MARVIN E. ASPEN, District Judge.
Plaintiff Malcolm Hamilton ("Plaintiff" or "Hamilton") originally filed his complaint in the Circuit Court of Cook County. Defendant United Airlines ("Defendant" or "United") timely removed. Presently before us is Plaintiff's Motion to Remand (Dkt. No. 15), filed on September 20, 2012, pursuant to 28 U.S.C. § 1447(c).
The Federal Airline Deregulation Act ("FADA") explicitly preempts state regulation "related to" an airline's "price, route, or service." 49 U.S.C. § 41713(b)(1) (2007). Plaintiff argues that removal under 28 U.S.C. § 1441(a) was improper because his claims for whistleblowing, retaliatory discharge, and a declaratory judgment are "at best peripherally" related to United's prices, routes, or services.
For the reasons set forth below, we grant Plaintiff's Motion to Remand.
United employed Hamilton from October 4, 1997 to July 12, 2010. For at least the last three years prior to his discharge, Hamilton was a flight attendant. (Compl. ¶¶ 6-8.) Hamilton alleges United fired him in retaliation for reporting what he
Hamilton alleges that after this incident, United accused him of inflating his "holding time" records to increase his pay and summoned him to several meetings with United's human resources department where United attempted to exert pressure on him to admit that he had recorded the time inaccurately. (Id. ¶¶ 39-43.) Hamilton ultimately refused to make that admission and United terminated him. (Id. ¶¶ 43-44.) Hamilton argues that United had no lawful reason to fire him. (Id. ¶¶ 47-53.) He has brought suit alleging violations of the Illinois Whistleblower Act 740 ILCS 174/1 and common law retaliatory discharge, and seeks a declaratory judgment under 735 ILCS 5/2-701 ordering United, inter alia, to admit it had no legitimate reason to fire Hamilton and to amend his employee file to omit any negative entries. United removed the case to this court under the theory of "complete preemption" (Notice of Removal ¶¶ 10-13) and now seeks dismissal of the complaint under Rule 12(b)(6).
The "well-pleaded complaint" doctrine guides jurisdictional matters. Gully v. First Nat'l Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936). The "allegations of the complaint determine whether the claim arises under state or federal law," making the plaintiff "master of his pleadings." Bartholet v. Reishauer A.G., 953 F.2d 1073, 1075 (7th Cir.1992); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). Ordinarily, federal preemption is a defense to a plaintiff's suit and, as such, does not authorize removal because it does not appear on the face of the complaint. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987); Bartholet, 953 F.2d at 1075. An exception to both rules exists "when a federal statute wholly displaces the state law cause of action through complete pre-emption ... [such that] a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law." Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 2063, 156 L.Ed.2d 1 (2003); see also Turek v. General Mills, Inc., 662 F.3d 423, 425 (7th Cir.2011). In such a case, the "federal law so fills every nook and cranny that it is not possible to frame a complaint under state law." Bartholet, 953 F.2d at 1075.
In this case, Hamilton's claims would be completely preempted and give rise to federal subject matter jurisdiction if: 1) they relate to United's prices, routes, or services; or 2) Congress, through WPP, expressed a "clear and manifest" intent to occupy the field of whistleblowing regulation pertaining to air safety complaints so fully that no state claim can exist alongside them.
The "touchstone" of federal preemption is Congressional intent. Travel All Over the World, 73 F.3d at 1430. Congress may manifest its intent to displace state law from a particular field by: 1) expressly including relevant language in the statute; or 2) through inference "contained in [the statute's] structure and purpose." Morales, 504 U.S. at 383, 112 S.Ct. at 2036 (internal citations and quotations omitted). FADA's express preemption clause provides:
49 U.S.C. 41713(b)(1). Congress passed FADA to "promote maximum reliance on competitive market forces." 49 U.S.C. 40101(a)(6); American Airlines, Inc. v. Wolens, 513 U.S. 219, 230, 115 S.Ct. 817,
Based on the plain language of the statute, the Supreme Court held that Congress "express[ed] a broad pre-emptive purpose" in the area of airline regulation. Morales, 504 U.S. at 383, 112 S.Ct. at 2037. Thus, FADA preempts any state law or enforcement action that has "a connection with or reference to, airline `rates, routes, or services.'" Id. at 384, 112 S.Ct. at 2037. However, "`some state action may affect [airline fares] in too tenuous, remote, or peripheral a manner' to have preemptive effect." Id. at 390, 112 S.Ct. at 2040 (quoting Shaw v. Delta Air Lines, 463 U.S. 85, 100, n. 21, 103 S.Ct. 2890, 2901, n. 21, 77 L.Ed.2d 490 (1983)); Travel All Over the World, 73 F.3d at 1431.
