS v. JAPAN AIRLINES 6469
each addressed whether the ADA and WPP preempt state
whistle blower protection laws. First, in Botz v. Omni Air
Int’l, 286 F.3d at 494-95, the Eighth Circuit held that the
ADA preempted a former flight attendant’s state-law claims
because her refusal to accept an assignment could have pre-
vented a scheduled departure and therefore related to “ser-
vice.” In so holding, the Botz court distinguished whistle
blower claims from employment discrimination claims, not-
ing that the Minnesota statute at issue “granted a flight atten-
dant or other air-carrier employee the right to refuse an
assignment that is essential to a carrier’s ability to provide its
scheduled services.” Id. at 496. In the court’s view, enactment
of the WPP “makes it unmistakable that such claims are pre-
empted, because “[t]he fact that the WPP now provides a
comprehensive scheme for protecting the precise sort of air
safety-related conduct Botz engaged in here is . . . powerful
evidence of Congress’s clear and manifest intent to pre-empt
state-law whistleblower claims related to air safety.” Id. at
496-98.

In Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1262-
63 (11th Cir. 2003), the Eleventh Circuit held that the ADA
did not preempt an aircraft inspector’s state-law claims
because the inspector reported safety violations after comple-
tion of scheduled flights and therefore could not have inter-
rupted service. Instead, the claims were more analogous to
employment discrimination actions, which the ADA does not
preempt. Id. at 1259-60. Addressing Botz, the Branche court
did “not dispute the Eight[h] Circuit’s conclusion that the
grounding of an airplane is related to airline services,” but
disagreed with its conclusion that enactment of the WPP was
probative of Congress’s intent to preempt state-law claims. Id.
at 1262-63. Instead, the court concluded that the WPP’s
silence on preemption is ambiguous and does not alter “the
language of the ADA’s pre-emption provision in any mean-
ingful way.” Id. at 1264.

Finally, in Gary v. The Air Group, Inc., 397 F.3d 183, 189
(3d Cir. 2005), the Third Circuit held that the ADA did not
6470 VENTRESS v. JAPAN AIRLINES
preempt a former copilot’s state-law claims because he
reported safety violations before flights were scheduled and
therefore could not have interrupted service. Instead, the court
concluded, the whistle blowing claim was “more properly
viewed as comparable to a garden variety employment claim,
albeit in the present context, one that is related to safety.” Id.
Concluding that “Botz went too far in expanding ADA pre-
emption,” the court adopted the Eleventh Circuit’s conclusion
that the WPP did not alter ADA preemption in any meaning-
ful way. Id. at 190.

[11] We agree with the Eleventh and Third Circuit’s con-
clusion that the WPP did not alter ADA preemption and that
“the operative question remains whether the state law claim
is related to airline prices, routes, or services.” Id. at 190. We
reach this conclusion in part because we are mindful that
“preemption should not be lightly inferred” in areas such as
employment law that are traditionally within the police pow-
ers of the states. See Fort Hallifax Packing Co., Inc., 482 U.S.
at 21. We also conclude that the WPP’s silence on ADA pre-
emption is ambiguous and does not necessarily imply that
Congress intended to expand preemption. Instead, the ADA’s
express preemption provision supports a reasonable inference
against more general preemption by the WPP. See Freight-
liner Corp. v. Myrick, 514 U.S. 280, 288 (1995) (noting that
an express preemption provision “supports a reasonable infer-
ence . . . that Congress did not intend to pre-empt other mat-
ters,” although it does not foreclose the possibility).

[12] In the present case, Ventress’s state-law claim is not
“related to” a “service” for purposes of ADA preemption.
Ventress reported safety violations six months after they
occurred and after completion of the scheduled flights.
Although Ventress alleges he told the ill pilot that he would
pull himself off future flights if the pilot did not stop flying,
he does not allege that he was fired in retaliation for that
threat, and the record does not indicate that he grounded or
had the potential to ground a flight. Ventress therefore did not
 VENTRESS v. JAPAN AIRLINES 6471
interrupt “service,” that is, “the prices, schedules, origins and
destinations of the point-to-point transportation of passengers,
cargo, or mail.” Charas, 160 F.3d at 1261. The judgment on
the pleadings on the theory that the ADA preempts whistle
blower claims filed pursuant to California law is reversed and
remanded. Because the parties did not raise the issue of FAA
preemption before this court or the district court, the district
court may, if necessary, decide the issue in the first instance
on remand.

The judgment in 08-15731 is AFFIRMED and the judg-
ment in 08-16122 is AFFIRMED IN PART; REVERSED
AND REMANDED IN PART.

No Party to recover costs in this court.