French v. Pan Am Exp., Inc.

• Decision Date: 07 December 1988
• Docket Number: No. 88-1450,88-1450
• Citation: 869 F.2d 1
• Parties: , 4 Indiv.Empl.Rts.Cas. 141 Timothy FRENCH, Plaintiff, Appellant, v. PAN AM EXPRESS, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

869 F.2d 1

57 USLW 2509, 4 Indiv.Empl.Rts.Cas. 141

Timothy FRENCH, Plaintiff, Appellant, v. PAN AM EXPRESS, INC., Defendant, Appellee.

No. 88-1450.

United States Court of Appeals First Circuit.

Heard Dec. 7, 1988.

Decided Feb. 23, 1989.

Amato A. DeLuca with whom Sandra A. Blanding and Revens & DeLuca, Warwick, R.I., were on brief, for plaintiff, appellant.

Lise M. Iwon and Laurence & Iwon, Wakefield, R.I., on brief, for Rhode Island Affiliate of American Civil Liberties Union, amicus curiae.

Julius C. Michaelson, Providence, R.I., for defendant, appellee.

Before COFFIN, BOWNES and SELYA, Circuit Judges.

SELYA, Circuit Judge.

In this case, the United States District Court for the District of Rhode Island granted the motion of defendant Pan Am Express, Inc. (Pan Am) for judgment on the pleadings. Fed.R.Civ.P. 12(c), 56. The sole issue presented on appeal is whether a state statute regulating the circumstances under which employers may require workers to submit to drug testing can fly in the face of the Federal Aviation Act (Act), 49 U.S.C. Sec. 1301 et seq. (1982), as applied to airline pilots employed by interstate air carriers. We believe that, given the statutory and regulatory climate, the state law must be grounded, and we therefore affirm.

I

Inasmuch as the district court granted defendant's motion for judgment on the pleadings, we "must accept all of the nonmovant's well-pleaded factual averments as true, and draw all reasonable inferences in his favor." Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988) (citations omitted). We state the facts from that perspective.

It appears that Pan Am, an interstate airline, hired plaintiff-appellant Timothy French as a pilot in 1986. French's duties included flying commercial aircraft out of Green State Airport, Warwick, Rhode Island. In September 1987, Pan Am received word from the Warwick police department that French might have used marijuana while off duty. Defendant responded swiftly to the tip; its director of operations told plaintiff of the accusation and ordered him to submit to a urine test at a local hospital in order to confirm or dispel the suggestion. French balked, claiming that the directive violated R.I.Gen.Laws Sec. 28-6.5-1, the text of which is set forth in full in the appendix. In plaintiff's view, the state statute was transgressed in at least two respects: (1) the employer lacked reasonable grounds to believe either that French used drugs or that drug use was "impairing his ability to perform his job," id. at Sec. 28-6.5-1(A); and (2) the proposed test was not to be "conducted in conjunction with a bona fide rehabilitation program," id. at Sec. 28-6.5-1(C). Pan Am, unimpressed by these objections, fired him.

The plaintiff did not take lightly to his discharge. He filed suit in state superior court seeking a smorgasbord of relief, e.g., damages, reinstatement, an order enjoining Pan Am from requiring him to submit to drug tests in violation of R.I.Gen.Laws Sec. 28-6.5-1. The case was removed to federal district court. After certain preliminary skirmishing, not here material, the district court granted brevis disposition in Pan Am's favor. French v. Pan Am Express, Inc., No. 87-0517B (D.R.I. Apr. 8, 1988) (ore tenus decision), reprinted in Record Appendix at 38-45. ¹ This appeal followed.

II

Congress's power to preempt state law derives from the Supremacy Clause of Article VI of the Constitution. Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369 (1986). Preemption may be express or implied. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 2899, 77 L.Ed.2d 490 (1983); Palmer v. Liggett Group, Inc., 825 F.2d 620, 625 (1st Cir.1987). Either way, the question of whether federal law preempts a state statute is one of congressional intent. California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 280, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987); Wardair Canada v. Florida Dep't of Revenue, 477 U.S. 1, 6, 106 S.Ct. 2369, 2372, 91 L.Ed.2d 1 (1986); Louisiana Pub. Serv. Comm'n, 476 U.S. at 369, 106 S.Ct. at 1899; United States v. Smith, 726 F.2d 852, 859 (1st Cir.), cert. denied, 469 U.S. 841, 105 S.Ct. 143, 83 L.Ed.2d 82 (1984). Express preemption is exactly that: state laws are blunted by explicit direction of the Congress. Implied preemption is a more subtle creature. The Supreme Court has described it as follows:

... Congress implicitly may indicate an intent to occupy a given field to the exclusion of state law. Such a purpose properly may be inferred where the pervasiveness of the federal regulation precludes supplementation by the States, where the federal interest in the field is sufficiently dominant, or where "the object sought to be obtained by the federal law and the character of obligations imposed by it ... reveal the same purpose." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Finally, even where Congress has not entirely displaced state regulation in a particular field, state law is pre-empted when it actually conflicts with federal law.

