                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-2005

Gary v. Air Grp Inc
Precedential or Non-Precedential: Precedential

Docket No. 02-3534




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                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
               __________

                   No. 02-3534
                   __________

                   RAY GARY
                           Appellant

                        v.

             THE AIR GROUP, INC.

                   __________

  On Appeal from the United States District Court
            for the District of New Jersey
              Civil Action No. 02-2589
  District Judge: Honorable Katherine S. Hayden
                     __________

   Submitted Under Third Circuit L.A.R. 34.1(a)
              December 16, 2004
                 ___________

Before: NYGAARD and GARTH, Circuit Judges, and
                 POLLAK * , District Judge

             (Opinion Filed: February 3, 2005)
                       __________

                         OPINION
                        __________


Mark A. Berman
Michael A. Baldassare
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, New Jersey 07102

             Attorney for Appellant,
             Ray Gary

Todd H. Girshon
Jackson Lewis LLP
59 Maiden Lane
New York, New York 10038

             Attorney for Appellee,
             The Air Group, Inc.




      *
        The Honorable Louis H. Pollak, Senior District Judge,
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
Garth, Circuit Judge:

      Appellant Ray Gary (“Gary”), a New Jersey resident,

brought an action against Appellee The Air Group, Inc. (“The

Air Group”), a California corporation, alleging a violation of

New Jersey’s Conscientious Employee Protection Act, N.J.S.A.

§ 34:19-1 et seq. (“CEPA”). The District Court, holding that

Gary’s state law whistleblower claim was preempted by the

federal Airline Deregulation Act, 49 U.S.C. § 41713 (“ADA”),

as amended by the Whistleblower Protection Program, 49

U.S.C. § 42121 (“WPP”), dismissed Gary’s action pursuant to

Federal Rule of Civil Procedure 12(b)(6). After considering

Gary’s appeal, we will reverse.

                              I.

      The facts of this case are largely undisputed. From

March 15, 2001 through August 30, 3001, Ray Gary was

employed by The Air Group as a co-pilot for the “Cessna

                              1
Citation,” a small private aircraft. In July 2001, The Air Group

hired James O’Neal Johnson, Jr. as pilot-in-command for the

Cessna Citation.

       Gary spent four days assisting Johnson with preparations

for a Federal Aviation Administration (“FAA”) required “route

check.” After spending that time with Johnson, Gary alleges

that he believed Johnson was unqualified to pilot an aircraft

because he: (1) did not have the requisite jet time mandated by

the FAA, (2) was unfamiliar with FAA mandated basic flight

procedures, (3) did not properly proceed with the FAA

mandated “Pre-Flight Checklist,” a safety measure, (4) was

unfamiliar with the airspace into which he was planning to fly,

and (5) was unfamiliar with how to obtain departure clearance

at certain airports.

       Based on the foregoing, Gary alleges that he reasonably

believed that if The Air Group permitted Johnson to fly and/or

                               2
if he did so, Johnson would be endangering himself, passengers,

crew, the public and the aircraft. Gary also alleges he believed

Johnson had violated and/or would violate FAA regulations.

       On August 30, 2001, Gary called his supervisor, Dennis

Turville, to express his concerns. Gary told Turville that

Johnson was “ill-prepared, lacked ability, lacked the proper

credentials, lacked the required experience, was unsafe and

unqualified to pilot a commercial charter plane.” A few hours

later, The Air Group terminated Gary. Gary alleges that The

Air Group fired him in retaliation for, among other things, his

report of Johnson’s lack of qualifications as well as Johnson’s

past and potential future FAA violations.

       On April 29, 2002, Gary filed a complaint in the

Superior Court of New Jersey alleging that his termination was

in violation of New Jersey’s Conscientious Employee



                               3
Protection Act (“CEPA”), a state whistleblower statute.1

       On May 29, 2002, The Air Group removed the case to

the District of New Jersey pursuant to 28 U.S.C. § 1441. It then



       1
           That provision states, in relevant part:

                An employer shall not take any
                retaliatory action against an
                employee because the employee
                does any of the following:

                a.    Discloses, or threatens to
                disclose to a supervisor or to a
                public body an activity, policy or
                practice of the employer or another
                employer, with whom there is a
                business relationship, that the
                employee reasonably believes is in
                violation of a law, or a rule or
                regulation promulgated pursuant to
                law, or, in the case of an employee
                who is a licensed or certified health
                care professional, reasonably
                believes constitutes improper
                quality of patient care

N.J.S.A. 34:19-3.

