## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-50779

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### V ERNON 

### G. J OHNSON



### ,

Plaintiff-Appellant,

VERSUS



### B AYLOR 

### U NIVERSITY



### ,

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 dismissal, including an earlier denial of his motion

to remand to state court his state law claim for

torti ous i nterference with contract.

Concluding that the Pilot Records Sharing Act

(“PRSA”), 49 U.S.C. § 44936, does not

c o mpletely preempt state law claims so as to

create federal question jurisdiction, we reverse and remand to the distric t court wi th

instruction to remand to state court.

I.

Jo hnson, a pilot working for Baylor

University (“Baylor”), was fired for chronic

obesity and poor grammar. He sued Baylor in

state cour t

, alleging violations of the

Americans with Disabilit ies Ac t and the

Rehabilitation Act. According to the

comp laint, Johnson had been Baylor’s chief

pilot until his employment was terminate d

because of his chronic obesity. He alleged that2

his termination constituted i m proper

discrimination on the basis of a disabilit y. Baylor removed to federal court, whic h granted

summary ju dgment in its favor, and we

affirmed. S ee Johnson v. Baylor Univ. , 129

F.3d 607 (5th Cir. 1997).

While the discri mination 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

torti ous interference with emplo yment, contendi ng that Baylor’s statements to Kitty

Hawk were false and caused his employment

wit h Kitty Hawk to be terminated. Baylor

again rem o ved to federal court, based on its

contention that Johnson’ s st ate-law claim for

torti o us interference was preempted by the

PRSA; Baylor also moved to dismiss for failure to state a claim, reasoning that § 44936(g),

entitled “limitation on liabilit y; preemption of

State law,” precluded Johnson’s state-law tort

action. It argued that § 44936(g)(3) allows for

liabilit y only when a person knowingly has

provided false information to an air carrier and

t hat information has been maintained in

violation of a federal criminal statute.

Johnson moved to rema nd to state court,

noting that § 44936(g)(1) operates to limit the

liabilit y only o f “a person who has complied

with [a] request” from an air carrier for a person’s employment records. Accordingly,

Johnsonargued that Baylor had not “complied” 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 opportuni ty to request copies of the records

to be furnished, and (2) because it had not

turned over Johnson’s personnel file, which indicated that he was a sk illed pilot whose

employment had b e en terminated solely

because of his appearance. In sum, Johnson’s

argument was that while § 44936 constituted

a possible defense to his tort acti on, that

defense was unavailable to Baylor.

Baylor contended that juris diction in the

district court was proper because the field of

aviation is hea v ily regulated by the federal

go vernment. It also asserted that § 44936-

(g)(2)’s preemption provisio n 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 di d

not have removal jurisdiction and should have

remanded, because no federal question is presented on the face of his well-pleaded

complaint. He asserts that § 44936 provides

onl y a federal d efense to his state-court

lawsuit, a defense that could be raised in state

court on remand. Specifically, he argues that

t he PRSA effects not “complete” preemption

of s t at e law, but, instead, only “ordinary”3

preemption. Section 44936 provides, in

pertinent part:

(g) Limitation on liabilit y; preemption of

State law 

### SS

(1) Limitation on liabilit y. 

### SS No action

or proceeding may be brought by or on

behalf of an individual who has applied

fo r o r is seeking a position with an air

carrier as a pilo t , and who has signed a

release from liabilit y, as provided for under paragraph (2), against 

### SS

(A) the air carrier requesting the records

of that individua l under subsection

(f)(1);

(B) a per s on who has complied with

such request;

(C) a person who has entered information contai n ed in the individual’s

records; or

( D) an agent or employee of a pers o n

described in subparagraph (A) or (B);

in the nature of an a ction for defamat io n, invasion o f privacy,

negligence, interference with contract,

or otherwise, or und er any Federal or

State law with respect to the furnishing

or use of such records in accordance

with subsection (f).

(2) Preemption. 

### SS

No State or politi c al

subdivision thereof

m ay 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 liabilit

y for furnishing or using records i n accordance with

subsection (f).

For the district court to have removal jurisdiction, 28 U.S.C. § 1441(a) requires that the

case be one over “which the district courts of

the United States have orig i nal jurisdiction.”

The original jurisdiction alleged by Bay lor is

“federa l question” jurisdiction 

### S S i.e., that the

case is one “arising under t h e Constitution,

laws, o r t reaties of the United States.”

28 U.S.C. § 1331. Accordingly, “[i]t is wellsettled that a cause of action arises under federal law only when the plaint iff’s well-pleaded

complaint raises issues of federal law. ” Heimann v. National Eleva tor Indus. Pension

Fund , 187 F.3d 493, 499 (5th Cir. 1999).

A corollary

t o t he 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.” I d. (quoting

Metropolitan Life Ins. Co. v. Taylor

, 481 U.S.

