Gary v. Air Group, Inc., 02-3534.

• Decision Date: 03 February 2005
• Docket Number: No. 02-3534.,02-3534.
• Citation: 397 F.3d 183
• Parties: Ray GARY, Appellant v. THE AIR GROUP, INC.
• Court: U.S. Court of Appeals — Third Circuit

397 F.3d 183

Ray GARY, Appellant v. THE AIR GROUP, INC.

No. 02-3534.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1(a) December 16, 2004.

February 3, 2005.

COPYRIGHT MATERIAL OMITTED

Mark A. Berman, Michael A. Baldassare, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, for Appellant, Ray Gary.

Todd H. Girshon, Jackson Lewis LLP, New York, for Appellee, The Air Group, Inc.

Before NYGAARD and GARTH, Circuit Judges, and POLLAK,^* District Judge.

OPINION

GARTH, Circuit Judge.

Appellant Ray Gary ("Gary"), a New Jersey resident, brought an action against Appellee The Air Group, Inc. ("The Air Group"), a California corporation, alleging a violation of New Jersey's Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. ("CEPA"). The District Court, holding that Gary's state law whistleblower claim was preempted by the federal Airline Deregulation Act, 49 U.S.C. § 41713 ("ADA"), as amended by the Whistleblower Protection Program, 49 U.S.C. § 42121 ("WPP"), dismissed Gary's action pursuant to Federal Rule of Civil Procedure 12(b)(6). After considering Gary's appeal, we will reverse.

I.

The facts of this case are largely undisputed. From March 15, 2001 through August 30, 3001, Ray Gary was employed by The Air Group as a co-pilot for the "Cessna Citation," a small private aircraft. In July 2001, The Air Group hired James O'Neal Johnson, Jr. as pilot-in-command for the Cessna Citation.

Gary spent four days assisting Johnson with preparations for a Federal Aviation Administration ("FAA") required "route check." After spending that time with Johnson, Gary alleges that he believed Johnson was unqualified to pilot an aircraft because he: (1) did not have the requisite jet time mandated by the FAA, (2) was unfamiliar with FAA mandated basic flight procedures, (3) did not properly proceed with the FAA mandated "Pre-Flight Checklist," a safety measure, (4) was unfamiliar with the airspace into which he was planning to fly, and (5) was unfamiliar with how to obtain departure clearance at certain airports.

Based on the foregoing, Gary alleges that he reasonably believed that if The Air Group permitted Johnson to fly and/or if he did so, Johnson would be endangering himself, passengers, crew, the public and the aircraft. Gary also alleges he believed Johnson had violated and/or would violate FAA regulations.

On August 30, 2001, Gary called his supervisor, Dennis Turville, to express his concerns. Gary told Turville that Johnson was "ill-prepared, lacked ability, lacked the proper credentials, lacked the required experience, was unsafe and unqualified to pilot a commercial charter plane." A few hours later, The Air Group terminated Gary. Gary alleges that The Air Group fired him in retaliation for, among other things, his report of Johnson's lack of qualifications as well as Johnson's past and potential future FAA violations.

On April 29, 2002, Gary filed a complaint in the Superior Court of New Jersey alleging that his termination was in violation of New Jersey's Conscientious Employee Protection Act ("CEPA"), a state whistleblower statute.¹

On May 29, 2002, The Air Group removed the case to the District of New Jersey pursuant to 28 U.S.C. § 1441. It then moved to dismiss Gary's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that his state law whistleblower claim was preempted by federal law, specifically the ADA, 49 U.S.C. § 41713, as amended by the WPP, 49 U.S.C. § 42121.

The District Court granted The Air Group's motion to dismiss on August 8, 2002. This timely appeal followed.²

II.

The District Court had jurisdiction over Gary's state law action pursuant to 28 U.S.C. §§ 1331 and 1332. We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court's dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6). Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 189 (3d Cir.1998). In reviewing this appeal, we apply the same test as the District Court, accepting all of Gary's allegations as true and construing all reasonable inferences in his favor. See Port Authority of N.Y. & N.J. v. Arcadian Corp. et al., 189 F.3d 305, 312 (3d Cir.1999).

III.

