In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2545

Charles M. Vorhees, as Executor of the
Last Will and Testament of Helen Brach, a person
presumed dead,

Plaintiff-Appellant,

v.

Naper Aero Club, Inc., an Illinois Not-for-
Profit Corp.; Naperville Flying Club, Inc.,
an Illinois Not-for-Profit Corp.;
Business Men’s Flying Club, Inc., an
Illinois Not-for-Profit Corp., et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 6118--James H. Alesia, Judge.

Argued March 1, 2001--Decided November 9, 2001



  Before Harlington Wood, Jr., Manion, and
Diane P. Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. Plaintiff
Charles M. Vorhees is the executor of the
estate of Helen Brach. The Brach estate
owns an undivided, one-half interest in a
312-acre farm (the Farm) located in
unincorporated DuPage County, Illinois,
adjacent to the cities of Naperville and
Aurora. Defendant Naper Aero Club, Inc.
(Naper Aero) is a not-for-profit flying
club that operates a small private
airport (the Airport), adjacent to the
southern boundary of the Farm. The other
five corporate defendants are flying
clubs whose members operate aircraft from
the Airport; the 52 individual defendants
are either owners of the Airport or
private pilots alleged to have used the
Airport.

  Naper Aero maintains two runways at the
Airport for takeoffs and landings. One of
those runways runs north and south; the
north end of the runway abuts the
southern boundary of the Farm. As a
result of the proximity of the runway to
the Farm, aircraft taking off from or
landing at this runway necessarily travel
across the Farm at very low altitudes.

  A predecessor to Naper Aero established
the Airport some time around 1956. In the
early years, it appears that the Farm and
the Airport coexisted harmoniously. The
Farm had been used mostly for farming
purposes and had remained unimproved. The
incoming and outgoing flights did not
hinder any of the Farm’s activities.

  By the late 1980s, things had changed.
The cities of Aurora and Naperville were
experiencing explosive growth, and the
Farm was advantageously situated for
commercial use. Vorhees realized that any
plans to build high-rise buildings on the
Farm, especially near its southern
border, would be either impossible or
unattractive because of the constant low
flights. Wishing to obtain the highest
and best use for his property, Vorhees
formally demanded that the defendants
cease from entering the airspace over the
Farm. They refused; two lawsuits
resulted.

  In 1995, Vorhees brought a suit against
the Secretary of the Illinois Department
of Transportation, the Director of the
Division of Aeronautics of the Department
of Transportation, the City of
Naperville, the City of Aurora, the Coun
ty of DuPage, and the Naper Aero Club. He
based this suit on a 1990 amendment to
the Illinois Aeronautics Act that states:
"No person may create or construct any
airport hazard which obstructs a
restricted landing area or residential
airport . . . ." 620 ILCS 5/49.1 (West
2001). Vorhees believed that this
amendment amounted to a taking of
property adjacent to airports; in his
case, he argued he was forced to give an
implicit air easement, which would limit
or eliminate his ability to develop the
Farm or sell it for commercial purposes.
As a remedy, he asked the
courtpermanently to enjoin the defendants
from enforcing the amendment against him
and to issue a declaratory judgment
stating that the amendment indeed
effectuated a taking of private property
for which just compensation was due. The
district court dismissed the case, ruling
that because Vorhees had failed to show
that the amendment was preventing him
from executing existing plans to develop
the land, there was no "actual case or
controversy" and the court therefore
lacked subject matter jurisdiction.
Vorhees v. Brown, 95 CV 3812, 1996 WL
139393 (N.D. Ill. Mar. 26, 1996)
(dismissing claim against city of
Naperville); 1996 WL 568775 (N.D. Ill.
Sept. 27, 1996) (dismissing claims
against remaining defendants). In an
unpublished opinion, this court affirmed
and encouraged Vorhees to attempt
development and to commence inverse
condemnation proceedings instead. Vorhees
v. Brown, 134 F.3d 375, 1998 WL 54657
(7th Cir. Feb. 4, 1998).

