Fifie v. Cooksey

Citation403 F.Supp.2d 1131
Decision Date16 November 2005
Docket NumberNo. 3:03-CV-158-J-TEM.,3:03-CV-158-J-TEM.
PartiesAnthony T. FIFIE, Plaintiff, v. Charles D. COOKSEY, M.D., Defendant.
CourtU.S. District Court — Middle District of Florida

Anthony J. DiFilippo, The Difilippo Law Firm, Kristen Zedella Watson, Clark & Watson, P.A., Jacksonville, FL, for Anthony T. Fifie, Plaintiff.

Harvey L. Jay, III, Saalfield, Shad, Jay, Lucas & Stokes, P.A., John Robert Saalfield, Saalfield, Shad, Jay, Lucas & Stokes, P.A., Mandy J. Locke, Saalfield, Shad, Jay, Lucas & Stokes, P.A., Jacksonville, FL, for Charles D. Cooksey M.D., Defendant.


MORRIS, United States Magistrate Judge.

This case was removed to federal court by the Defendant, who is being sued by Plaintiff for compensatory damages for alleged negligence under Florida law concerning the reporting of drug test results of a railway employee. Defendant asserts that federal law and regulations have completely preempted any claims concerning drug testing of railway employees and that the case should be dismissed. Plaintiff claims he is not relying on federal regulation, that state common law provides the basis for his suit and the case should be remanded to state court.

The Court has before it Plaintiff's Motion for Remand (Doc. # 6) and Defendant's Motion to Dismiss (Doc. # 3), their oppositions to each motion (Docs. # 8 and # 9) and the memorandums and notices of supplemental authority (Docs. # 7, # 15 and # 19). Oral argument was held (Doc. # 20) during which three exhibits were introduced without testimony (see Docs. # 17 and # 18, attachments).


Plaintiff was an employee of Florida East Coast Railway Company (FEC) who, apparently after a previous positive drug test, the details of which are not in the record (see Doc. # 20 at 9), had accepted opportunity under a second chance agreement between FEC and United Transportation Union to maintain employment (Doc. # 17, Exhibits 1 and 2). Plaintiff was scheduled to work as a yard engineer on January 14, 1996 (Doc. # 20 at p. 5; Doc. # 17, Exhibit 1). On that date, he was called to come to work about one-and-a-half hours early for administration of a drug test. A urine sample was taken and Plaintiff was provided a form indicating the test was taken pursuant to federal regulations for testing of railway employees.1

Defendant was a medical review officer (MRO) who administered the 1996 urine test, in which a split sample was created. According to the complaint, the defendant notified Plaintiff about two weeks later that the test came back positive for marijuana. Plaintiff then requested the split portion of the urine sample be sent to a different laboratory for testing. Plaintiff alleges Defendant prematurely and negligently notified FEC of the positive test results before the split sample had been tested and this action led to his dismissal from employment. A week later, Defendant allegedly learned that the split sample was destroyed by the laboratory without being tested. Plaintiff claims destruction of the split portion of the urine sample should have invalidated the test and FEC should have been notified of such by Defendant. Plaintiff claims he did not learn of the destruction of the split sample until on or about January 7, 2000. He then sought, and obtained, reinstatement from FEC through administrative procedure. Plaintiff seeks compensatory damages for the period between his dismissal on January 29, 1996 and his re-employment in 2000.

The issues:

Plaintiff claims that his complaint does not mention federal regulation and under the "well-pleaded complaint" doctrine a defendant may not remove a case to federal court based on a federal law defense. (Doc. # 8). Second, he claims the complete preemption doctrine should not apply since he is not relying on federal law or regulation (Doc. # 6). Third, at oral argument he claimed the case should be remanded to state court because the test was not officially administered under federal regulations, but rather by the "second chance" agreement between the company and the union, and that as an off-duty employee the regulations would not apply to him.

