Watson v. Air Methods Corp.

• Decision Date: 31 August 2017
• Docket Number: No. 15-1900.,15-1900.
• Citation: 870 F.3d 812
• Parties: John A. WATSON, V, Plaintiff–Appellant, v. AIR METHODS CORPORATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

870 F.3d 812

John A. WATSON, V, Plaintiff–Appellant,

v.AIR METHODS CORPORATION, Defendant–Appellee.

No. 15-1900.

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2017

Filed: August 31, 2017

Eli Karsh, Liberman & Goldstein, Saint Louis, MO, for Plaintiff–Appellant.

George W. Hicks, Jr., Kirkland & Ellis, Washington, DC, Kaytlin E. Kopen, Sonni Fort Nolan, Terry L. Potter, JoAnn T. Sandifer, Husch & Blackwell, Saint Louis, MO, for Defendant–Appellee.

Before RILEY, Chief Judge,¹ WOLLMAN, LOKEN, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.

COLLOTON, Circuit Judge.

John Watson sued his former employer, Air Methods Corporation, in Missouri state court, alleging a common-law claim for wrongful discharge in violation of public policy. Watson alleged that he was a "whistleblower" who disclosed safety violations at the company, and that Air Methods retaliated against him by terminating his employment. Air Methods removed the case to federal court and then moved to dismiss based on the pre-emption provision of the Airline Deregulation Act ("ADA"), 49 U.S.C. § 41713(b)(1). The district court, relying on our decision in Botz v. Omni Air International , 286 F.3d 488 (8th Cir. 2002), dismissed the complaint, and Watson appeals. We now hold that the ADA does not expressly pre-empt Watson's state-law wrongful-discharge claims involving post hoc reporting of alleged violations of air-safety regulations.

I.

Air Methods operates flights and provides in-flight medical care for patients who require emergency air transportation to hospitals. The company maintains a fleet of 450 aircraft and qualifies as an "air carrier" for purposes of federal aviation regulations. 49 U.S.C. § 40102(a)(2).

From July 2013 until May 2014, Watson worked as a flight paramedic for Air Methods. Watson claims that during his employment with Air Methods, he observed numerous violations of federal aviation safety regulations. These included a pilot making cell-phone videos during flight, members of a medical crew text messaging during critical phases of flight, a pilot attempting to take off despite accumulation of frost and ice on the aircraft, and another pilot making unnecessary "run-on landings." Watson reported these alleged violations to Air Methods's corporate office. He asserts that the company responded by suspending him and later terminating his employment.

In August 2014, Watson sued Air Methods in Missouri state court for the common-law tort of wrongful discharge in violation of public policy. Under Missouri common law, an employer may not terminate an employee "for reporting wrongdoing or violations of law to superiors or public authorities." Fleshner v. Pepose Vision Inst., P.C. , 304 S.W.3d 81, 92 (Mo. 2010). Air Methods removed the case to federal court, invoking jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332.

Air Methods then moved to dismiss the complaint on the ground that the ADA expressly pre-empted Watson's wrongful discharge claim. The district court granted the motion, concluding that this court's decision in Botz controlled the issue. On appeal, a panel of this court likewise concluded that the case was controlled by Botz and affirmed. Watson v. Air Methods Corp. , 834 F.3d 891 (8th Cir. 2016) (per curiam). We then granted Watson's petition for rehearing en banc to consider whether Botz should be reconsidered in relevant part. Whether Watson's claim is expressly pre-empted by the ADA is a question of law that we review de novo . Kutten v. Bank of Am., N.A. , 530 F.3d 669, 670 (8th Cir. 2008).

II.

In 1978, Congress passed the ADA "to encourage, develop, and attain an air transportation system which relies on competitive market forces to determine the quality, variety, and price of air services." Pub. L. No. 95-504, 92 Stat. 1705, 1705 (1978). Before the ADA, the Civil Aeronautics Board possessed broad power to regulate the interstate airline industry, including the authority to prescribe routes and fares. Federal Aviation Act of 1958, Pub. L. No. 85-726, tit. IV, 72 Stat. 731, 754-71 (1958). The ADA largely deregulated domestic air transportation and provided for the eventual termination of the Civil Aeronautics Board. 92 Stat. at 1744-54.