                                 4
moved to dismiss Gary’s complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6) on the ground that his state law

whistleblower claim was preempted by federal law, specifically

the ADA, 49 U.S.C. § 41713, as amended by the WPP, 49

U.S.C. § 42121.

      The District Court granted The Air Group’s motion to

dismiss on August 8, 2002. This timely appeal followed.2

                             II.

      The District Court had jurisdiction over Gary’s state law

action pursuant to 28 U.S.C. §§ 1331 and 1332. We have

jurisdiction over the instant appeal pursuant to 28 U.S.C. §

1291. We exercise plenary review over a district court’s

dismissal of a complaint under Federal Rule of Civil Procedure



      2
        Gary initially brought his appeal pro se. On November
10, 2003, based on a finding that the “issues are arguable and
complex,” this Court appointed pro bono counsel for Gary.

                              5
12(b)(6). Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164

F.3d 186, 189 (3d Cir. 1998). In reviewing this appeal, we

apply the same test as the District Court, accepting all of Gary’s

allegations as true and construing all reasonable inferences in

his favor. See Port Authority of N.Y. & N.J. v. Arcadian Corp.

et al., 189 F.3d 305, 312 (3d Cir. 1999).

                               III.

       Congress enacted the ADA in 1978 to “prevent the states

from re-regulating airline operations so that competitive market

forces could function.” Taj Mahal Travel, 164 F.3d at 194

(citation omitted).    The ADA was intended to increase

competition among air carriers. In addition, it contains an

express preemption clause, which provides in relevant part that:

              [A] State . . . 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

                                6
              that may provide air transportation
              under this subpart.

49 U.S.C. § 41713(b)(1).

       The Supreme Court has given a broad interpretation to

the words “relating to,” holding that “[s]tate enforcement

actions having a connection with, or reference to airline ‘rates,

routes, or services’ are pre-empted.” Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 383-84 (1992). The requisite

connection exists either where “the law expressly references the

air carrier’s prices, routes or services, or has a forbidden

significant effect upon the same.” United Parcel Serv., Inc. v.

Flores-Galarza, 318 F.3d 323, 335 (1st Cir. 2003) (citation

omitted). At the same time, however, the Supreme Court has

indicated that there are “real limitations to the [ADA’s]

preemptive scope, stating . . . ‘[s]ome state actions may affect

[airline fares] in too tenuous, remote or peripheral a manner to


                               7
have preemptive effect.’” Taj Mahal Travel, 164 F.3d at 191

(quoting Morales, 504 U.S. at 390) (internal quotation marks

omitted).

       In the present appeal no claim is made that the ADA

elements of “price” or “route” are involved. The dispute centers

around whether Gary’s state law retaliation claim has a

“forbidden significant effect” upon The Air Group’s “service.”

In other words, whether Gary’s claim for retaliatory discharge

under New Jersey’s Conscientious Employee Protection Act,

N.J.S.A. 34:19-1 et seq., is “related to” the “service of an air

carrier.” 49 U.S.C. § 41713(b)(1). Neither the Supreme Court

nor our sister circuits have defined the term “service of an air

carrier” in the context of an employee calling the attention of

his employer to the safety qualifications of a co-worker.

       In 2000, Congress enacted the Whistleblower Protection

Program as an amendment to the ADA. That statute, which is

                               8
the federal airline analog to the New Jersey whistleblower

statute, provides in relevant part:

              No air carrier . . . may discharge an
              employee or otherwise discriminate
              against an employee with respect to
              compensation, terms, conditions, or
              privileges of employment because
              the employee . . . provided . . . to
              t h e employer or Federal
              Government information relating to
              any violation or alleged violation
              of any order, regulation, or
              standard of the Federal Aviation
              Administration or any other
              provision of Federal law relating to
              air carrier safety under this subtitle
              or any other law of the United
              States.

