2005 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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# G a r y v . Air Gr p I nc P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al D ock e t N o . 02-3534

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w . v i l l a no v a . e du/thir dc ir c uit_2005/1515PRECEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

__________ No. 02-3534

__________ RAY GARY Appellant

v. THE AIR GROUP, INC.

__________ On A ppeal from the Un ited States District Co urt

for the Dis tri ct of New Jersey Civil Act ion No. 02-2589 Distri ct Judge: Honorable Kather ine S. Hay den

__________ Submitte d Under Third Circ uit L. A.R. 34.1( a)

December 16, 2004

___________ Be for e: N YG AA RD and GA RT H, Circuit Judges , and* The Honorable Louis H. Poll ak, Senior District Judge, United State s Distr

ict Court for the Eas tern Dis trict of Pennsy lvania, sitting by de signati on.

POLLA K * , Distri ct Judge (Opinion Fi led: Febr

uary 3, 2005)

__________ OPI NION

__________ Mark A. Berman Mich ael A. B aldassare Gibbons, Del Deo, Dola n, Griffi nger & Vecchione One Riverfront

Plaza Newark, New Jersey 07102

Attorn ey for A ppella nt, Ray G ary Todd H. Girshon Jac kson Lewis LLP 59 Maiden Lane New Y ork, New York 10038

Attorney for Appell ee, The Air Group, I

nc.1 Garth, Circuit Judge : Appe lla nt Ray Gary (“Gary”), a New Jersey resident, brought an action aga inst Appellee The Air Group, Inc. (“The Air Group”), a California co rporation, alleg in g a violat ion of New Jerse

y’ s Conscie

ntious Em ploy ee Prote ction Act , N.J .S.A. § 34:19-1 et seq . (“CEPA”). The District Court, holding that Gary’ s state

law whist

leblower claim was preempted by t

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

as am en de d b y th e Whist leblower Protect ion Program , 49 U.S.C. § 42121 (“WPP”), dismi ssed Gar y’ s acti on pursuant to Federal Rule of C ivil Proced ure 12(b)( 6). After consider ing Gary’ s appeal, we will rever se. I. The fa cts of this ca se are largel y undi sputed. Fr

om March 15, 2001 through A ugust 30, 3001, Ray Gary was employ ed by The

Air Group asa co-pil ot for the “ Cessna2 Citation,” a small private aircraft. In July 2001, The Air Gr oup hired Jame s O’Neal

Johnson, Jr . as pil ot-in- com mand for t he Cessna Citation. Gary spent four da

ysassis ting Johnson with prepar ations for a Federal Aviation Administration (“FAA”) required “ro ute check.” After spending that time with Johnson, Gary alleges that he beli eved Johns on was unqualifie d to pi lot a n air cra ft because he: (1) di d not have the requisite jet t

ime m andated by the FAA, (2) w as unfamilia r with F AA mandat ed basic flight procedur es, (3) did not properly pro cee d with the FAA mandated “Pre-Flight Checklist,” a safety measure, (4) was unfamiliar

with the airspace into which he wasplanning to fl y, and (5) was unfamiliar

with how to obtain departure clearance at certain airports. Based on the foregoing, Gary alleges that he reasonab ly believedthat if The

Air Group per

mitt ed Johnson to fl

y a nd/or3 if he did so, J ohnson would be enda ngering hi msel f, passenger s,

cre w, the public an d the aircraft. G ary also alleges he believed Johnson had violated and/or wo uld violate F AA regulatio ns. On August 3 0, 2001 , Gary called his superviso r, Dennis Turville, to express his co ncerns. Gary told Tur ville that Jo hn son was “ill-prepare d, lacked ability , lacked the proper credentials, lacked the re quire d experience, wasunsafe and unqualified to pilot

a commer

cialcharter plane.” A few hours later, The Air Group t

erminated Gar

y. Gary allege s th at The Air Group f ired him in retaliation f or, among oth er things, his report of J ohnson’s la

ck of qualifications as well as Johnson’s past and po tential future F AA violatio ns. On Apr il 29, 2002, Gary filed a c omplaint in the Superior Court of New Je

rsey alleging that his terminati on was in viola tion o f N e w Jersey ’s Conscientious Employee1 That prov ision states, in relevan t part: An employ

er shall not take

any retaliatory

action a gainst a n em p loyee because the employ

ee does any of the following:

a. Discloses, o r th reatens to di scl ose to a super

visor or t

o a public bo dy an a ctivit

y, policy or practice of the employ er or another employ er, with who m th ere is a business relat

ionship, t

hat the employ ee reasonably believes is in vi olat ion of a law, or

a rule or regulat ion promulgated p ursuant t o law, or, in the case of

an employ ee who is a li censed or

certified health care professional , reas on abl y believes constitu tes im prope r quality of patient care N.J.S.A. 34:19-3. 4 Protection Act (“CEPA”), a stat e whistleblower statute