Under Seventh Circuit jurisprudence, a state law or action "`relates to' airline rates, routes, or services, either by expressly referring to them or by having a significant economic effect upon them." Travel All Over the World, 73 F.3d at 1432; Mesa Airlines, 219 F.3d at 609. Thus, laws of general applicability, such as the Illinois Whistleblower Act, may still be preempted by FADA if they significantly impact an airline's prices, rates, or services. Yet even broadly preemptive statutes do not reach all claims related to their subject matter. The "broad applicability of the preemption statutes should be understood in light of their deregulatory purpose." S.C. Johnson, 697 F.3d at 559.
The Supreme Court has considered FADA preemption three times. In Morales, the Court held the marketing guidelines promulgated by the National Association of Attorneys General preempted by FADA because the guidelines not only expressly referred to airline fares but because any "state restrictions on fare advertising have the forbidden significant effect upon fares." Morales, 504 U.S. at 388, 112 S.Ct. at 2039. In Wolens, the Supreme Court found that the Illinois Consumer Fraud Act impermissibly "guide[d] and police[d] the marketing practices of the airlines" and, thus, FADA preempted its enforcement. Wolens, 513 U.S. at 228, 115 S.Ct. at 823. In Rowe,
The Seventh Circuit has not had the opportunity to rule on FADA's (and WPP's) preemptive effect on state whistleblower statutes or retaliatory discharge claims. In most of its cases to this point, the Seventh Circuit has resolved disputes between contractual parties under various breach of contract and tort theories. See S.C. Johnson, 697 F.3d 544, 545-6 (reversing the judgment of the district court finding preemption on all counts and remanding with instructions that fraudulent misrepresentation and conspiracy to commit fraud claims were preempted but bribery and racketeering claims were not); ATA Airlines, Inc. v. Fed. Express Corp., 665 F.3d 882, 883 (7th Cir.2011) (reversing district court's ruling that a claim of promissory estoppel is preempted); Mesa Airlines, 219 F.3d at 609-611 (affirming district court's order finding preemption for claims of fraudulent inducement, breach of fiduciary duties, and tortious interference with contract); Travel All Over the World, 73 F.3d at 1432-4 (reversing district court's ruling finding preemption on all counts, with guidance on remand that breach of contract, slander, and defamation claims were not preempted, while claims for tortious interference, intentional infliction of emotional distress, and fraud were preempted). In all these cases, the common focus was whether the state is in any way attempting to insert itself into the parties' bargain and substitute its own substantive determinations for theirs. See, e.g., S.C. Johnson, 697 F.3d at 557; ATA Airlines, 665 F.3d at 884; Mesa Airlines, 219 F.3d at 610; Travel All Over the World, 73 F.3d at 1435.
The majority of other circuits that have analyzed the effect of FADA on state whistleblower statutes have not found preemption under FADA's express preemption clause. See Ventress v. Japan Airlines, 603 F.3d 676, 683 (9th Cir.2011); Gary v. Air Group, Inc., 397 F.3d 183, 189 (3d Cir.2005); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1250 (11th Cir.2003).
The Eighth Circuit alone has held that FADA preempts the application of a state whistleblower statute to airline safety claims.
We conclude that Hamilton's whistleblower and retaliatory discharge claims are not preempted by FADA's express preemption language. His claims are too tenuously related to any price, route, or service provided by United to its customers. As the Seventh Circuit directs, we look to the "underlying facts" of this case to determine whether there is preemption under FADA. See Travel All Over the World, 73 F.3d at 1432.
Defendant argues that Plaintiff's claims are related to "United's safety obligations, rates, routes and services" because: 1) length of "holding time" affects United's operating costs and the time of departure of each flight and, consequently, the rates that United charges its customers; 2) "holding time" affects the safety of the flight and is thus "service priority number one for any airline;" and 3) it cannot be separated from the federal regulations on "holding time" requiring "review and analysis of the FAA regulations governing holding time" by the state court. (Notice of Removal ¶ 12; Resp. at 4.) Defendant mischaracterizes Hamilton's claims.