  Rather than heeding our advice (which he
was under no obligation to do), Vorhees
filed a second suit in the Chancery
Division of the Circuit Court of DuPage
County, on August 19, 1999, seeking again
permanently to enjoin the defendants from
using the north/south runway at the
Airport. Vorhees claimed that the
injunction was necessary in order for him
to obtain full enjoyment of his property
and that the pilots’ entrance into the
airspace above the Farm was a trespass.

  Certain defendants immediately filed a
motion to remove the case to the federal
court for the Northern District of
Illinois pursuant to 28 U.S.C. sec. 1441.
(The other defendants apparently
acquiesced. We note that the removal
statute requires all defendants to join
in a motion for removal, but in light of
our disposition of this appeal, we do not
pursue this point further.) The
defendants contended that because Vorhees
sought to prohibit the use of the runway
at the Airport, and because regulation
and operation of airports are matters
exclusively within the purview of the
federal government, federal law preempted
state law with respect to all aspects of
the complaint. This amounted to the
inaptly named "complete" federal
preemption, they believed, and they thus
relied on original federal question
jurisdiction under 28 U.S.C. sec. 1331 to
support their removal petition.

  With the case now in federal court as a
result of the removal petition, Vorhees
filed a motion on October 6, 1999, to
remand the case to the Circuit Court of
DuPage County pursuant to 28 U.S.C. sec.
1447(c). He took the position that there
was no jurisdiction in the federal court,
either under sec. 1331 or under sec.
1332. The latter is undisputed; parties
on both sides of this case are citizens
of Illinois. With respect to sec. 1331,
Vorhees argued that Congress, in enacting
the Federal Aviation Act, did not intend
to occupy the field of aviation so
thoroughly as to preclude the application
of state trespass laws. While that motion
was pending, the defendants filed a
motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6), arguing that the
district court had no authority to issue
an injunction, since under Federal
Aviation Regulations, only the Federal
Aviation Administration (FAA) has the
authority to limit airflight in navigable
airspace.

  On May 16, 2000, the district court
denied Vorhees’s motion to remand and
granted the defendants’ motion to dismiss
the complaint. Vorhees now appeals from
both the court’s denial of his motion to
remand and from the dismissal of the
complaint. We review these decisions de
novo, accepting all well-pleaded
allegations in the complaint as true and
drawing all reasonable inferences in
favor of the plaintiff. See Tylka v.
Gerber Prods. Co., 211 F.3d 445, 447 (7th
Cir. 2000); Jones v. Simek, 193 F.3d 485,
489 (7th Cir. 1999).

I

  Under 28 U.S.C. sec. 1441(a), "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 for the district and
division embracing the place where such
action is pending." As we have already
noted, the parties to this lawsuit are
not diverse; hence, the original
jurisdiction necessary for removal, if
such jurisdiction exists, must be based
on the presence of a federal question.
The defendants were able to convince the
district court to accept jurisdiction
over the case on this basis, contending
that the case arose "under the
Constitution, laws, or treaties of the
United States." 28 U.S.C. sec. 1331.

  A case arises under federal law within
the meaning of sec. 1331 only when the
claim for relief depends in some way on
federal law, "unaided by anything alleged
in anticipation or avoidance of defenses
which it is thought the defendant may
interpose." Taylor v. Anderson, 234 U.S.
74, 75-76 (1914). This is the "well-
pleaded complaint" rule that every first-
year law student learns was established
in Louisville & Nashville R.R. Co. v.
Mottley, 211 U.S. 149 (1908). Under that
rule, federal courts may look only to the
well-pleaded complaint, and not to any
possible or anticipated defenses, to
determine if the case arises under
federal law. See Metropolitan Life Ins.
Co. v. Taylor, 481 U.S. 58, 63 (1987).
The complaint Vorhees filed did not
invoke any federal law as the basis for
his action, nor does his complaint raise
any federal issues--at least not
consciously or intentionally. It raised
only state law claims for trespass and
injunctive relief.

