                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 15-1900
                       ___________________________

                                John A. Watson, V,

                      lllllllllllllllllllll Plaintiff - Appellant,

                                          v.

                            Air Methods Corporation,

                      lllllllllllllllllllll Defendant - Appellee.
                                      ____________

                   Appeal from United States District Court
                 for the Eastern District of Missouri - St. Louis
                                 ____________

                           Submitted: January 14, 2016
                             Filed: August 24, 2016
                                  [Published]
                                 ____________

Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
                         ____________

PER CURIAM.

       John Watson sued his former employer, Air Methods Corporation, in Missouri
state court for wrongful discharge in violation of public policy. Air Methods
removed the case to federal court and then moved to dismiss based on the pre-
emption provision of the Airline Deregulation Act (“ADA”), 49 U.S.C.
§ 41713(b)(1). The district court,1 relying on our decision in Botz v. Omni Air
International, 286 F.3d 488 (8th Cir. 2002), dismissed the complaint, and Watson
appeals. Although three circuits have disagreed with Botz in relevant part, we agree
with the district court that circuit precedent requires the dismissal of Watson’s
complaint.

      Air Methods operates flights and provides in-flight medical care for patients
who require emergency air transportation to hospitals. The company maintains a fleet
of 450 aircraft and qualifies as an “air carrier” for purposes of federal aviation
regulations. 49 U.S.C. § 40102(a)(2).

       From July 2013 until May 2014, Watson worked as a flight paramedic for Air
Methods. Watson claims that during his employment with Air Methods, he observed
numerous violations of federal airline safety regulations. These included a pilot
making a cell-phone videos during flight, members of a medical crew text messaging
during critical phases of flight, a pilot attempting to take off in unsafe conditions, and
another pilot making unnecessary “run-on landings.” Watson reported these alleged
violations to Air Methods’ corporate office. He asserts that the company responded
by suspending him and later terminating his employment.

       In August 2014, Watson sued Air Methods in Missouri state court for the
common-law tort of wrongful discharge in violation of public policy. Under Missouri
common law, an employer may not terminate an employee “(1) for refusing to violate
the law or any well-established and clear mandate of public policy . . . or (2) for
reporting wrongdoing or violations of law to superiors or public authorities.”
Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 92 (Mo. 2010). Air Methods
removed the case to federal court, invoking diversity jurisdiction under 28 U.S.C.


      1
       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.

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§ 1332, and then moved to dismiss the complaint based on Botz. The district court
granted the motion, concluding that the ADA, as interpreted in Botz, pre-empts
Watson’s wrongful discharge claim. Whether Watson’s claim is pre-empted by the
ADA is a question of law that we review de novo. Kutten v. Bank of Am., N.A., 530
F.3d 669, 670 (8th Cir. 2008).

       In 1978, Congress passed the ADA “to encourage, develop, and attain an air
transportation system which relies on competitive market forces to determine the
quality, variety, and price of air services.” Pub. L. No. 95-504, 92 Stat. 1705, 1705
(1978). Prior to the ADA, the Civil Aeronautics Board possessed broad power to
regulate the interstate airline industry, including the authority to prescribe routes and
fares. Federal Aviation Act of 1958, Pub. L. No. 85-726, tit. IV, 72 Stat. 731, 754-71
(1958). The ADA largely deregulated domestic air transportation and provided for
the eventual termination of the Civil Aeronautics Board. 92 Stat. at 1744-54.

       “To ensure that the States would not undo federal deregulation with regulation
of their own,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79 (1992),
the ADA contains an express pre-emption clause, providing in relevant part:

      [A] State, political subdivision of a State, or political authority of at least
      2 States 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) (emphasis added). This section has a “broad pre-emptive
purpose,” precluding state laws “having a connection with or reference to airline
‘rates, routes, or services.’” Morales, 504 U.S. at 383-84. The ADA pre-empts both
state laws “specifically addressed to the airline industry” and generally applicable
laws that indirectly relate to air carriers’ rates, routes, or services. Id. at 386.



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       In Botz, we construed the effect of the ADA pre-emption clause on state
whistleblower-protection laws. There, a flight attendant refused to work both legs of
an Alaska-to-Japan round trip because she believed the assignment violated a federal
regulation concerning cabin crewmembers’ working hours. Botz, 286 F.3d at 490
(citing 14 C.F.R. § 121.467 (2001)). She also reported to the airline her belief that
the refused assignment, and a comparable assignment six months earlier, violated the
regulation. Id. The airline fired the flight attendant for insubordination and refusing
to accept an assignment, and she sued under the Minnesota whistleblower-protection
statute. Id. at 490-91. The Minnesota statute prohibited an employer from firing an
employee who reports in good faith a suspected violation of federal or state law or
“refuses an employer’s order to perform an action that the employee has an objective
basis in fact to believe violates any state or federal law.” Minn. Stat. § 181.932,
subds. 1(1), (3).

       In concluding that the Minnesota statute “related to . . . service of an air
carrier” within the meaning of § 41713(b)(1), this court focused first on the
potentially disruptive effect of even a single crewmember refusing a work
assignment. Botz, 286 F.3d at 494-95. Federal airline regulations set minimum
staffing requirements for all commercial flights, so a crewmember’s refusal to fly
usually will force an airline either to find a last-minute replacement or to cancel the
flight. Id. at 494. We observed that:

      [r]eplacing a flight attendant even with a few days notice might prove
      problematic or even impossible . . . for a small air carrier with relatively
      few flight attendants. For any size carrier, a significant likelihood exists
      that the carrier will have to cancel the flight in order to comply with the
      [federal] flight-attendant staffing regulations.