49 U.S.C. § 42121(a)(1).

       We must therefore determine whether the ADA, as

amended by the WPP, preempts Gary’s claim under the New

Jersey whistleblower statute. To do so requires us to answer

two related questions. First, is Gary’s claim “related to a . . .


                                9
service of an air carrier” within the express terms of the ADA

preemption provision? Second, does the WPP alter the scope

of the ADA preemption provision such that Gary’s claim now

falls within its ambit?

       In the post-WPP era, the Eighth and Eleventh Circuits

have both weighed in on the viability of state law whistleblower

claims in the aviation context. See Branche v. Airtran Airways,

Inc., 342 F.3d 1248 (11th Cir. 2003)3 ; Botz v. Omni Air Int’l,

286 F.3d 488 (8th Cir. 2002). As these cases provide the

framework for the parties’ arguments on appeal, they are

discussed in detail below.



       3
         Branche v. Airtran Airways, Inc. was filed by the
Eleventh Circuit on August 21, 2003. The District Court,
which granted The Air Group’s motion to dismiss Gary’s claim,
did so on August 8, 2002 – a year before Branche was filed.
We recognize that the District Court did not have the benefit of
the Eleventh Circuit’s Branche opinion when it decided The Air
Group’s motion.

                              10
       1.        Botz v. Omni Air International

       Omni Air International, Inc. terminated Anna Botz’s

employment as a flight attendant after she refused a flight

assignment that she believed          violated federal safety

regulations. 4    Botz then filed suit alleging Omni violated

Minnesota’s whistleblower statute5 by discharging her in

retaliation for refusing the assignment and for reporting the

alleged safety violation to Omni. Omni moved to dismiss the

action pursuant to Rule 12(b)(6) on the ground that the state

whistleblower provisions were both expressly and impliedly



       4
          Omni assigned Botz to work both legs of a round-trip
flight from Alaska to Japan. Botz believed this assignment
would require her to violate a Federal Aviation Regulation
limiting a flight attendant’s “duty period” to no longer than
twenty hours. See 14 C.F.R. § 121.467.
       5
         The New Jersey statute, N.J.S.A. § 34:19-1 et seq.,
contains the identical “refusal” provision at issue in Botz.
However, that provision is not implicated in the present appeal.

                                11
preempted by the ADA and WPP. The district court granted the

motion and the Eighth Circuit Court of Appeals affirmed.

        On appeal, the court focused on the fact that Botz, a

flight attendant, refused to fly as assigned: “When applied to the

facts   surrounding      Botz’s    discharge,   the   Minnesota

whistleblower statute has a forbidden connection with air-

carrier services.   It includes broad authorization to flight

attendants to refuse assignments, jeopardizing an air carrier’s

ability to complete its scheduled flights.” Botz, 286 F.3d at 494.

The court held that Botz’s claim was expressly preempted by

the ADA based on its conclusion that “[t]he Minnesota

whistleblower statute affects air-carrier service by authorizing

a flight attendant to refuse assignments and protecting her when

she does.” Id. at 495.

        The Eighth Circuit then turned to the impact of the WPP

on ADA preemption. It found that “[t]he fact that the WPP

                                  12
now provides a comprehensive scheme for protecting the

precise sort of air safety-related conduct Botz engaged in here,

is . . . powerful evidence of Congress’s clear and manifest intent

to pre-empt state-law whistleblower claims related to air

safety.” Id. at 496. Thus, it concluded that “[w]hile the plain

language of the ADA’s pre-emption provision encompasses

Botz’s claims, the WPP makes it unmistakable that such claims

are pre-empted.” Id. at 498.

       2.     Branche v. Airtran Airways, Inc.

       Branche was employed as an aircraft inspector for

Airtran. He was required to conduct safety inspections of

aircraft prior to takeoff. Branche alleged that he was terminated

after he reported several alleged safety violations to the FAA.