  Nonetheless, even though plaintiffs are
normally the masters of their own cases
and can choose which claims they wish to
present, there are limits to this
discretion. One of those limits arises
when federal law has entirely displaced
state law. Federal question jurisdiction
will be present even if the complaint
does not invoke it when "federal law so
occupies the field that it is impossible
even to frame a claim under state law."
Ceres Terminals, Inc. v. Indus. Comm’n of
Ill., 53 F.3d 183, 185 (7th Cir. 1995).
In such a case, courts sometimes refer
critically to the complaint as one that
has been "artfully pleaded" to evade the
federal claim, see Lehmann v. Brown, 230
F.3d 916, 919 (7th Cir. 2000), although
the pleader’s intent is not relevant to
the jurisdictional issue. Removal to
federal court on the basis of federal
question jurisdiction, even if the state
court would not have had concurrent
jurisdiction, is one option available to
the defendants. See Bartholet v.
Reishauer A.G. (Zurich), 953 F.2d 1073,
1075 (7th Cir. 1992); 28 U.S.C. sec.
1441(e). These are the cases in which the
term "complete preemption" has been used,
although we have had occasion to note
elsewhere that this is a misnomer. See
Lehmann v. Brown, 230 F.3d at 919
(noting that "complete preemption" has
nothing to do with preemption and
everything to do with federal occupation
of a field).

  The defendants argue, and the district
court concluded, that section 40103 of
the Federal Aviation Act has exactly this
effect of "complete preemption" or
displacement of all state law in the
field. They point to the fact that 49
U.S.C. sec. 40103(a) provides that "[t]he
United States Government has exclusive
sovereignty of airspace of the United
States." The injunction the plaintiff
seeks would, at first blush, probably
require the defendants to change their
routes and flight patterns. (Such a
change might not be necessary if the
defendants were essentially forced to
purchase an easement, but we put this
possibility aside for now.) The change in
route and flight patterns would
ultimately result in the regulation of
airspace, in contravention of the rule
that this regulation is solely within the
sovereignty of the federal government.
Because the requested state law recovery
would interfere with federal authority,
the defendants argue, the claim must be
completely preempted.

  While these arguments set forth a strong
case for federal preemption, they do not
answer the more subtle question of
whether we are dealing with so-called
"complete preemption" or its more
ordinary cousin, "conflict preemption."
Only "complete" preemption affects
federal subject matter jurisdiction.
"Conflict" preemption relates to the
merits of a claim. It comes into play any
time a state law allegedly conflicts with
federal law. If such a conflict exists,
then the state law is preempted and must
necessarily give way to federal law. See
English v. General Elec. Co., 496 U.S.
72, 79 (1990). For present purposes,
however, the key point is this: ordinary
or conflict preemption is merely a
defense to the merits of a claim. As
such, according to the well-pleaded
complaint rule, it does not provide a
basis for federal question jurisdiction.
See Metropolitan Life, 481 U.S. at 63;
Lehmann, 230 F.3d at 919-20. This is true
even if all parties anticipate the
defense or admit that the federal defense
is the only question truly at issue.
Caterpillar, Inc. v. Williams, 482 U.S.
386, 393 (1987).

  We agree with the defendants that the
Illinois law claims Vorhees is trying to
assert may very well be preempted by the
Federal Aviation Act (though we make no
ruling on that question at this time).
But the fact that a federal statute
creates a defense to a state law claim
does not necessarily mean that "Congress
has, by statute, taken the subject away
from state tribunals and given it to
federal courts." Ceres, 53 F.3d at 186.
The question is whether, in enacting the
Federal Aviation Act, Congress clearly
intended completely to replace state law
with federal law and create a federal
forum, or, more likely, if it only
intended to provide a federal defense to
the application of state law. See Graf v.
Elgin, Joliet & Eastern Ry. Co., 790 F.2d
1341, 1344 (7th Cir. 1986). In this case,
we conclude that it is the latter.

  There are only two areas in which the
Supreme Court has found that Congress
intended completely to replace state law
with federal law for purposes of federal
jurisdiction: the first is in the field
of federal labor law and the second is in
the area of federal pension law. In the
area of federal labor law, the Court has
held that sec. 301 of the Labor
Management and Relations Act (LMRA)
completely preempts state law claims
based on violations of contracts between
an employer and a labor organization if
those claims require interpretation of
the collective bargaining agreement. See
Avco Corp. v. Aero Lodge No. 735, Int’l
Ass’n of Machinists & Aerospace Workers,
390 U.S. 557 (1968). In the field of
federal pension law, the Employee
Retirement Income Security Act (ERISA)
completely preempts state law claims
brought to enforce pension or welfare
benefits. See Metropolitan Life, 481 U.S.
58 (1987).

