Johnson v. Baylor University

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-50779
_______________
VERNON G. JOHNSON,
Plaintiff-Appellant,
VERSUS
BAYLOR UNIVERSITY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________r
June 22, 2000
Before POLITZ, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Vernon Johnson appeals a judgment of dis-
missal, including an earlier denial of his motion
to remand to state court his state law claim for
tortious interference with contract.
Concluding that the Pilot Records Sharing Act
(“PRSA”), 49 U.S.C. § 44936, does not
completely preempt state law claims so as to
create federal question jurisdiction, we reverse
and remand to the district court with
instruction to remand to state court.
I.
Johnson, a pilot working for Baylor
University (“Baylor”), was fired for chronic
obesity and poor grammar. He sued Baylor in
state court, alleging violations of the
Americans with Disabilities Act and the
Rehabilitation Act. According to the
complaint, Johnson had been Baylor’s chief
pilot until his employment was terminated
because of his chronic obesity. He alleged that

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his termination constituted improper
discrimination on the basis of a disability. Bay-
lor removed to federal court, which granted
summary judgment in its favor, and we
affirmed. See Johnson v. Baylor Univ., 129
F.3d 607 (5th Cir. 1997).
While the discrimination lawsuit was
pending, Johnson obtained employment with
Kitty Hawk Air Cargo, Inc. (“Kitty Hawk”),
and began training. When Kitty Hawk sought
his employment records from Baylor, the
university replied that Johnson had been
discharged for misconduct, that he was
ineligible for rehire, and that his general
personnel records were unavailable.
Johnson again sued in state court, alleging
tortious interference with employment, con-
tending that Baylor’s statements to Kitty
Hawk were false and caused his employment
with Kitty Hawk to be terminated. Baylor
again removed to federal court, based on its
contention that Johnson’s state-law claim for
tortious interference was preempted by the
PRSA; Baylor also moved to dismiss for fail-
ure to state a claim, reasoning that § 44936(g),
entitled “limitation on liability; preemption of
State law,” precluded Johnson’s state-law tort
action. It argued that § 44936(g)(3) allows for
liability only when a person knowingly has
provided false information to an air carrier and
that information has been maintained in
violation of a federal criminal statute.
Johnson moved to remand to state court,
noting that § 44936(g)(1) operates to limit the
liability only of “a person who has complied
with [a] request” from an air carrier for a per-
son’s employment records. Accordingly,
Johnson argued that Baylor had not “com-
plied” with Kitty Hawk’s request, (1) because
it had not followed the requirements of
§ 44936(f)(6) that he be notified of Kitty
Hawk’s request and had not provided him with
an opportunity to request copies of the records
to be furnished, and (2) because it had not
turned over Johnson’s personnel file, which in-
dicated that he was a skilled pilot whose
employment had been terminated solely
because of his appearance. In sum, Johnson’s
argument was that while § 44936 constituted
a possible defense to his tort action, that
defense was unavailable to Baylor.
Baylor contended that jurisdiction in the
district court was proper because the field of
aviation is heavily regulated by the federal
government. It also asserted that § 44936-
(g)(2)’s preemption provision impliedly
confers jurisdiction on the federal court,
because if federal jurisdiction could be
defeated merely by an allegation that a person
had not sufficiently responded to an air
carrier’s request for employment records, the
preemptive scope of § 44936(g) would be
gutted.
The district court denied Johnson’s motion
to remand and held that § 44936(g) expressly
and impliedly preempts state-law actions such
as Johnson’s. It also granted Baylor’s motion
to dismiss, holding that Johnson’s claim is not
encompassed by § 44936.
II.
Johnson argues that the district court did
not have removal jurisdiction and should have
remanded, because no federal question is pre-
sented on the face of his well-pleaded
complaint. He asserts that § 44936 provides
only a federal defense to his state-court
lawsuit, a defense that could be raised in state
court on remand. Specifically, he argues that
the PRSA effects not “complete” preemption
of state law, but, instead, only “ordinary”

