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 dismissal, including an earlier denial of hismotion

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
2

his termination constituted improper

discrimination on the basis of a disability. Baylor 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, contending 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 failure to state a claim, reasoning that § 44936(g),

entitled “limitation on liability; preemption of

State law,” precluded Johnson’sstate-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 person’s employment records. Accordingly,

Johnson argued 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’srequest and had not provided himwith

an opportunity to request copies ofthe records

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

turned overJohnson’s personnelfile, which indicated 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 presented 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”
3

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 fromliability, as provided for under 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 information 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 defamation, 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

subdivisionthereof 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 using records in accordance with

subsection (f).

For the district court to have removal jurisdiction, 28 U.S.C. § 1441(a) requiresthat 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 wellsettled that a cause of action arises under federal law only when the plaintiff’s well-pleaded

complaint raises issues of federal law.” Heimann 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 createsfederalremoval jurisdiction, differs 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); McClelland 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 federal 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 SecurityAct 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

protectsthe analogous area ofstate law;

(2) there is a specific jurisdictional grant

to the federal courts for enforcement of

the 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 ofJohnson’s motion to remand.

Ratherthanproceeding under theHeimann tripartite 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 furnish 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,2but 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 (5thCir. 1989) (holding there

was no express preemption, because theLongshore

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 andwhich completely preempt

state law in some circumstances).
5

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 federalstatutes 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 claimsshould be removable. Instead, 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 recitation of the general complete-preemption

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, Trans World’s

interpretation was ofthe FederalAviationAct,

not the PRSA, and its holding should extend

only to the principle that “Congress did intend

to preempt completely the particular area of

state lawsrelating to rates, routes, orservices

. . . 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 allowing 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’sstate

law claim. And to the extent that Baylor

compliedwith 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 inflicted 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 completelypreemptstate

law, and removal was improper.

The judgment is REVERSED and

REMANDED with instruction to remand to

state court.