In particular, Branche alleged that on one occasion an Airtran

plane landed with one of its engines running at a temperature

that exceeded FAA safety guidelines. Branche recommended

                               13
to Airtran’s maintenance supervisor that the engine be subjected

to a detailed inspection but he was overruled and the plane

subsequently took off.

       Branche brought suit under Florida’s Whistleblower Act.

After discovery, Airtran moved for summary judgment arguing

that Branche’s state law claim was expressly preempted by the

ADA. The District Court granted the motion but the Court of

Appeals reversed.

       On appeal, the Eleventh Circuit noted that “employment

discrimination actions typically have been held to fall outside

the scope of the ADA’s pre-emption clause.” Branche, 342

F.3d at 1259 (citations omitted). It concluded that “given the

particularities of Branche’s claim that he was discharged for his

post hoc reporting of Airtran’s safety violations, we believe that

this case is more analogous to the majority of those

[employment discrimination claims].” Id. at 1260. Notably, the

                               14
court did not “dispute the Eighth Circuit’s conclusion that the

grounding of an airplane is related to services.” Id. at 1262.

Rather, it found “in this case, the connection – or, indeed, the

potential connection – between Branche’s actions and air carrier

services is far more attenuated than in Botz.” Id.

       Turning to the impact of the WPP, the Eleventh Circuit

disagreed with the expansive effect given to that provision by

the Eighth Circuit. The Branche court emphasized the fact that

the WPP “says nothing about preemption” and found that

silence “ambiguous” as to Congressional intent regarding

preemption of state law whistleblower claims. Id. at 1263. It

thus concluded that “the WPP changed neither the nature of

Florida’s Whistleblower Act nor the language of the ADA’s

pre-emption provision in any meaningful way.” Id. at 1264.

Rather, “[i]n deciding pre-emption, whether before or after the

. . . WPP, the question we must answer remains the same: Is the

                              15
state law in question ‘related to’ air carrier ‘services’?” Id.

Because Branche’s claim was not, it was not preempted by the

ADA.

       Here, as we have noted, see note 3 supra, the District

Court dismissed Gary’s case prior to the filing of the Eleventh

Circuit’s decision in Branche and thus did not have the benefit

of that court’s analysis. Instead, the District Court, adopting the

reasoning of the Eighth Circuit in Botz, determined that the

ADA’s express preemption provision was significantly

expanded by the WPP amendment and as such held that Gary’s

state law claim was preempted.

                               IV.

       On appeal, Gary urges the Court to follow Branche

and hold that the ADA does not preempt his state law claim

because his claim is not “related to” The Air Group’s



                                16
“service.”6 He further contends that the Court should adopt

the Eleventh Circuit’s analysis that the addition of the WPP

did not expand the scope of the ADA’s preemption provision.

       1.     Express Preemption

       We hold Gary’s claim is not expressly preempted by

the ADA because its connection to The Air Group’s “service

of an air carrier”, actual or potential, is simply too remote and

too attenuated to fall within the scope of the ADA, 49 U.S.C.

§ 41713(b)(1). Gary’s claim is predicated on a complaint to

his supervisors about Johnson’s qualifications and his


       6
          However the “service” component of the ADA is
interpreted, see, e.g., Taj Mahal Travel, 164 F.3d at 194 (“[W]e
do not find it conceptually helpful to distinguish ‘operation or
maintenance of aircraft’ from ‘service.’”); Branche, 342 F.3d at
1256-58, Gary’s complaint and the actions allegedly taken by
him cannot be deemed to be related to the “service of an air
carrier.” This is particularly so in light of the ADA’s primarily
economic focus. See Abdullah v. Am. Airlines, Inc., 181 F.3d
363, 368 (3d Cir. 1999) (describing the ADA as an “economic
deregulation statute”).

                               17
“reasonabl[e] belie[f] that Mr. Johnson would violate and/or

had violated Federal Aviation Administration Regulations.”

Compl. at ¶ 6. Unlike Botz, Gary never refused a work

assignment, and thus his report to The Air Group about

Johnson did not have the potential to interrupt service by

grounding a particular flight.

       Indeed, the relation of Gary’s whistleblower report to

“service” is even more attenuated than Branche’s reports.

