Frank v. Delta Airlines Inc.

• Decision Date: 03 December 2002
• Docket Number: No. 01-11393.,01-11393.
• Citation: 314 F.3d 195
• Parties: Philip J. FRANK, Plaintiff-Appellee, v. DELTA AIRLINES INC.; et al., Defendants, Delta Airlines Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

314 F.3d 195

Philip J. FRANK, Plaintiff-Appellee, v. DELTA AIRLINES INC.; et al., Defendants, Delta Airlines Inc., Defendant-Appellant.

No. 01-11393.

United States Court of Appeals, Fifth Circuit.

December 3, 2002.

W.D. Masterson, Dorothy Elizabeth Masterson, Kilgore & Kilgore, Paul Rayford Smith (argued), Scott, Bowman & Stella, Dallas, TX, for Plaintiff-Appellee.

Stephen F. Fink (argued), Bryan Patrick Neal, Thompson & Knight, Dallas, TX, Andrew J. Fisher, Delta Air Lines, Hartsfield Atlanta Intern. Airport, Atlanta, GA, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS, JONES and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:

BACKGROUND

Philip Frank worked for Delta Airlines, Inc. as an aircraft mechanic in Dallas, Texas. Upon being selected for a random drug test performed by LabOne, Inc. in February 2000, Frank produced a urine sample that contained traces of pyridine, a drug-masking agent. Delta interpreted Frank's adulterated sample as a "refusal to test," fired him, and reported his "refusal to test" to the Federal Aviation Administration (FAA). Frank sued under three Texas-law theories: negligence, intentional infliction of emotional distress, and defamation. The district court denied Delta's Rule 12(b)(6) motion to dismiss for failure to state a claim, but the district court and this Court approved an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

The issue on appeal is whether Frank's state-law tort claims are preempted by 49 U.S.C. § 45106 of the Omnibus Transportation Employee Testing Act of 1991 (OTETA) and FAA regulations.¹ We hold that Frank's state-law tort claims are expressly preempted by federal law and reverse the district court's judgment.

DISCUSSION

This court reviews a 12(b)(6) ruling de novo. Shipp v. McMahon, 234 F.3d 907, 911 (5th Cir.2000). "When ruling on a 12(b)(6) motion, the court must liberally construe the complaint in favor of the plaintiff and assume the truth of all pleaded facts." Oliver v. Scott, 276 F.3d 736, 740 (5th Cir.2002). "The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999). Preemption by federal law of a common law cause of action is a question of law reviewed de novo. See Meredith v. Louisiana Fed'n of Teachers, 209 F.3d 398, 404 (5th Cir.2000).

Federal law will override state law under the Supremacy Clause when (1) Congress expressly preempts state law; (2) Congressional intent to preempt may be inferred from the existence of a pervasive federal regulatory scheme; or (3) state law conflicts with federal law or its purposes. English v. General Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65, 74 (1990). This case involves express preemption.² "`[T]he purpose of Congress is the ultimate touchstone' in every pre-emption case." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700, 716 (1996).

Provisions preempting state law are abundant in this area, while corresponding clauses saving state law are modest. Beginning in 1988, the FAA prescribed an Anti-Drug Program for Personnel Engaged in Specified Aviation Activities, for which it issued comprehensive regulations covering, inter alia, the types of required drug testing, the selection of employees to be tested, qualifications for testing laboratories, the release of test results on individuals, administrative procedures to challenge the results, and the reporting of test results and other information to FAA. See 53 Fed.Reg. 47024 (Nov. 21, 1988);³ 14 C.F.R. pt. 121, app. I; 49 C.F.R. pt. 40. The regulations stated their preemptive state-law savings intent as follows:

XI. Preemption

A. The issuance of these regulations by the FAA preempts any State or local law, rule, regulation, order, or standard covering the subject matter of this rule, including but not limited to, drug testing of aviation personnel performing sensitive safety- or security-related functions.

B. The issuance of these regulations does not preempt provisions of State criminal law that impose sanctions for reckless conduct of an individual that leads to actual loss of life, injury, or damage to property whether such provisions apply specifically to aviation employees or generally to the public.

14 C.F.R. pt. 121, app. I § XI.A and B (1989). The FAA regulations have remained for all practical purposes identical since that time.

