Opposition Brief — Baylor University v. Johnson

@

00-451. Oli 23.

In The

Supreme Court of the United States

BAYLOR UNIVERSITY,

Petitioner,

v.

VERNON G. JOHNSON,

Respondent.

On Petition For Writ of Certiorari

To The United States Court of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

JOHN B. MCNAMARA, JR.

LANELLE L. MCNAMARA

OF

MCNAMARA & MCNAMARA

$01 Franklin Ave., Suite 500

Waco, Texas 76701

(254) 754-5456

- (254) 753-0719 (fax)

John B. McNamara, Jr.

Attorney of Record

PARTIES TO THE PROCEEDING

The petition correctly lists the interested parties

except as follows. Counsel for Respondent are:

Roy L. Barrett

Stuart Smith

of

NAMAN, HOWELL, SMITH & LEE, P.C.

Texas Center

P.O. Box 1470

Waco, Texas 76703-1470

(254) 755-4100

FAX (254) 754-6331

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDING .... 0.5.08 0- i

TABLE OF CONTENTS ©. os ieee cece Vek tusks ii

TABLE OF AUTHORITIES ......... Sooo ili

STATEMENT GF CAGE 2. ic cen cteiveeees ae ee

Course of Proceedings and Disposition in the

ee EES ee ee wire See 1

Statement of Material Facts................ 3

REASONS FOR DENYING THE WRIT .......... 6

First Ground - No Conflicts in the Circuit ..... 6

Second Ground - No Unresolved Questions of

Federal Law Will Be Resolved by Granting a

Wilt i Fas GO i kc ae kc wen ee ee 15

Third Ground - This Case

Was Correctly Decided ................... 16

CARA BAPA. vce annie eh eee oe ReS ee ee 17

il ;

INDEX OF AUTHORITIES

CASES Page

co fs Barrer rer rrrs Cerra 8, 15

390 U.S. 557 (1968)

Caterpillar Inc. v. Williams, ............4.. 8, 9, 11, 15

482 U.S. 386 (1987)

Cipollone v. Liggett Group, Inc., ...........02008. 14

505 U.S. 504 (1992) :

Federated Department Stores, Inc. v. Moitie, ........ 12

452 US. 394 (1981)

Franchise Tax Board v. Construction Laborers Vacation

RR er rae ee ere 8, 15

463 US. 1 (1983)

French v. Pan Am Express, Inc., ..........-. 7, 11, 14

869 F.2d 1 (ist Cir. 1989)

Goepel v. National Postal Mail Handlers Union, ...... 11

36 F.3d 306 (3rd Cir. 1994), cert denied, 514 U.S. 1063

(1995)

Heimann v. National Elevator Indus. Pension Fund, ... 10

187 F.3d 493 (Sth Cir. 1999)

Metropolitan Life Ins. Co. v. Taylor, . 7,8, 9, 10, 11, 14, 15

481 U.S. 58 (1987)

ill

CASES Page

Psu Ces Fe: Bae Sie i ios we i ea 12, 13

80 F.3d 257 (8th Cir. 1996)

Pilot Life Ins. Ge es Da a eres ae ae

481 US. 41

Rains v. Criterion Systems, Inc., 0.0... 060 e cece eee 11

80 F.3d 339 (9th Cir. 1996)

Rosciszewski v. Arete Associates, Inc., ........-+.+++: 12

1 F.3d 225 (4th Cir. 1993)

Schmeling v. Nordam, .........c0ccesseesee Bhs Se

97 F.3d 1336 (10th Cir. 1996)

Strong v. Teletronics Paging Systems, Inc., ........+-- 11

78 F.3d 256 (6th Cir. 1996)

CONSTITUTION, RULES AND STATUTES Page

5 USC. 4 OG (PERERA) «on es ie ceeds fae

17 U.S.C.A. § 301k(a)(Copyright Act) ...... 12

At BCAA: 3 so a . 11

yr Bik ae A | ree er a -

WUAE CIN oo a ek eee

29 U.S.C. § 1132(f)(ERISA) ........ 7,3, 0

42 US.C. § 200Be (Tite VIX)... . ccc ctess ce

45:US.CS: § 434 (FRSA) .. «2.5 ee fais . 13

49 US.C, § 44936 (PRSA) . . . 2... eee. i, 2, %

bo Bere eee eer a er . 8, 9, 10

U.S. Constitution, Article VI ............. . 14

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respondent, Vernon G. Johnson (“Johnson”),

respectfully submits this Brief in Opposition to the Petition

for Writ of Certiorari filed by Petitioner, Baylor University

(“Baylor”), seeking review of the judgment and opinion of

the United States Court of Appeals for the Fifth Circuit

rendered on June 22, 2000.