  In both of these fields, a state court
claim is not necessary because the
federal claim includes the same
ingredients as the state claim and
provides some recovery. Section 301 of
the LMRA provides that "[s]uits for
violation of contracts between an
employer and a labor organization
representing employees in an industry
affecting commerce as defined in this
chapter, or between any such labor
organizations, may be brought in any
district court of the United States
having jurisdiction of the parties . . .
." 29 U.S.C. sec. 185(a). Section
502(a)(3) of ERISA provides that a civil
action may be brought "by a participant,
beneficiary, or fiduciary" to enjoin any
action which violates ERISA or the terms
of an ERISA plan, to enforce any
provision of ERISA, or to recover
benefits due under the terms of a plan.
29 U.S.C. sec. 1132(a)(3). In contrast,
the Federal Aviation Act has no civil
enforcement provision or any provision
allowing a private resident to sue for
the property torts of an airline pilot or
airport operator. This is seemingly fatal
to a claim of complete preemption. See
Lehmann, 230 F.3d at 919; Rice v.
Panchal, 65 F.3d 637, 641 (7th Cir. 1995)
("[T]he ability to bring suit under
[federal law] is an element of ’compete
preemption’. . . . For unless the federal
law has created a federal remedy--no
matter how limited--the federal law, of
necessity, will only arise as a defense
to a state law action.").

  Following the logic of the ERISA and
sec. 301 cases, this circuit has added
the regulation of mobile
telecommunications rates and market entry
to the areas in which federal law totally
occupies the field, even though the
relevant laws do not include a civil
enforcement provision permitting an
original right of action. In Bastien v.
AT&T Wireless Servs., Inc., 205 F.3d 983
(7th Cir. 2000), we found that the
Federal Communications Act completely
preempted state regulation of mobile
telecommunications rates and market entry
and allowed removal of claims that
purported to invoke state law in this
area. Congress’s intent to keep states
out of the picture was clear: the
relevant statute stated that "no State or
local government shall have any authority
to impose any rate or entry regulation
upon any private land mobile service." 47
U.S.C. sec. 332(c)(3) (emphasis added);
Bastien, 205 F.3d at 987. There is no
such broad language in the Federal
Aviation Act specifically prohibiting
state and local governments from
regulating airflight in any way
whatsoever. True, the United States does
have "complete and exclusive national
sovereignty in the air space"; but this
does not completely extinguish all rights
based on state law. See United States v.
Causby, 328 U.S. 256 (1946) (recognizing
a Fifth Amendment takings claim in
connection with overflights of U.S.
military aircraft that affected
plaintiff’s property). This case, it is
worth recalling, is about an alleged
trespass into the airspace over Vorhees’s
property. If the federal presence were as
total as the defendants claim, then
Vorhees would have no state trespass
claim even if Naper Aero claimed a right
to enter Vorhees’s property and build
guidelights there to assist landing
aircraft. We have not gone that far in
the past; to the contrary, we have held
that some state law claims relating to
airflight may still have merit,
notwithstanding the broad scope of the
Federal Aviation Act. See Bieneman v.
City of Chicago, 864 F.2d 463, 473 (7th
Cir. 1988) (federal law does not preempt
all common-law remedies for airport noise
and pollution: "the state may employ
damages remedies [ ] to enforce federal
requirements . . . or to regulate aspects
of airport operation over which the state
has discretionary authority."). See also
Causby, 328 U.S. at 266 ("[w]hile the
meaning of property as used in the Fifth
Amendment [is] a federal question, it
will normally obtain its content by
reference to local law.") (internal
quotations omitted).

