Johnson v. Baylor University

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 99-50779

_______________

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”

2

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).

3

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).

4

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,

5

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.

6