Id. at 494-95. Therefore, the court concluded that the “authorization to refuse
assignments, and the protection that the whistleblower statute provides, have a


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forbidden connection with an air carrier’s service under any reasonable interpretation
of Congress’s use of the word ‘service.’” Id. at 495.

       The Botz panel then explained that its analysis of the ADA’s pre-emptive effect
was “bolstered by” the Whistleblower Protection Program of the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century (“WPP”), 49 U.S.C.
§ 42121. Botz, 286 F.3d at 497. Enacted in 2000, the WPP amended the ADA to
create what this court described as a “single, uniform scheme for responding to air-
carrier employees’ reports of air-safety violations.” Id. The Botz court thought the
WPP’s protections “illustrate the types of claims Congress intended the ADA to pre-
empt.” Id.

       Although the WPP does not contain a pre-emption provision, Botz concluded
that the enactment informed the scope of pre-emption under the ADA. The court
reasoned that Congress, presumably aware of the broad pre-emptive scope of
§ 41713(b)(1), would have “directed language in the WPP to the issue of federal pre-
emption only if it had been Congress’s intent that the WPP not exert any pre-emptive
effect upon state whistleblower provisions.” Id. “In fashioning a single, uniform
standard for dealing with employee complaints of air-safety violations,” the court
said, “Congress furthered its goal of ensuring that the price, availability, and
efficiency of air transportation rely primarily upon market forces and competition
rather than allowing them to be determined by fragmented and inconsistent state
regulation.” Id. The court thus concluded that the WPP was “powerful evidence of
Congress’s clear and manifest intent to pre-empt state-law whistleblower claims
related to air safety.” Id. at 496. In the end, Botz determined that the plain language
of the ADA’s pre-emption provision encompassed the plaintiff’s claims, but that the
WPP dispelled “whatever doubt might possibly linger after a plain-language analysis
of the ADA’s pre-emption provision.” Id. at 498.




                                         -5-
       Three circuits have declined to follow Botz in situations where an employee
asserted only that he was fired for making a post hoc safety report. In Branche v.
Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003), the Eleventh Circuit
concluded:

      [W]e do not dispute the Eighth Circuit’s conclusion that the grounding
      of an airplane is related to airline services . . . . [W]e are not concerned
      with the withdrawal of clearance for a plane to take off based on
      mechanical concerns, but instead only with Branche’s post hoc reporting
      of a [safety] violation. The likely consequence . . . is an investigation by
      FAA officials . . . , but not the grounding of the plane.

Id. at 1262-63. Similarly, in Gary v. Air Group, Inc., 397 F.3d 183 (3d Cir. 2005),
the Third Circuit found much of Botz inapposite because, “[u]nlike Botz, Gary never
refused a work assignment, and thus his report to The Air Group . . . did not have the
potential to interrupt service by grounding a particular flight.” Id. at 189. Most
recently, in Ventress v. Japan Airlines, 603 F.3d 676 (9th Cir. 2010), the Ninth
Circuit agreed with the treatment of Botz adopted by Branche and Gary. The court
reasoned that a report of “safety violations six months after they occurred and after
completion of the scheduled flights” did not relate to the air carrier’s service, because
the report did not “ground[] or ha[ve] the potential to ground a flight.” Id. at 683.

       These courts also disagreed with Botz’s analysis of the WPP. Observing that
pre-emption should not lightly be inferred, they concluded that the WPP and its
silence on the issue of pre-emption did not alter the pre-emptive scope of the ADA
in any meaningful way. Ventress, 603 F.3d at 683; Gary, 397 F.3d at 190; Branche,
342 F.3d at 1261-63. The other circuits believed that “Botz went too far in expanding
ADA preemption.” Gary, 397 F.3d at 190; accord Ventress, 603 F.3d at 683.

       Watson argues that we should distinguish Botz on a ground suggested by these
other circuits: Watson did not refuse a work assignment that could have affected the

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carrier’s service; he simply made a post hoc safety report that had no potential to
interfere with a flight. We have considered this contention carefully, but we are
constrained by circuit precedent to rule that Watson’s claim is pre-empted. The
plaintiff in Botz brought two whistleblower-retaliation claims: one based on refusing
to accept an assignment and one based on reporting a perceived violation of federal
safety regulations. 286 F.3d at 489, 490-91, 491-92. This court affirmed the
dismissal of both claims. Id. at 498. Watson’s proffered distinction could explain
dismissal of the former claim but not the latter. Because Botz ruled that the plain
language of § 41713(b)(1), bolstered by enactment of the WPP, pre-empted a
whistleblower-retaliation claim based on reporting an alleged safety violation to an
employer, we conclude that Watson’s claim cannot be distinguished from the second
claim dismissed in Botz.

       Watson argues that if Botz cannot be distinguished, then it should be overruled
in relevant part. But one three-judge panel cannot overrule another. Watson may
raise this contention in a petition for rehearing en banc.

      For these reasons, the judgment of the district court is affirmed.
                      ______________________________




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