Martin Ventress v. Japan Airlines

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN VENTRESS, No. 12-15066

Plaintiff-Appellant,

D.C. No.

v. 1:07-cv-00581-

LEK-RLP

JAPAN AIRLINES; JALWAYS CO.,

LTD.; HAWAII AVIATION CONTRACT

SERVICES, INC., OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the District of Hawai‘i

Leslie E. Kobayashi, District Judge, Presiding

Submitted February 20, 2014*

Honolulu, Hawai‘i

Filed March 28, 2014

Before: Michael Daly Hawkins, M. Margaret McKeown,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge McKeown;

Concurrence by Judge Bea

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 VENTRESS V. JAPAN AIRLINES

SUMMARY**

Preemption / Federal Aviation Act

The panel affirmed the district court’s judgment in favor

of Japan Airlines based on the Federal Aviation Act’s

preemption of the pro se plaintiff’s state claims.

Plaintiff, a former flight engineer, alleged that Japan

Airlines retaliated against him for reporting safety concerns

and constructively terminated him for reasons related to his

medical and mental fitness.

The panel held that plaintiff’s California state law claims

were preempted by the Federal Aviation Act because they

required the factfinder to intrude upon the federally occupied

field of aviation safety by deciding questions of pilot medical

standards and qualifications. The panel also held that the

district court did not abuse its discretion in denying plaintiff’s

motion for reconsideration.

Judge Bea concurred in part because he believes that

plaintiff only appealed the district court’s decision denying

his motion for reconsideration, and therefore he only joined

that part of the majority’s opinion. Judge Bea does not

believe that the court needed to address the district court’s

conclusion concerning federal preemption.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

VENTRESS V. JAPAN AIRLINES 3

COUNSEL

Martin Ventress, pro se, Costa Mesa, California, for Plaintiff-

Appellant.

Steven M. Egesdal and William M. Harstad, Carlsmith Ball

LLP, Honolulu, Hawai‘i, for Defendants-Appellees.

OPINION

McKEOWN, Circuit Judge:

This aviation case is making its third trip to our court on

yet another preemption challenge, namely whether the

Federal Aviation Act of 1958 (the “FAA”), 49 U.S.C.

§ 40103 et seq., preempts pro se plaintiff Martin Ventress’s

California statutory and common law retaliation and

constructive termination claims (the “state law claims”).1

Ventress, a former flight engineer, alleges Japan Airlines and

Jalways Co., Ltd. (collectively “JAL”)2 retaliated against him

for reporting safety concerns and constructively terminated

him for reasons related to his medical and mental fitness.

In the first round of proceedings in this court, we held that

his state law claims are not preempted by the Friendship,

Commerce, and Navigation (“FCN”) Treaty. Ventress v.

1

In his complaint, Ventress raised additional causes of action, which

have since been dismissed and are not relevant to this appeal.

2

Ventress also named Hawaii Aviation Contract Services, Inc.

(“HACS”) as a defendant in this action. However, having concluded

arbitration with Ventress, HACS is no longer a party to this appeal.

4 VENTRESS V. JAPAN AIRLINES

Japan Airlines (Ventress I), 486 F.3d 1111 (9th Cir. 2007).

In the second round, we held that the claims are not

preempted by the Airline Deregulation Act of 1978 (“ADA”).

Ventress v. Japan Airlines (Ventress II), 603 F.3d 676 (9th

Cir. 2010). In Ventress II, we noted that the parties had not

addressed whether Ventress’s claims are preempted by the

FAA, id. at 681, 683, which is now the issue before us in this

third appeal. Mindful that the FAA does not preempt all state

law tort actions touching air travel, Martin v. Midwest

Express Holdings, Inc., 555 F.3d 806, 809 (9th Cir. 2009), we

conclude that Ventress’s state law claims are preempted

because they require the factfinder to intrude upon the

federally occupied field of aviation safety by deciding

questions of pilot medical standards and qualifications. We

affirm the judgment of the district court.

BACKGROUND

The detailed procedural and factual background of this

decade-long case is amply set forth in Ventress I, Ventress II,

and the district court’s October 31, 2011 order granting JAL’s

motion for judgment on the pleadings. We therefore discuss

only the background necessary to address FAA preemption,

the sole issue in this appeal.