First, Plaintiff's claims stem purely from his employment relationship with United, affecting Defendant in its role as employer rather than as airline competitor. Rowe, 552 U.S. at 375, 128 S.Ct. at 997; DiFiore v. American Airlines, Inc., 646 F.3d 81, 87 (1st Cir.2011) ("[T]he Supreme Court would be unlikely — with some possible qualifications — to free airlines from most conventional common law claims for tort, from prevailing wage laws, and ordinary taxes applicable to other businesses.").
Second, it is unclear whether "holding time" falls squarely within the Seventh Circuit's definition of "service." The Seventh Circuit defined "service" as "generally represent[ing] a bargained-for or anticipated provision of labor from one party to another ... lead[ing] to a concern with the contractual arrangement between the airline and the user of the service." Travel All Over the World, 73 F.3d at 1433 (adopting the Fifth Circuit's definition of "service" in Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995)). These bargained-for elements include transportation, "ticketing, boarding procedures, provision of food and drink, and baggage handling." Id. Hamilton's claims do not impact any contractual agreements between United and its customers.
Hamilton's claims are at least one step removed from the services for which passengers bargain directly with the airline. In his state suit, he is not challenging the "holding time" procedures themselves. Rather, he is challenging the reasons for his discharge. Neither the fact that he may or may not have been discharged unlawfully, nor the relief he seeks as remedy, would significantly impact the customer-airline bargain. Hamilton is not seeking injunctive relief directing United to act in any particular way toward its customers. As Judge Kendall has previously held, if a plaintiff seeks no injunctive relief and the relief which he does seek does not result in a binding judicial finding as to how an airline should maintain or service its aircraft, there is no impact on airline services. See Meyer, 624 F.Supp.2d at 931.
Defendant argues that "holding time" is an element of air safety. (Notice of Removal ¶ 12.) It is arguable whether "safety" equates to "service." The Seventh Circuit has not given an opinion on this matter. It has relatedly ruled that a tort action against an airline for a crash that raises issues of air safety may be litigated in state court. See Bennett v. Southwest Airlines Co., 484 F.3d 907, 912 (7th Cir. 2007). The Seventh Circuit rejected the position that air-crash litigation, even though implicating federal aviation standards, necessarily arises under federal law. Id. at 911. It opined that the tort litigation required the resolution of "fact-bound question[s]" in regard to the pilot's behavior before the crash rather than a "context-free" inquiry into federal law. Id. at 909, 911. This analysis is instructive here. Resolution of Hamilton's claims will turn on specific factual inquiries into United's behavior surrounding his discharge rather than an evaluation of FAA regulations.
In addition, the Eleventh Circuit has held that safety is not an element over which airlines compete but is an implicit understanding that each airline undertakes to ferry its passengers safely to their chosen destination. See Branche, 342 F.3d at 1260. We find this reasoning persuasive, especially when considered alongside the passage of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61 (codified as amended in scattered sections of 49 U.S.C.), which introduced the WPP program. The relevant legislative discussion reveals that Congress considered safety a non-negotiable part of air travel. See, e.g., 146 Cong. Rec. 1255, 1257 (2000)
Third, and as alluded to earlier, a state court judge entertaining Hamilton's claims would not need to make any definitive factual finding regarding United's actual compliance with FAA regulations on "holding time." Under the Illinois Whistleblower Act, a state court need determine only whether: 1) Hamilton's belief that a violation had occurred was "reasonable;" and 2) whether reporting this belief caused his discharge. See 740 ILCS 174/15 (2012). Logically, a judge would need to reference the federal regulations for context but she would not need to rest her analysis on, or adjudicate United's actual compliance with, the regulation. The mere reference to a federal rule does not mandate a conclusion of complete preemption or otherwise create subject matter jurisdiction in this case.
