Petition for Writ of Certiorari — AirTran Airways, Inc. v. Branche

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supreme Court, U.%

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03 oF DEC 182003

No. 03-

IN THE

Supreme Court of the United States

AIRTRAN AIRWAYS, INC.,

Petitioner,

MICHAEL F. BRANCHE,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

R. PAUL ROECKER, Esq. E.uiot H. SCHERKER, Esq.

GREENBERG TRAURIG, P.A. Counsel of Record

450 South Orange Avenue GREENBERG TRAURIG, P.A.

Suite 650 1221 Brickell Avenue

P.O. Box 4923 (32802-4923) Miami, FL 33131

Orlando, FL 32801 (305) 579-0579

(407) 418-2383

Attorneys for Petitioner

184671 ce)

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Florida Whistleblower Act, Fla. Stat.

§ 448.102, is pre-empted by the Airline Deregulation Act,

49 U.S.C. § 41713, as amended by the Whistleblower

Protection Program, 49 U.S.C. § 42121.

2. Whether the panel’s decision by the Eleventh Circuit

conflicts with the authoritative decisions of other United

States Courts of Appeals that have addressed the issue.

CORPORATE DISCLOSURE STATEMENT

Petitioner, AirTran Airways, Inc., is a wholly owned

subsidiary of AirTran Holdings, Inc.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......

CORPORATE DISCLOSURE STATEMENT .....

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TABLE OF CITED AUTHORITIES ............

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SUPUUIU OREN occ ence scrssnes inh

STATEMENT OF JURISDICTION .............

STATUTORY PROVISIONS INVOLVED .......

ameeeeers OF IE CASE .... 2. eee ene.

REASONS FOR GRANTING THE PETITION ...

The decision of the Eleventh Circuit Court

of Appeals presents decisional conflict with

the Eighth Circuit Court of Appeals. ......

Conflicting circuit court decisions on the

pre-emptive effect of the Deregulation Act as

amended by the Whistleblower Program on

state whistleblower statutes present a

compelling reason for the Court’s review. ..

Page

Vil

Contents

1. The Principles of Pre-emption .......

2 ee EG gk ocho eee eneass

3. The Bleventli Circuit ...............

CONCLUSION

2 66 64 OO @ Ob @ 84 4S O62 Oo BOO OE OOO OE Oe SD

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TABLE OF CITED AUTHORITIES

Page

Cases .

American Airlines, Inc. v. Wolens, 513 U.S. 219

fy: | nn Sree eee aera ere nes Prt spenru mi cancer Ke aa 5

Botz v. Omni Air Int’l, Inc., 286 F.3d 488 (8th Cir.

PE ees kaa e Ree ee 7) i Me ao

Charas v. Trans World Airlines, Inc., 160 F.3d 1259

(Si Cas. TOPS CU OOREY) c oc cb ke eeu yeanees 6,9, 10

Cipollone v. Liggett Group, Inc., 505 U.S. 504

LEED 6 kn 45 oe4 55 vee eee eee eee 5, 6,8

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141

CRUD 6 foie ee eee 5

Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) .. 7,13

Geier v. American Honda Motor Co., 529 U.S. 861

(2000) cee KR ee ee q&a

Hodges v. Delta Airlines, Inc., 44 F.3d 334 (Sth Cir.

ee eee es ee aeeeere 6,9, 11, 2

Marlow v. AMR Services Corp., 870 F. Supp. 295

(ar. FON: THe 6. ch acnuaie bee weaene eee 9, 11, 13

Morales v. Trans World Airlines, Inc., 504 U.S. 374

CRF ska ons ese keene ee eee 5, 7,8

Cited Authorities

Page

Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S.

og ty | CT eee E ee Pee Pees mente 5

Regner v. Northwest Airlines, Inc., 652 N.W.2d 557

a ee eee ree re 9, 11

Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164

ee Be CSG Cte. UGE ob oe ke eae ee ve 10

Statutes

Ss Oe SELEY kc cet bawakee eae ee ees l

OR EED os eh K ev Seeds cake eens passim

ee UES sd os vS.o se poe ee ae Pe

eee NE bcs Saab a uw ee vneeeeeceeeees 7

Fla Stat. § 448.102 .................. Bile rere i, 1

Rules

5te S| err er yer ores ee 4

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TABLE OFAPPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Eleventh Circuit Filed August

i Ser ey Per ee paw eer ye

Appendix B — Order And Judgment Of The United

States District Court For The Middle District Of

Florida, Tampa Division Dated And Filed August

(Se Sree errs er tar a ee

Appendix C — Order Of The United States Court

Of Appeals For The Eleventh Circuit Denying

Petition For Rehearing En Banc Filed October 2,

2003

Page

33a

OPINIONS BELOW

The Order by the United States Court of Appeals for the

Eleventh Circuit granting appeal by Plaintiff and ordering

the case to be vacated and remanded to the United States

District Court for the Middle District of Florida was issued

on August 21, 2003, and is reproduced in the Appendix at A.

The Order by United States District Court for the Middle

District of Florida granting Defendant’s Motion for Summary

Judgment was issued on August 27, 2002, and is reproduced

in the Appendix at B.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for

the Eleventh Circuit was entered on August 21, 2003 and the

Petition for Rehearing En Banc was denied on October 2,

2003 (Appendix C). This Court has jurisdiction pursuant to

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

49 U.S.C. § 42121 — Attached in Appendix D.

49 U.S.C. § 41713 — Attached in Appendix D.

Fla. Stat. § 448.102 — Attached in Appendix D.

STATEMENT OF THE CASE

Respondent Michael Branche filed a single-count

complaint in state court which alleged a retaliatory discharge

of his employment under the Florida Whistleblower Act.

Mr. Branche alleged that he was employed by AirTran

Airways, Inc. (“AirTran”) as an aircraft inspector at Tampa

International Airport, with responsibility to conduct safety

inspections of AirTran’s aircraft after they had been serviced

by AirTran’s maintenance crew but prior to takeoff. Petitioner

AirTran removed the case to federal district court on the basis

of diversity.

Mr. Branche alleged in the Complaint that on June 30,

2001, an AirTran DC-9 airplane landed in Tampa with one

of its two engines running at a temperature that exceeded

Federal Aviation Administration (FAA) safety guidelines,

a condition that could result in engine failure, and that

Mr. Branche recommended to AirTran’s Tampa maintenance

manager that the engine be inspected. He further alleges that

the manager and two maintenance workers climbed into the

aircraft’s cockpit and conducted a “high powered run” to

ascertain the plane’s airworthiness, but that none of the three

were qualified to undertake this diagnostic maneuver and in

doing so violated FAA regulations. Mr. Branche also avers

that the AirTran employee qualified to perform these tests

was present at the Tampa airport.

Respondent Branche goes on to allege that the engine

overheated in flight after departing to Atlanta, that the

plane was subsequently taken out of service, and that he

investigated that particular engine the next day and learned

that it had overheated on two separate occasions during the

preceding two weeks. Two days later Mr. Branche informed

mee Le

bein

the FAA of AirTran’s regulatory violations, and four days

after that he filed a union grievance asserting that the

maintenance manager and the two mechanics had performed

an unauthorized high powered engine run. Respondent

Branche alleges that later in the month he was fired for a

time card violation and theft of two hours of pay, but that the

true reason for his discharge was retaliation for reporting

AirTran violations to the FAA.

Following discovery, AirTran moved for summary

judgment on the ground that Mr. Branche’s claim under the

Florida Whistleblower Act was pre-empted by the Airline

Deregulation Act, 49 U.S.C. § 41713 (the “Deregulation

Aci”), amendéd by the 1999 Whistleblower Protection

Program, 49 U.S.C. § 42121 (the “Whistleblower Program’’).

The district court granted summary judgment, and

subsequently entered judgment for AirTran. Mr. Branche

~ appealed to the Eleventh Circuit Court of Appeals. The court

posed the question for consideration as whether Mr. Branche’s

claim significantly affects air carrier “services” as that term

is used in the pre-emption provision of the Deregulation Act.

The court held that this is “a close question” made “especially

difficult” by the fact that the Whistleblower Program contains

a remedy which parallels the one available under the Florida

Whistleblower Act “for plaintiffs in Branche’s position.”

342 F.3d at 1250-51.

The court’s decision acknowledges that the Whistle-

blower Program was held to pre-empt a state whistleblower

cause of action in Botz v. Omni Air Int’l, Inc., 286 F. 3d 488

(8th Cir. 2002). Nonetheless, the court construed the

Whistleblower Program in the manner that Botz rejected,

to reach an opposite conclusion with respect to the pre-

emption of Mr. Branche’s state law whistleblower claim.

Accordingly, the court vacated the judgment for AirTran and

remanded for further proceedings. AirTran filed a petition

for rehearing en banc which was denied, following which

AirTran timely filed this certiorari petition. ‘

~- REASONS FOR GRANTING THE PETITION

A. The decision of the Eleventh Circuit Court of Appeals

presents decisional conflict with the Eighth Circuit

Court of Appeals.

This case addresses the pre-emptive effect on state

whistleblower statutes of the 3-year old Whistleblower

Program amendment to the Deregulation Act. The Eleventh

Circuit decision brought for review applies that pre-emptive

effect in a manner which directly conflicts with an application

of the same federal statute by the Eighth Circuit, and with a

growing number of courts which have been called upon to

consider precisely the same issue. To date, the Court has never

addressed this issue.

rr OO Te

The Eleventh Circuit’s decision provides a textbook

example of the type of case which the Court has said will

prompt its consideration for review — a circuit court decision

“in conflict” with another circuit court decision on “the same ‘

‘important matter.” Sup. Ct. R. 10(a). |

B. Conflicting circuit court decisions on the pre-emptive

effect of the Deregulation Act as amended by the

Whistleblower Program on state whistleblower statutes

present a compelling reason for the Court’s review.

The principles for determining the pre-emptive effect of

a federal statute on a state statute are well-established by the

decisions of the Court. The courts start with an assumption

that state police powers are not superseded unless Congress

has made clear a desire for pre-emption.' The pre-emption

analysis is then guided by a determination of congressional

intent, either express or implied,” beginning with the plain

language of the statute.’ The particular language to be

construed in this case was the federal prohibition against state

laws having the force and effect of a federal statute “related

to... service of an air carrier,”* and the language of the

protections and remedies written into the Whistleblower

Program.°

The term “related to” in this statute has already been

held by the Court to have a “broad scope” and an “expansive

sweep,’° in further of the Whistleblower Act’s “overreaching

deregulatory purpose.”’ Before the enactment of the

Whistleblower Program in 1999, the term “service” had also

1. E.g., Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151

(2001).

2. E.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516

(1992).

3. E.g., Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S.

189, 194 (1985).

4. 49 U.S.C. § 41713(b)(1) (1994).

5. 49 U.S.C. § 42121.

6. Morales v. Trans WorldAirlines, Inc., 504 U.S. 374, 385

(1992)).

7. American Airlines, Inc. v. Wolens, 513 U.S. 219, 229, n.5

(1995).

been given a broad scope in furtherance of that congressional

purpose in en banc decisions of the Fifth and the Ninth

Circuits.®

In the decision now brought for review, the Eleventh

Circuit has acknowledged that enactment of Whistleblower

Program was designed by Congress to provide protection and

federal remedies for the specific kind of action taken by

Mr. Branche in this case.? The Eleventh Circuit has also

acknowledged, and in fact found “more compelling,” the

broad definition of the term “service” articulated by the Fifth

Circuit in Hodges.'® Yet the court drew conclusions from

the applicable legal principles which are diametrically

opposed to the principles drawn by the Eighth Circuit from

the same statutory language, congressional intent, and

common law interpretations. The result is a decision which

seriously devalues congressional intent with respect to the

Whistleblower Program that Congress engrafted onto the

Deregulation Act, and poses a circuit conflict which only

the Court can resolve.

