Bennett v. Southwest Airlines Co.

• Citation: 484 F.3d 907
• Decision Date: 26 April 2007
• Docket Number: No. 06-3486.,06-3486.
• Parties: Mariko L.A. BENNETT, et al., Plaintiffs-Appellants, v. SOUTHWEST AIRLINES CO., The Boeing Company, and City of Chicago, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

484 F.3d 907

Mariko L.A. BENNETT, et al., Plaintiffs-Appellants, v. SOUTHWEST AIRLINES CO., The Boeing Company, and City of Chicago, Defendants-Appellees.

No. 06-3486.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 2007.

Decided April 26, 2007.

David E. Rapoport (argued), Rapoport Law Offices, William J. Jovan, Nolan Law Group, Antonio M. Romanucci, Romanucci & Blandin, Carlton E. Odim, Shestokas, Raines, Odim & Malavia, Chicago, IL, Daniel Rose, Kreindler & Kreindler, New York, NY, for Plaintiffs-Appellants.

William T. Cahill, Perkins Coie, Alan L. Farkas (argued), Madsen, Farkas & Powen, Alan J. Brinkmeier, Merlo, Kanofsky & Brinkmeier, Chicago, IL, Jeffrey J. Ellis

(argued), New York, NY, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.

EASTERBROOK, Chief Judge.

Southwest Airlines flight 1248 landed in a snowstorm at Chicago Midway International Airport on December 8, 2005. Conditions were near the federal minimum for safe landings on Midway's Runway 31C, which at 6,522 feet is among the shortest main runways at a commercial airport. A successful landing of the Boeing 737-700 depended on the pilot's ability to come in at a moderate speed, touch down near the start of the runway, and apply the thrust reversers promptly. As things turned out, however, the wheels touched down 2,000 feet into the runway and thrust reversers did not deploy until 18 seconds later, when the plane was only 1,000 feet from the runway's end. The plane smashed through a barrier and a fence; it came to rest in a street, where it crushed a car and killed one of the occupants. Twelve other people on the ground were injured, though the plane's 98 passengers and five crewmembers were safe.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Tort suits filed in state court have been removed by the defendants (Southwest, Boeing, and Chicago) on the theory that plaintiffs' claims arise under federal law. See 28 U.S.C. § 1331, § 1441(a). The district court denied a motion to remand but certified the decision for interlocutory appeal, which we accepted. 28 U.S.C. § 1292(b). Defendants' early theory that federal law occupies the field of aviation safety and thus "completely preempts" all state law has been abandoned. We must decide whether plaintiffs' claims arise under federal law because federal aviation standards play a major role in a claim that Southwest (as operator of the flight), Boeing (as manufacturer of the airframe), or Chicago (as operator of the airport) acted negligently.

Illinois tort law supplies the claim for relief. On that much all parties agree. For decades aviation suits have been litigated in state court when the parties were not of diverse citizenship. Most plaintiffs in this suit are citizens of Illinois, as are both Boeing and the City of Chicago, so jurisdiction cannot be maintained under 28 U.S.C. § 1332. But Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005), held that a claim nominally resting on state law may "arise under" federal law, permitting removal under § 1441(a), when it "necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Defendants maintain, and the district court held, that this standard is satisfied for aviation accidents because of the dominant role that federal law plays in air transport.

Notice how we put this: The defendants do not contend, nor did the district court find, that resolution of this suit revolves around any particular disputed issue of federal law. For all we can see, everything will depend on a fact-bound question such as whether the pilots should have executed a missed approach or, having elected to land, exercised adequate diligence in activating the thrust reversers; whether Boeing should have told air carriers not to count on thrust reversers when calculating how much runway they need; or whether Chicago should have closed the airport because of bad weather. The meaning of federal statutes and regulations may play little or no role. As defendants (and the district court) saw things, however, this does not matter: all suits about commercial air travel belong in federal court because the national government is the principal source of rules about safe air transportation, and uniform application of these norms is desirable. So put, the argument would extend Grable and the arising-under jurisdiction well beyond the scope the Justices are willing to tolerate.

In the main, a claim "arises under" the law that creates the cause of action. See American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 36 S.Ct. 585, 60 L.Ed. 987 (1916) (Holmes, J.). The Court has ruled, however, that this is a sufficient rather than a necessary condition of the arising-under jurisdiction, see Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), and by holding out the possibility (realized in Grable) that a contested federal issue in a state-law suit may allow jurisdiction under § 1331 the Court has greatly complicated the analysis. For the Court has also held that a federal issue, even an important one, usually is insufficient for § 1331 jurisdiction.

Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), provides a good example. Thompson alleged that a drug that the Food and Drug Administration had approved for sale was inadequately labeled as a matter of federal law, and that this shortcoming should lead to recovery in tort under state law. The drug's manufacturer argued that this claim arose under federal law because the adequacy of the label must be assessed under federal substantive standards. The Supreme Court granted the premise—that a court must apply federal law to determine whether the drug had been labeled properly—but denied the conclusion that this made the plaintiff's claim "arise under" federal law. Whether poor labeling supports recovery, and if so what damages are appropriate, are matters of state law that belong in state court, the Justices concluded.

Grable reached a different conclusion when the state proceeding amounted to a collateral attack on a federal agency's action. The IRS seized a parcel of Grable's land; although the agency gave notice by certified mail, Grable did not request a hearing, so the IRS sold the land and applied the proceeds to Grable's taxes. Grable did not redeem within 180 days of the sale. Years later it filed a quiet-title action under state law, contending that it should be confirmed as the parcel's owner because the IRS's notice did not satisfy federal requirements. The only contested issue in the suit was one of federal law, and the main effect of the suit if Grable should prevail would be to require the federal government to reimburse the parcel's buyer, disgorging money that had been credited as taxes. The Court held that such a claim arises under federal law because, apart from the procedural device (a quiet-title action), there was nothing in it but federal law, with the potential to affect the national government's revenues. The Court thought a federal forum especially appropriate for contests arising from a federal agency's performance of duties under federal law, doubly so given the effect on the federal Treasury.

Defendants' argument that Grable brings within § 1331 all actions in which federal law may play an important role was made to the Supreme Court in Empire Healthchoice Assurance, Inc. v. McVeigh, ___ U.S. ___, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006), and squelched. Empire Healthchoice, which administered a program of health insurance for federal employees, filed suit in federal court seeking to recover from an insured who had settled a tort claim and failed to turn over any of the proceeds as the policy's subrogation clause required. Empire Healthcare's theory was that because the policy's terms, including the requirement of reimbursement, had been prescribed by federal regulation, the claim for reimbursement itself arises under federal law. The Court held, however, that the claim arose under the contract—and, as in Merrell Dow, that the influence of federal law on the outcome of a contract (or tort) suit is not enough to support the arising-under jurisdiction. Responding to an argument that Grable equated an important federal issue with a claim arising under federal law, the Court replied:

Whether Grable received notice adequate under [26 U.S.C.] § 6335(a), we observed, was "an essential element of [Grable's] quiet title claim"; indeed, "it appear[ed] to be the only . . . issue contested in the case." This case is poles apart from Grable. The dispute there centered on the action of a federal agency (IRS) and its compatibility with a federal statute, the question qualified as "substantial," and its resolution was both dispositive of the case and would be controlling in numerous other cases. Here, the reimbursement claim was triggered, not by the...