"To ensure that the States would not undo federal deregulation with regulation of their own," Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), the ADA contains an express pre-emption clause, providing in relevant part:

[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). The clause applies to state statutes and state common-law claims. Nw., Inc. v. Ginsberg , ––– U.S. ––––, 134 S.Ct. 1422, 1430, 188 L.Ed.2d 538 (2014).

In Botz , we construed the effect of the ADA pre-emption clause on a state whistleblower-protection law. There, a flight attendant refused to work both legs of an Alaska-to-Japan round trip because she believed the assignment violated a federal regulation concerning cabin crewmembers' working hours. Botz , 286 F.3d at 490 (citing 14 C.F.R. § 121.467 (2001) ). She also reported to the airline her belief that the refused assignment, and a comparable assignment six months earlier, violated the regulation. Id. The airline fired the flight attendant for insubordination and refusing to accept an assignment, and she sued under the Minnesota whistleblower-protection statute. Id. at 490-91. The Minnesota law prohibited an employer from firing an employee who "in good faith, reports a violation, suspected violation, or planned violation" of federal or state law, or who "refuses an employer's order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law." Minn. Stat. § 181.932, subd. 1(1), (3).

In concluding that the Minnesota statute "related to ... service of an air carrier" within the meaning of § 41713(b)(1), this court focused first on the potentially disruptive effect of a crewmember refusing a work assignment. Botz , 286 F.3d at 494-95. Federal airline regulations set minimum staffing requirements for all commercial flights, so a crewmember's refusal to fly will usually force an airline either to find a last-minute replacement or to cancel the flight. Id. at 494. Because a crewmember's refusal to fly creates a "significant likelihood" that the carrier will have to cancel that flight, we concluded that the Minnesota statute's authorization of such refusal had "a forbidden connection with an air carrier's service." Id. at 494-95. This reasoning was sufficient to demonstrate pre-emption of the flight attendant's whistleblower claim based on her refusal to work a scheduled shift.

In addressing the flight attendant's separate claim of retaliation based on her post hoc report of an alleged safety violation six months earlier, the Botz panel explained that its analysis of the ADA's pre-emptive effect was "bolstered by" the Whistleblower Protection Program of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("WPP"), 49 U.S.C. § 42121. 286 F.3d at 497. Enacted in 2000, the WPP amended the ADA to create what this court described as a "single, uniform scheme for responding to air-carrier employees' reports of air-safety violations." Id. Under the WPP, such complaints are to be adjudicated by the Secretary of Labor. The Botz panel thought the WPP's protections "illustrate the types of claims Congress intended the ADA to pre-empt." Id.

Although the WPP does not contain a pre-emption provision, Botz concluded that the enactment informed the scope of pre-emption under the ADA. The court reasoned that Congress, presumably aware of the broad pre-emptive scope of § 41713(b)(1), would 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. "In fashioning a single, uniform standard for dealing with employee complaints of air-safety violations," the court said, "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.

The court thus concluded that the WPP was "powerful evidence of Congress's clear and manifest intent to pre-empt state-law whistleblower claims related to air safety" through the ADA, id. at 496, and that the WPP dispelled "whatever doubt might possibly linger after a plain-language analysis of the ADA's pre-emption provision." Id. at 498. For these reasons, the court held that the plaintiff's claim involving her post hoc report of a safety violation was also pre-empted. The Botz panel decided the case based strictly on express pre-emption under the ADA, and found "no need to consider [the airline's] implied pre-emption arguments." Id. at 493.

Botz was the first federal appellate decision on express pre-emption of whistleblower claims. Since then, the Third, Ninth, and Eleventh Circuits each rejected Botz 's view that the ADA expressly pre-empts whistleblower claims based on post hoc air-safety reports. Ventress v. Japan Airlines , 603 F.3d 676, 683 (9th Cir. 2010) ; Gary v. Air Grp., Inc. , 397 F.3d 183, 189-90 (3d Cir. 2005) ; Branche v. Airtran Airways, Inc. , 342 F.3d 1248, 1258-64 (11th Cir. 2003). In particular, these circuits observed that the WPP did not change "the language of the ADA's pre-emption provision in any meaningful way," and disagreed with Botz that the WPP was probative of Congress's intent to pre-empt state laws. Ventress , 603 F.3d at 683 (quoting Bra...