Congress reinforced and confirmed FAA's authority when, in 1991, it enacted OTETA to combat drug and alcohol abuse by individuals employed in the airline industry and, among other things, authorized random drug testing of employees in safety-sensitive positions.⁴ See OTETA, Pub.L. No. 102-143, 105 Stat. 952, 952-956 (1991) (codified as amended at 49 U.S.C. §§ 45101-45106). One provision permitted the FAA to "continu[e] in effect" pre-existing drug testing regulations.⁵ Further, after minor intervening linguistic amendments, the preemptive section of OTETA currently provides:

Effect on State and local government laws, regulations, standards, or orders. A State or local government may not prescribe, issue, or continue in effect a law, regulation, standard, or order that is inconsistent with regulations prescribed under this chapter. However, a regulation prescribed under this chapter does not preempt a State criminal law that imposes sanctions for reckless conduct leading to loss of life, injury, or damage to property. 49 U.S.C. § 45106(a).

Together, the statute and regulations confirm the preeminence of FAA's drug-testing responsibility over any applicable state regulation. By overriding any state "law, regulation, standard, or order" that is "inconsistent" with FAA's regulations, see § 49 U.S.C. § 45106(a), supra, Congress accomplished three things. First, it supported the preemption, where necessary, of state common law negligence claims. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 1737-38, 123 L.Ed.2d 387, 396-97 (1993) ("law, rule, regulation, order, or standard" included common-law negligence claims). Second, it approved FAA's authority to issue pre-emptive regulations both before and after OTETA was passed, with the sole limitation against preempting certain state criminal laws. Further, the narrow savings language implied a broad scope for federal preemption, since an exception for state criminal laws would hardly have seemed necessary if state law were only narrowly preempted. See Forsyth v. Barr, 19 F.3d 1527, 1543 (5th Cir.1994) (preemption provisions and savings clauses should be read together without rendering either superfluous).⁶

Notwithstanding these indicia of a broad preemptive intent, Frank contends that his claims cannot have been preempted. He asserts that the statutory language mandates narrower preemption than FAA's regulations; that "covering the subject matter," as contained in the regulations, represents a narrow basis for preemption; and that his claims are not "covered" by the FAA's drug testing regime. We address each of these arguments in turn.

Frank's statutory argument is simply incorrect. Focusing on the above-noted provision that preempts any state law found "inconsistent" with FAA's regulations, he argues that his claims are not "inconsistent" with FAA's drug testing regulations; indeed, only a competing regime of state-prescribed drug testing regulations would, in his view, be preempted. What Frank misses, however, is that in 49 U.S.C. § 45106(c), supra n. 5, Congress expressly included the agency's pre-existing preemption regulations among those that could be continued in effect. This point has been demonstrated above. It is to those regulations that one must turn in order to analyze the scope of preemption.

Frank moves to stronger ground when he attributes a narrow preemptive purpose to the "covering the subject matter" preemption in FAA's regulations. See 14 C.F.R. pt. 121, app. I § XI.A, supra. Analogous language in the Federal Railroad Safety Act of 1980 (FRSA) has been held to require a fairly close correspondence between the federal regulations and the preempted state claim. Frank relies on two FRSA cases from this circuit to support his argument that OTETA and FAA regulations do not preempt his state law claims. See United Transp. Union v. Foster, 205 F.3d 851 (5th Cir.2000); Rushing v. Kansas City S. Ry. Co., 185 F.3d 496 (5th Cir.1999). The FRSA provision, like that of the FAA, prescribes preemption of state law "covering the subject matter" of federal regulations.⁷ In Foster and Rushing, this court applied the Supreme Court's interpretation of that term as requiring federal regulations to "substantially subsume the subject matter of the relevant state law" for preemption to lie. Foster, 205 F.3d at 860 (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 1738, 123 L.Ed.2d 387, 397 (1993)); Rushing, 185 F.3d at 515 (same). In applying FRSA preemption, this court followed the Supreme Court in "eschew[ing] broad categories such as `railroad safety,' focusing instead on the specific subject matter contained in the federal regulation." Foster, 205 F.3d at 860 (citing CSX, 507 U.S. at 665-75, 113 S.Ct. at 1738-43, 123 L.Ed.2d at 397-404); see also Rushing, 185 F.3d at 515 (same).

This court concluded in both Rushing and Foster that an FRSA regulation covering the sound capacity of audible signaling devices, 49 C.F.R. § 229.129, does not "cover" or "substantially subsume" the subject matter of when such devices are sounded. In Rushing, this court held that the FRSA regulation did not as a matter of law preempt a nuisance claim based on the blowing of train whistles at night, Rushing, 185 F.3d at 516; and we held in Foster that the same FRSA regulation did not preempt a Louisiana state statute requiring the sounding of an audible...