Ventress claims JAL retaliated against him for raising

safety concerns regarding fellow pilot Captain Jeff Bicknell’s

medical fitness to operate an aircraft during a June 2001

flight. Specifically, Ventress alleges JAL subjected him to

unnecessary psychiatric evaluations and prevented him from

working because he raised those safety concerns and

submitted two safety reports to several federal agencies.

Ventress maintains that JAL’s conduct constitutes unlawful

retaliation in violation of California’s whistleblower statute,

VENTRESS V. JAPAN AIRLINES 5

Cal. Lab. Code § 1102.5(b), and resulted in his constructive

termination in violation of “the public policies expressed in

Government Code Section 12940(k), Labor Code Section

1102.5, 49 U.S.C. Section 40101(d)(1)–(2), and 49 U.S.C.

Section 42121.”

On remand after Ventress II, the district court held that

the FAA preempts Ventress’s state law claims because ruling

on the claims would necessarily “require the finder of fact to

consider whether or not Ventress was medically fit to carry

out his duties as a flight engineer.” “Determining whether

Ventress was medically qualified to work as a flight

engineer,” the district court reasoned, “would intrude in the

area of airmen medical standards, which Congress intended

to occupy exclusively.” The district court granted JAL’s

motion for judgment on the pleadings on preemption grounds.

Ventress filed a motion for reconsideration. In that

motion, Ventress argued for the first time that the FAA does

not preempt his claims because the incidents giving rise to his

state law claims did not occur in the United States or its

airspace, and because the FAA does not apply to foreign air

carriers like JAL. The district court rejected Ventress’s

newly raised arguments on the merits, finding that he failed

to allege JAL’s retaliatory conduct occurred in international

airspace and that the FAA applies to foreign air carriers. This

appeal followed.3

3

We deny Ventress’s motion to supplement the record on appeal and

reject JAL’s request that we impose sanctions on Ventress for filing that

motion. We likewise deny JAL’s request that we reject Ventress’s entire

opening brief due to procedural deficiencies.

6 VENTRESS V. JAPAN AIRLINES

ANALYSIS

I. FAA Preemption4

Because the FAA does not expressly preempt state

regulation of air safety or prohibit states from imposing tort

liability for unlawful retaliation or constructive termination,

FAA “preemption, if any, must be implied.” See Montalvo v.

Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007). Implied

preemption comes in two forms: conflict preemption and

field preemption. Id. Conflict preemption applies “where

compliance with both federal and state regulations is a

physical impossibility,” and in “those instances where the

challenged state law stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.” Arizona v. United States, 132 S. Ct.

2492, 2501 (2012) (internal quotation marks omitted). Field

4

The concurrence maintains that we need not address Ventress’s general

preemption claim because his notice of appeal was limited to the order

denying his more limited motion for reconsideration. We disagree.

Where, as here, “a party seeks to argue the merits of an order that does not

appear on the face of the notice of appeal,” we consider two factors, both

of which weigh in favor of considering the preemption claim. E.g.,

Shapiro v. Paradise Valley Unified Sch. Dist., 374 F.3d 857, 863 (9th Cir.

2004) (internal quotation marks omitted). First, Ventress’s intent to

appeal the district court’s order granting JAL’s motion for judgment on

the pleadings can be fairly inferred from the arguments raised and cases

cited in his opening and reply briefs. See id. Second, after we remanded

this case to the district court to consider FAA preemption, JAL fully

addressed the preemption issue in the district court and in its answering

brief before this court and would not be prejudiced by a decision on the

merits. See id. The concurrence’s contrary approach sidesteps the real

issue on appeal solely on the basis of a technicality. See id. (“The policy

underlying this test is that it would violate the spirit of the Federal Rules

of Civil Procedure to avoid a decision on the merits on the basis of mere

technicalities.” (internal quotation marks omitted)).

VENTRESS V. JAPAN AIRLINES 7

preemption “can be inferred either where there is a regulatory

framework ‘so pervasive . . . that Congress left no room for

the States to supplement it’ or where the ‘federal interest [is]

so dominant that the federal system will be assumed to

preclude enforcement of state laws on the same subject.’”

Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir.