STATEMENT OF THE CASE

Course of Proceedings and Disposition in the Court Below

Johnson filed suit in state district court on January 19, -

1999, claiming that Baylor had tortiously interfered with his

employment relationship with Kitty Hawk Air Cargo, Inc.

(“Kitty Hawk”). Baylor removed the case to federal court on

February 18, 1999, asserting that federal question jurisdiction

existed based on the Pilot Records Sharing Act (“PRSA”),

“49 U.S.C. § 44936. Johnson promptly filed a Motion to

Remand on March 2, 1999, contending that 49 U.S.C. §

44936 merely provided a defense that would limit Baylor's

liability in Johnson's state court case if Baylor had complied

with the statute when Kitty Hawk requested that Baylor

furnish Johnson’s employment records. Baylor also filed a

Motion to Dismiss Plaintiffs Complaint for Failure to State

a Claim asserting that Johnson's pleadings did not allege that

Baylor had knowingly furnished false information in violation

of a criminal statute of the United States as provided in 49

U.S.C. § 44936 (g)(3). At Johnson's request, the Court held

in abeyance the Motion to Dismiss pending ruling on the

Motion to Remand.

On May 3, 1999, the U.S. District Court issued its

order and opinion denying Johnson’s Motion to Remand.

Because the Court’s Order denying Remand affirmed

Baylor's contention that Johnson had no cause of action

against Baylor except a cause of action as described in 49

U.S.C. § 44936 (g)(3), Johnson did not respond to Baylor's

Motion to Dismiss and on July 7, 1999, the District Court

dismissed Johnson's case.!

Johnson filed his Notice of Appeal. The case was

fully briefed and was orally argued before the Fifth Circuit,

which rendered its Opinion and Judgment on June 22, 2000,

reversing the judgment of the District Court and remanding

the case to the District Court with instruction to remand the

case to state court. Baylor filed no Petition for Review or

for En Banc Hearing.

t In Baylor’s Statement of the Case, Baylor attempts

to cast aspersions on Plaintiff's counsel for requesting additional

time to respond to Baylor's Motion to Dismiss and then not

responding and not “offer[ing] any excuse” for not responding.

Although Baylor’s statements are totally irrelevant to the issues in

its Petition, Plaintiff's counsel would show that the record in this

case reflects that Plaintiff's counsel was involved in pre-trial and

trial in another case against Baylor beginning on May 3, 1999 and

continuing until the jury returned its verdict against Baylor on

June 11, 1999. Thus, Plaintiffs counsel did not have an

opportunity to review the Court’s May 3rd Order and consult with

Johnson until after June 11, 1999; whereupon Johnson decided to

rely on the Order denying Remand as the basis for his appeal.

2

aie |

Statement of Material Facts?

Johnson was employed as Baylor’s Chief Pilot

beginning on January 1, 1992. His employment was

terminated on August 26, 1995. The primary reason for the

termination was unrelated to his skill as a pilot. Instead, the

termination was expressly related to Johnson’s chronic

obesity, which Baylor stated “diminished his professionalism”

and thus “diminished the image” of the University and made

it impossible for Johnson to represent the university as it

should be represented.

Johnson filed suit against Baylor, contending that

Baylor discriminated against him on the basis of his chronic

obese condition which Baylor perceived to be a disability.

Although Baylor admitted that the termination of Johnson's

employment was related to his obesity, Baylor contested

Johnson’s claim of discrimination, contending that his obesity ©

did not qualify as a disability under the law because it did

not prevent him from obtaining employment in a job class or

with other employers.