Gary’s actions did not interrupt any scheduled flights, nor did

they have the potential to ground any scheduled flights, for

the simple reason that no flights were scheduled. Instead,

Gary’s actions are more properly viewed as comparable to a

garden variety employment claim, albeit in the present

context, one that is related to safety.

       2.     Impact of the WPP on ADA Preemption

       The Air Group’s principal argument on appeal, and the

                                 18
basis upon which the District Court rendered its decision, is

that the addition of the WPP expanded the scope of the ADA

preemption provision to encompass state law whistleblower

claims. The Botz court analyzed the WPP to that effect. Botz

herself argued that the WPP “was not intended to pre-empt

State whistleblower protections because, if it had been,

Congress could easily have made such preemption express by

including language in the WPP indicating that it was a

whistleblowing air-carrier employee’s exclusive remedy.”

Botz, 286 F.3d at 497. The Botz court rejected this argument,

claiming that “[t]his turns proper logic on its head.” Id. It

held that while the plain language of the ADA’s preemption

provision encompassed Botz’s claims, the WPP “made it

unmistakable that such claims are preempted.” Id. at 498.

       While Botz sets forth its interpretation of the WPP, we

find the better view is that expressed by the Eleventh Circuit

                               19
in Branche – the WPP did not alter the ADA analysis in any

meaningful way. Two factors support this conclusion.

       First, the plain language of the WPP is wholly silent

on the issue of preemption. In enacting the WPP, Congress

presumably was aware of the view of a majority of courts that

the ADA did not preempt state law retaliatory discharge

claims. See Branche, 342 F.3d at 1262. Thus, we agree with

the Eleventh Circuit’s conclusion that Congress’ silence

renders its intent “ambiguous” at best and thus should not

serve as a basis for expanding ADA preemption. See id.

       Second, our holding is reinforced by the well-

established principle that “courts should not lightly infer pre-

emption.” Int’l Paper Co. v. Ouellette, 479 U.S. 481, 491

(1987). This is particularly apt in the employment law

context which falls “squarely within the traditional police

powers of the states, and as such should not be disturbed

                               20
lightly.” Branche, 342 F.3d at 1259 (citation omitted).

       We therefore agree with the Eleventh Circuit that Botz

went too far in expanding ADA preemption. Instead, the

operative question remains whether the state law claim is

related to airline prices, routes, or services. Because, as we

earlier acknowledged, the elements of airline prices and

routes are not in issue on this appeal, we hold that Gary’s

state law whistleblower claim is not “related to” the “service

of an air carrier” within the meaning of 49 U.S.C. §

41713(b)(1). Hence, Gary’s retaliation claim is not

preempted by the ADA as amended by the WPP.

       The order of the District Court will be reversed and the

matter remanded for further proceedings consistent with this

opinion.7


       7
         The Air Group makes the additional argument that
Gary’s state law claim is impliedly preempted under the

                               21
doctrines of field and conflict preemption. We decline to find
his claim so preempted.
        In general, the existence of an express preemption
provision supports the inference that there is no implied
preemption. See Freightliner Corp. v. Myrick, 514 U.S. 280,
289 (1995); Horn v. Thoratec Corp., 376 F.3d 163, 166 (3d Cir.
2004).
        With respect to conflict preemption, the Supreme Court
has left open the possibility that a federal law could provide for
both express and conflict preemption. See Freightliner, 514
U.S. at 289. However, courts of appeals in general have been
extremely reluctant to infer conflict preemption in the face of an
express preemption provision. See, e.g., Horn, 376 F.3d at 166.
 The Air Group argues that CEPA should be preempted because
it serves as an obstacle to employees’ reporting safety violations
to the FAA. That argument is flawed, however, because CEPA
and the WPP are not reporting statutes but are rather parallel
remedial statutes designed to protect airline employees who are
fired in retaliation for whistleblowing activities. See Medtronic,
Inc. v. Lohr, 518 U.S. 470, 496-97 (1996) (no conflict
preemption in the case of parallel state and federal statutory
remedies for the same conduct and harm).
