Rodriguez v. Shell Oil Co.

• Decision Date: 20 April 1993
• Docket Number: No. G-93-65.,G-93-65.
• Parties: Franklin Delgado RODRIGUEZ v. SHELL OIL COMPANY.
• Court: U.S. District Court — Southern District of Texas

818 F. Supp. 1013

Franklin Delgado RODRIGUEZ v. SHELL OIL COMPANY.

No. G-93-65.

United States District Court, S.D. Texas, Galveston Division.

April 20, 1993.

James Thomas McCartt, Stephen D. Susman, and Michael A. Lee, Susman & Godfrey, Burton G. Manne, Lowman & Manne, Houston, TX, Charles Stein Siegel, Misko Howie & Sweeney, and Fred Misko, Jr., Dallas, TX, for plaintiff.

Jose Berlanga, Hirsch Glover Robinson & Sheiness, Thomas C. Fitzhugh, III, Fitzhugh & Associates, Burt Ballanfant, Houston, TX, for defendant.

ORDER

KENT, District Judge.

Before the Court is Plaintiff's Motion to Remand. For the reasons stated below, the Court is of the opinion that the motion should be GRANTED.

I.

This action was originally filed in Texas state court. Plaintiff's Original Petition, which has never been amended, asserts state-law claims arising out of his alleged exposure to pesticides manufactured by Defendant. Defendant removed to this Court alleging that this action is removable as an action arising under the laws of the United States¹ because Plaintiff's state-law claims are preempted by the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq. ("FIFRA"). The Court has examined the pleadings and the relevant statutes and case law and is of the opinion that Defendant misconstrues the relationship between federal preemption in general and federal question jurisdiction based on federal preemption.

In general, questions concerning federal question jurisdiction are resolved by examining the plaintiff's well-pleaded complaint. If a federal question does not appear on the face of the complaint, a district court cannot exercise federal question jurisdiction. An allegation that the plaintiff's state-law claim is preempted by federal law is a federal defense and does not create a federal question. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987).

However, under the complete preemption doctrine, the preemptive force of certain federal statutes is so great that ordinary state-law claims must be treated as federal claims for jurisdictional purposes. Id. Complete preemption is the exception, however, and not the rule. While federal law preempts many otherwise viable state-law actions, only a few federal statutes have the preemptive force necessary to transmute state-law claims into federal claims. In the instant case, the Court is of the opinion that, while Defendant can make a strong argument that Plaintiff's failure to warn claims are preempted by FIFRA's express preemption provision (7 U.S.C. § 136v(b)),² FIFRA preemption will not support removal.

A.

In the Court's view, this case is controlled by the Fifth Circuit's decision in Aaron v. National Union Fire Ins. Co., 876 F.2d 1157 (5th Cir.1989), cert. denied sub nom. American Home Ins. Group v. Aaron, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990). In Aaron, the court held that federal preemption is insufficient to support removal unless the statute in question clearly indicates Congress's intent to make preempted state-law claims removable to federal court. At a minimum, the statute in question must provide a private right of action and contain a specific grant of federal jurisdiction. Id. at 1163-65. Because FIFRA does not satisfy either of these requirements, FIFRA preemption will not support removal in this case.

Defendant argues, however, that Aaron is not controlling. Instead, Defendant relies on Texas Employers' Ins. Ass'n v. Jackson,³ in which a Fifth Circuit panel held that the existence of a private right of action is only some evidence of Congressional intent and that federal preemption may authorize the exercise of federal question removal jurisdiction even if the preempting statute does not provide for a private right of action. Defendant asserts that Aaron and Jackson represent two parallel lines of Fifth Circuit authority and that Aaron has been implicitly overruled by subsequent Supreme Court decisions.

The Fifth Circuit has introduced some confusion into the complete preemption issue because it has articulated two parallel lines of cases with admittedly different tests as to whether the complete preemption doctrine applies — the Jackson line and the Aaron line. The Fifth Circuit starting with Judge Brown's panel opinion in Jackson and which while sic the judgment was reversed, articulated its reasoning on the removal issue which culminated in Trans World Airlines v. Mattox, by finding that express preemption provided a sufficient basis for federal question removal jurisdiction.

FIFRA is an express preemption of all claims pled by plaintiff against Shell. As that preemption is complete within the meaning of the "independent corollary' sic rule, removal on the basis of federal question jurisdiction was proper.

Def.'s Resp.Pl.'s Mot.Rem. (Instr. 9) at 3-4 (emphasis original).