In the course of proceedings, Dr. Herbert Reynolds,

who had been Johnson’s supervisor and who had made the

decision to terminate Johnson’s employment, admitted that

Johnson was an excellent pilot and contended that Johnson

could work as a pilot in positions that did not require him to

interact with the public, e.g. as a pilot for an air freight

2 As acknowledged by Baylor, the material facts in

this case are the facts as stated in Johnson's “well-pleaded”

complaint. Thus, Johnson’s “Statement of Facts” includes the

material facts as they are stated in the actual complaint, rather

than as restated by Baylor.

company, but that his appearance prevented him from

continuing to be employed as Baylor's chief pilot because

that position required him to interact with potential donors

and VIPs and Johnson’s appearance was not consistent with

the image that Baylor was striving to represent to such

persons.

Ultimately, Johnson's disability suit was dismissed

based on the Court's ruling that Johnson's obesity did not

qualify as a disability protected by laws prohibiting

discrimination because Johnson's physical condition was not

perceived to be sufficiently disabling to prevent him from

obtaining employment with other employers and/or in other

positions (e.g. air freight).3

In August of 1997, Johnson obtained employment

with Kitty Hawk Air Cargo, Inc. and Kitty Hawk began

training Johnson for the position immediately thereafter. In

the pre-employment interview, Johnson advised Kitty Hawk

that he had been discharged from his employment at Baylor

because of his overweight physical condition. Kitty Hawk

required verification of Johnson's employment history,

including verification of the reason(s) for Johnson's discharge

from Baylor. The investigation of Johnson's employment

history was begun during the time that Johnson was in

training.

After Johnson completed the first phase of Kitty

Hawk's training, he was entitled to a period of leave before

$ The District Court dismissed the case on February

12, 1997. Johnson appealed to the Fifth Circuit and on September

18, 1997. The Fifth Circuit affirmed the decision of the District

Court.

resuming his training/employment. He was told that he was

to return to work on or about September 26, 1997. The day -

before Johnson was scheduled to return to Kitty Hawk, he

received notice that he was being removed from the training

schedule and employment at Kitty Hawk.

In about March of 1998, Johnson discovered that his

termination by Kitty Hawk was related to information

furnished (and not furnished) by Baylor during Kitty Hawk's

pre-employment background check. Specifically, Baylor told

Kitty Hawk that Johnson had been discharged for

“misconduct” and was “ineligible for rehire.” When Kitty

Hawk requested more specific information from Baylor, in

an effort to confirm or contradict Johnson's statement that

he was discharged because of his overweight condition,

Baylor stated that no more specific information was available

because Johnson's employment records were not readily

available.

Johnson's original complaint in state court stated that

“Baylor’s representations to Kitty Hawk were false, and

Baylor knew or should have known that the representations

were false, and were made with reckless disregard for

Johnson's rights. At the time that Baylor represented that

Johnson's employment records were not available, Johnson's

lawsuit against Baylor was still actively being pursued

through the appeal process and Johnson's complete

personnel file was easily accessible from court records in the

Waco Division of the United States District Court of the

Western District of Texas. These records were also in the

possession of and accessible to Baylor's attorneys specially

retained and in-house.”

REASONS FOR DENYING THE WRIT

Petitioner asserts two reasons why this Court should

grant a writ of certiorari in this case. First, Petitioner claims

there is a split in the Circuit Courts of Appeals concerning

complete pre-emption. Second, Petitioner claims that this

case raises important recurring questions of federal law that

are unresolved and that should be resolved by this Court.

In fact, this case does not conflict with other Court of

Appeals’ cases cited by Petitioner. More importantly,, this

case does not present any significant issue that has not

previously been resolved by this Court. Neither this case

separately, nor when reviewed with the other Courts of

Appeals’ cases, justifies the granting of the writ of certiorari

requested by Petitioner.

Following a discussion of the responses to Petitioner's

arguments, Johnson will demonstrate that the Fifth Circuit's

decision is correct regardless of the Fifth Circuit's three-part

test and the facts and law applicable in this case would

render review of this case pointless.