58, 63 (1987)). “Complete preemption,”

which creates federal removal jurisdiction, differs fro m more common “ordinary

preemption” (a lso known as “conflict

preemption”), which does not

. I d. 1 This

distinction has l

ed to the following

observation:

Ordinarily, the term federal preempt i on

refers to ordinary preemp t io n, which is a

federal defense to the plaint iff’s suit and

may arise ei

t her by express statutory term

o r by a direct conflict between the

operati on 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); McClelland v. Gronwaldt

, 155 F.3d 507, 51 5 (5th

Cir. 1998).4

defense, it does not appear on the face of a

well-pleaded complaint, and, thus, does not

authorize remova l t o a federal court. By

way of contrast, complete preemptio n is

jurisdictional i n nature rather than an

affirm at ive defense to a claim under state

law. As such, it authorizes removal to federal court even if the complaint i s artfully

pleaded to incl

u de solely state law claims

for relief or if the federal issue is init ially

raised solely as a defense.

Heimann

, 187 F.3d at 500 (internal citati ons

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.” W aste 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. 200 0). To establish

complete preemption, Baylor must show that

(1) t he statute contains a civil

enforcement provision that creates a

cau se 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

t he right; and (3) there is a clear Congressional intent that claims brought under 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 tripartite test for complete preemption, the court

merely relied on ordinary-preemption

principles. H

eimann makes plain that § 44936

doe s not meet any of the three required

criteria.

First, the PRSA contains no civil

enforcement provision. The closest provision

is § 44936(g)(3), which s tates that the

limitation-on-liabilit

y and st at e-law-preemption

sections are not applicable to persons who furnish false information that was “maintained in

vio lat ion of a criminal statute of the United

States.” This provision does not create any

cause of action, however, nor d oes it repl ace

state law tort claims, 2 but it m erely provides

that the federal affirmative defense will not be

available in certain instances.

Second, § 44 936 does not provide a

specific jurisdictional grant to f ederal courts

for enforcement of

t he 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

speci f ic 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

i dea that an “express denial” of a state-law caus e

of action was sufficient to grant removal

jurisdiction, else the well-pleaded complaint rule

would have no vitality).

3 Cf. id. at 1165 (contrast ing the LHWCA to

ERISA and the LMRA, which have specific

jurisdictional grants and which completely preempt

state law in some circumstances).5

courts, but it argues that this prong was

intended to apply

o nly t o ERISA claims like

the one presented in Heimann

. But Heimann

was not so limit

ed. Significantly, its three-part

test was considered to be a “general” one, and

t he court noted that “[t]his test should be

‘applied with circumscription to avoid difficult

issues of federal-state relati ons,’ and

accordingly few federal statutes can meet such

an exacting standard.” I

d. (internal citations

omitted). The court did not mention ERISA

or any o t her statute in establishing the three

factors, and, accordingly, Baylor has presented

us with no reason not to apply those factors to

the PRSA.

Finally 

### SS under the third prong 

### SS

t here are

no indications in the PRSA or it s legislative

history of a clear congressional inte nt that

these types of claims should be removable. Instead, Baylor makes a more general argument

that “there is probably no other area in which

there is mo re federal regulation than in the

field of aviation.” It al s o 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 recitation of the general complete-preemptio n

principle, without application of the specific

tripartite test, is no longer sufficient after Heimann

, which requires a clear statement by

Congress that state-law claims will be

removable. Moreover, T rans Wo rld ’ s

interpretation was of the Federal Aviation Act,

not the PRSA, and its ho lding should extend

only to the principle that “Congress did intend

to preempt completely the part icular area of

state laws relating to rates, routes, or services . . . to maintain uniformity and t o avoid the

confusion and burdens that would r esult if

interstat e and international airlines w ere

required to respond to standards of individual

states .” I

d. (emphasis added, internal

quotation marks omitted).

Here, there is no simi l ar showing of

congressional intent with respect to removal.

Likewise, there is no serious danger that all owing Johnson’s torti ous interference clai m

will result in confusion or undue burdens on

air carriers.

A remand to state court doe s 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 Bay lor

complied wit h subsection (f)(1)’s requirements

for providing pilot information following Kitty

Hawk’s reque st , Baylor still will be immune

from liabilit

y under either federal or state law

in accordance with § 44936(g)(1).

Finally, our caselaw r efut es the idea that

aviation is generally a field of complete

preemption. In H

odges v. Delta Airlines, Inc.

, 44 F.3d 334, 338 (5th Cir. 1995) (en b anc),

we held that a plaint iff

’s state law negligence

claim for damages was not preempted by the

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

§ 1305(a)(1). We reaso ned that “neither the

ADA nor it s legislative history indicates that

Congress intended to displace the application

of state tort law to personal physical injury inflicted by aircraft operations, or that Congress

even co nsidered such preemption.” I d.

Important to this conclusion was the fact that

the ADA did not conta in federal causes of

a ct ion like those provided for in ERISA

legislation. I

d. at 338 n.8. So too f or the

PRSA 

### SS it confers no federal cause of action,6

a nd t here 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 creat e federal question

jurisdiction. Because the PRSA does not meet

any of the three req uired criteria under

Heimann

, it does not completely preempt state

law, and removal was improper.

The judg m ent is REVERSED and

REMANDED with instruction to remand to

state court.