1. The Principles of Pre-emption

It is well settled that Congress may demonstrate its intent

to pre-empt state law either implicitly or explicitly.’ It is

8. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (Sth Cir.

1995 (en banc)); Charas v. Trans World Airlines, Inc., 160 F.3d 1259,

1265-66 (9th Cir. 1998 (en banc)).

9. Branche v. AirTran Airways, Inc., 342 F.3d at 1251.

10. 342 F.3d at 1257.

11. Cipollone, 505 U.S. at 516.

also well settled that neither the inclusion of an express pre-

emption clause nor a saving clause bars the ordinary working

of conflict pre-emption principles."

Congress has explicitly addressed the issue of pre-

emption through an express pre-emption clause set forth in

the Deregulation Act, and through the 1999 amendment to

the Act which created the Whistleblower Protection Program.

That Program offers a remedy for air carrier employees, such

as Mr. Branche, that parallels the Florida Whistleblower Act.

The Deregulation Act’s express pre-emptive effect is given

context and purpose by the Whistleblower Program,

which illustrates the types of claims Congress intended the

Deregulation Act to pre-empt.'? The congressional goal of

ensuring that the price, availability and efficiency of air

transportation should rely primarily on market forces and

competition is substantially furthered by the Whistleblower

Program’s creation of a uniform standard for dealing with

employee complaints of air-safety violations.'* The Eleventh

Circuit’s decision, in contrast to that of the Eighth Circuit,

destroys the uniformity for which the Whistleblower Program

12. Geier v. American Honda Motor Co., 529 U.S. 861 (2000);

Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) (pre-emption may

be found where state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Congress.)

13. See Botz, 286 F.3d at 495-56.

14. See 49 U.S.C. §§ 40101(a)(6) and (a)(7) (1994) (declaring

Deregulation Act’s policy of fostering a sound regulatory system that

responds to the public’s needs and reaches decisions promptly);

Morales, 504 U.S. at 378 (explaining that Congress added the pre-

emption provision to the Deregulation Act “[t]o ensure that the States

would not undo federal deregulation with regulation of their own”).

was expressly enacted, by casting federal pre-emption

decision-making into the abyss of piecemeal, case-by-case

analysis.

2. The Eighth Circuit

In Batz, the Eighth Circuit specifically. addressed the

scope of pre-emption under the Deregulation Act in the

context of a claim under a state whistleblower claim which

alleged a retaliatory discharge for an employee’s report of

safety violations to the FAA — the exact same context

presented to the Eleventh Circuit in this case. The Eighth

Circuit held that the Deregulation Act pre-empts claims

arising under state whistleblower statutes which are “related

to” prices, routes, or “services” of an air carrier.'°

The court reached that conclusion after considering

the purpose of Congress as expressed in the plain language

of Act, as directed by Cipollone. 505 U.S. at 516 (1992).

The court also examined the statutory intent of the Act as

expressed in Morales, 504 U.S. at 390 (1992), and the Court’s

determination that the courts must give a broad meaning to

the phrase “related to” and to the pre-emptive purpose of the

Act with respect to all state enforcement actions which have

a “connection with or reference to airline rates, routes,

or services.” 504 U.S. at 375. Following the Court’s reasoning

in those cases, the Eighth Circuit concluded that FAA

violations will result in the grounding of an airplane, and

that any grounding is related both to airline services and to

the transport of passengers from one place to another.

15. See Botz, 286 F.3d at 491.

ne cit —~ ella,

The analysis and reasoning of the Eighth Circuit is also

reflected in decisions of a federal district court in Hawaii

and a Minnesota appellate court, both of which found federal

pre-emption of state whistleblower statutes based on an

interpretation of the term “services.” In Marlow v. AMR

Services Corp., 870 F. Supp. 295 (D. Haw. 1994), the court

held that the Hawaii Whistleblower’s Protection Act was pre-

empted by the Deregulation Act on the grounds that jetbridges

were an integral part of air carrier services regardless of who

maintains them, and that jetbridge maintenance is included

within the meaning of carrier “services.” In Regner v.

Northwest Airlines, Inc., 652 N:W.2d 557 (Minn. Ct. App.

2002) the court held that a state whistleblower act claim was

pre-empted by the Deregulation Act because an aircraft

mechanic can interrupt services by grounding an aircraft for

mechanical failures.

3. The Eleventh Circuit

In Branche, the Eleventh Circuit also engaged in a

construction of the pre-emption provision of the Deregulation

Act, the Whistleblower Program and case law from other

courts, including Hodges and Charas. Using the same

materials as the court in Botz, the court denied federal pre-

emption of Branche’s claim of a retaliatory discharge for

reporting violations of safety regulations to the FAA. The

court concluded that Branche’s claim does not implicate any

arena in which airlines compete, and does not relate to any

“service” of an air carrier within the meaning of § 41713.'°

The court viewed the pre-emption clause of the

Deregulation Act as promoting maximum reliance on

16. Branche, 342 F. 3d at 1259-61.

competing market forces, to shape the airline industry, as

opposed to state regulation. On that basis, the court held that

since the Florida Whistleblower Act does not explicitly

address airline services, the only possible basis for pre-

emption would be if the Act has a significant impact on airline

services which are tied to market forces. Failing to find any

impact in the Florida statute, the court held that the

Deregulation Act did not universally pre-empt claims brought

under the Florida law. ;

The gravamen of the court’s decision is the notion that

the phrase “related to the ... services” of an air carrier in

the Deregulation Act’s pre-emption clause encompasses only

those actions with a connection or reference to the elements

of air travel that are bargained for between passengers and

air carriers.'’ The court acknowledged that this includes both

the physical transportation of passengers and the incidents

of that transportation over which the airlines compete,'® but

reasoned that Mr. Branche’s retaliatory discharge claim did

not relate in any notable way to the transportation of

passengers or affect airline “services” as defined in decisions

of the Third and Ninth Circuits.'®

The court further found that Mr. Branche’s retaliatory

discharge claim did not significantly affect any bargained-

for element of air carrier operations, as defined by the Fifth

17. Id. at 1258.

18. Id. at 1259.

19. Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186

(3d Circ. 1998); Charas v. Trans World Airlines, Inc., 169 F.3d 594

(9th Cir. 1999) (“service” defined as things such as frequency and

scheduling of transportation and the selections of markets).

11 :

and the Seventh Circuits.*° This analysis by the court resulted

in a decision which directly conflicts with the Eighth Circuit

on the same essential facts — namely, a claim of retaliatory

discharge for reporting violations of federal regulations to

the FAA, with the possible resulting consequence that aircraft

would be grounded or delayed in departure.

As noted earlier, the Eighth Circuit’s decision is not the

only one with a like conclusion regarding the effect of safety

violations on air carrier “services.” Regner involved a

plaintiff responsible for airline mechanics who alleged his

termination for reporting safety violations to the FAA

(like Mr. Branche in this case). The Regner court found that

an aircraft mechanic can interrupt services by grounding an

aircraft for alleged mechanical violations, in recognition that

Congress’ amendment of the Deregulation Act to include the

Whistleblower Program was an attempt by Congress to

address the issue of pre-emption for whistleblower claims

brought by aggrieved employees.?!

In Marlow, the court also held, largely in reliance on the

Fifth Circuit’s Hodges decision, that the state whistleblower

law was pre-empted because jetbridge maintenance is integral

to airline services. The court logically reasoned that jetbridge

maintenance affects boarding procedures, which in turn have

a direct affect on airline services.” It is significant that the

20. Hodges v. Delta Airlines, Inc., 44 F.3d 334 (Sth Cir.)

(elements of air carrier service include such items as ticketing,

boarding procedures, provision of food and drink, and baggage

handling in addition to transportation itself); Travel All Over the

World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996).

21. 652 N.W.2d at 562.

22. 870 F. Supp. at 298.

Eleventh Circuit also relied on the Hodges decision, but

reached exactly the opposite conclusion on whether the

reporting of violations of required FAA safety requirements

can result in the grounding of an airplane and, thereby, affect

transportation “services.”

The Eleventh Circuit failed to recognize that Mr. Branche’s

identification of unauthorized service personnel performing

a safety inspection prior to the plane’s departure to Atlanta,

and his reporting alleged safety violations to the FAA,

were precisely the type of “service” issues which will cause

aircrafts to be grounded. A grounded aircraft would be taken

out of service for a proper inspection, for maintenance, and

for repair, with the effect of making the aircraft unavailable

and cause the cancellation of scheduled passenger

transportation. Thus, there is a direct correlation between

the detection and reporting of safety violations and the

scheduling and routes flown by an aircraft — precisely the

form of “services” which airlines provide to their customers.

Significantly, the court’s decision completely ignores the

fact that airlines compete on the basis of reliability and on-

time performance. Airline customers are keenly. aware of

the experience and records of airlines in these regards.

Maintenance issues, obviously, directly impact schedules

and reliability — factors of particular interest to passengers.

Yet the Eleventh Circuit’s turgid analysis disregards what

the Eighth Circuit found compelling — to wit, the economic

impact of grounding an aircraft, and its resulting effect on

service and the physical transportation of passengers. _

In sum, the Eleventh Circuit’s decision has completely

overlooked the fact that employment actions, and specifically

the alleged firing of employees for calling attention to

improper inspections and reporting safety violations to the

FAA, necessarily and inescapably affects the transport of

passengers and their marketing choices, as incidents of air

carrier “services.”

One of the most significant deficiencies in the Eleventh

Circuit’s decision for purposes of this Court’s jurisdiction is

its failure to give adequate consideration to the scope of the

Whistleblower Program as it relates to pre-emption. The court

reasoned that any inference from the enactment of the federal

remedies provided in that Program would be a species of

“implied” pre-emption, which the court presumed to be

inapplicable because of the express pre-emption clause in

the Deregulation Act.** This Court has repeatedly held that

the inclusion of an express pre-emption clause does not

foreclose considerations of implied pre-emption.” Unlike

the Eleventh Circuit, the Eighth Circuit duly noted that the

pre-emptive effect of the Deregulation Act was in fact

bolstered by Congress’ enactment of the Whistleblower

Program.”°

The Eleventh Circuit’s analysis with respect to the

Whistleblower Program counters congressional intent that

there be uniformity in remedies for whistleblowers. By

requiring an ad hoc, case-by-case analysis of the issue based

on the particular timing and nature of the safety acts of airline

23. See, e.g, Marlow, 870 F. Supp. at 299.

24. 342 F.3d at 1263-64.

25. Geier, 529 U.S. at 869; Freightliner Corp., 514 U.S. at 287.

26. Botz, 286 F.3d at 497.

employees, the court has obliterated any hope of uniformity

in the application of the Whistleblower Program.

CONCLUSION

There are diametrically opposed decisions from the

Eighth and Eleventh Circuits regarding the important issue

of pre-emption of state whistleblower statutes by the

Deregulation Act now ameaded by the Whistleblower

Program. The effect of the Eleventh Circuit’s decision is to

create conflict on an issue of increasing importance

throughout the nation.

Based on the foregoing, AirTran respectfully requests

that the Court grant certiorari to resolve this split of authority,

and to restore uniformity to the remedial measures Congress

has provided for airline safety.

Respectfully yours,

R. PAuL RoEcKER, Esq. ELLioT H. SCHERKER, Esq.

GREENBERG TRAURIG, P.A. Counsel of Record

450 South Orange Avenue GREENBERG TRAURIG, P.A.

Suite 650 1221 Brickell Avenue

P.O. Box 4923 (32802-4923) Miami, FL 33131

Orlando, FL 32801 (305) 579-0579

(407) 418-2383

Attorneys for Petitioner

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT FILED AUGUST 21, 2003

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 02-14920

D.C. Docket No. 01-01747-CV-8-T-30M

MICHAEL F. BRANCHE,

Plaintiff-Appellant,

AIRTRAN AIRWAYS, INC., a foreign corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(August 21, 2003)

Before MARCUS and WILSON, Circuit Judges, and

RESTANT, Judge.