First Ground - No Conflict in the Circuits

Petitioner contends that this Court should grant a writ

of certiorari to review this case because of a claimed conflict

in the decision of the Circuit Courts of Appeals. Petitioner

bases its contention (1) on an erroneous assertion that the

Fifth Circuit has adopted a test for establishing complete

pre-emption that is more stringent than tests adopted by

other circuits and (2) on an erroneous assertion that this case

directly conflicts with a decision of the First Circuit finding

complete pre-emption in a case involving federal regulations

6

relating to pilot certification (i.e., “airman certificate”) that,

inter alia, required air carrier pilots to submit to drug testing,

citing French v. Pan Am Express, Inc., 869 F.2d 1 (ist Cir.

1989).

The three-part test, stated by the Fifth Circuit in this

case, is merely a restatement of the principles used by this

Court in its analysis of ERISA pre-emption under

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987). In

Metropolitan Life, this Court began with the general rule that

federal pre-emption is ordinarily a federal defense to a

plaintiffs suit, which does not appear on the face of a well-

pleaded complaint and, therefore, does not authorize

removal to federal court. (Jd. At 63) The Court then set

about to determine whether or not the allegations in the

plaintiffs claim(s) were “completely pre-empted” by federal

law, applying the following principles:

(1) In order for federal pre-emption to apply to

convert a state law claim into a federal question for

jurisdictional purposes, the federal law must include

civil claim(s) that protect and displace the analogous

area of state law. (Id., at 63-64) In Pilot Life Ins. Co.

v. Dedeaux, 481 U.S. 41 (1987), a companion case

decided on the same day as Metropolitan Life, this

Court noted that, in ERISA, Congress affirmatively

set out to:

“protect...participants in employee benefit

plans and their beneficiaries, by requiring the

disclosure and reporting to participants and

beneficiaries of financial and other information

with respect thereto, by establishing standards

of conduct, responsibility, and obligation for

7

fiduciaries of employee benefit plans, and by

providing for appropriate remedies, sanctions,

and ready access to the Federal courts. § 2 as

set forth in 29 U.S.C. § 1001(b)”

(Pilot Life, at 44, emphasis added)

“The policy choices reflected in the inclusion

of certain remedies and the exclusion of others

under the federal scheme would be completely

undermined if ERISA-plan participants and

beneficiaries were free to obtain state

remedies under state law that Congress

rejected in ERISA.”

(Id. at 54; also in Metropolitan Life at 64-65.)

In Metropolitan Life (at 64-65), this Court also

noted that the “area” of the law pre-empted by

Federal law may be very - limited, noting the

distinction between the “state tax collection suit” that

the Court had decided was not pre-empted by ERISA

in Franchise Tax Board of Cal. v. Construction

Laborers Vacation Trust for Southern Cal., 463 U.S. 1

(1983), versus the “employee benefit plan” issues that

were completely pre-empted in Metropolitan Life and

Pilot Life Ins. Co.4

‘ This Court subsequently noted the. distinction

between disputes involving alleged “violations of contracts between

an employer and a labor organization” pre-empted by the LMRA

according to Avco Corp. v. Machinists, 390 U.S. 557 (1968) versus

individual employment contracts that are alleged to have arisen

“independent of a labor contract” that were not pre-empted by the

LMRA in Caterpillar Inc. v. Williams, 482 U.S. 386, 394-395 (1987).

8

a OT Te RN AI REET Nee

(2) In order for federal pre-emption to apply to

convert a state law claim into a federal question for

jurisdictional purposes, the federal law-must make a

specific jurisdictional grant to the federal courts for

enforcement of the right. Specifically, this Court

stated:

“In the absence of explicit direction from

Congress, this question would be a close

one....Even with a provision such as §

502(a)(1)(B) that lies at the heart of a statute

with the unique pre-emptive force of

ERISA...we would be reluctant to find that

extraordinary pre-emptive power, such as has

been found with respect to § 301 of the

LMRA, that converts an ordinary state

common law complaint into one stating a

federal claim for purposes of the well-pleaded

complaint rule. But the language of the

jurisdictional subsection of ERISA’s civil

enforcement provisions closely parallels that of

§ 301 of the LMRA. Section 502(f) says:

‘The district courts of the United States

shall have jurisdiction, without respect

to the amount in controversy or the

citizenship of the parties, to grant the

relief provided for in subsection (a) of

this section in any action. 29 U.S.C. §

1132(f)”

(Metropolitan Life, at 64-65, emphasis added.)