Defendant claims federal law completely preempts state claims based concerning drug testing of railroad employees (Doc. # 7), and that the federal regulations specifically state they do not create a private right of action (Doc. # 7). Defendant notes that Plaintiff originally filed a lawsuit in state court citing the federal regulations, but later dismissed it prior to filing the current action (Doc. # 3, Exhibit A). Although the current complaint does not directly mention, or seek to rely, on the federal regulations, Defendant claims that Plaintiff should not be allowed to controvert his prior complaint. (See Doc. # 9). Lastly, Defendant argued that there is no Florida common law basis for the litigation.


Preemption law

Under the Supremacy Clause of the Constitution, federal law is the "supreme Law of the Land." U.S. Const. art. VI, cl. 2. Not every federal statute or regulation has been intended to override state authority, however. A body of preemption law has arisen to resolve conflicts between federal and state statutes or authority.

"Where a state statute conflicts with, or frustrates, federal law, the former must give way." CSX Transp. Inc. v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). "In the interest of avoiding unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by the state law will be reluctant to find preemption." Id. at 663-664, 113 S.Ct. 1732.

The Supreme Court has stated there are three circumstances in which preemption may be found: (1) express preemption from the terms of a statute, (2) "field preemption" which can be inferred or implied from the pervasiveness of a federal scheme leaving no room for a state to supplement it, or (3) conflict preemption, where the state law would conflict with federal law so that it is impossible for a private party to comply with both. English v. General Electric Co., 496 U.S. 72, 78-9, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). See also Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1122 (11th Cir.2004).

Under Title 28, U.S.C. § 1441, civil actions brought in state court may be removed to federal court by a defendant only if the case could have been filed in federal court. Under the "well-pleaded complaint rule" courts will examine the face of the complaint to see if a federal question is presented. Caterpillar v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). A plaintiff thus becomes "master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Id.

A state case ordinarily may not be removed to federal court on the basis of a federal defense, including preemption. Id. at 393, 107 S.Ct. 2425. There is, however, one exception to that rule known as the "complete preemption doctrine." Occasionally the court has found the preemptive force of a statute is so extraordinary that it "converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987).

To determine whether a federal statute provides complete preemption, courts have looked at the language of the statute (see, e.g. Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002)), the purpose of the statute (Beneficial National Bank v. Anderson, 539 U.S. 1, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003)) and regulations issued by the federal agency charged with enforcing the statute (CSX Transportation v. Easterwood, 507 U.S. 658, 662, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)).2 As Easterwood indicates, federal regulations also may provide complete preemption.

Although preemption may be express in a statutory provision or implied from it (Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992)), where Congress has explicitly defined the preemptive reach of a statute, it generally is inappropriate to look beyond that provision to imply broader preemption. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); Freightliner Corp. v. Myrick, 514 U.S. 280, 287-9, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995); Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir.2003). In Branche, the court said that where a legislative enactment contains an express preemption clause, the court usually will not look further toward implied preemption, but will look only to see if the state law in question "is within the scope of the statute expressly promulgated by Congress." Branche, supra, 342 F.3d at 1253.

Defendant asserts that the federal drug testing statutes and regulations completely preempt state common law. Plaintiff argues that his "well pled" complaint is not based on federal law and that the federal regulatory scheme does not completely preempt state law for negligence in not notifying Plaintiff and his employer that the split sample had been destroyed, making the results of the test invalid.3

Statutory and Regulatory Framework

Under 45 U.S.C. § 431, the Secretary of Transportation has authority to enact regulations to provide for "all areas of railroad safety." In 1985, in response to train accidents, the Secretary, through the Federal Railroad Administration (FRA), adopted regulations to control the use of alcohol and drugs in the operation of railroads. Control of Alcohol and Drug Use in Railroad Operations, 50 Fed.Reg. 31,508 (Aug. 2, 1985) (later codified at 49 C.F.R. pts. 212, 217-219, 225). The FRA noted that the Federal Highway Administration and the Federal Aviation Administration already had enacted regulations to deal with drug and alcohol use by truck drivers and flight crew members. Se...

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