MARCUS, Circuit Judge:

This case ultimately requires us to determine whether a

claim brought by appellant Michael Branche (“Branche’’)

against his former employer, Airtran Airways, Inc.

(“Airtran”), pursuant to Florida’s Whistleblower Act,

Fla. Stat. § 448.102, is expressly pre-empted by the federal

* Honorable Jane A. Restani, Judge, United States Court of

International Trade, sitting by designation.

Appendix A

Airline Deregulation Act (“ADA”), 49 U.S.C. § 41713.

This question forces us, in turn, to decide whether Branche’s

claim significantly affects “air carrier services,” as that phrase

is used in the ADA’s pre-emption clause. This is a close

question that is rendered especially difficult by Congress’s

1999 amendment of the ADA to include the Whistleblower

Protection Program (“WPP’”’), 49 U.S.C. § 42121, a provision

that offers a remedy for plaintiffs in Branche’s position that

parallels the one available under Florida law. After thoroughly

considering the arguments raised by the parties and the

applicable caselaw, we conclude that Branche’s claim is not

pre-empted. Because the district court held contrarily, we

vacate its entry of final summary judgment in favor of Airtran

and remand this case for further proceedings consistent with

this opinion.

The basic facts are these. Branche was first hired by

Airtran on September 2, 1998 as a maintenance controller,

and he subsequently was transferred to the position of

aircraft inspector at Tampa International Airport (“TIA”).

In fact, Branche was appellee’s only aircraft inspector at TIA.

In this capacity, appellant was required to conduct safety

inspections of Airtran’s aircraft after they had been serviced

by appellee’s maintenance crew but prior to takeoff. These

inspections were governed by FAA regulations, including

14 C.F.R. § 121.365(c),' which provides that this inspection

1. This subsection provides:

Each person performing required inspections in addition

to other maintenance, preventive maintenance, or

(Cont'd)

Appendix A

function is to be exercised free from the oversight of the

maintenance department whose work the inspector reviews.

Branche says that during June, 2001, Guy Lewis, Airtran’s

maintenance manager at TIA, began exercising supervisory

authority over him in direct contravention of § 121.365(c).

Branche alleges that on June 30, 2001, an Airtran DC-9

airplane landed at TIA with one of its two engines running at

a temperature that exceeded Federal Aviation Administration

(“FAA”) safety guidelines, a condition that could have

resulted in engine failure. After perceiving this dangerous

condition, Branche recommended to Lewis that the engine

be subjected to a detailed physical inspection. Instead, Lewis

and two maintenance workers climbed into the aircraft’s

cockpit and conducted a “high powered run,” 1.e., began

running the engine at high power in an effort to ascertain its

air-worthiness. Appellant alleges that none of these

individuals were qualified to undertake this diagnostic

maneuver, and that as such they violated 14 C.F.R. § 65.81?

(Cont'd)

alterations, shall organize the performance of those

functions so as to separate the required inspection

functions from the other maintenance, preventive

maintenance, and alteration functions. The separation

shall be below the level of administrative control at

which overall responsibility for the required inspection

functions and other maintenance, preventive

maintenance, and alteration functions are exercised.

14 C.F.R. § 121.365(c).

2. This section provides:

(a) A certificated mechanic may perform or supervise

the maintenance, preventive maintenance or alteration

(Cont'd)

Appendix A

in performing it. He further asserts that Paul Picarelli, an

employee who was authorized to perform high powered runs,

was present at TIA at the time, and that under § 65.81 Picarelli

should have been asked to test the engine in question. Branche

says that after the plane departed from TIA on June 30, 2001,

the engine overheated during its flight to Atlanta and the plane

subsequently was taken out of service. Moreover, he alleges

that the following day he investigated this particular engine

and learned that it had overheated on two separate occasions

during the preceding two weeks.

(Cont’d)

of an aircraft or appliance, or a part thereof, for which

he is rated (but excluding major repairs to, and major

alterations of, propellers, and any repair to, or alteration

of, instruments), and may perform additional duties in

accordance with §§ 65.85, 65.87, and 65.95. However,

he may not supervise the maintenance, preventive

maintenance, or alteration of, or approve and return to

service, any aircraft or appliance, or part thereof, for

which he is rated unless he has satisfactorily performed

the work concerned at an earlier date. If he has not so

performed that work at an earlier date, he may show his

ability to do it by performing it to the satisfaction of the

Administrator or under the direct supervision of a

certificated and appropriately rated mechanic, or a

certificated rep2'rman, who has had previous experience

in the specific operation concerned.

(b) A certificated mechanic may not exercise the

privileges of his certificate and rating unless he

understands the current instructions of the manufacturer,

and the maintenance manuals, for the specific operation

concerned.

14 C.F.R. § 65.81.

Appendix A

On July 2, 2001, Branche informed the FAA of Airtran’s

regulatory violations, and both he and Airtran subsequently

were contacted regarding his allegations. Airtran soon became

aware that Branche was the source of the FAA’s knowledge

of the incidents in question. On July 6, 2001, appellant filed

a formal union grievance in which he asserted that neither

Lewis nor the mechanics who accompanied him in the cockpit

were authorized to perform a high power engine run.

Then, on July 13, 2001, Airtran accused him of falsifying

his time card and stealing approximately two hours of pay.

Appellant denied the allegation. On July 23, 2001, Branche

was terminated based on this alleged time card violation.

Appellant posits that the true reason for his discharge was

retaliatory, i.e., to punish him for reporting Airtran’s

violations of FAA regulations.

Based on this pattern of dealing, on August 27, 2001

Branche filed this action in the Circuit Court for the

Sixth Judicial Circuit, in Pinellas County, Florida.

He advanced a single claim under Florida’s Whistleblower

Act, Fla. Stat. § 448.102. Airtran promptly removed the case

on the basis of diversity to the United States District Court

for the Middle District of Florida, where discovery proceeded.

On June 24, 2002, Airtran moved for final summary judgment

denying appellant’s claim, arguing that as applied in this case

the state Whistleblower Act was explicitly pre-empted by

the ADA, 49 U.S.C. § 41713. The district court agreed, and

granted Airtran’s motion on August 27, 2002. This appeal

ensued.

On appeal, Branche argues that the district court erred

by holding that the ADA pre-empts Florida’s Whistleblower

Appendix A

Act, as applied in this case. He says that pre-emption under

the ADA exists only where the state law in question purports

to regulate airline prices, routes or services. In this case, he

argues, the relationship between Florida’s prohibition against

retaliatory discharges and these facets of air carrier operations

is too attenuated to give rise to ADA pre-emption. Airtran

responds that the scope of the ADA’s express pre-emption

provision is extremely broad, and that the connection between

the type of conduct prohibited by the Whistleblower Act and

air carrier “services” is sufficient to implicate the ADA’s pre-

emption clause. Moreover, appellee contends, Congress’s

enactment in 1999 of the WPP, 49 U.S.C. § 42121, supports

a finding of pre-emption here, as the WPP provides an

exclusive remedy for plaintiffs in Branche’s position.

We reView a summary judgment ruling de novo, applying

the same legal standard used by the district court. See Johnson

v. Bd. of Regents, 263 F.3d 1234, 1242-43 (11th Cir.2001).

In conducting this examination, we view the materials

presented and all factual inferences in the light most favorable

to the non- moving party. See Adickes v. §.H. Kress & Co.,

398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142

(1970). Summary judgment is appropriate where “there is

no genuine issue as to any material fact” and “the moving

party is entitled to a judgment as a matter of law.”

Fed.R.Civ.P. 56(c). The burden of demonstrating the

satisfaction of this standard lies with the movant, who must

present “pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any”

that establish the absence of any genuine, material factual

dispute. Jd.

Appendix A

As the Supreme Court observed in Morales v. Trans

World Airlines, Inc., “‘[p]re-emption may be either express

or implied, and is compelled whether Congress’s command

is explicitly stated in the statute’s language or implicitly

contained in its structure and purpose.’” 504 U.S. 374, 383,

112 S.Ct. 2031, 2036, 119 L.Ed.2d 157 (1992) (quoting FMC

Corp. v. Holliday, 498 U.S. 52, 56-57, 111 S.Ct. 403, 407,

112 L.Ed.2d 356 (1990)). In cases where Congress has chosen

to explicitly address the issue of pre-emption, however, it

generally is inappropriate to look beyond that provision to

imply pre-emption from the statute’s substantive dictates.

As the Supreme Court has stated:

When Congress has considered the issue of pre-

emption and has included in the enacted

legislation a provision explicitly addressing that

issue, and when that provision provides a “reliable

indicium of congressional intent with respect to

state authority,” “there is no need to infer

congressional intent to pre-empt state laws from

the substantive provisions” of the legislation. Such

reasoning is a variant of the familiar principle of

expression unius est exclusio alterius: Congress’

enactment of a provision defining the pre-emptive

reach of a statute implies that matters beyond that

reach are not pre-empted.

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct.

2608, 2618, 120 L.Ed.2d 407 (1992) (quoting Malone v.

White Motor Corp., 435 U.S. 497, 505, 98 S.Ct. 1185, 1190,

55 L.Ed.2d 443 (1978) and California Fed. Sav. & Loan

Ass’n. v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 690,

Appendix A

93 L.Ed.2d 613 (1987) (opinion of Marshall, J.)). Although

the Supreme Court subsequently clarified that Cipollone does

-not establish an iron-clad rule against finding implied

pre-emption under a statute containing an express pre-

emption clause, see Freightliner Corp. v. Myrick, 514 US.

280, 287-89, 115 S.Ct. 1483, 1487-88, 131 L.Ed.2d 385

(1995), it recognized that “Cipollone supports an inference

that an express pre-emption clause forecloses implied pre-

emption.” Jd. at 289, 115 S.Ct. at 1488. In other words, where

a legislative enactment contains an express pre-emption

provision, we typically do not consider the issue of implied

pre-emption; our primary task is only to determine whether

the state law in question falls within the scope of the statute

expressly promulgated by Congress. See Lorillard Tobacco

Co. v. Reilly, 533 U.S. 525, 541, 121 S.Ct. 2404, 2414, 150

L.Ed.2d 532 (2001) (“[Ol]ur task is to identify the domain

expressly pre-empted... .”).

Under the ADA, “a State, political subdivision of a State,

or political authority of at least 2 States 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 that may provide air transportation under this

subpart.” 49 U.S.C. § 41713(b)(1) (emphasis added).

This pre-emption clause serves the ADA’s broader goal of

“promot[ing] maximum reliance on competitive market

forces” as opposed to state regulation in shaping the contours

of the airline industry. American Airlines, Inc. v. Wolens, 513

U.S. 219, 230, 115 S.Ct. 817, 824, 130 L.Ed.2d 715 (1995)

(citation and internal punctuation omitted). Accordingly, the

key question in *his case is whether Branche’s claim for

retaliatory discharge under Florida’s Whistleblower Statute,

Appendix A

Fla. Stat. § 448.102(1),? is “related to” the “service of an air

carrier.”* To answer this basic question we must define the

terms “related to” and “service,” as used in § 41713.

In undertaking this inquiry, we are mindful that the

question of whether a federal statute expressly pre-empts a

state law is one that turns on “statutory intent, and we

accordingly ‘begin with the language employed by Congress

and the assumption that the ordinary meaning of that language

accurately expresses the legislative purpose.’” Morales, 504

U.S. at 383, 112 S.Ct. at 2036 (quoting Holliday, 498 U.S. at

57, 111 S.Ct. at 407); see also Parise v. Delta Airlines, Inc.,

141 F.3d 1463, 1465 (11th Cir.1998) (“Whether a federal

statute pre-empts state law is a question of congressional

intent.”) (citing Hawaiian Airlines, Inc. v. Norris, 512 U.S.

246, 252, 114 S.Ct. 2239, 2243, 129 L.Ed.2d 203 (1994)).