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preemption. Section 44936 provides, in
pertinent part:
(g) Limitation on liability; preemption of
State lawSS
(1) Limitation on liability.SSNo action
or proceeding may be brought by or on
behalf of an individual who has applied
for or is seeking a position with an air
carrier as a pilot, and who has signed a
release from liability, as provided for un-
der paragraph (2), againstSS
(A) the air carrier requesting the records
of that individual under subsection
(f)(1);
(B) a person who has complied with
such request;
(C) a person who has entered in-
formation contained in the individual’s
records; or
(D) an agent or employee of a person
described in subparagraph (A) or (B);
in the nature of an action for de-
famation, invasion of privacy,
negligence, interference with contract,
or otherwise, or under any Federal or
State law with respect to the furnishing
or use of such records in accordance
with subsection (f).
(2) Preemption.SSNo State or political
subdivision thereof may enact, prescribe,
issue, continue in effect, or enforce any
law (including any regulation, standard,
or other provision having the force and
effect of law) that prohibits, penalizes,
or imposes liability for furnishing or us-
ing records in accordance with
subsection (f).
For the district court to have removal jur-
isdiction, 28 U.S.C. § 1441(a) requires that the
case be one over “which the district courts of
the United States have original jurisdiction.”
The original jurisdiction alleged by Baylor is
“federal question” jurisdictionSSi.e., that the
case is one “arising under the Constitution,
laws, or treaties of the United States.”
28 U.S.C. § 1331. Accordingly, “[i]t is well-
settled that a cause of action arises under fed-
eral law only when the plaintiff’s well-pleaded
complaint raises issues of federal law.” Hei-
mann v. National Elevator Indus. Pension
Fund, 187 F.3d 493, 499 (5th Cir. 1999).
A corollary to the well-pleaded complaint
doctrine “is that Congress may so completely
preempt a particular area that any civil
complaint raising this select group of claims is
necessarily federal in character.” Id. (quoting
Metropolitan Life Ins. Co. v. Taylor, 481 U.S.
58, 63 (1987)). “Complete preemption,”
which creates federal removal jurisdiction, dif-
fers from more common “ordinary
preemption” (also known as “conflict
preemption”), which does not. Id.1 This
distinction has led to the following
observation:
Ordinarily, the term federal preemption
refers to ordinary preemption, which is a
federal defense to the plaintiff’s suit and
may arise either by express statutory term
or by a direct conflict between the
operation of federal and state law. Being a
1 See also Giles v. NYLCare Health Plans,
Inc., 172 F.3d 332, 336-37 (5th Cir. 1999); Mc-
Clelland v. Gronwaldt, 155 F.3d 507, 515 (5th
Cir. 1998).

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defense, it does not appear on the face of a
well-pleaded complaint, and, thus, does not
authorize removal to a federal court. By
way of contrast, complete preemption is
jurisdictional in nature rather than an
affirmative defense to a claim under state
law. As such, it authorizes removal to fed-
eral court even if the complaint is artfully
pleaded to include solely state law claims
for relief or if the federal issue is initially
raised solely as a defense.
Heimann, 187 F.3d at 500 (internal citations
omitted).
Complete preemption is a narrow
exception: “[T]he Supreme Court has clearly
sanctioned the rule only in the area of federal
labor relations and the Employee Retirement
Income Security Act of 1974.” Waste Control
Specialists, LLC v. Envirocare, Inc., 199 F.3d
781, 784 (5th Cir.), opinion withdrawn and
superseded in part on reh’g on other grounds,
207 F.3d 225 (5th Cir. 2000). To establish
complete preemption, Baylor must show that
(1) the statute contains a civil
enforcement provision that creates a
cause of action that both replaces and
protects the analogous area of state law;
(2) there is a specific jurisdictional grant
to the federal courts for enforcement of
the right; and (3) there is a clear Con-
gressional intent that claims brought un-
der the federal law be removable.
Heimann, 187 F.3d at 500. “[F]ew federal
statutes can meet such an exacting standard.”
Id.
Because Heimann was decided after the
district court dismissed Johnson’s claim, it did
not have the benefit of that holding in its
consideration of Johnson’s motion to remand.
Rather than proceeding under the Heimann tri-
partite test for complete preemption, the court
merely relied on ordinary-preemption
principles. Heimann makes plain that § 44936
does not meet any of the three required
criteria.
First, the PRSA contains no civil
enforcement provision. The closest provision
is § 44936(g)(3), which states that the
limitation-on-liability and state-law-preemption
sections are not applicable to persons who fur-
nish false information that was “maintained in
violation of a criminal statute of the United
States.” This provision does not create any
cause of action, however, nor does it replace
state law tort claims,2 but it merely provides
that the federal affirmative defense will not be
available in certain instances.
Second, § 44936 does not provide a
specific jurisdictional grant to federal courts
for enforcement of the air carriers’ rights.
Indeed, subsection (g), like the rest of the
PRSA, is silent with respect to jurisdiction.3
Baylor concedes that the Act contains no
specific jurisdictional grant to the federal
2 Cf. Aaron v. National Union Fire Ins. Co.,
876 F.2d 1157, 1164 (5th Cir. 1989) (holding there
was no express preemption, because the Longshore
and Harbor Workers’ Compensation Act contains
no civil enforcement provision, and rejecting the
idea that an “express denial” of a state-law cause
of action was sufficient to grant removal
jurisdiction, else the well-pleaded complaint rule
would have no vitality).
3 Cf. id. at 1165 (contrasting the LHWCA to
ERISA and the LMRA, which have specific
jurisdictional grants and which completely preempt
state law in some circumstances).