2013) (alteration in original) (quoting Arizona, 132 S. Ct. at

2501). “[W]hen an agency administrator promulgates

pervasive regulations pursuant to his [or her] Congressional

authority, we may infer a preemptive intent unless it appears

from the underlying statute or its legislative history that

Congress would not have sanctioned the preemption.”

Montalvo, 508 F.3d at 471.

In Montalvo, we delineated the preemptive scope of the

FAA and observed that “[t]he purpose, history, and language

of the FAA lead us to conclude that Congress intended to

have a single, uniform system for regulating aviation safety.”

Id. We held that the FAA, together with the federal aviation

regulations (“FARs”) promulgated by the Federal Aviation

Administration (the “agency”), “occupies the entire field of

aviation safety” and that Congress “clearly indicated its intent

to be the sole regulator” of this field. Id. at 473–76; see also

French v. Pan Am Express, Inc., 869 F.2d 1, 6–7 (1st Cir.

1989). Applying this principle, we concluded that claims

based on the airline crew’s failure to warn passengers about

blood clots were preempted by the FAA and corresponding

regulations. Montalvo, 508 F.3d at 469, 472–73.

Two years later in Martin, we circumscribed the

preemptive effect of the FAA. There, we clarified that “when

the agency issues ‘pervasive regulations’ in an area, like [the]

passenger warnings [at issue in Montalvo], the FAA preempts

all state law claims in that area” but that the state standard of

8 VENTRESS V. JAPAN AIRLINES

care remains applicable in “areas without pervasive

regulations or other grounds for preemption.” 555 F.3d at

811. Because the FARs established no requirements for

airplane stairs, we held that the state tort claims involving

airplane stairs in Martin were not preempted by federal law.

Id. at 812.

Our review of the applicable FARs confirms that pilot

qualifications and medical standards for airmen,5 unlike

aircraft stairs, are pervasively regulated. Id. at 809 (“Claims

regarding . . . pilot qualifications . . . have been declared

preempted.”). Specifically, the FAA authorizes the agency to

issue airman certificates to individuals who are qualified and

physically able to perform the duties related to the certified

position. See 49 U.S.C. § 44702–44703. Absent such a

certificate, an individual may not serve as an airman for any

civil aircraft. 49 U.S.C. § 44711. Subject to limited

exceptions not applicable here, the agency requires an airman

to obtain a medical certificate. 14 C.F.R. § 61.3. The agency

has delegated the power to deny or issue such medical

certificates to the Federal Air Surgeon. 14 C.F.R. § 67.407.

The Federal Air Surgeon, in turn, is authorized to conduct

medical examinations of medical certificate applicants to

determine whether those applicants meet certain medical

standards. Id. § 67.407(a)(1). The agency has promulgated

detailed FARs regarding the issuance of medical certificates

for airmen. See 14 C.F.R. § 67.1–67.415. Among these are

FARs governing medical standards for mental, neurological,

5

An “airman” includes an “individual . . . in command, or as a pilot,

mechanic, or member of the crew, who navigates aircraft when under

way.” 49 U.S.C. § 40102(a)(8). Both Ventress and Captain Bicknell were

airmen under the FAA and applicable FARs.

VENTRESS V. JAPAN AIRLINES 9

and general medical conditions. See 14 C.F.R.

§ 67.101–67.113; 67.201–67.313.

In light of this statutory and regulatory backdrop, and

guided by Montalvo and Martin, we conclude that the FAA

and accompanying FARs preempt Ventress’s retaliation and

constructive termination claims. This is so for two reasons:

the pervasiveness of federal safety regulations for pilots and

the congressional goal of a uniform system of aviation safety.

To begin, because the FAA and FARs occupy the field of

pilot qualifications, including the medical fitness of airmen,

federal law forecloses Ventress’s state law claims, which are

little more than backdoor challenges to JAL’s safety-related

decisions regarding his and Captain Bicknell’s physical and

mental fitness to operate civil aircraft. In its Answer, JAL

argues that even assuming Ventress were a JAL employee,6

its actions “were based on legitimate, non-discriminatory

business reasons.” Consequently, as the district court

appropriately found, adjudicating Ventress’s whistleblower

claims requires “the finder of fact to determine whether JAL

had ‘a legitimate, nonretaliatory explanation for its acts’ or its

‘explanation is merely a pretext for retaliation.’” This inquiry

into the medical fitness of Ventress and Captain Bicknell

intrudes upon the federally occupied field of pilot safety and

qualifications that Congress has reserved for the agency and

impermissibly subjects federal law to “supplementation by,

[and] variation among, state laws.” Montalvo, 508 F.3d at

468.