  Finally, we note that several of the
cases relied upon by the United States
government, as amicus curiae, to show
that the complaint was properly dismissed
as preempted by the Federal Aviation Act
were decided in state courts, not federal
courts. See City of Austin v. Travis
County Landfill Co., 25 S.W.3d 191, 206
(Ct. App. Tex. 1999) (state law
injunction against government airflight
over private property was preempted by
the Federal Aviation Act); Fiese v.
Sitorius, 526 N.W.2d 86, 90 (Neb. 1995)
(airport owner’s requested injunction
against neighbor obstructing airflight
was preempted by Federal Aviation Act);
Krueger v. Mitchell, 332 N.W.2d 733, 740
(Wis. 1983) (injunctive relief in
aviation nuisance action was preempted by
Federal Aviation Act). From all that
appears, these state courts were merely
evaluating the merits of an ordinary
conflict preemption defense and ruling
accordingly, as they are clearly
competent to do.

II

  In light of these principles, we hold
that the district court should have
remanded this case to state court for
want of jurisdiction. Given this finding,
we need not address the merits of the
defendants’ motion to dismiss. And of
course, upon remand to state court, that
court will be free to consider the
question whether the Federal Aviation Act
preempts the claim Vorhees is attempting
to present here--a claim on which our
jurisdictional ruling rejecting "complete
preemption" or occupation of the field
has no bearing. See Lister v. Stark, 890
F.2d 941, 943 n.1 (7th Cir. 1989). At the
same time, however, we encourage the
plaintiff to think long and hard before
pursuing the case in state court. Most
issues of airflight and navigable
airspace, probably including take-offs
and landings, are within the sovereign
regulatory powers of the federal
government. We predict that it would be
difficult at best to convince a state
court that the claim about trespass to
airspace Vorhees is trying to present
would not interfere with the federal
regulatory apparatus. "These subjects are
governed by federal law, and a state may
not use common law procedures to question
federal decisions or extract money from
those who abide by them." Bieneman, 864
F.2d at 473. To the extent federal law
itself has effectuated a taking of
Vorhees’s property, he is of course also
free to approach the FAA with his
concerns or to pursue a takings claim in
the proper federal court (probably the
Court of Federal Claims, given the likely
amount in controversy), if he can
otherwise satisfy the prerequisites for
such a suit.

  The judgment of the district court is
Vacated and the case is Remanded for
purposes of a remand to the state court
under 28 U.S.C. sec. 1447(c). Each party
shall bear its own costs on this appeal.




  Harlington WOOD, JR., Circuit Judge,
dissenting. In my view this interesting
case is not as involved as it first may
appear. Plaintiff filed his complaint in
the circuit court of DuPage County,
Illinois, in Chancery, seeking only
aninjunction prohibiting defendants from
taking off or landing on their runway in
question or permitting others to do so.
One end of that runway ends about twenty
feet from one line of plaintiff’s
property, and depending on weather
conditions it would be used for takeoffs
or landings, both unavoidably resulting
in low-level flights across plaintiff’s
property. Takeoffs and landings are
generally regarded as critical times in
aircraft operations.

  It is obvious that any such injunction
would regulate flight in the air above
plaintiff’s property, which is what he
seeks to do by prohibiting it. My
disagreement with the majority is that I
believe that the regulation of air flight
is totally preempted by the federal
government. See 49 U.S.C. sec.
40103(a)(1) ("The United States
Government has exclusive sovereignty of
airspace of the United States."). The
majority points out that this preemption
has not been made as clearly as in other
matters of federal preemption, federal
labor law and federal pension law, both
important areas of federal preemption. It
is true that the federal government’s
exclusive control of navigable airspace
may not be as explicit as it might have
been, but I submit that Congress thought
no more needed to be said than already
had been said. I believe this case is
similar to Bastien v. AT&T Wireless
Services, Inc., 205 F.3d 983, 986-87 (7th
Cir. 2000).