In Morales, the Supreme Court defined the phrase

“related to,” as used in the ADA’s pre-emption provision.°

It said:

3. In pertinent part, this section of Florida law prohibits private

employers from “tak[ing] any retaliatory personnel action against an

employee because the employee has ... [d]isclosed ... to any

appropriate governmental agency, under oath, in writing, an activity,

policy, or practice of the employer that is in violation of a law, rule,

or regulation.” Fla. Stat. § 448.102(1).

4. No party argues that appellant’s claim is “related to” the

“price” or “route” of an air carrier.

5. At the time of the Morales decision, this provision was

codified at 49 U.S.C. § 1305(a)(1), but its language was functionally

(Cont'd)

10a

Appendix A

For purposes of the present case, the key phrase,

obviously, is “relating to.” The ordinary meaning of

these words is a broad one—“to stand in some

relation; to have bearing or concern; to pertain;

refer; to bring into association with or connection

with,”—and the words thus express a broad

pre-emptive purpose.

504 U.S. at 383, 112 S.Ct. at 2037 (quoting Black’s Law

Dictionary 1158 (Sth ed.1979)). The Court then analogized the

scope of § 41713 to that of ERISA’s similarly worded pre-

emption provision, which says that state laws are pre-empted

“insofar as they . . . relate to any employee benefit plan. . . .”

29 U.S.C. 1144(a) (emphasis added). It noted that it previously

had construed ERISA’s language to mean that a state law is pre-

empted—that is, “relates to” an employee benefit plan—” ‘if it

has a connection with or reference to such a plan.’” Morales,

504 U.S. at 384, 112 S.Ct. at 2037 (quoting Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d

490 (1983)). The Court then held:

Since the relevant language of the ADA is identical,

we think it appropriate to adopt the same standard

here: State enforcement actions having a connection

with or reference to airline “rates, routes, or services”

are pre-empted under 49 U.S.C.[ ] § 1305(a)(1).

(Cont’d)

identical to that contained in its modern incarnation, § 41713.

See Morales, 504 U.S. at 383, 112 S.Ct. at 2036-37 (“Section

1305(a)(1) expressly pre-empts the States from ‘enact[ing] or

enforc[ing] any law, rule, regulation, standard, or other provision

having the force and effect of law relating to rates, routes, or services

of any air carrier....’”) (emphasis added).

lla

Appendix A

Id. Thus, so long as the state law action has a connection with

airline prices, routes or services, pre-emption under

§ 41713 is mandated.

This is so regardless of whether the state statute specifically

addresses the airline industry. See Morales, 504 U.S. at 386,

112 S.Ct. at 2038. Indeed, the Court explicitly rejected the notion

that “the ADA imposes no constraints on laws of general

applicability.” Jd. It said that:

Besides creating an utterly irrational loophole (there

is little reason why state impairment of the federal

scheme should be deemed acceptable so long as it is

effected by the particularized application ofa general

statute), this notion similarly ignores the sweep of the

“relating to” language. We have consistently rejected

this precise argument in our ERISA cases: “[A] state

law may ‘relate to’ a benefit plan, and thereby be

pre-empted, even if the law is not specifically

designed to affect such plans, or the effect is only

indirect.”

Id. (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,

139, 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990)). Although

Morales does not define with particularity the circumstances

under which a state law “relates to” air carrier services,

it clearly says that the requisite connection exists where

“the law expressly references the air carrier’s prices, routes

or services, or has a ‘forbidden significant effect’ upon the

same.” United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d

323, 335 (1st Cir.2003) (quoting Morales, 504 US. at 388,

12a

Appendix A

112 S.Ct. at 2039). In this case, Florida’s Whistleblower Act

does not explicitly address airline services; accordingly, the only

possible basis for pre-emption is if it has a sufficient—i.e.,

significant—impact on those services.

Notably, however, the Court recognized that there are limits on

the scope of the ADA’s “related to” language. Specifically, it

said that ““‘[s]ome state actions may affect [airline prices, routes

or services] in too tenuous, remote, or peripheral a manner’ to

have pre-emptive effect.” Morales, 504 U.S. at 390, 112 S.Ct.

at 2041 (quoting Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at

2901 n. 21); see also Public Health Trust of Dade County v.

Lake Aircraft, Inc., 992 F.2d 291, 295 (11th Cir.1993)

(“Because [plaintiff’s] design defect claims lie outside the pre-

emptive reach of section 1305, we conclude that those claims

are not pre-empted.”’).

Subsequently, in Wolens, the Court had an opportunity to

apply § 1305(a) as partially defined in Morales. At issue in

Wolens was whether IIllinois’s Consumer Fraud Act, a law of

general applicability, was pre-empted by the ADA.

In holding that it was, the Court said that the Consumer

Fraud Act

serves aS a means to guide and police the

marketing practices of the airlines; the Act does

not simply give effect to bargains offered by the

airlines and accepted by airline customers. In light

of the full text of the pre-emption clause, and of

the ADA’s purpose to leave largely to the airlines

themselves, and not at all to the States, the

selection and design of marketing mechanisms

—_

-_——_—

13a

Appendix A

appropriate to the furnishing of air transportation

services, we conclude that [section] 1305(a)(1)

pre-empts plaintiffs’ claims under the Consumer

Fraud Act.

Wolens, 513 U.S. at 228, 115 S.Ct. at 823-24.

For our purposes, Wolens is significant primarily for its

explanation of the purposes of the ADA and because it

directly ties the pre-emption inquiry to those purposes.

In particular, it makes clear that through the ADA Congress

sought to leave the bargained-for aspects of the air carrier-

air passenger relationship to the workings of the market, i.e.,

to prevent the states from “impos[ing] their own public

policies or theories of competition or regulation on the

operations of an air carrier.” Wolens, 513 U.S. at 229 n.5,

115 S.Ct. at 824 n.5 (citation and internal punctuation

omitted). By reaching only airline prices, routes and services,

§ 41713 may be seen as defining—albeit only generally—

the universe of such bargained-for elements of air carrier

operations. This focus on the bargained-for aspects of air

carrier service is perfectly consistent with the ADA’s purpose

of promoting competition within the airline industry;

air carriers compete in only a limited range of contexts,

e.g., fares, routes, timing, etc., which constitute the

bargained-for elements of its service. Accordingly, to pre-

empt state law claims concerning other elements of airline

operations that are not bargained for plainly would not further

the goal of promoting competition in the airline industry.

Although Wolens is thus helpful to the resolution of this

case, the Court did not expand on Morales’s definition of

14a

Appendix A

“related to,” nor did it define “service [of an air carrier],”

as uséd in the ADA’s pre-emption clause. Accordingly, these

definitional tasks fall to us. In tackling these questions, we

bear in mind the important general maxim that in cases where

the harm alleged is of a type that traditionally has been within

the remedial province of the states, as is that alleged by

Branche, see infra, “express preemption clauses must be

construed narrowly.” Jrving v. Mazda Motor Corp., 136 F.3d

764, 767 (11th Cir. 1998) (citing Jaylor v. Gen. Motors Corp.,

875 F.2d 816, 823-24 (11th Cir.1989)).

Like the Supreme Court, we never have defined the term

“service,” as used in § 41713. However, several other courts

of appeals have weighed in on the meaning of the phrase

“service of an air carrier.” In Charas v. Trans World Airlines,

Inc., an en banc panel of the Ninth Circuit held that “service”

“refers to such things as the frequency and scheduling of

transportation, and to the selection of markets to or from

which transportation 1s provided (as in, ‘This airline provides

service from Tucson to New York twice a day.’).” 160 F.3d

1259, 1265-66 (9th Cir.1998) (en banc), opinion amended

on denial of reh'g by 169 F.3d 594 (9th Cir. 1999) (en banc).°®

By contrast, the court held that “service” does not encompass

things such as “the dispensing of food and drinks, flight

__attendant assistance, or the like.” Jd. at 1266. The court held

that this narrow reading of the term “service” was compelled

because a broader construction “effectively would result in

the pre-emption of virtually everything an airline does.

It seems clear to us that that is not what Congress intended.”

-_——_

6. The amendment to Charas was factual in nature and did not

involve any substantive legal facet of the en banc panel’s original

opinion. See 169 F.3d at 594-95.

: - , ok

15a

Appendix A

Id. Heavily influencing this reading of the ADA’s pre-emption

clause was the Ninth Circuit’s conviction that the pre-emption

of state tort law as applied to airlines would not further

Congress’s purpose of “avoid[ing] state interference with

federal deregulation,” id. at 1265, but rather would contradict

the maxim that “pre-emption provisions are narrowly and

strictly construed.” /d. at 1264.

The Third Circuit has agreed in general terms with the

approach to ADA pre- emption set forth in Charas. See Taj

Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 195

(3d Cir.1998) (holding that “the plaintiff’s defamation claims

are not pre-empted and may, therefore, proceed. Application

of state law in these circumstances does not frustrate

Congressional intent, nor does it impose a state utility-like

regulation on the airlines. We therefore conclude that the

plaintiff’s suit is simply ‘too tenuous, remote, or peripheral’

to be subject to pre-emption, even though Delta’s statements

refer to ticketing, arguably a ‘service.””’).

By contrast, the Fifth and Seventh Circuits have construed

“service” more expansively. In Hodges v. Delta Airlines, Inc.,

the Fifth Circuit, sitting en banc, held as follows:

“Services” generally represent a bargained-for or

anticipated provision of labor from one party to

another. If the element of bargain or agreement is

incorporated in our understanding of services, it

leads to a concern with the contractual

arrangement between the airline and the user of

the service. Elements of the air carrier service

l6a

Appendix A

bargain include items such as ticketing, boarding

procedures, provision of food and drink, and baggage

handling, in addition to the transportation itself. These

matters are all appurtenant and necessarily included

with the contract of carriage between the passenger

or shipper and the airline. It is these [contractual]

features of air transportation that we believe Congress

intended to de-regulate as “services” and broadly to

protect from state regulation.

44 F.3d 334, 336 (Sth Cir.1995) (en banc) (citation omitted);

see also Travel All Over the World, Inc. v. Kingdom of Saudi

Arabia, 73 F.3d 1423, 1433 (7th Cir.1996) (adopting the

definition of “services” set forth in Hodges).

Of these competing definitions, we believe that the Fifth

Circuit’s is more compelling. However, it is important to note

that this is a distinction that does not make a dispositive

difference in this case. For reasons that are more fully

delineated infra, Branche’s claim under Florida’s

Whistleblower Act is not pre-empted under either definition

of “services.” Indeed, his claim cannot be said to relate in

any meaningful way to the transportation of passengers from

one location to another, and accordingly it does not affect

“airline services” as defined by the Ninth and Third Circuits.

Similarly, appellant’s claim does not significantly affect any

bargained-for element of air carrier operations, and

accordingly it does not affect “airline services” even under

the broader reading of this term taken by the Fifth and

Seventh Circuits.

17a

Appendix A

Nonetheless, because the ultimate question in this case is

whether Branche’s state Whistleblower Act claim significantly

affects air carrier “services,” we are required to adopt a definition

of the term “services.” The broader reading of this term is

preferable for three primary reasons. First, we can perceive no

textual justification for a more truncated reading of “service.”

As the Fifth Circuit recognized in Hodges, this word generally

refers to any bargained-for exchange of an intangible benefit.

Indeed, the relevant dictionary definition of “‘service” is extremely

broad: “[A] useful labor that does not produce a tangible

commodity.” Webster’s Third New International Dictionary 2075

(3d ed.1961); see also Hodges, 44 F.3d at 337 n.6 (stating that

“s|pecific references-to the words ‘service’ or ‘services’ in the

Code of Federal Regulations governing airlines are too numerous

to incorporate here,” and setting forth several substantively

diverse examples). Importantly, there is nothing in the text of

§ 41713 indicating that Congress intended to deviate from this

standard definition. See Morales, 504 U.S. at 383, 112 S.Ct. at

2036 (we “assum[e] that the ordinary meaning of that language

[used by Congress in the ADA’s pre-emption provision]

accurately expresses the legislative purpose’) (citation and

quotation marks omitted).

