Anderson v. Evergreen Intern. Airlines, Inc.

• Decision Date: 14 December 1994
• Citation: 886 P.2d 1068,131 Or.App. 726
• Parties: , 10 IER Cases 309 Andy ANDERSON, Appellant, v. EVERGREEN INTERNATIONAL AIRLINES, INC., Respondent. 9211-08016; CA A82288.
• Court: Oregon Court of Appeals

Page 1068

886 P.2d 1068

131 Or.App. 726, 10 IER Cases 309

Andy ANDERSON, Appellant, v. EVERGREEN INTERNATIONAL AIRLINES, INC., Respondent.

9211-08016; CA A82288.

Court of Appeals of Oregon.

Argued and Submitted Sept. 28, 1994.

Decided Dec. 14, 1994.

Kevin Keaney, Portland, argued the cause, for appellant. On the briefs were Charles J. Merten and Merten & Associates.

Lori Irish Bauman, Portland, argued the cause, for respondent. With her on the brief were Daniel H. Skerritt and Ater Wynne Hewitt Dodson & Skerritt.

Before DEITS, P.J., and RIGGS and HASELTON, JJ.

HASELTON, Judge.

Plaintiff appeals from the trial court's judgment dismissing his wrongful discharge action. We reverse.

Plaintiff's complaint alleges the following material facts. ¹ Defendant is an Oregon corporation, which does business, including performing air transport services, throughout the world. Defendant's operations are subject to regulation by the United States Federal Aviation Administration (FAA). ² In 1989 and 1990, plaintiff worked as an aircraft maintenance engineer for defendant in Sidney, Australia. Throughout his employment, plaintiff's supervisors "regularly and knowingly" ordered him to install defective parts in defendant's 747 aircraft, which were used to transport cargo, rendering those aircraft unairworthy.

In early December 1990, plaintiff, acting in compliance with FAA regulations, replaced a defective part in one of defendant's 747s with a non-defective part. Immediately thereafter, "and from Oregon," defendant:

"[K]nowingly gave plaintiff a direct order to take the replacement part out of the 747, put the defective part back in the 747, and send the 747 back into flight without logging the removal of the replacement part. Defendant had actual knowledge at [that] time that the part was defective and that had plaintiff obeyed, plaintiff and defendant would have been in violation of FAA regulations. Further, defendant from Oregon concurrently ordered plaintiff to no longer, in the future, replace defective parts and to, in further violation of FAA regulations, falsely certify that he had inspected and made all repairs and replacement of such parts necessary to make the aircraft airworthy."

When plaintiff refused to comply with those orders, and particularly refused to acquiesce in violations of FAA regulations, "defendant, while in Oregon," ³ fired him.

Plaintiff sued defendant for wrongful discharge and breach of contract. Defendant moved under ORCP 21 to dismiss plaintiff's wrongful discharge claim on two alternative theories: (1) The Federal Aviation Act preempts plaintiff's common law wrongful discharge claim; and (2) even if plaintiff's claim is not preempted by federal law, it is legally insufficient under Oregon law. The trial court, without specifying its grounds in its order, granted defendant's motion, and plaintiff subsequently voluntarily dismissed his breach of contract claim without prejudice. This appeal ensued.

We do not know the basis for the trial court's dismissal. ⁴ However, because both grounds that defendant argued below are properly before us as alternative bases for affirmance, we must consider whether either supports dismissal. Because defendant's preemption argument implicates our jurisdiction, we address it first. See Derenco v Benj. Franklin Fed. Sav. and Loan, 281 Or. 533, 537, 577 P.2d 477 (1978).

In Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), the Supreme Court restated the law of federal preemption:

"Article VI of the Constitution provides that the laws of the United States 'shall be the supreme Law of the Land; * * * any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.' Art. VI, cl 2. Thus, since our decision in McCulloch v. Maryland [17 U.S. (4 Wheat.) 316, 4 L.Ed. 579], (1819) * * * it has been settled that state law that conflicts with federal law is 'without effect.' * * * Consideration of issues arising under the Supremacy Clause 'start[s] with the assumption that the historic police powers of the States [are] not to be superseded by * * * Federal Act unless that [is] the clear and manifest purpose of Congress.' * * * Accordingly, ' "[t]he purpose of Congress is the ultimate touchstone" ' of preemption analysis. * * *

"Congress' intent may be 'explicitly stated in the statute's language or implicitly contained in its structure and purpose.' * * * In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law, * * *, or if federal law so thoroughly occupies a legislative field ' "as to make reasonable the inference that Congress left no room for the States to supplement it." ' " 505 U.S. at ----, 112 S.Ct. at 2617. (Citations omitted.)