In a similar vein, by inviting the factfinder to pass on

questions of pilot qualification and medical fitness,

6

JAL disputes that Ventress was its employee but assumes that fact for

purposes of its legal argument.

10 VENTRESS V. JAPAN AIRLINES

Ventress’s state law claims impinge on Congress’s goal of

ensuring “a single, uniform system for regulating aviation

safety.” Id. at 471; see also City of Burbank v. Lockheed Air

Terminal, Inc., 411 U.S. 624, 639 (1973) (noting that “a

uniform and exclusive system of federal regulation” is

required “if the congressional objectives underlying the

[FAA] are to be fulfilled”). Permitting indirect challenges to

aviation safety decisions under the guise of state law

whistleblower claims interferes with the agency’s authority

to serve as the principal arbiter of aviation safety. Montalvo,

508 F.3d at 472; Abdullah v. Am. Airlines, Inc., 181 F.3d 363,

369 (3d Cir. 1999) (“[The] legislative history reveals that

Congress intended the Administrator, on behalf of the Federal

Aviation Administration, to exercise sole discretion in

regulating air safety. And this is exactly what Congress

accomplished through the FAA.”). Entertaining such state

law claims may also risk creating a fragmented patchwork of

aviation safety standards under state law, thereby

undermining the legislative goal of ensuring uniformity over

aviation safety regulation. See Montalvo, 508 F.3d at 473.

In reaching this conclusion, we need not, and do not,

suggest that the FAA preempts all retaliation and constructive

termination claims brought under California law. Indeed, we

recognize that Congress has not occupied the field of

employment law in the aviation context and that the FAA

does not confer upon the agency the exclusive power to

regulate all employment matters involving airmen. Instead,

we hold that federal law preempts state law claims that

encroach upon, supplement, or alter the federally occupied

field of aviation safety and present an obstacle to the

VENTRESS V. JAPAN AIRLINES 11

accomplishment of Congress’s legislative goal to create a

single, uniform system of regulating that field.7

II. Applicability of the FAA

In a final effort to elude the FAA’s preemptive scope,

Ventress argues, as he did in his motion for reconsideration,

that the FAA does not apply to this case because the conduct

giving rise to his claims “did not occur in U.S. airspace.”

This assertion is belied by Ventress’s pleadings. The

gravamen of Ventress’s complaint is that JAL allegedly

retaliated against him after he voiced safety concerns

regarding Captain Bicknell. Although the safety concerns

reported by Ventress involved events that took place during

a June 2001 international flight, nothing in Ventress’s

complaint suggests that JAL’s retaliatory conduct took place

outside of the United States. To the contrary, in his

7

Seeking to avoid the FAA’s preemptive effect, Ventress relies upon the

FAA’s savings clause, 49 U.S.C. § 40120(c), and the Third Circuit’s

reasoning in Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir.

1999). Neither source alters our conclusion that his claims are preempted

by federal law. The FAA’s savings clause and Abdullah establish that

state law remedies remain available even where federal law preempts state

law standards of aviation safety. For example, the FAA’s savings clause

provides that any “remedy under [the statute] is in addition to any other

remedies provided by law.” 49 U.S.C. § 40120(c) (emphasis added).

Consonant with the savings clause, Abdullah held that even though federal

law preempted state law standards of aviation safety, “traditional state and

territorial law remedies continue to exist for violation of those standards.”

181 F.3d at 375 (emphasis added). The difficulty with Ventress’s claims,

however, is that he does not identify—much less allege a violation

of—any FAR or other federal aviation safety standard. As such, even if

state remedies hypothetically remain available to him under the FAA’s

savings clause and Abdullah, Ventress has failed to allege a cognizable

legal claim under any applicable federal standard. The district court did

not err in dismissing his claims.

12 VENTRESS V. JAPAN AIRLINES

complaint, Ventress alleges his constructive termination

occurred in Honolulu, Hawai‘i, and he concedes on appeal

that the safety warning he gave regarding Captain Bicknell’s

health—the alleged reason for JAL’s unlawful conduct—

occurred “in Hawaii.” Accordingly, the district court did not

abuse its discretion in denying Ventress’s motion for

reconsideration.8

AFFIRMED.