Second, 4s the Supreme Court plainly explained in Morales,

the ADA’s pre-emption clause is properly afforded an extremely

broad scope. See 504 U.S. at 383-84, 112 S.Ct. at 2037. The

Ninth Circuit’s reading of “services,” we believe, tends to

undermine this interpretive guideline set forth by the Supreme

Court. Indeed, no matter how broadly we construe the term

“related to,” see Morales, 504 U.S. at 383, 112 S.Ct. at 2037,

if the scope of that phrase’s referent (the word “services’’) is

18a

Appendix A

sufficiently constricted, the scope of pre-emption under § 41713

will nonetheless be minimal.

Finally, and perhaps most significantly, we do not share the

concern that a broad reading of “services” would result in the

pre-emption of “virtually everything an airline does.” Charas,

160 F.3d at 1266. As recognized in both Wolens and Hodges,

the purpose of the ADA’s pre- emption provision is to increase

“reliance on competitive market forces rather than pervasive

federal regulation.” Hodges, 44 F.3d at 335; see also Wolens,

513 U.S. at 228, 115 S.Ct. at 823. Plainly this purpose is not

served by interpreting the term “services” to include those aspects

of airline operations that are not bargained-for by carriers and

their passengers. See Hodges, 44 F.3d at 336 (“‘Services’

generally represent a bargained-for . . . provision of labor from

one party to another.”’) (citation omitted).

Indeed, as the Fifth Circuit recognized, “[a] facile analogy

to Morales and the ERISA pre-emption cases could suggest

that ‘services’ includes all aspects of the air carrier’s ‘utility’ to

its customers, hence, any state tort claim may ‘relate to’ services

as a result of its indirect regulatory impact on the airline’s

practices.” Hodges, 44 F.3d at 337-38. Thus, for example, state

law personal injury claims are not pre-empted, as evidenced by

the fact that the ADA requires airlines to carry liability insurance

“sufficient to pay, not more than the amount of the insurance, for

bodily injury to, or death of, an individual or for loss of, or damage

to, property of others, resulting from the operation or maintenance

of the aircraft... .” 49 U.S.C. § 41112(a). Unsurprisingly, airlines

do not compete on the basis of likelihood of personal injury, i.e.,

19a

Appendix A

onboard safety, and as such it does not undermine the pro-

competitive purpose of the ADA, as set forth in Wolens, 513

U.S. at 230, 115 S.Ct. at 824, to permit states to regulate this

aspect of air carrier operations.

Accordingly, we readily conclude that even if “services,” as

used in § 41713, is construed to encompass aspects of air carrier

operations beyond the transportation of passengers—1.e., the

trappings and incidents of that transportation like on-board food

and beverage services, ticketing and the like—its definition is

nonetheless still limited to the bargained-for aspects of airline

operations over which carriers compete. By contrast, those

elements of air carrier operations over which airlines do not

compete are not “services” within the meaning of the ADA’s pre-

emption provision, and state laws related to these elements are

not pre-empted. See, e.g., Alasady v. Northwest Airlines Corp.,

__FSupp.2d__, _ (D.Minn. Mar. 3, 2003) (“[T]his Court

concludes that ‘services of an air carrier’ is best construed as

the Fifth Circuit has done in Hodges. The procedures used to

move passengers from the terminal onto the plane in an orderly

fashion are an integral part of the customer’s experience of air

travel and are considered in evaluating the quality of their flight.

Boarding procedures are relevant to competition in the airline

industry. The Court therefore concludes that the term ‘service’

in § 41713(b)(1) encompasses boarding procedures.”);

Ducombs v. Trans World Airlines, 927 F.Supp. 897, 900

(N.D.Cal.1996) (“The majority of circuits that have dealt with

the issue ... have ... defined the scope of ‘services’

narrowly, limiting pre-emption to activity that is based on

economic decisions and that relates to the contractual features

20a

Appendix A

that are bargained for by passengers.”’). This limitation largely

mitigates the concern with overexpanding the reach of the ADA’s

pre-emption provision.

In short, the phrase “related to the . . . services of an air

carrier” means having a connection with or reference to the

elements of air travel that are bargained for by passengers

with air carriers. This includes not only the physical

transportation of passengers, but also the incidents of

that transportation over which air carriers compete.

This connection can be established by showing that the state

law_in question either directly regulates such services or, as

is relevant in this case, has a significant economic impact on

them. See Morales, 504 U.S. at 388, 112 S.Ct. at 2039;

Parise, 141 F.3d at 1465-66 (“For a law to be expressly

preempted by the ADA, a state must ‘enact or enforce a law

that relates to airline rates, routes, or services, either by

expressly referring to them or by having a significant

economic effect upon them.’” (quoting 7ravel All Over the

World, 73 F.3d at 1431)).

Just as state law personal injury actions generally have

been held not to be pre-empted under the ADA, employment

discrimination actions typically have been held to fall outside

the scope of the ADA’s pre-emption clause. See Newman y.

Am. Airlines, Inc., 176 F.3d 1128, 1131 (9th Cir.1999)

(holding California law barring physical disability

discrimination is not pre-empted by the ADA); Wellons vy.

Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir.1999)

(holding that the plaintiff’s race discrimination claim was

not pre-empted); Parise, 141 F.3d at 1467-68 (holding that

the plaintiff’s age discrimination claim was not pre-empted

2la

Appendix A

by the ADA); Aloha Islandair Inc. v. Tseu, 128 F.3d 1301,

1303 (9th Cir.1997) (holding Hawaii law barring physical

disability discrimination is not pre-empted by the ADA);

Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77, 84

(2d Cir. 1997) (holding New York law barring age discrimination

was not pre-empted by the ADA).

It is true that an airline’s employment decisions may have an

incidental effect on its ‘“‘services,” as defined above, but as the

Second Circuit observed in Abdu-Brisson, “[p]ermitting full

operation of . . . [anti-]discrimination law[s] will not affect

competition between airlines—the primary concern underlying

the ADA.” 128 F.3d at 84. Indeed, employment standards fall

squarely within the traditional police powers of the states, and

as such should not be disturbed lightly. See Hawaiian Airlines,

512 US. at 252, 114S.Ct. at 2243 (“Pre-emption of employment

standards ‘within the traditional police power of the State’ ‘should

not be lightly inferred.’” (quoting Fort Halifax Packing Co. v.

Coyne, 482 U.S. 1, 21, 107 S.Ct. 2211, 2222, 96 L.Ed.2d 1

(1987))); see also Botz v. Omni Air Int’l, 286 F.3d 488, 493

(8th Cir.2002). These holdings bear significantly on whether

Branche’s claim of retaliatory firing is pre-empted; at its root,

this case involves a simple employment discrimination claim, with

the prohibited basis for termination being not any inherent

characteristic of the employee such as race, gender or disability,

but rather his undertaking of protected activity.

Several courts have considered the specific question

presented in this case, i.e., whether a claim for retaliatory

discharge is pre-empted under § 41713, and although they

have recognized that such employment actions ultimately may

22a

Appendix A

affect in some way the transport of passengers or other incidents

of “service,” the majority of them have concluded that such claims

are not pre-empted. See Anderson v. Am. Airlines, Inc., 2 F.3d

590, 597-98 (Stk Cir. 1993) (holding that any connection between

the claim for retaliatory discharge and airline “services” was too

remote to give rise to ADA pre-emption); Espinosa v. Cont’l

Airlines, 80 F.Supp.2d 297, 301 (D.N.J. 2000) (rejecting the

argument that the plaintiff’s state whistleblower claim was pre-

empted based on the fact that it “ ‘related to’ the quality of

services rendered by an airline because it affect[ed] Continental’s

ability to discipline employees whose work is integral to

‘air services’ and to air safety”); Ruggiero v. AMR, Corp.,

1995 _ F.Supp.2d __ (N.D.Cal. Sept. 12, 1995). But see

Marlow v. AMR Servs. Corp., 870 F.Supp. 295, 299

(D.Haw.1994) (holding that the ADA did pre-empt a mechanic’s

claims that he was discharged in violation of state whistleblower

act and state public policy, allegedly for reporting health and

safety violations).

Put as simply as possible—and setting aside for the moment

the impact of Congress’s enactment of the WPP on our ultimate

holding in this case—given the particularities of Branche’s claim

that he was discharged for his post hoc reporting of Airtran’s

safety violations, we believe that this case is more analogous to

the majority of those cited above, and hold that appellant’s state

law claim is not pre-empted by the ADA. This is so essentially

because safety is not a basis on which airlines compete for

passengers, and as such is not something for which air travelers

bargain; it is implicit in every ticket sold by every carrier.

Accordingly, it does not serve the purposes of the ADA to pre-

empt state law employment claims related to safety. See Abdullah

v. Am. Airlines, Inc., 181 F.3d 363, 373 (3d Cir.1999)

23a

Appendix A

(“Safe operations. . . are anecessity for all airlines. Whether or

not to conform to safety standards is not an option for airlines in

choosing a mode of competition. For this reason, safety of an

airline’s operations would not appear to fall within the ambit of

the ADA and its procompetition pre-emption clause.”); Smith v.

Am. West Airlines, Inc., 44 F.3d 344, 347 (Sth Cir.1995) (“[T]he

Smiths’ claim is that the safety of their flight was jeopardized by

the airline’s permitting a visibly deranged man to board.

If appellants ultimately recover damages, the judgment could

affect the airline’s ticket selling, training or security practices,

but it would not regulate the economic or contractual aspects of

boarding. Any such effect would be ‘too tenuous, remote or

peripheral’ to be pre-empted by § 1305(a)(1).”) (citation

omitted); see also Lake Aircraft, 992 F.2d at 294-295

(tort claim for defective aircraft design not pre-empted

because not related to airline services). Although some safety-

related claims may be tied to air carrier services, the very

fact that they concern safety, standing alone, is insufficient

to demonstrate this nexus.’

7. It is true that in Parise we offered in dicta some indication

that we thought claims implicating air carriers’ safety concerns were

“related to” their services so as to give rise to ADA pre-emption.

See 141 F.3d at 1466 (“Although we are cognizant of Delta’s

compelling assertion that the threatening behavior in which Parise

allegedly engaged ‘relates to’ the valid safety concerns of an airline,

we conclude that the district court erred in finding Parise’s state age

discrimination action to be preempted by the ADA.”). However, we

noted that these safety issues were raised only as a defense to Parise’s

age discrimination claim (i.e., “the real reason we fired him was

that he was unsafe”), and that this diminished the force of Delta’s

argument for pre-emption. In this vein, we said that “[b]y way of

illustration, if Parise had claimed that Delta discriminated against

(Cont’d)

24a

Appendix A

(Cont’d)

him on the basis of a mental illness that sometimes caused biin to

exhibit violent tendencies and had relied on a state civil rights statute

protecting emotionally disabled individuals from termination due to

their disability, Delta’s argument in favor of pre-emption analytically

would carry greater weight.” Jd. at 1466 n. 3. Superficially, this

hypothetical is similar to the claim actually advanced by Branche—

that he was fired in retaliation for his reporting of unsafe maintenance

practices.

However, even were we to consider Parise’s dicta to be binding,

which plainly it is not, it would not require us to conclude that

Branche’s claim is pre-empted. There are two reasons for this.