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988).

The concept of implied preemption has a certain protean quality, which renders pigeonholing difficult. At bottom, the categories of which the cases speak are little more than analytic approaches which may be mixed and matched to meet the discernible needs of a particularized inquiry. Rather than embroiling ourselves in an unending search for meticulousness in labeling, and the diminishing returns which such a search necessarily entails, we prefer to take a more functional approach. In so doing, we abjure taxonomy for taxonomy's sake, and focus instead on the effect which the challenged enactment will have on the federal plan. As we said in Palmer: "If the state law disturbs too much the constitutionally declared scheme--whether denominated as 'occupying the field' or 'actually conflicting with federal law'--it will be displaced through the force of preemption." 825 F.2d at 626.

III

Pan Am's primary assertion is that the Federal Aviation Act impliedly preempts state laws such as R.I.Gen.Laws Sec. 28-6.5-1. Thus, we turn directly to that proposition. ² Our assessment of it proceeds against the methodological backdrop limned above.

A.

At the outset, we note that appellant has offered us an easy way out--but we cannot accept it. The Act specifically prohibits states from enacting or enforcing laws relating to "rates, routes, or services of any air carrier ... [in] interstate air transportation." 49 U.S.C.App. Sec. 1305(a)(1). French seizes on this language and urges that the Act, "by specifically defining certain areas of aviation which Congress intended to preempt, implies that Congress intended to limit the areas preempted to those named." Appellant's Brief at 11. Yet the siren song is hopelessly off-key. Even if we assume arguendo that section 1305(a)(1)'s reference to "services" does not expressly preempt the Rhode Island statute--a matter not entirely free from doubt, cf., e.g., O'Carroll v. American Airlines, 863 F.2d 11 (5th Cir.1989) (per curiam) (airline passenger's state-law claims following ejectment from flight held expressly preempted by section 1305)--the provision affords no basis for concluding that Congress meant to leave states free to regulate on all other issues anent air safety and pilot fitness. Indeed, in City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), the Court seems to have rejected such an interpretation of section 1305, at least by necessary implication. See id. at 633, 93 S.Ct. at 1859. We must therefore, probe more deeply.

B.

In the interest of air safety, the Act assigns the overall responsibility for prescribing rules governing such matters as pilot qualification to the federal Secretary of Transportation (Secretary). The Secretary is charged with the duty of promulgating

... reasonable rules and regulations governing, in the interest of safety, the maximum hours or periods of service of airmen [defined to include pilots] ...; and ... [s]uch reasonable rules and regulations ... governing other practices, methods, and procedure, as the Secretary of Transportation may find necessary to provide adequately for national security and safety in air commerce.

49 U.S.C.App. Sec. 1421(a)(5), (6). This delegation of power is as deep as it is wide; it is circumscribed only in that the Secretary is mandated to "give full consideration to the duty resting upon air carriers to perform their services with the highest possible degree of safety...." 49 U.S.C.App. Sec. 1421(b).

In the area of pilot qualification, the Act specifies the Secretary's role in great detail. The Act makes it unlawful for anyone to pilot a commercial aircraft without an "airman certificate" (AC) or in violation of the terms of an AC. See 49 U.S.C.App. Sec. 1430(a)(2). The authority to issue ACs and to specify their terms devolves upon the Secretary. See 49 U.S.C.App. Sec. 1422(a). In fulfilling this mission, the Secretary, among other things, must prescribe physical qualifications for pilots' certification; he may not issue an AC short of finding "that [the applicant] possesses proper qualifications for and is physically able to perform the duties pertaining to, the position for which the airman certificate is sought." 49 U.S.C.App. Sec. 1422(b). The Secretary must likewise provide for recertification to ensure air safety. ACs must contain "such terms, conditions and limitations as to duration thereof, periodic or special examinations, tests of physical fitness, and other matters as the Secretary of Transportation may determine to be necessary to assure safety in air commerce." Id.

The intricate web of statutory provisions affords no room for the imposition of state-law criteria vis-a-vis pilot suitability. We therefore conclude,...