Schmeling v. NORDAM

• Decision Date: 04 October 1996
• Docket Number: No. 95-5184,95-5184
• Citation: 97 F.3d 1336
• Parties: 132 Lab.Cas. P 58,162, 12 IER Cases 207 Curtis SCHMELING, an individual, Plaintiff-Appellant, v. NORDAM, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1336

97 F.3d 1336

132 Lab.Cas. P 58,162, 12 IER Cases 207

Curtis SCHMELING, an individual, Plaintiff-Appellant, v. NORDAM, a corporation, Defendant-Appellee.

No. 95-5184.

United States Court of Appeals, Tenth Circuit.

Oct. 4, 1996.

Thomas L. Bright, Tulsa, OK, for Plaintiff-Appellant.

D. Kevin Ikenberry (Stephen L. Andrew, with him on the brief), of Stephen L. Andrew & Associates, Tulsa, OK, for Defendant-Appellee.

Before KELLY, ENGEL, ^* and LOGAN, Circuit Judges.

ENGEL, Circuit Judge.

Plaintiff Curtis Schmeling appeals the district court's grant of summary judgment to defendant NORDAM, a corporation, in Schmeling's suit following the termination of his employment with NORDAM. NORDAM is an air repair station, certified by the Federal Aviation Administration (FAA), that contracts with commercial airlines to manufacture and perform maintenance work on aircraft parts. Schmeling sued in Oklahoma state court, and NORDAM removed the case to federal district court. Because we conclude that federal courts do not have subject-matter jurisdiction over Schmeling's suit, we vacate the judgment of the district court and remand the case with instructions to remand to the state court.

I.

In September 1994, NORDAM subjected Schmeling to a drug test pursuant to its drug-testing plan, which was approved by the FAA. Schmeling tested positive and entered a rehabilitation program. The next month, after completing the program, he took another test and tested negative. Within three weeks, NORDAM fired Schmeling. Schmeling alleges that he was terminated in part, at least, because of the positive drug test; NORDAM counters that its reason for letting Schmeling go was his abusive treatment of one of NORDAM's secretaries.

Schmeling alleges three separate causes of action stemming from his termination. His first claim is that NORDAM intentionally violated Oklahoma's Standards for Workplace Drug and Alcohol Testing Act ("the Oklahoma Act"), Okla. Stat. tit. 40, §§ 551-565. Schmeling does not specify what section of the Oklahoma Act NORDAM violated, but we infer that he has based his claim on section 562, which provides that

[n]o disciplinary action, except for a temporary suspension or a temporary transfer to another position, may be taken by an employer against an employee based on a positive test result unless the test result has been confirmed by a second test....

Id. § 562(A). Section 563 of the Act allows any person aggrieved by a willful violation of the Act to bring a civil action seeking legal and equitable remedies such as compensatory damages and reinstatement. Schmeling's second claim is that NORDAM's violation of the Oklahoma Act was against Oklahoma public policy and therefore within an exception to Oklahoma's at-will employment rule. Although generally in Oklahoma an employer may legally discharge an employee without good cause, Singh v. Cities Serv. Oil Co., 554 P.2d 1367, 1369 (Okla.1976), the state recognizes the termination of an at-will employee in violation of "a clear mandate of public policy as articulated by constitutional, statutory or decisional law" as a tortious breach of contractual obligations. Burk v. K-Mart Corp., 770 P.2d 24, 28 (Okla.1989). Schmeling's third claim is that NORDAM's violation of the Oklahoma Act constituted an intentional infliction of emotional distress.

Schmeling filed suit in Oklahoma state court, and NORDAM timely removed the case to federal district court. Although Schmeling did not raise any federal questions in his complaint, NORDAM based removal on the "complete preemption" doctrine, arguing that "[t]he complete pre-emption of Oklahoma law relating to drug testing of the Plaintiff renders his claim, from its inception, a claim arising under federal law." According to NORDAM, the Oklahoma Act is preempted by the FAA regulations covering the drug-testing of aviation employees, 14 C.F.R. Parts 121 and 135, which were promulgated under 49 U.S.C. § 45102.