  As the United States succinctly points
out in its amicus brief supporting the
district court’s dismissal of plaintiff’s
case:

  Pursuant to its Commerce Clause power,
Congress has preempted state regulation
of navigable airspace. Since 1926,
federal law has asserted for the United
States "complete and exclusive national
sovereignty in the air space" over this
country. United States v. Causby, 328
U.S. 256, 250 [sic] (1946), citing the
Air Commerce Act of 1926, Pub. L. No. 69-
254, 44 Stat. 568 (1926), as amended by
the Civil Aeronautics Act of 1938, Pub.
L. No. 75-706, 52 Stat. 973 (1938). In
1958, Congress reenacted this provision
as part of the Federal Aviation Act of
1958, 72 Stat. 731, Pub. L. No. 85-726.
See 49 U.S.C. sec. 1508(a) (1993). In
1994, Congress recodified and altered the
phrasing of the preemption provision. The
provision now states: "The United States
Government has exclusive sovereignty of
airspace of the United States." 49 U.S.C.
sec. 40103(a).

  Federal law defines "navigable airspace"
to include "airspace needed to ensure
safety in the takeoff and landing of
aircraft." 49 U.S.C. sec. 40102(a)(30).
Were flight not completely preempted but
left to all the state courts across this
country, air transportation could only be
chaotic and dangerous. Runway use cannot
be viewed separately. Runways cannot be
used for takeoffs and landings without
affecting flight patterns. Using the
runway in question only as a taxi way to
another runway is not at issue here.
Courts in Texas, Nebraska, and
Connecticut have held that states may not
regulate airspace. See City of Austin v.
Travis County Landfill Co., 25 S.W.3d
191, 206 (Tex. App. 1999); Fiese v.
Sitorius, 526 N.W.2d 86, 90 (Neb. 1995);
United States v. City of New Haven, 367
F. Supp. 1338 (D. Conn. 1973). Our court
has already had a say about the problem
in Kohr v. Allegheny Airlines, Inc., 504
F.2d 400 (7th Cir. 1974). As the panel in
Kohr noted, early in the jurisprudence of
this country, the control of navigable
water was moved from state to federal
control. Id. at 403-04 (quoting Northwest
Airlines, Inc. v. State of Minnesota, 322
U.S. 292, 303 (1944) (Jackson, J.,
concurring)). As was stated in Kohr,
quoting Northwest Airlines,

Air as an element in which to navigate is
even more inevitably federalized by the
commerce clause than is navigable water.
Local exactions and barriers to free
transit in the air would neutralize its
indifference to space and its conquest of
time.
  Congress has recognized the national
responsibility for regulating air
commerce. Federal control is intensive
and exclusive. Planes do not wander about
in the sky like vagrant clouds. They move
only by federal permission, subject to
federal inspection, in the hands of
federally certified personnel and under
an intricate system of federal commands.
The moment a ship taxis onto a runway it
is caught up in an elaborate and detailed
system of controls. It takes off only by
instruction from the control tower, it
travels on prescribed beams, it may be
diverted from its intended landing, and
it obeys signals and order. Its
privileges, rights, and protection, so
far as transit is concerned, it owes to
the Federal Government alone and not to
any state government.

Id. at 404 (quoting Northwest Airlines,
Inc., 322 U.S. at 303 (Jackson, J.,
concurring))./1

  I believe complete preemption exists and
as a result the removal was proper. The
district court properly denied
plaintiff’s motion to remand to the state
court. Moving on to the merits, I would
affirm the district court’s dismissal of
plaintiff’s complaint for failure to
state a claim upon which relief can be
granted. Plaintiff seeks only an
injunction which would regulate air
traffic, not money damages.

  If plaintiff has state remedies not
involving preempted flight airspace
management, which he does not seek in
this complaint, I would leave any further
causes of action plaintiff may pursue
entirely to the judgment of his own
lawyers.

  I must respectfully DISSENT.

FOOTNOTE

/1 In some smaller airports where there may not be
an operating control tower, there are applicable
federal rules and procedures for all pilots to
follow. The Aircraft Owners and Pilots Associa-
tion ("AOPA"), Washington, D.C., publishes a very
useful Handbook for private pilots which contains
the federal aviation regulations and other help-
ful information concerning departing from or
landing at airports without an operating control
tower. Furthermore, contrary to the issuance of
a driver’s license by a state, federal aviation
regulations provide that no person in the United
States may pilot a plane unless that person has
in his possession a current pilot certificate
(commonly referred to as a pilot’s license)
issued to that person pursuant to federal avia-
tion regulations. No state can issue pilot cer-
tificates.