Proceeding from that analysis, defendant makes two preemption arguments. First, Congress, by enacting the "complex and pervasive federal regulatory scheme" governing aircraft operations and safety, "occupied the field," leaving no room for a state common law wrongful discharge action. Second, Congress expressly preempted actions like plaintiff's when it enacted the Airline Deregulation Act of 1978. 49 U.S.C.App. §§ 1301 et seq. Both arguments fail.

Two sections of the Federal Aviation Act are particularly pertinent. 49 U.S.C.App. § 1506 provides:

"Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies."

When Congress amended the Act in 1978, enacting the Airline Deregulation Act, it retained the section 1506 "saving clause" but also added an explicit preemption provision:

"Except as provided in paragraph (2) of this subsection [concerning air transportation in Alaska], no State or political subdivision thereof * * * shall enact or enforce 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 having authority under subchapter IV of this chapter to provide air transportation." 49 U.S.C.App. § 1305(a)(1). (Emphasis supplied.)

Defendant's first argument, that, by providing a "complete scheme for governing airline safety," Congress has "occupied the field" of aviation safety, fails because:

"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 expressio 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., supra, 505 U.S. at ----, 112 S.Ct. at 2618. (Citations omitted.)

Thus, when coupled with section 1506, congressional enactment of section 1305(a)(1) precludes implicit "field preemption." See Stewart v. American Airlines, Inc., 776 F.Supp. 1194, 1199 (S.D.Tex.1991) ("to the extent that a claim is not pre-empted by Section 1305, it is expressly preserved by Section 1506").

Nor is plaintiff's wrongful discharge claim expressly preempted by section 1305(a)(1). Defendant reasons that (1) "services," as used in that statute, encompasses safety; and (2) because plaintiff's wrongful discharge action will involve interpretation of FAA safety regulations, it implicates "services," and is, thus, preempted. We disagree. Even if we were to accept the problematic premise that "services" under section 1305(a)(1) encompasses safety, in this case safety issues are so tangential to plaintiff's wrongful discharge action as to preclude preemption on that ground.

We note at the outset that there is a severe division of authority over whether the reference to "services" in section 1305(a)(1) preempts state or local regulation or adjudication of aircraft safety. ⁵ We decline to enter that dispute because we need not do so. Even if "relating to services" includes safety considerations, the relationship between plaintiff's wrongful discharge action and safety is "too tenuous, remote, or peripheral" to have preemptive effect. Morales v. Trans World Airlines, Inc., 504 U.S. 374, ----, 112 S.Ct. 2031, 2040, 119 L.Ed.2d 157 (1992). Although FAA safety violations provide the basis for plaintiff's wrongful discharge action, the substance of those safety violations is incidental to the fact that plaintiff was discharged for refusing to comply with illegal orders and to his remedies for that discharge.

Our analysis comports with that of other courts that have considered similar claims. For example, in Pavolini v. Bard-Air Corp., 645 F.2d 144, 147 (2d Cir.1981), plaintiff brought a wrongful discharge action in federal court, alleging that he was fired for having reported safety violations to the FAA. Plaintiff argued that the Federal Aviation Act's safety provisions gave rise to an implied right of action under the Act for wrongful discharge. The court dismissed the action for lack of jurisdiction, noting that the true basis of plaintiff's claim was not the safety violations, but the resultant discharge:

"[W]e can assume on this record that Bard-Air has violated the Act in several respects. But nevertheless, this is an action seeking redress for loss of employment and [plaintiff's] injury does not flow, in a legal sense, from Bard-Air's failure to obey any statutory requirement or from a violation of any statutory prohibition." 645 F.2d at 147. (Footnote omitted.)

Accord Anderson v. American Airlines, 2 F.3d 590, 597 (5th Cir.1993) (airline mechanic's wrongful discharge action based on his termination for having filed for workers' compensation benefits is not...