First, the connection between the claim of the plaintiff in the Parise

hypothetical and airline services is much more direct than in the

present case. Indeed, violent behavior aboard an airplane has great

potential to disrupt the airline’s primary transportation function,

which is a “service” under even the restrictive definition set forth

by the Ninth Circuit. Thus, a claim based on a termination for

behaving violently is directly tied to this service. By contrast, as we

explain more fully, infra, Branche’s claim that he was fired for his

post hoc reporting of a diagnostic maneuver that violated FAA

regulations lacks this type of direct connection. Second and more

fundamentally, airlines certainly do not compete on the basis of

which one is the Jeast safe. Branche’s claim is simply that he

reported safety violations and was fired. This alleged punishment

for taking safety maintenance measures plainly does not pertain in

any respect to a ground on which airlines attempt to draw

passengers. Quite the contrary, as one court has recognized,

“a state law prohibiting retaliatory discharge for whistleblowing only

furthers the federal interest in the safety of the airline industry by

encouraging employers to report unsafe conditions.” Espinosa, 80

F.Supp.2d at 302.

ote ainlae,

—

25a

Appendix A

Thus, because Branche’s state Whistleblower Act claim is

fundamentally an employment discrimination claim that does not

implicate any arena in which airlines compete,

we conclude based on the foregoing analysis that his claim does

not relate to the services of an air carrier within the meaning of

§ 41713, and consequently is not pre-empted under that section.

Importantly, however, there is one more issue that we must

consider before ultimately resolving this pre-emption question.

In 1999, subsequent to the majority of the decisions discussed

above, Congress enacted as part of the ADA the WPP, 49 U.S.C.

§ 42121, which provides that:

No air carrier . . . may discharge an employee or

otherwise discriminate against an employee with

respect to compensation, terms, conditions, or

privileges of employment because the employee. . .

(1) provided, caused to be provided, or is about

to provide (with any knowledge of the employer). . .

to the employer or Federal Government information

relating to any violation or alleged violation of any

order, regulation, or standard of the [FAA] 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). This provision represents a federal analog

to Florida’s Whistleblower Act.’ In evaluating whether the WPP

8. This is not to say, however, that the procedures for filing a

complaint under the WPP exactly mirror those provided by Florida’s

Whistleblower Act. For example, under the WPP the plaintiff cannot

(Cont’d)

26a

)

Appendix A

has any effect on the foregoing analysis, the question we must

ask is whether any aspect of that statute explains the proper

scope of the ADA’s pre-emption clause to a degree sufficient to

alter our conclusion that pre-emption is inappropriate here

because Branche’s claim does not relate to the bargained-for

aspects of air carrier operations.

Congress’s enactment of the WPP figured prominently in

the district court’s finding of pre-emption in this case and in Botz

v. Omni Air Int'l, 286 F.3d 488 (8th Cir.2002), the one circuit

court decision handed down since the WPP’s effective date to

address ADA pre-emption in the context of a state whistleblower

statute. Botz featured a claim brought by a flight attendant

pursuant to Minnesota’s whistleblower statute, under which

employers are prohibited from subjecting employees to any

adverse employment action in retaliation for the employee’s refusal

“to perform an action that the employee has an objective basis in

fact to believe violates any state or federal law or rule or

(Cont'd)

directly file a civil action against his employer, but instead must file

a complaint with the Secretary of Labor. See 49 U.S.C. § 42121(b)(1).

The Secretary then assesses the merits of the complaint and can either

find it to be without merit and deny it or, if the Secretary finds the

complaint to be meritorious, can order abatement of the violation,

reinstatement with back pay and/or compensatory damages.

See 49 U.S.C. § 42121(2) and (3). Any party aggrieved by the

Secretary’s order may obtain review of that order in the appropriate

circuit court of appeals. Under Florida’s Whistleblower Act, by

contrast, plaintiffs are not required to negotiate these administrative

obstacles to the adjudication of their claim in a judicial forum.

See Fla. Stat. 448.103(1)(a) (“An employee who has been the object

of a retaliatory personnel action in violation of this act may institute

a civil action in a court of competent jurisdiction. . . .”).

Fn ne

SSS

———— —

27a

Appendix A

regulation. . . .” 286 F.3d at 492 n.6 (citing Minn.Stat. § 181.932,

subd. 1(c)). Botz alleged that she had been fired in retaliation for

refusing a flight assignment that she believed violated federal safety

regulations. The airline argued in response that Botz’s claim was

pre- empted under § 41713. In analyzing this contention, the

Eighth Circuit drew a straight line between a flight attendant’s

refusal to serve, federal regulations that prohibit the operation of

a flight with fewer than a minimum number of flight attendants,

and a resulting disruption of air service. In essence, the court

was especially concerned that the state whistleblower statute

functionally ensured the plaintiff’s ability to ground a plane, and

thereby disrupt the airline’s service. It thus categorized

Minnesota’s statute as “a state law that granted a flight attendant

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. Accordingly, it held, this law was related

to air carrier services within the meaning of § 41713. See id. at

496-97.

Notably, the court also found support for this holding in

Congress’s enactment of the WPP. It reasoned that in passing

the WPP Congress sought to impose a “more predictable

response to public air-safety complaints . . . than would likely

be possible if it had granted review in the courts of the fifty

States.” Botz, 286 F.3d at 497. It then rejected Botz’s

argument that “the WPP was not intended to pre-empt State

whistleblower protections because, if it had been, Congress

could easily have made such pre-emption express by

including language in the WPP indicating that it was a

whistleblowing air-carrier employee’s exclusive remedy.”

Id. It said:

28a

Appendix A

We think this turns the proper logic on its head. When

it fashioned the WPP, Congress was surely aware of

the ADA’s express pre-emption provision. It was

presumably aware, as well, that the Supreme Court

had determined that the provision had a broad

application and should be given an expansive

interpretation. Given this, we would expect Congress

to have directed language in the WPP to the issue of

federal pre-emption only if it had been Congress’s

intent that the WPP not exert any pre-emptive effect

upon state whistleblower provisions.

Id. Finally, the Eighth Circuit dismissed Botz’s reliance on

Espinosa, as well as several other cases that had rejected

pre-emption arguments under the ADA in the context of

retaliatory discharge claims, because “[e]ach of these cases

...relie[d] on the fact—a fact that is no longer true—that

the ADA provided no claim or remedy for air-carrier

employees discharged in retaliation for their whistleblowing

conduct. Such employees now enjoy protection under the

WPP.” Id. at 497 n.9.

After carefully considering the reasoning employed in

Botz and the enactment of the WPP, we remain convinced

that Branche’s whistleblower claim is not pre-empted.

As for the connection between retaliatory discharge claims

and airline services, we do not dispute the Eight Circuit’s

conclusion that the grounding of an airplane is related to airline

services, in particular, the transport of passengers from one place

to another. However, in this case, the connection—r, indeed,

the potential connection—between Branche’s actions and air

carrier services is far more attenuated than in Botz. As the Eighth

oe er =

29a

Appendix A

Circuit said, if a flight attendant refuses to fly and a replacement

cannot be found, FAA regulations prevent the plane from leaving

the gate, thereby disrupting service. Here, by contrast, we are

not concerned with the withdrawal of clearance for a plane to

take off based on mechanical concerns, but instead only with

Branche’s post hoc reporting of a FAA violation. The likely

consequence of reporting an unauthorized high powered run (as

opposed to the reporting of a malfunctioning engine) is an

investigation by FAA officials into the practices of Airtran’s TIA

mechanics, but not the grounding of the plane, which presumably

has either been mechanically cleared and flown away or grounded

for mechanical reasons independent of the subsequent report of

the improper diagnostic procedure. Had Branche claimed that

Airtran fired him in retaliation for refusing to allow a plane to

take off due to safety concerns, this would present a situation

closer to the one at issue in Botz. But that is not the claim

before us.’

As for the enactment of the WPP, this statute says nothing

whatsoever about pre-emption, an omission that is susceptible

to more than one interpretation. We could say, as the Botz court

did, that the absence of any discussion of pre-emption stemmed

from a Congressional assumption that the ADA already pre-

empted state whistleblower claims and that it was content with

maintaining this status quo. Although this certainly is plausible,

we believe that this interpretation ultimately is incorrect. Indeed,

9. As our employment of this analytical modality indicates, it is

the specifics of the retaliation claim, not the whistleblower statute,

that appropriately determine pre-emption. Thus, retaliation claims

brought under state whistleblower statutes must be evaluated on a

case-by-case basis to determine the connection between the action

in question and airline services. In Branche’s case, this evaluation

reveals that this connection is extremely loose at best.

30a

Appendix A

the basis for the Eighth Circuit’s holding is simply that (1) at the

time of the WPP’s enactment Congress knew of the ADA’s

express pre-emption provision; and (2) it also was aware that

the Supreme Court had interpreted this provision broadly.

Although the first premise is undoubtable, it also is not

especially helpful. Congress’s knowledge of the provision

implies nothing about the legislature’s view of its scope.

As for the second, the Supreme Court has interpreted only

the phrase “related to.” See Morales, 504 U.S. at 384,

112 S.Ct. at 2037. To date it has not weighed in on the

meaning of “air carrier services.” Moreover and more

significantly, to the extent that Congress can be charged with

cognizance of judicial views regarding the scope of § 41713,

it must have known that the majority of courts to consider

the issue found state law retaliatory discharge claims not to

be pre-empted by the ADA. Against this background, it

becomes significantly less clear that in saying nothing about

pre-emption in the WPP Congress was somehow indicating

that it assumed state whistleblower claims to be pre-empted.

Indeed, an equally compelling argument could be made that

Congress was indicating its acquiescence in the view that

such state law claims are not pre-empted. Because the WPP

says nothing about pre-emption and this silence is ambiguous,

we find its enactment less probative of Congressional intent

regarding the pre-emption of state whistleblower claims than did

the Eighth Circuit.

As for the desire to enact a uniform means of resolving

whistleblower claims, to infer from the very enactment of a

federal remedy that Congress also intended to pre-empt all

remotely equivalent state law causes of action—as distinguished

3la

Appendix A

from divining Congress’s intent regarding the scope of its express

pre-emption provision (which, as stated, is ambiguous)—would

be a species of implied pre-emption, which we presume is

inapplicable where the statute in question features an express

pre-emption clause.'° See generally Cipollone, 505 U.S. at 517,

112 S.Ct. at 2618. Simply stated, it is possible to point to a

multitude of substantive contexts in which parallel state and

federal remedies exist, see, e.g., Medtronic, Inc. v. Lohr, 518

U.S. 470, 496-97, 116 S.Ct. 2240, 2256, 135 L.Ed.2d 700

(1996) (holding that a federal statutory remedy did not pre-empt

“substantively identical” state law remedies for precisely the same

conduct and harm), and the very enactment of a federal remedy,

without more, cannot cause us to expand the scope of an express

pre-emption provision to encompass and pre-empt all equivalent

state remedies. See generally id.

In deciding pre-emption, whether before or after the

enactment of the WPP, the question we must answer remains

the same: Is the state law in question “related to” air carrier

“services”? Though we do not wish to understate the

importance of this legislation, the WPP changed neither the

nature of Florida’s Whistleblower Act nor the language of

the ADA’s pre-emption provision in any meaningful way.

It simply added an additional remedy for plaintiffs seeking

to advance a retaliatory discharge claim. Because the WPP

says nothing about pre- emption, it leaves us in precisely the

10. Although as explained above a finding of implied

pre-emption is not forbidden where such statutes are concerned,

we perceive nothing in the WPP bearing in-any significant way on

Congress’s intent to pre-empt state law claims against air carriers

for retaliatory discharge that do not fall within the scope of the ADA’s

express pre-emption clause.

32a

Appendix A

same position as we occupied before considering this statute;

that is, it leaves us with our conclusion that the pre-emption

of Branche’s retaliatory discharge claim would not advance

the pro-competitive goals of the ADA, as outlined by the

Supreme Court in Wolens. Put differently, the WPP did not

render these claims any more related to the bargained-for

aspects of air carrier operations over which the airlines

compete. As such, although the enactment of this statute

renders the question of ADA pre-emption more difficult in

this case, we do not believe that the WPP changed the legal

landscape—or that it illuminated the intent of Congress to

pre-empt state law whistleblower claims—to a degree

sufficient to alter the conclusion that prior to its passage such

claims were not pre-empted.