Congress enacted the ADA in 1978 to "prevent the states from re-regulating airline operations so that competitive market forces could function." Taj Mahal Travel, 164 F.3d at 194 (citation omitted). The ADA was intended to increase competition among air carriers. In addition, it contains an express preemption clause, which provides in relevant part that:

[A] State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

49 U.S.C. § 41713(b)(1).

The Supreme Court has given a broad interpretation to the words "relating to," holding that "[s]tate enforcement actions having a connection with, or reference to airline `rates, routes, or services' are pre-empted." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). The requisite connection exists either where "the law expressly references the air carrier's prices, routes or services, or has a forbidden significant effect upon the same." United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 335 (1st Cir.2003) (citation omitted). At the same time, however, the Supreme Court has indicated that there are "real limitations to the [ADA's] preemptive scope, stating ... `[s]ome state actions may affect [airline fares] in too tenuous, remote or peripheral a manner to have preemptive effect.'" Taj Mahal Travel, 164 F.3d at 191 (quoting Morales, 504 U.S. at 390, 112 S.Ct. 2031) (internal quotation marks omitted).

In the present appeal no claim is made that the ADA elements of "price" or "route" are involved. The dispute centers around whether Gary's state law retaliation claim has a "forbidden significant effect" upon The Air Group's "service." In other words, whether Gary's claim for retaliatory discharge under New Jersey's Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq., is "related to" the "service of an air carrier." 49 U.S.C. § 41713(b)(1). Neither the Supreme Court nor our sister circuits have defined the term "service of an air carrier" in the context of an employee calling the attention of his employer to the safety qualifications of a co-worker.

In 2000, Congress enacted the Whistleblower Protection Program as an amendment to the ADA. That statute, which is the federal airline analog to the New Jersey whistleblower statute, provides in relevant part:

No air carrier ... may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee ... provided ... to the employer or Federal Government information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States.

49 U.S.C. § 42121(a)(1).

We must therefore determine whether the ADA, as amended by the WPP, preempts Gary's claim under the New Jersey whistleblower statute. To do so requires us to answer two related questions. First, is Gary's claim "related to a ... service of an air carrier" within the express terms of the ADA preemption provision? Second, does the WPP alter the scope of the ADA preemption provision such that Gary's claim now falls within its ambit?

In the post-WPP era. the Eighth and Eleventh Circuits have both weighed in on the viability of state law whistleblower claims in the aviation context. See Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir.2003);³ Botz v. Omni Air Int'l, 286 F.3d 488 (8th Cir.2002). As these cases provide the framework for the parties' arguments on appeal, they are discussed in detail below.

1. Botz v. Omni Air International

Omni Air International, Inc. terminated Anna Botz's employment as a flight attendant after she refused a flight assignment that she believed violated federal safety regulations.⁴ Botz then filed suit alleging Omni violated Minnesota's whistleblower statute⁵ by discharging her in retaliation for refusing the assignment and for reporting the alleged safety violation to Omni. Omni moved to dismiss the action pursuant to Rule 12(b)(6) on the ground that the state whistleblower provisions were both expressly and impliedly preempted by the ADA and WPP. The district court granted the motion and the Eighth Circuit Court of Appeals affirmed.

On appeal, the court focused on the fact that Botz, a flight attendant, refused to fly as assigned: "When applied to the facts surrounding Botz's discharge, the Minnesota whistleblower statute has a forbidden connection with air-carrier services. It includes broad authorization to flight attendants to refuse assignments, jeopardizing an air carrier's ability to complete its scheduled flights." Botz, 286 F.3d at 494. The court held that Botz's claim was expressly preempted by the ADA based on its conclusion that "[t]he Minnesota whistleblower statute affects air-carrier service by authorizing a flight attendant to refuse assignments and protecting her when she does." Id. at 495.

The Eighth Circuit then turned to the impact of the WPP on ADA preemption. It found that "[t]he fact that the WPP now provides a comprehensive scheme for protecting the precise sort of air safety-related conduct Botz engaged in here, is... powerful evidence of Congress's clear and manifest intent to pre-empt state-law whistleblower claims related to air safety." Id. at 496. Thus, it concluded that "[w]hile the plain language of the ADA's pre-emption provision encompasses Botz's claims, the WPP makes it unmistakable...