BEA, Circuit Judge, concurring in part:

I concur with the majority opinion’s affirmance of the

district court. However, I write separately because I believe

this court need not address the district court’s conclusion that

the FAA preempts Ventress’s state law claims. The district

court reached that conclusion in its order granting JAL’s

motion for judgment on the pleadings. Ventress does not

appeal that decision of the district court. Rather, according to

8

Ventress also asserts in passing that the FAA does not apply to

“foreign” air carriers like JAL. We decline to address this undeveloped

argument, which is not supported by citations to the record, argument, or

any legal authority. See, e.g., Western Radio Servs. Co. v. Qwest Corp.,

678 F.3d 970, 979 (9th Cir. 2012) (“We will not do an appellant’s work

for it, either by manufacturing its legal arguments, or by combing the

record on its behalf for factual support.”); United States v. Graf, 610 F.3d

1148, 1166 (9th Cir. 2010) (“Arguments made in passing and not

supported by citations to the record or to case authority are generally

deemed waived.”). Although we are sensitive to Ventress’s pro se status

on appeal and construe his arguments liberally, our leniency is not without

limit and does not excuse his utter failure to provide any legal support or

argument for this contention.

VENTRESS V. JAPAN AIRLINES 13

Ventress’s Notice of Appeal, Ventress appeals only the

district court’s decision denying his motion for

reconsideration. I therefore join only Part II of the majority’s

opinion, which correctly rejects Ventress’s arguments that he

made in his motion for reconsideration, for the “cardinal

principle of judicial restraint” is that “if it is not necessary to

decide more, it is necessary not to decide more.” PDK Labs.

Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,

concurring in part and concurring in the judgment), cited in

Morse v. Frederick, 551 U.S. 393, 431 (2007) (Breyer, J.,

concurring in the judgment in part and dissenting in part), and

Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1030 (9th Cir.

2013) (Bea, J., concurring in part and dissenting in part).

I agree with the majority that this Court may consider

Ventress’s arguments that he made in response to JAL’s

motion for judgment on the pleadings if (1) Ventress’s intent

to appeal the district court’s order granting JAL judgment on

the pleadings can be “fairly inferred” from the arguments

raised in his opening brief, and (2) if JAL would not be

prejudiced. See Shapiro, 374 F.3d at 863; Maj. Op. at 6 n.4.

However, I do not believe that Ventress’s intent to appeal the

district court’s order granting judgment on the pleadings can

be “fairly inferred” from the arguments raised in Ventress’s

opening brief. In the sections of Ventress’s informal opening

brief entitled “4. State the claim or claims you raised at the

originating court” and “5. What issues are you raising on

appeal?”, Ventress failed to mention the arguments he made

before the district court at the judgment on the pleadings

stage. Instead, Ventress relied on arguments that he made in

his motion for reconsideration relating to the more narrow

issue of whether the FAA applies to “foreign carriers.”

Although Ventress did discuss preemption more generally in

his section entitled “7. What law supports these issues on

14 VENTRESS V. JAPAN AIRLINES

appeal?”, Ventress did not reference the district court’s order

granting JAL judgment on the pleadings, nor did Ventress

address the reasoning of that order. In particular, Ventress

did not even mention the federal aviation regulations, upon

which the district court’s judgment on the pleadings placed so

much emphasis. As a result, I do not believe that it can be

“fairly inferred” that Ventress intended to appeal the district

court’s order granting judgment on the pleadings.

The American legal system is premised on the adversarial

process. Courts “rely on the parties to frame the issues for

decision and assign to courts the role of neutral arbiter of

matters the parties present.” Greenlaw v. United States,

554 U.S. 237, 243 (2008). Here, a pro se individual filed an

informal opening brief which addressed the narrow

arguments that he made with respect to the district court’s

denial of his motion for reconsideration but did not even

discuss the complex issue of law addressed in the district

court’s judgment on the pleadings. Such circumstances

present a particularly poor vehicle to address that issue of

law. Rather, we should await a properly presented and

argued appeal before making a broad pronouncement on

preemption.