After removing the case, NORDAM moved to dismiss Schmeling's suit on the grounds that Schmeling could not bring a private action to enforce the FAA regulations. Schmeling answered that the case should be remanded to state court because the Oklahoma Act was not preempted. In the event that he lost this argument, Schmeling moved for leave to amend his complaint so that he could allege a violation of the FAA regulations. The district court treated NORDAM's motion as one for summary judgment and granted the motion, holding that the Oklahoma Act as applied to workers in the aviation industry was preempted by the FAA regulations. The court further held that Schmeling did not have standing to bring a private action to enforce the FAA regulations, and it denied Schmeling's motion for leave to amend his complaint as moot.

II.

Schmeling argues on appeal that under the standard established in English v. General Electric Co., 496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990), which held that the extent of federal preemption is a function of congressional intent, the Oklahoma Act is not preempted by federal law. NORDAM counters that 49 U.S.C. § 45106(a) and 14 C.F.R. § 121, App. I, p XI(A) evince legislative and executive intent to preempt state laws such as the Oklahoma Act. Both parties have proceeded under the assumption that the propriety of NORDAM's removal hinges only on whether federal law preempts the Oklahoma Act. Removal based on "complete" preemption, however, rests on a legal inquiry that is separate from an assessment of the merits of a defendant's "ordinary" preemption defense, although there is significant overlap between the two inquiries. 14A Charles A. Wright et al., Federal Practice and Procedure § 3722, at 71 (2d ed. Supp.1996). Before considering whether NORDAM's ordinary preemption argument constitutes a valid defense to Schmeling's three claims, we must decide whether, under the complete preemption doctrine, this case was properly removed to federal court. ¹

A. The Complete Preemption Doctrine

Under the removal statute,

any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States....

28 U.S.C. § 1441(a). Because the parties to this suit are not diverse in their citizenship, federal courts have original jurisdiction only if the suit raises a federal question, that is, if the suit is an action "arising under the Constitution, laws, or treaties of the United States." Id. § 1331.

In deciding whether Schmeling's suit arises under federal law, we are guided generally by the "well-pleaded complaint" rule, under which a suit arises under federal law "only when the plaintiff's statement of his own cause of action shows that it is based" on federal law. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). The plaintiff's anticipation of a defense based on federal law is not enough to make the case "arise under" federal law. Id. Nor is a defendant's assertion of a defense based on federal law, such as the federal preemption of the state law on which a plaintiff's claim is based, a proper basis for removal, Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987), even if both parties agree that the only issue for decision in a case is the validity of a federal preemption defense, Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 2847-48, 77 L.Ed.2d 420 (1983). The plaintiff is the "master of the claim" and may prevent removal by choosing not to plead a federal claim even if one is available. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). Under the "artful pleading" doctrine, however, a plaintiff may not defeat removal by failing to plead federal questions that are essential elements of the plaintiff's claim. Franchise Tax Bd., 463 U.S. at 22, 103 S.Ct. at 2853. Similarly, removal is permitted when the plaintiff's right to relief requires resolution of a substantial question of federal law. Id. at 13, 103 S.Ct. at 2848.

The "complete preemption" doctrine has been referred to as a corollary, Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430, or an exception, Oklahoma ex rel. Oklahoma Tax Comm'n v. Wyandotte Tribe, 919 F.2d 1449, 1450 (10th Cir.1990), cert. denied, 501 U.S. 1219, 111 S.Ct. 2829, 115 L.Ed.2d 999 (1991), to the well pleaded complaint rule. When the doctrine is properly invoked, a complaint alleging only a state law cause of action may be removed to federal court on the theory that federal preemption makes the state law claim "necessarily federal in character." Metropolitan Life, 481 U.S. at 63-64, 107 S.Ct. at 1546. Unfortunately, the scope of the doctrine is not entirely clear; "[t]he evolution of the doctrine ... has been one of fits-and-starts and zig-zags [and] has, not surprisingly, occasioned both confusion and disagreement among the federal circuit and district courts." Burke v. Northwest Airlines, Inc., 819 F.Supp. 1352, 1356 (E.D.Mich.1993). By no means does every federal preemption defense invoke the doctrine; our task is to determine whether NORDAM's reliance on the doctrine in this case was appropriate. With this in mind, we examine the relevant Supreme Court cases.

In Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), the plaintiff corporation sued in state court to enjoin the defendant union from striking. The suit asserted a state law breach of contract claim based on a no-strike provision in a collective bargaining agreement. The defendant removed to federal court. The Supreme Court held that the suit was properly removed because it arose under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, which grants federal jurisdiction over suits for violation of collective bargaining agreements. Avco, 390 U.S....