Because the district court erroneously concluded that

Branche’s state law whistleblower claim was pre-empted by

the ADA, its summary judgment in favor of Airtran is vacated

and this case is remanded for further proceedings consistent

with this opinion.

VACATED AND REMANDED.

33a

APPENDIX B — ORDER AND JUDGMENT OF THE

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION

DATED AND FILED AUGUST 27, 2002

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No. 8:01-cv-1747-T-30MSS

MICHAEL F. BRANCHE,

Plaintiff,

AIRTRAN AIRWAYS, INC.,

Defendant.

ORDER GRANTING DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

THIS CAUSE came on for consideration upon Defendant’s

Motion for Summary Judgment (Dkt. #23), supporting

memorandum (Dkt. #24), and Plaintiff’s memorandum in

opposition thereto (Dkt. #26). Upon review and for the reasons

set forth herein, the Court grants Defendant’s motion.

34a

Appendix B

BRIEF FACTUAL BACKGROUND!

Plaintiff Michael F. Branche filed a Complaint in the Circuit

Court for the Sixth Judicial Circuit in and for Pinellas County,

Florida in August, 2001. On September 10, 2001, the action

was timely removed to this Court by Defendant on the grounds

of diversity jurisdiction. The Court denied Plaintiff’s motion to

remand. (Dkt. 14).

The Complaint alleges a single count for violation of

the Florida Whistleblowers Act, §448.101, et. seg., Fla. Stat.

This statute renders an employer liable to an employee for a

retaliatory personnel action based upon an employee providing

information to any appropriate governmental agency, person or

entity conducting an investigation, hearing or inquiry into an

alleged violation of the law, rule, or regulation. §448.102(2),

Fla. Stat. Subsection 3 of the Florida Whistleblower Act renders

an employer liable to an employee for retaliatory personnel action

based upon an employee’s objection to, or refusal to participate

in any activity, policy or practice of the employer which is in

violation of the law, rule or regulation.”

1. Defendant quotes the facts in its motion from Plaintiffs

Complaint, and Plaintiff’s response specifically adopts those facts.

As such, the facts are undisputed.

2. Plaintiff’s seeks to recover under the following provisions

of the Florida Whistleblower Act, §448.102 Fla. Stat., which reads

in pertinent part:

An employer may not take any retaliatory personnel

action against an employee because the employee has:

(Cont’d)

35a

Appendix B

Plaintiff, employed by Defendant as an airline inspector,

alleges that he objected to and refused to participate in

Defendant’s “illegal and dangerous policy and practice of

breaching the independence of the inspector function and

chain of command established by FAA regulations.” Plaintiff

claims that he observed violations of FAA regulations

regarding engine inspections, namely “improper high

powered engine runs.” Plaintiff alleges that he was fired as a

result of his objection, his refusal to participate in these practices,

and Plaintiff’s furnishing of information to the FAA and its

investigation of Defendant.’ Plaintiff also filed a union grievance

about this incident. Plaintiff alleges that the FAA was investigating

Defendant’s “illegal and dangerous policy and practices which,

among other things, violated FAA regulations, endangered lives

of co-workers, the public and public property.” (Complaint, 37).

(Cont'd)

... (2) Provided information to, or testified before, any

appropriate governmental agency, person, or entity

conducting an investigation, hearing, or inquiry into an

alleged violation of « ‘a, rule, or regulation by the

employer; (3) Objected to, or refused to participate in,

any activity, policy, or practice of the employer which

is in violation of a law, rule, or regulation.

3. Plaintiff alleges that he was fired for “falsifying his time

card and stealing approximately two hours of pay from Defendant

for time not worked;” a claim that Plaintiff contends is “baseless”

and a pretext for retaliatory discharge. (Complaint, §{/26-30).

36a

Appendix B

LEGALANALYSIS

Summary Judgment Standard

Motions for summary judgment should only be granted when

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, show there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

existence of some factual disputes between the litigants will not

defeat an otherwise properly supported summary judgment

motion; “the requirement is that there be no genuine issue of

material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986) (emphasis in original). Throughout this analysis, the

judge must examine the evidence in the light most favorable to

the non-movant and draw all justifiable inferences in her favor.

Id. at 255.

This Court may not decide a genuine factual dispute at

the summary judgment stage. Fernandez v. Bankers Nat'l Life

Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual issues

are present, the Court must deny the motion and proceed to

trial.” Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695

F.2d 1294, 1296 (11th Cir.1983). A dispute about a material

fact is genuine and summary judgment is inappropriate if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party. Anderson, 477 U.S. at 248; Hoffman y.

Allied Corp., 912 F.2d 1379 (11th Cir. 1990).

37a

Appendix B

Is the Florida Whistleblower Act Preempted by Federal

Statute?

Defendars contends that Plaintiff’s retaliatory discharge claim

brought under Florida’s Whistleblower Act is preempted by

certain provisions of the Airline Deregulation Act (ADA).

The ADA contains a specific provision for preemption which

reads as follows:

Except as provided in this subsection, a State, political

subdivision of this State, or political authority of at

least 2 States, 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 that may provide air transportation

under this subpart.

49 U.S.C. §41713(b)(1) (emphasis added). Defendant urges

the Court to construe the “related to” language broadly. Bozz v.

Omni Air International, 286 F.3d 488, 492 (8" Cir. 2002),

(citing Morales v. Trans World Airlines, Inc., 504 U.S. 374

(1992)).

Defendant points to a specific provision within the ADA that

provides federal whistleblower protection, 49 U.S.C. §42121,

which reads in pertinent part:

Discrimination against airline employees. — No air

carrier or contractor or subcontractor of an air carrier

4. The issue in Morales was whether a state law prohibiting

deceptive advertising was preempted by the ADA. In finding

preemption, the Court utilized a broad reading of the phrase “related

to” in the ADA’s preemption clause. Jd.

38a

Appendix B

may discharge an employee or otherwise discriminate

against an employee with respect to compensation,

terms, conditions, or privileges of employment

because the employee (or any person acting pursuant

to a request of the employee —

(1) provided, caused to be provided, or is about to

provide (with any knowledge of the employer) or

cause to be 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 an air carrier’s

safety «under this subtitle or any other law of the United

States.

This statutory provision provides for a complaint process through

the Department of Labor, and procedures for investigation and

appellate review. Jd. Remedies include “affirmative action to

abate the violation,” reinstatement, including back pay and other

conditions of employment, and compensatory damages.

49 U.S.C. §42121(b)(3)(B). Defendant contends that this federal

whistleblower provision provides Plaintiff’s exclusive remedy for

such conduct.

In addition, Defendant contends that Plaintiff’s Complaint

fits squarely within the Eighth Circuit’s decision in Botz v. Omni

Air International, 286 F.3d 488 (8" Cir. 2002). Botz involved

a flight attendant plaintiff who was fired after refusing a flight

assignment that she believed violated federal regulations on flying

time. Reading the preemption clause language broadly, the Botz

Court found that Minnesota’s whistleblower statute was expressly

Sa sunetaneit

x —

—

Sea

39a

Appendix B

preempted by Congress in the ADA, a finding that was bolstered

by the enactment of the federal whistleblower protection in 2000,

and dismissed Botz’s complaint. Jd. at 492-97 (citing Morales

v. Trans World Airlines, Inc., 504 U.S. 374 (1992)).

Plaintiff disputes that his Florida Whistleblower Act claim is

preempted by federal law, in part because Plaintiff contends that

his claim is not “related to a price, route, or service of an air

carrier.” Plaintiff further contends that the federal whistleblower

provision itself fails to contain the required express preemption

language, like the preemption language found in the ADA.

Plaintiff also attempts to factually distinguish Botz on the

grounds that Botz had a statutory right under the Minnesota

whistleblower law to refuse to provide flight service based on

her belief that her employer was violating the law.* Here, Plaintiff

contends that his reports to the FAA concerned actual safety

violations regarding an aircraft engine and were protected under

the Florida Whistleblowers Act. Plaintiff further argues that

“state law protection for employees reporting violations of FAA

regulations does not hamper competition because airlines do not

compete based on levels of safety.”

Plaintiff also points to other cases to support his position

that federal and state law claims may coexist. In Espinosa v.

Continental Airlines, 80 F. Supp. 2d 297 (D.N.J. 2000),

the court found that a retaliatory discharge claim similar to

5. The Minnesota statute specifically prohibited retaliation

against employees who report a violation of any federal or state law

in good faith or refuse an order to perform an action that the

employee has an “objective basis in fact” to believe violates federal

or state law. Botz, 286 F.3d at 492, n.6.

40a

Appendix B

Plaintiff’s (an aircraft technician who was terminated after

reporting mechanical problems) was not preempted by the ADA

because it would be unreasonable to find that a “retaliatory

discharge was related to the services provided by an air carrier.”

The second case, a Florida appellate decision, also involved an

aircraft repair station employee and specifically held that Florida’s

Whistleblower Act is not preempted by the ADA because

Florida’s Act “does not impinge on air carrier’s rates, routes or

services.” See Vanacore v. Unc Ardco, Inc., 697 So. 2d 892,

893 (Fla. 4" DCA 1997).

As Plaintiff correctly points out, as does the Botz Court,

neither of these cases was decided after the enactment of the

federal whistleblower protection provision set forth in 49 U.S.C.

§42121. Accordingly, the Court is not persuaded by these cases

and instead, finds the Eight Circuit’s decision in Botz compelling.

See also Parise v. Delta Airlines, 141 F.3d 1463, 1466 n.4

(11" Cir. 1998) (addressing same federal preemption provision

in ADAas it relates to age discrimination claim — the “basis of

the cause of action [] conceivably would conflict with the

underlying purposes of the ADA and therefore give rise to a

finding of preemption’’).

In Botz, the Eighth Circuit found the state whistleblower

statue had a “forbidden connection” with both air carrier

routes and services under the “broadly applied” language of

the ADA’s preemption provision. The Court reasoned that

because the number of airline stewards is prescribed by

federal regulation, a steward’s refusal to serve on an assigned

flight could jeopardize service, a finding that was bolstered

by the enactment of the federal whistleblower protection

provision in 2000. See Botz, 286 F.3d at 495.

4la

Appendix B

As to the federal whistleblower provision, the Eighth Circuit

specifically noted that it was a “single, uniform standard for dealing

with employee complaints of air-safety violations,” and in doing

so, Congress “furthered its goal of ensuring that the price,

availability, and efficiency of air transportation rely primarily upon

market forces and competition rather than allowing them to be

determined by fragmented and inconsistent state regulation.”

Id. at 497. Commenting upon the complaint and review process

therein, the Court reasoned that review by federal courts of

appeal was a “more predictable” response to air-safety

complaints than possible if permitted in the courts of the fifty

states. Id.

This Court analogizes Plaintiff's claim to that in Borz. Plaintiff

alleges that the “improper high powered engine run” reported by

Plaintiff resulted in the jet being taken out of service. (Complaint,

420). Plaintiff also alleges that Defendant’s violation of FAA

regulations and the FAA’s investigation of Defendant’s alleged

“illegal and dangerous” practices “endangered the lives of

co-workers, the public and public property.” (Complaint, 37).

These allegations bring Plaintiff’s claims within the prohibited

connection of an air carrier’s “price, route, or service” and they

are therefore preempted by federal law. Moreover, the Court is

persuaded that preemption is appropriate because the protections

afforded by the federal whistleblower provision in the ADA give

a federal agency (with review by federal courts of appeal) specific

authority to address the same conduct as the state statute.°

6. The Court is not persuaded that the “savings clauses”

in either the ADA or the state statute preclude its conclusion that

federal law preempts Plaintiff’s claim. See 49 U.S.C. §40120(c);

§448.105 Fla. Stat.