There must be a clear Congressional intent

that claims brought under the federal law be

removable. Again, this Court noted that the

Conference Report on ERISA, describing the civil

enforcement provisions of § 502(a) said:

“[W]ith respect to suits to enforce benefit

rights under the plan or to recover benefits

under the plan which do not involve

application of the title I provisions, they may .

be brought not only in US. district courts but

also in State courts of competent jurisdiction.

All such actions in Federal or State courts are

to be regarded as arising under the laws of the

United States in similar fashion to those

brought under section 301 of the Labor-

Management Relations Act of 1947.”

(Metropolitan Life, at 65-66, emphasis added)

Thus, the Fifth Circuit’s test is not overly exacting and is

totally consistent with Supreme Court precedent cited above.

Circuit Courts, other than the Fifth Circuit, have not

necessarily expressly adopted the explicit language of the

tripartite test. that was applied in Heimann v. National

Elevator Indus. Pension Fund, 187 F.3d 493 (Sth Cir. 1999)

Respondent also argues that this case was correctly

decided under Supreme Court precedent, regardless of the

tripartite test applied by the Fifth Circuit. See discussion below in

Respondent's Third Ground for Denying the Petitioner’s Writ.

10

and in this case. However, they have generally® recognized

and applied the same principles that were applied by this

Court in Metropolitan Life Insurance Co. v. Taylor, and in

Caterpillar, Inc. v. Williams, as described above.

Specifically, the following cases, cited by Petitioner as

justification for the granting of the Writ sought by Petitioner,

were actually correctly decided under existing Supreme Court

precedent: (1) Schmeling v. Nordam, 97 F.3d 1336 (10th Cir.

1996) -- holding that complete pre-emption did not apply

because Congress did not expressly or impliedly provide

Plaintiff Schmeling with a federal cause of action to enforce

FAA drug-testing laws, and noting that the ruling did not

affect the Defendant's pre-emption defense (at 1344-, 1345);

(2) Strong v. Telectronics Paging Systems, Inc., 78 F.3d 256

(6th Cir. 1996) -- holding that administrative remedies

provided by federal law (i.e, MDA amendment to Federal

Food, Drug, and Cosmetic Act, § 521(a), as amended, 21

U.S.C.A. § 360k(a)) were insufficient to “evince the clear

manifestation of congressional intent necessary to create

removal jurisdiction” and pre-emption, if any, was defensive

issue (at 260-261); (3) Rains v. Criterion Systems, Inc., 80 F.3d

339 (Mh Cir. 1996) -- holding that, although the facts relied

on by Plaintiff Rains could have been the basis for a Title

VII claim, Rains’ “well-pleaded complaint” relied solely on

state causes of action and Title VII does not pre-empt state

laws that are not in conflict with it (at 344-345); (4) Goepol

v. National Postal Mail Handlers Union, 36 F.3d 306, (3rd Cir.

1994) -- contrasting ERISA provisions with FEHBA (5

U.S.C. § 8901 et seq.) and holding that FEHBA, unlike

6 The decision of the First Circuit in French v. Pan

Am Express, Inc., 869 F.2d 1 (Ist Cir. 1989) will be addressed in

detail below.

11

ERISA, did not contain a civil enforcement provision

authorizing beneficiaries to bring actions to recover benefits

under government employee's benefit plan; and that OPM

regulations expressly provided that litigation on the claim

should be brought against the carrier, but the regulations did

not confer federal jurisdiction over such claims; and that,

absent evidence of Congressional intent to the -contrary,

removal jurisdiction did not exist and pre-emption, if any,

was a purely defensive issue (at 312-313; 315-317); and (5)

Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir.

1993) -- holding that complete pre-emption applied to

Plaintiff's claims relating to state law rights, using the well-

pleaded complaint rule because the state rights asserted were

“equivalent to ... the exclusive rights within the general scope

of copyright as specified [in the federal Copyright Act]” and

were “governed exclusively by [the Act] 17 U.S.C.A. §

301(a)” and Congressional intent to completely pre-empt

such claims was further evidenced by 28 U.S.C.A. § 1338(a)

which provides that “The district courts shall have original

jurisdiction of any civil action arising under any Act of

Congress relating to ...copyrights...Such jurisdiction shall be

exclusive of the courts of the states in ...copyright cases” (at

229, 231-232)’.

