Branche v. Airtran Airways, Inc., No. 02-14920.

• Decision Date: 21 August 2003
• Docket Number: No. 02-14920.
• Citation: 342 F.3d 1248
• Parties: Michael F. BRANCHE, Plaintiff-Appellant, v. AIRTRAN AIRWAYS, INC., a foreign corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

342 F.3d 1248

Michael F. BRANCHE, Plaintiff-Appellant, v. AIRTRAN AIRWAYS, INC., a foreign corporation, Defendant-Appellee.

No. 02-14920.

United States Court of Appeals, Eleventh Circuit.

August 21, 2003.

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Craig L. Berman, Berman Law Firm, P.A., St. Petersburg, FL, for Plaintiff-Appellant.

R. Paul Roecker, Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel P.A., Orlando, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before MARCUS and WILSON, Circuit Judges, and RESTANI^*, Judge.

MARCUS, Circuit Judge:

This case ultimately requires us to determine whether a claim brought by appellant Michael Branche ("Branche") against his former employer, Airtran Airways, Inc. ("Airtran"), pursuant to Florida's Whistle-blower Act, Fla. Stat. § 448.102, is expressly pre-empted by the federal Airline Deregulation Act ("ADA"), 49 U.S.C. § 41713. This question forces us, in turn, to decide whether Branche's claim significantly affects "air carrier services," as that phrase is used in the ADA's pre-emption clause. This is a close question that is rendered especially difficult by Congress's 1999 amendment of the ADA to include the Whistleblower Protection Program ("WPP"), 49 U.S.C. § 42121, a provision that offers a remedy for plaintiffs in Branche's position that parallels the one available under Florida law. After thoroughly considering the arguments raised by the parties and the applicable caselaw, we conclude that Branche's claim is not pre-empted. Because the district court held contrarily, we vacate its entry of final summary judgment in favor of Airtran and remand this case for further proceedings consistent with this opinion.

I

The basic facts are these. Branche was first hired by Airtran on September 2, 1998 as a maintenance controller, and he subsequently was transferred to the position of aircraft inspector at Tampa International Airport ("TIA"). In fact, Branche was appellee's only aircraft inspector at TIA. In this capacity, appellant was required to conduct safety inspections of Airtran's aircraft after they had been serviced by appellee's maintenance crew but prior to takeoff. These inspections were governed by FAA regulations, including 14 C.F.R. § 121.365(c),¹ which provides that this inspection function is to be exercised free from the oversight of the maintenance department whose work the inspector reviews. Branche says that during June, 2001, Guy Lewis, Airtran's maintenance manager at TIA, began exercising supervisory authority over him in direct contravention of § 121.365(c).

Branche alleges that on June 30, 2001, an Airtran DC-9 airplane landed at TIA with one of its two engines running at a temperature that exceeded Federal Aviation Administration ("FAA") safety guidelines, a condition that could have resulted in engine failure. After perceiving this dangerous condition, Branche recommended to Lewis that the engine be subjected to a detailed physical inspection. Instead, Lewis and two maintenance workers climbed into the aircraft's cockpit and conducted a "high powered run," i.e., began running the engine at high power in an effort to ascertain its air-worthiness. Appellant alleges that none of these individuals were qualified to undertake this diagnostic maneuver, and that as such they violated 14 C.F.R. § 65.81² in performing it. He further asserts that Paul Picarelli, an employee who was authorized to perform high powered runs, was present at TIA at the time, and that under § 65.81 Picarelli should have been asked to test the engine in question. Branche says that after the plane departed from TIA on June 30, 2001, the engine overheated during its flight to Atlanta and the plane subsequently was taken out of service. Moreover, he alleges that the following day he investigated this particular engine and learned that it had overheated on two separate occasions during the preceding two weeks.