The Court is not persuaded. First, the panel opinion in Jackson was, as Defendant concedes, rendered moot by the Fifth Circuit's disposition of the case on en banc rehearing,⁴ and Trans World Airlines v. Mattox⁵ ("Trans World Airlines I"),⁶ the other case in this "line," does not (and indeed could not, as Trans World Airlines I is also a panel opinion) purport to resurrect it. Thus, whatever the import of Trans World Airlines I, the panel opinion in Jackson is not an authoritative statement of the law in this circuit.

More importantly, Trans World Airlines I does not stand for the proposition that "express preemption provides a sufficient basis for federal question removal jurisdiction." Rather, the court, after stating the well pleaded complaint rule, gave a standard definition of the complete preemption doctrine and then held that in enacting the ADA, Congress intended to make state-law claims preempted by the ADA removable to federal court. 897 F.2d at 787. This is a far cry from saying that all state-law claims that are expressly preempted by a federal statute must be treated as federal claims for jurisdictional purposes.

Indeed, the Supreme Court's statements concerning the preemptive effect of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., refute Defendant's interpretation of Trans World Airlines I. ERISA expressly preempts all state laws that "relate to" any employee welfare benefit plan. 29 U.S.C. § 1144(a). However, ERISA preemption alone is insufficient to support removal. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 25-27, 103 S.Ct. 2841, 2854-56, 77 L.Ed.2d 420 (1983). Rather, a state-court action in which only state-law claims are asserted may be removed to federal court only if one of the state-law claims is both preempted by ERISA and within the ambit of ERISA's civil enforcement provisions. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 64-67, 107 S.Ct. 1542, 1546-47, 95 L.Ed.2d 55 (1987).

Furthermore, it is at least arguably possible to partially reconcile Trans World Airlines I with Aaron by noting that, as originally enacted, the ADA provided a private right of action for discrimination. See, e.g., Salley v. Trans World Airlines, Inc., 723 F.Supp. 1164, 1165-66 (E.D.La.1989).

Additionally, as this Court has previously noted, Trans World Airlines I does not represent a line of Fifth Circuit authority but, rather, is an anomaly in the Fifth Circuit's complete preemption jurisprudence. Brown v. Crop Hail Management, Inc., 813 F.Supp. 519, 528-29 (S.D.Tex.1993). In addition, both Trans World Airlines I and Aaron were panel decisions. In the Fifth Circuit, one panel may not disregard a previous panel's decision absent an intervening decision by either the court sitting en banc or the Supreme Court. See; e.g., Lirette v. N.L. Sperry Sun, Inc., 810 F.2d 533 (5th Cir.), rev'd on other grounds, 820 F.2d 116 (5th Cir.1987). Trans World Airlines I does not mention Aaron, and, in the Court's view, nothing in either Trans World Airlines I or the cases cited by Defendant implies that the Aaron court's analysis was subsequently disapproved by the Supreme Court. Indeed, the Supreme Court cases relied on by Defendant to support this contention address only the preemption of state-law claims by federal law and do not even consider the complete preemption doctrine.⁷ Therefore, in the Court's view, Aaron is a correct statement of the law in this circuit.⁸

B.

The foregoing analysis is, however, in a sense, coals to Newcastle, because, even assuming Defendant is correct and removal may be predicated on federal preemption even though the statute in question does not provide a private right of action or contain a specific grant of federal-court jurisdiction, it is abundantly clear that in enacting FIFRA, Congress did not intend to so completely preempt the field as to allow the removal from state court of FIFRA-preempted claims. Outside of the express preemption provision, there is simply no legislative history to support the contrary contention,⁹ and, in the Court's view, express preemption, without more, is insufficient to support removal.

A comparison with ERISA neatly illustrates the latter point. As noted above, ERISA, like FIFRA, contains an express preemption provision. Unlike FIFRA, ERISA also provides a comprehensive civil enforcement scheme that includes a private right of action. Nevertheless, in Metropolitan Life Ins. Co. v. Taylor, supra, the Supreme Court stated that even the existence of such a scheme was probably insufficient to bring the complete preemption doctrine into play. Only because ERISA contains a grant of jurisdiction which tracks the jurisdictional grant contained in section 301 of the Labor Management Relations Act¹⁰ is its preemptive force sufficient to transform state-law claims into federal claims.

C.

Finally, and most importantly, even assuming that Defendant's analysis of the complete preemption issue is correct, that analysis favors a result contrary to the one sought by Defendant. Relying on Jackso...