In Peters v. Union Pacific Railroad Company, 80 F.3d

257 (Ist Cir. 1996), another case cited by Petitioner in

7 The Rosciszewski case also involved the issue of res

judicata similar to the issue addressed by this Court in Federated

Department Stores, Inc. V. Moitie, 452 U.S. 394 (1981) because

Plaintiff brought the action as the assignee of a company that had

previously asserted a federal copyright claim against the same

Defendant and the federal case had been adjudicated by a consent

decree entered after the parties settled the claim.

12

support of its requested Writ, the court reached the right

result and cited appropriate applicable law, but did not

necessarily address all of the issues raised in the existing

Supreme Court precedent relating to complete pre-emption.

The court found that the Federal Railroad Safety Act

(FRSA) authorized the Department of Transportation to

promulgate comprehensive regulations providing for licensing

of any operator of a locomotive, and insuring that only

qualified individuals would operate trains. The Court also

found that the FRSA contained an express pre-emption

clause that limited state laws or regulations that conflicted

with regulations, rules, or orders adopted by the Secretary of

Transportation, citing 45 U.S.C.S. § 434. Although, the

regulations adopted by the Secretary included administrative

remedies for those persons claiming to be aggrieved by the

licensing/certification regulations, the court noted that

Plaintiff Peters did not utilize the administrative remedies

afforded by the FRSA. The court held that the pre-emption

clause of the FLRA evidenced a clear and manifest purpose

of Congress to pre-empt an area of state law; however, the

court did not address the issue of whether or not Congress

evidenced an intent to create a federal claim or to confer

federal jurisdiction over the claim asserted by the Plaintiff,

i.e. complete pre-emption as opposed to defensive pre-

emption. Instead, the court simply concluded that the FRSA

“expressly preempts state law on engineer certification

disputes and because Peters failed to exhaust available

administrative remedies, we affirm the district court's

dismissal. Plaintiff Peters apparently chose not to pursue a

Petition for Writ of Certiorari and the shortcomings of the

Peters decision do not justify the granting of Petitionér’s writ

in this case.

13

Finally, Petitioner argues that the decision of the Fifth

Circuit in this case is in direct conflict with the decision of

the First Circuit in French v. Pan Am Express, Inc., 869 F.2d

I (Ist Cir. 1989). Petitioner's argument is fatally flawed.

The French case is procedurally very distinguishable

from the instant case, because the jurisdiction of the federal

court in French was not raised on appeal. Instead the

question presented for review was whether or not the district

court properly “granted defendant's motion for judgment on

the pleadings.” (at 1) Because there was no issue relating

to federal jurisdiction (aka “complete pre-emption”) before

the Court, the Court’s opinion made no reference to

Metropolitan Life Insurance Co. v. Taylor, nor did the opinion

refer to Caterpillar, Inc. v. Williams. From the language of

the opinion and the case law cited therein, it is clear that the

Court was addressing the issue of ordinary pre-emption

which was a defense to the Plaintiff's state law claim. The

opinion is consistent with a later statement of this Court in

Cipollone v. Liggett Group, Inc., 505 U.S. 504, (1992), wherein

the Court addressed the scope of defensive pre-emption

under Article VI of the Constitution and under the Federal

statutes applicable in that case.

Because the issues addressed in French were completely

different from the jurisdictional issue presented in this case,

the French case does not in any way justify the granting of

Petitioner's Petition for Writ of Certiorari.

14

ee

Second Ground - No Unresolved Questions of Federal

| Law Will Be Resolved by Granting a Writ in This Case

As noted above, this Court has thoroughly analyzed

the doctrine of complete pre-emption in Avco, Metropolitan

Life Insurance, Franchise Tax Board, and Caterpillar, cited

previously.