On July 2, 2001, Branche informed the FAA of Airtran's regulatory violations, and both he and Airtran subsequently were contacted regarding his allegations. Airtran soon became aware that Branche was the source of the FAA's knowledge of the incidents in question. On July 6, 2001, appellant filed a formal union grievance in which he asserted that neither Lewis nor the mechanics who accompanied him in the cockpit were authorized to perform a high power engine run. Then, on July 13, 2001, Airtran accused him of falsifying his time card and stealing approximately two hours of pay. Appellant denied the allegation. On July 23, 2001, Branche was terminated based on this alleged time card violation. Appellant posits that the true reason for his discharge was retaliatory, i.e., to punish him for reporting Airtran's violations of FAA regulations.

Based on this pattern of dealing, on August 27, 2001 Branche filed this action in the Circuit Court for the Sixth Judicial Circuit, in Pinellas County, Florida. He advanced a single claim under Florida's Whistleblower Act, Fla. Stat. § 448.102. Airtran promptly removed the case on the basis of diversity to the United States District Court for the Middle District of Florida, where discovery proceeded. On June 24, 2002, Airtran moved for final summary judgment denying appellant's claim, arguing that as applied in this case the state Whistleblower Act was explicitly pre-empted by the ADA, 49 U.S.C. § 41713. The district court agreed, and granted Airtran's motion on August 27, 2002. This appeal ensued.

On appeal, Branche argues that the district court erred by holding that the ADA pre-empts Florida's Whistleblower Act, as applied in this case. He says that pre-emption under the ADA exists only where the state law in question purports to regulate airline prices, routes or services. In this case, he argues, the relationship between Florida's prohibition against retaliatory discharges and these facets of air carrier operations is too attenuated to give rise to ADA pre-emption. Airtran responds that the scope of the ADA's express pre-emption provision is extremely broad, and that the connection between the type of conduct prohibited by the Whistleblower Act and air carrier "services" is sufficient to implicate the ADA's pre-emption clause. Moreover, appellee contends, Congress's enactment in 1999 of the WPP, 49 U.S.C. § 42121, supports a finding of pre-emption here, as the WPP provides an exclusive remedy for plaintiffs in Branche's position.

II

We review a summary judgment ruling de novo, applying the same legal standard used by the district court. See Johnson v. Bd. of Regents, 263 F.3d 1234, 1242-43 (11th Cir.2001). In conducting this examination, we view the materials presented and all factual inferences in the light most favorable to the non-moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden of demonstrating the satisfaction of this standard lies with the movant, who must present "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any" that establish the absence of any genuine, material factual dispute. Id.

As the Supreme Court observed in Morales v. Trans World Airlines, Inc., "`[p]re-emption may be either express or implied, and is compelled whether Congress's command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.'" 504 U.S. 374, 383, 112 S.Ct. 2031, 2036, 119 L.Ed.2d 157 (1992) (quoting FMC Corp. v. Holliday, 498 U.S. 52, 56-57, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990)). In cases where Congress has chosen to explicitly address the issue of pre-emption, however, it generally is inappropriate to look beyond that provision to imply pre-emption from the statute's substantive dictates. As the Supreme Court has stated:

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 expression 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., 505 U.S. 504, 517, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992) (quoting Malone v. White Motor Corp., 435 U.S. 497, 505, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978) and California Fed. Sav. & Loan Ass'n. v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 690, 93 L.Ed.2d 613 (1987) (opinion of Marshall, J.)). Although the Supreme Court subsequently clarified that Cipollone does not establish an iron-clad rule against finding implied pre-emption under a statute containing an express pre-emption clause, see Freightliner Corp. v. Myrick, 514 U.S. 280, 287-89, 115 S.Ct. 1483, 1487-88, 131 L.Ed.2d 385 (1995), it recognized that "Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption." Id. at 289, 115 S.Ct. at 1488. In other words, where a legislative enactment contains an express pre-emption provision, we typically do not consider the issue of implied pre-emption; our primary task is only to determine whether the state law in question falls within the scope of the statute expressly promulgated by Congress. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541, 121 S.Ct. 2404, 2414, 150 L.Ed.2d 532 (2001) ("[O]ur task is to identify the domain expressly pre-empted....").

Under the ADA, "a State, political subdivision of a State, or political...