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courts, but it argues that this prong was
intended to apply only to ERISA claims like
the one presented in Heimann. But Heimann
was not so limited. Significantly, its three-part
test was considered to be a “general” one, and
the court noted that “[t]his test should be
‘applied with circumscription to avoid difficult
issues of federal-state relations,’ and
accordingly few federal statutes can meet such
an exacting standard.” Id. (internal citations
omitted). The court did not mention ERISA
or any other statute in establishing the three
factors, and, accordingly, Baylor has presented
us with no reason not to apply those factors to
the PRSA.
FinallySSunder the third prongSSthere are
no indications in the PRSA or its legislative
history of a clear congressional intent that
these types of claims should be removable. In-
stead, Baylor makes a more general argument
that “there is probably no other area in which
there is more federal regulation than in the
field of aviation.” It also relies heavily on
Trans World Airlines, Inc. v. Mattox, 897 F.2d
773, 787 (5th Cir. 1990), for the proposition
that “Congress may so completely preempt a
particular area, that any civil complaint raising
this select group of claims is necessarily
federal in character.”
Trans World is not controlling. First, a re-
citation of the general complete-preemption
principle, without application of the specific
tripartite test, is no longer sufficient after Hei-
mann, which requires a clear statement by
Congress that state-law claims will be
removable. Moreover, Trans World’s
interpretation was of the Federal Aviation Act,
not the PRSA, and its holding should extend
only to the principle that “Congress did intend
to preempt completely the particular area of
state laws relating to rates, routes, or services
. . . to maintain uniformity and to avoid the
confusion and burdens that would result if
interstate and international airlines were
required to respond to standards of individual
states.” Id. (emphasis added, internal
quotation marks omitted).
Here, there is no similar showing of
congressional intent with respect to removal.
Likewise, there is no serious danger that al-
lowing Johnson’s tortious interference claim
will result in confusion or undue burdens on
air carriers.
A remand to state court does not
undermine Baylor’s protections under
§ 44936. Instead, Baylor still is free to assert
§ 44936 as a federal defense to Johnson’s state
law claim. And to the extent that Baylor
complied with subsection (f)(1)’s requirements
for providing pilot information following Kitty
Hawk’s request, Baylor still will be immune
from liability under either federal or state law
in accordance with § 44936(g)(1).
Finally, our caselaw refutes the idea that
aviation is generally a field of complete
preemption. In Hodges v. Delta Airlines, Inc.,
44 F.3d 334, 338 (5th Cir. 1995) (en banc),
we held that a plaintiff’s state law negligence
claim for damages was not preempted by the
Airline Deregulation Act (“ADA”), 49 U.S.C.
§ 1305(a)(1). We reasoned that “neither the
ADA nor its legislative history indicates that
Congress intended to displace the application
of state tort law to personal physical injury in-
flicted by aircraft operations, or that Congress
even considered such preemption.” Id.
Important to this conclusion was the fact that
the ADA did not contain federal causes of
action like those provided for in ERISA
legislation. Id. at 338 n.8. So too for the
PRSASSit confers no federal cause of action,

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and there is no evidence that Congress
intended to make state law claims removable.
Thus, § 44936’s preemption provision and
resulting affirmative defense are insufficient,
without more, to create federal question
jurisdiction. Because the PRSA does not meet
any of the three required criteria under
Heimann, it does not completely preempt state
law, and removal was improper.
The judgment is REVERSED and
REMANDED with instruction to remand to
state court.

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