In an effort to raise some unresolved issue that might

justify the granting of a Writ in this case, Petitioner points to

Footnote No. 4 in Caterpillar, Inc. v. Williams, cited supra, at

394, and argues that the first element of the Fifth Circuit test

retains vestiges of a Ninth Circuit test that was rejected by

this Court in FN 4 of Caterpillar. However, Petitioner has

not and cannot explain how Footnote 4 would change the

analysis or result of this case. Instead, Petitioner argues

abstractly that confusion exists because of the explicit

language of the Fifth Circuit’s test and the inference in

Footnote 4. In so doing, Petitioner ignores the fact that

neither FN 4 nor the Fifth Circuit test says that a federal

cause of action must provide the same relief as the state law

that is pre-empted by the federal cause or causes of action

~ on which federal jurisdiction is based. Instead, this Court

and the Fifth Circuit have held that there must be one or

more federal claims--not merely defense(s)--in order to

| invoke federal jurisdiction. (See also Schmeling v. Nordam,

cited supra, at 1343, which draws the same conclusion with

respect to the distinction between a cause of action and the

relief afforded by the cause of action.)

15

Third Ground -- This Case was Correctly Decided

The express language of 49 U.S.C. § 44936 confirms

that the statute merely provides a defense to Johnson's

action in state court, and Baylor may rely on the defense in

state court if Baylor can show that it complied with the terms

and conditions of the statute.

The express language of Sec. (g), entitled “Limitation

on liability; preemption of State law”, makes the limitation

on liability from state claims contingent on compliance with

the terms and conditions of the statute--i.e. “Furnishing

records when requested” and “using records in accordance

with subsection (f)” of the Act which requires a person who

is requested to furnish records to notify the applicant and to

furnish to the applicant a copy of the records that are

furnished to the prospective employer. Baylor must prove

that it complied with all of the conditions precedent to

limited liability in order to claim the statute as a pre-emptive

defense to state law claims. This is pure and simple ordinary

pre-emption and nothing more.

Baylor has furnished additional evidence supporting

Respondent's contention that the statute merely provides a

pre-emptive defense in its Petition for Writ of Certiorari on

p. 17, where Baylor includes a quote from the Committee

Report accompanying the Senate’ Bill enacted as 49 U.S.C.

§ 44936. The Report uses the term “immunity” to describe

the limitation of liability under the PRSA. “Immunity” is a

defense, not an offense. The Report further states that the

immunity provisions would “prevent lawsuits” (i.e. act as a

bar to suits) with respect to the furnishing or using of

records against the prospective employing air carrier, as well

16

as the past or current employer, “who comply with these

provisions”, i.e., who have fully complied with the conditions

precedent to the existence of the immunity.

There is no language in the statute and no language

in the report that expressly states or impliedly suggests that

any cause of action or claim is created by the Act, nor is

there any language that expressly or impliedly confers

jurisdiction on federal courts for adjudicating such claims, if

any. Finally, there is no language expressly stating or

-impliedly suggesting that a claim, if any, shall be a claim

“arising under federal law”, so as to convert a state claim

into a federal claim for purposes of removal jurisdiction.

CONCLUSION

Petitioner has failed to provide any compelling

reasons for this Court to grant a Writ of Certiorari. There

is no split among the circuits. Rather, in this case and in

other cases cited by Petitioner, the Courts of Appeals and

this Court have applied the same rules of law to the different

facts presented in each case. Each court then reached a

proper decision based on those facts. Further, this case has

not been used by the Court of Appeals to state a new and

important position on an important or unsettled question of

the law. Instead, this is a case only of significance to the

parties.

Petitioner contends that the Fifth Circuit Court of

Appeals used an overly exacting test and therefore reached

an incorrect result in this case, despite the fact that the

Court could have reached the same result using a less

exacting test. Under such circumstances a review by this

17

Court is not favored. Further, Respondent strongly believes

that the Fifth Circuit Court of Appeals was correct in its

decision. This case does not merit further review by this

Court.

For all of the foregoing reasons, Respondent requests

that Petitioner's petition be denied.

Respectfully submitted,

JOHN B. MCNAMARA, JR.

LANELLE L. MCNAMARA

OF

MCNAMARA & MCNAMARA

501 Franklin Ave., Suite

- Waco, Texas 76701

(254) 754-5456

(254) 753-0719 (fax)

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