42a

Appendix B

Accordingly, it is hereby ORDERED AND ADJUDGED

that Defendant’s Motion for Summary Judgment (Dkt. #23) is

GRANTED for the reasons set forth herein. The Clerk is

directed to close the case and enter judgment in favor of

Defendant.

DONE and ORDERED in Tampa, Florida on this 27 day

of August, 2002.

s/ James S. Moody, Jr.

James S. Moody, Jr.

UNITED STATES DISTRICT JUDGE

ee ee ee ee ee ee ee ee ae

43a

Appendix B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No. 8:01-cv-1747-T-30MSS -

MICHAEL F. BRANCHE,

Plaintiff,

AIRTRAN AIRWAYS, INC.,

, Defendant.

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came before the Court. The

issues have heard and a decision has

been rendered.

IT IS ORDERED AND ADJUDGED that judgment is

entered in favor of the defendant.

Date: August 27, 2002

SHERYL L. LOESCH, CLERK

By: s/ Joanne Hueting

J. Hueting, Deputy Clerk

44a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT DENYING PETITION FOR REHEARING

EN BANC FILED OCTOBER 2, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 02-14920-DD

MICHAEL F. BRANCHE,

Plaintiff-Appellant,

versus

AIRTRAN AIRWAY, INC., a foreign corporation,

Defendant-Appellee.

On Appeal from the United States District Court

for the Middle District of Florida

ON PETITION (S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion , lithCir., 19 , F2d_),

Before: MARCUS and WILSON, Circuit Judges, and

RESTANI™*, Judge.

PER CURIAM:

The Petition (s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active service

* Honorable Jane A. Restani, Judge, United States Court of

International Trade, sitting by designation.

45a

Appendix C

on the Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Petition(s) for

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

s/ [illegible]

UNITED STATES CIRCUIT JUDGE

46a

APPENDIX D — RELEVANT STATUTES

49 USCA § 42121

§ 42121. Protection of employees providing air safety

information

(a) Discrimination against airline employees.—No air

Carrier or contractor or subcontractor of an air carrier may

discharge an employee or otherwise discriminate against an

employee with respect to compensation, terms, conditions,

or privileges of employment because the employee (or any

person acting pursuant to a request of the employee)—

(1) provided, caused to be provided, or is about to provide

(with any knowledge of the employer) or cause to be 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;

(2) has filed, caused to be filed, or is about to file (with any

knowledge of the employer) or cause to be filed a proceeding

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;

(3) testified or is about to testify in such a proceeding; or

(4) assisted or participated or is about to assist or participate

in such a proceeding.

oat seas

47a

Appendix D

(b) Department of Labor complaint procedure.—

(1) Filing and notification.—A person who believes that

he or she has been discharged or otherwise discriminated

against by any person in violation of subsection (a) may, not

later than 90 days after the date on which such violation

occurs, file (or have any person file on his or her behalf) a

complaint with the Secretary of Labor alleging such discharge

or discrimination. Upon receipt of such a complaint, the

Secretary of Labor shall notify, in writing, the person named

in the complaint and the Administrator of the Federal Aviation

Administration of the filing of the complaint, of the

allegations contained in the complaint, of the substance of

evidence supporting the complaint, and of the opportunities

that will be afforded to such person under paragraph (2).

(2) Investigation; preliminary order.—

(A) In general.—Not later than 60 days after the date of

receipt of a complaint filed under paragraph (1) and after

affording the person named in the complaint an opportunity

to submit to the Secretary of Labor a written response to the

complaint and an opportunity to meet with a representative

of the Secretary to present statements from witnesses, the

Secretary of Labor shall conduct an investigation and

determine whether there is reasonable cause to believe that

the complaint has merit and notify, in writing, the

complainant and the person alleged to have committed a

violation of subsection (a) of the Secretary’s findings. If the

Secretary of Labor concludes that there is a reasonable cause

to believe that a violation of subsection (a) has occurred, the

Secretary shall accompany the Secretary’s findings with a

48a

Appendix D

preliminary order providing the relief prescribed by paragraph

(3)(B). Not later than 30 days after the date of notification

of findings under this paragraph, either the person alleged to

have committed the violation or the complainant may file

objections to the findings or preliminary order, or both, and

request a hearing on the record. The filing of such objections

shall not operate to stay any reinstatement remedy contained

in the preliminary order. Such hearings shall be conducted

expeditiously. If a hearing is not requested in such 30-day

period, the preliminary order shall be deemed a final order

that is not subject to judicial review.

(B) Requirements.—

(i) Required showing by complainant.—The Secretary of

Labor shall dismiss a complaint filed under this subsection

and shall not conduct an investigation otherwise required

under subparagraph (A) unless the complainant makes a

prima facie showing that any behavior described in

paragraphs (1) through (4) of subsection (a) was a

contributing factor in the unfavorable personnel action

alleged in the complaint.

(ii) Showing by employer.—Notwithstanding a finding by

the Secretary that the complainant has made the showing

required under clause (i), no investigation otherwise required

under subparagraph (A) shall be conducted if the employer

demonstrates, by clear and convincing evidence, that the

employer would have taken the same unfavorable personnel

action in the absence of that behavior.

49a

Appendix D

(iii) Criteria for determination by Secretary.—The

Secretary may determine that a violation of subsection (a)

has occurred only if the complainant demonstrates that any

behavior described in paragraphs (1) through (4) of

subsection (a) was a contributing factor in the unfavorable

personnel action alleged in the complaint.

(iv) Prohibition.—Relief may not be ordered under

subparagraph (A) if the employer demonstrates by clear and

convincing evidence that the employer would have taken the

same unfavorable personnel action in the absence of that

behavior.

(3) Final order.—

(A) Deadline for issuance; settlement agreements.—Not

later than 120 days after the date of conclusion of a hearing

under paragraph (2), the Secretary of Labor shall issue a final

order providing the relief prescribed by this paragraph or

denying the complaint. At any time before issuance ofa final

order, a proceeding under this subsection may be terminated

on the basis of a settlement agreement entered into by the

Secretary of Labor, the complainant, and the person alleged

to have committed the violation.

(B) Remedy.—If, in response to a complaint filed under

paragraph (1), the Secretary of Labor determines that a

violation of subsection (a) has occurred, the Secretary of

Labor shall order the person who committed such violation

to—

50a

Appendix D

(i) take affirmative action to abate the violation;

(ii) reinstate the complainant to his or her former position

together with the compensation (including back pay) and

restore the terms, conditions, and privileges associated with

his or her employment; and

(iii) provide compensatory damages to the complainant.

If such an order is issued under this paragraph, the Secretary

of Labor, at the request of the complainant, shall assess

against the person against whom the order is issued a sum

equal to the aggregate amount of all costs and expenses

(including attorneys’ and expert witness fees) reasonably

incurred, as determined by the Secretary of Labor, by the

complainant for, or in connection with, the bringing the

complaint upon which the order was issued.

that a complaint under paragraph (1) is frivolous or has been

brought in bad faith, the Secretary of Labor may award to

the prevailing employer a reasonable attorney’s fee not

exceeding $1,000.

(4) Review.—

(A) Appeal te Court of Appeals.—Any person adversely

affected or aggrieved by an order issued under paragraph (3)

may obtain review of the order in the United States Court of

Appeals for the circuit in which the violation, with respect

to which the order was issued, allegedly occurred or the

circuit in which the complainant resided on the date of such

Sla

Appendix D

violation. The petition for review must be filed not later than

60 days after the date of the issuance of the final order of the

Secretary of Labor. Review shall conform to chapter 7 of

title 5, United States Code. The commencement of

proceedings under this subparagraph shall not, unless ordered

by the court, operate as a stay of the order.

(B) Limitation on collateral attack.—An order of the

Secretary of Labor with respect to which review could have

been obtained under subparagraph (A) shall not be subject

to judicial review in any criminal or other civil proceeding.

(5) Enforcement of order by Secretary of Labor.

Whenever any person has failed to cor:c!y with an order

issued under paragraph (3), the Secretary of Labor may file

a civil action in the United States district court for the district

in which the violation was found to occur to enforce such

order. In actions brought under this paragraph, the district

courts shall have jurisdiction to grant all appropriate relief

including, but not limited to, injunctive relief and

compensatory damages.

(6) Enforcement of order by parties.—

(A) Commencement of action.—A person on whose behalf

an order was issued under paragraph (3) may commence a

civil action against the person to whom such order was issued

to require compliance with such order. The appropriate

United States district court shall have jurisdiction, without

regard to the amount in controversy or the citizenship of the

parties, to enforce such order.

52a

Appendix D

(B) Attorney fees.—The court, in issuing any final order

under this paragraph, may award costs of litigation (including

reasonable attorney and expert witness fees) to any party

whenever the court determines such award is appropriate.

this section shall be enforceable in a mandamus proceeding

brought under section 1361 of title 28, United States Code.

(d) Nonapplicability to deliberate violations.—Subsection

(a) shall not apply with respect to an employee of an air

carrier, contractor, or subcontractor who, acting without

direction from such air carrier, contractor, or subcontractor

(or such person’s agent), deliberately causes a violation of

any requirement relating to air carrier safety under this

subtitle or any other law of the United States.

(e) Contractor defined.—In this section, the term

“contractor” means a company that performs safety-sensitive

functions by contract for an air carrier.

53a

Appendix D

49 USCA § 41713

§ 41713. Preemption of authority over prices, routes, and

service

(a) Definition.—In this section, “State” means a State, the

District of Columbia, and a territory or possession of the

United States.

(b) Preemption.—(1) Except as provided in this subsection,

a State, political subdivision of a State, or political authority

of at least 2 States 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 that may provide

air transportation under this subpart.

(2) Paragraphs (1) and (4) of this subsection do not apply to

air transportation provided entirely in Alaska unless the

transportation is air transportation (except charter air

transportation) provided under a certificate issued under

section 41102 of this title.

(3) This subsection does not limit a State, political

subdivision of a State, or political authority of at least 2 States

that owns or operates an airport served by an air carrier

holding a certificate issued by the Secretary of Transportation

from carrying out its proprietary powers and rights.

(4) Transportation by air carrier or carrier affiliated with

a direct air carrier.—

54a

Appendix D

(A) General rule.—Except as provided in subparagraph (B),

a State, political subdivision of a State, or political authority

of 2 or more States may not enact or enforce a law, regulation,

or other provision having the force and effect of law related

to aprice, route, or service of an air carrier or carrier affiliated

with a direct air carrier through common controlling

ownership when such carrier is transporting property by

aircraft or by motor vehicle (whether or not such property

has had or will have a prior or subsequent air movement).

(B) Matters not covered.—Subparagraph (A)—

(i) shall not restrict the safety regulatory authority of a State

with respect to motor vehicles, the authority of a State to

impose highway route controls or limitations based on the

size or weight of the motor vehicle or the hazardous nature

of the cargo, or the authority of a State to regulate motor

Carriers with regard to minimum amounts of financial

responsibility relating to insurance requirements and self-

insurance authorization; and

(ii) does not apply to the transportation of household goods,

as defined in section 13102 of this title.

not limit the applicability of paragraph (1).

ee LS igh ihe a

55a

Appendix D

FLA. STAT 448.102

448.102. Prohibitions

An employer may not take any retaliatory personnel action

against an employee because the employee has:

(1) Disclosed, or threatened to disclose, to any appropriate

governmental agency, under oath, in writing, an activity,

policy, or practice of the employer that is in violation of a

law, rule, or regulation. However, this subsection does not

apply unless the employee has, in writing, brought the

activity, policy, or practice to the attention of a supervisor or

the employer and has afforded the employer a reasonable

opportunity to correct the activity, policy, or practice.

(2) Provided information to, or testified before, any

appropriate governmental agency, person, or entity

conducting an investigation, hearing, or inquiry into an

alleged violation of a law, rule, or regulation by the employer.

(3) Objected to, or refused to participate in, any activity,

policy, or practice of the employer which is in violation ofa

law, rule, or regulation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.