Similarly, in Illinois, the success of a claim for retaliatory discharge does not rest on the actual unlawfulness of the underlying conduct. Belline v. K-Mart Corp., 940 F.2d 184, 188 (7th Cir. 1991); Palmateer v. Int'l Harvester Co., 85 Ill.2d 124, 132-33, 52 Ill.Dec. 13, 421 N.E.2d 876, 880 (1981). Hamilton need not prove that United actually violated federal regulations, only that he "reasonably believed" a violation had occurred at the time of his whistleblowing. See Bourbon v. Kmart Corp., 223 F.3d 469, 472 (7th Cir.2000) (citing Belline, 940 F.2d at 188). In adjudicating the retaliatory discharge claim, a state court must decide whether the discharge violated a clear mandate of public policy. Belline, 940 F.2d at 186. A state court may choose to look to federal law when making that decision. See Brandon v. Anesthesia & Pain Mgmt. Assocs., 277 F.3d 936, 942 (7th Cir.2002) (citing Russ v. Pension Consultants Co., 182 Ill.App.3d 769, 775, 131 Ill.Dec. 318, 538 N.E.2d 693, 697 (1st Dist.1989); Johnson v. World Color Press, Inc., 147 Ill.App.3d 746, 748-49, 101 Ill.Dec. 251, 498 N.E.2d 575, 576 (5th Dist.1986); and discussing Wheeler v. Caterpillar Tractor Co., 108 Ill.2d 502, 92 Ill.Dec. 561, 485 N.E.2d 372 (1985)). Still, the possibility that a federal law may be discussed as part of public policy analysis is not enough to grant federal question jurisdiction in this case.
Even if not expressly preempted under FADA, Defendant argues that the inclusion of WPP within the FADA regulatory scheme manifests a clear intent on the part of Congress to preempt all state whistleblower claims in regard to air safety. (Notice of Removal ¶ 11). We disagree.
Where an explicit preemption clause exists, it is generally unnecessary "`to infer congressional intent to pre-empt state laws from the substantive provisions.... 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) (citing Cal. Fed. Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 690, 93 L.Ed.2d 613 (1987)). Further, federal courts should not infer preemption lightly in matters traditionally carried out
In 1999, Congress amended FADA by incorporating WPP, which provided federal administrative protection to airline employees for reporting alleged air safety violations. 49 U.S.C. § 42121(a)(1) (2007).
Three circuits agree that the addition of WPP did not expand FADA preemption, for two reasons. Ventress, 603 F.3d at 683; Gary, 397 F.3d at 190; Branche, 342 F.3d at 1264. The WPP created an additional, rather than an exclusive, remedy. See, e.g., Branche, 342 F.3d at 1264.
49 U.S.C. § 42121(b)(1) (emphasis added). Had Congress intended the WPP to be an exclusive remedy, it likely would have chosen strong language to mandate it. Later in the same section, for example, Congress directs that the Secretary of Labor "shall notify, in writing, the person named in the complaint." 49 U.S.C. § 42121(b)(1) (emphasis added). This usage of both permissive and commanding verbs in the same section shows Congress's awareness of the differing impact of the two. There is no reason to infer that Congress meant for both verbs to mean the same thing. Our district has previously agreed. See Meyer, 624 F.Supp.2d at 930 ("[T]his Court adopts an interpretation of the WPP that remains
Second, "courts should not lightly infer preemption ... especially in the employment law context" as it falls within a state's traditional state powers. See, e.g., Gary, 397 F.3d at 190. In our opinion, the legislative record does not indicate a "clear and manifest" intent on the part of Congress to preempt all state laws as they relate to air safety whistleblowing. In passing this section, Congress discussed the importance of protecting whistleblowers in order to enhance air safety. See 146 Cong. Rec. S. 1255, 1257 (2000) ("We also have provided whistleblower protection to aid in our safety efforts and protect workers willing to expose safety problems."). However, Congress did not promote WPP as an exclusively federal remedy that would facilitate that goal better than the availability of both state and federal forums for whistleblowing claims.
All in all, the existence of two plausible alternatives reveals that Congress's intent is not so "clear and manifest" as to fully displace state law in this case. Given this ambiguity, we join the Third, Ninth, and Eleventh Circuits, and Judge Kendall, in deciding that — without Supreme Court or Seventh Circuit guidance to the contrary — WPP did not expand FADA's preemption scope.
In removal actions, courts should resolve any doubt as to the existence of federal subject matter jurisdiction in favor of the plaintiff's choice of forum. Schur, 577 F.3d at 758. For the reasons set forth above, we grant Plaintiff's Motion to Remand. Since we lack subject matter jurisdiction in this case, we strike Defendants' Motion to Dismiss. It is so ordered.