. 1 On Ma y 2 9, 2002 , The Air Gro up removed th e case to the Distri ct of

New Jersey pursuant to 28 U.S.C . § 1441

. It then2 Gary initially brought his appeal pro se. On November 10, 2003, based on

a fin ding that t

he “iss ues are

arguable and complex,” thisCourt appoint ed pro bono co un se l f or Ga ry. 5 moved to dism

iss Gar y’ s compl aint purs uant

to Federa l Rule of Civil Procedure 12(b)(6) on the ground that his state law whistleblower

claim was preem

pted by federal law, sp ecifically the ADA, 49 U.S.C. § 41713, as am ende d by the WPP, 49 U.S.C. § 42121. The District Court granted The Air Gro up’ s mo tion to dismi ss on August 8, 2002. This timely appeal followed. 2 II. The District Court had jurisdiction over Gary ’s state la w action pursuant t

o 28 U.S. C. §§ 1331 and 1332. We have jurisdic tionover the inst ant appeal pu rsuant to 28 U.S.C. § 1291. We exercis e plena ry review ove r a district court’s dismis sal of a complaint under F ederal Ru le of Civil Pro cedure6 12(b)(6). Taj Mah al T

ravel, I nc. v. Delta Airlines, Inc. , 164 F.3d 186, 189 (3d Cir. 1998)

. In reviewing this appea l, we apply the same test as the District Cou rt, accepting all of Gary ’s

a llegat ions as true and construing all rea sonable inferen ces i n his favor. See Port Authority of N.Y. & N.J. v

. Arcadian Corp. et al. , 189 F.3 d 305, 3 12 (3d C ir. 1999). III. Congress enactedthe ADA in 1978 to “prevent the states from re-re gulating a

irline operations so that competitive market forces could function.” Taj Mahal Travel , 164 F.3 d at 194 (cita tionomitted). The AD A was intend ed to increase compet ition among air carri ers. In ad diti on, it contains an express preem

ptionclause , which provi des in relevant part that: [A] St ate . . . may

not enact

or enforce a law , regulation, or other provision having the force a nd effect of law re l ated to a price, route, or se rv ice of an air carrie r7 that may provideair tr

ansporta tion under this su bpart. 49 U.S.C. § 41713(b)(1). The Supreme

Cou rt has given a bro ad interpretation to the words “relating t

o,” holding t

hat “[s]t ate enfor cement actionshaving a conne ction with, or refe rence to airline ‘rates, routes , or services’ ar

e pre-empted.” Morales v. Tra ns World Airlines, Inc. , 504 U.S. 374, 383- 84 (1992 ). The requ isite connecti on exists either where “the law expressly references the

a ir carri er’s pr

ices, routes or

servic es, or ha s a forbidd e n significant ef fect upon the same.” United Parcel Serv., Inc. v

. Flor es-Galarza , 318 F.3d 323, 33 5 (1 st Cir. 2003 ) (citati o n omitted). At the same ti me , however, the Supreme Court has in dicat ed that there are “real limitations to the [ADA ’s] pree mp ti ve scope, stating . . . ‘ [s]ome state ac tions may affect [airline fares] in too tenuous, remote or periph eral amanner to8 have preemptive eff ect.’ ” Taj Mahal Travel , 164 F.3d at 191 (quoting Morales , 504 U.S. at 390) (inte

rnal quota

tion ma rks omitted). In the pr ese nt app eal

no cla im i s ma de tha t the ADA elements of “price ” or “rout e” are involved. The dispute centers aroundwhether Ga ry’s state law retaliatio n clai m has a “forbidden significant ef fect” upon The Air Gro up’s “service.” In other words, whether Gary ’s claim for retaliatory

dischar ge under New Jersey’s Conscientio us Employee Prote cti on Act, N.J.S. A. 34 :19-1 et seq ., is “related to” the “serv ice of an air carrier.” 49 U.S.C. § 41713(b) (1). Neither the Supreme Court

nor ou r s ister circuits have d efined the ter m “service of an air carrier” in the cont

ext of an employ

ee calling the a

ttenti on of his employer to the safety qualifications of a co-worker. In 2000, Congress enacte d the Whis tleblowe r Protec tion Program as an amend ment to the ADA . That statute, wh ich is9 the fede ral a irline analog to the New Jerse y whistl eblower statute, provid es in relevant pa rt:

No air carrie

r . . . may discharge an em ployee or other

wi se discriminate against an employee with respect to compensa tion, terms, conditi ons, or privileges of employm

ent becau s e the em ployee . . . provided . . . to the employ er or Federa l Governme

nt info rmat

ion relat ing t o any violati on o r alleged violat ion of any orde r, regul ation, or s tandard of the Fed eral Aviati o n Adminis trati on or an y o the r provision of Federal law relating to air carrier safety under this subtitle or any oth er law of the United States. 49 U.S.C . § 4212 1(a)(1). We must therefore dete rmine whether the A DA, a s amendedby the WPP, preempts Gary’s c laim under the New Jersey whistle blower st atute. To do so r equires us to answer two related question s. First, is Gary’s claim “related to a . . .3 Branche v. Air tran Airways, Inc. was file d by t he Eleven th Cir cuit on Au gust 21, 2 003. Th e District Court, which granted The

Air Group ’s motion to dismi ss Ga ry’s clai m, did so on A ugust 8, 2002 – a year before Branche was file d. We recognize th at the District Cou rt did not have the benefit of the Eleventh Circu i t’s Branche opinion when it decid ed The Air Group’s m

otion. 10 serviceof an air carr

ier ” wi thin t

he expres s te

rmsof the

ADA preem ptionprovision? Se cond, does t he WPP alt er the s cope of the ADA preemption

provision such that Gary’s claimnow falls within its ambit? In the post-WPP era, the Eig hth and Eleven th Circuits have both weighed in on the viability of state law whistleblower claims in the aviation context. See Branche v. Airtran Airw ays, Inc. , 342 F.3d 1 248 (11 th Cir. 2003) 3 ; Botz v. Omni Air Int’l , 286 F.3d 488 (8 th Cir. 2002 ). As these cases p rov ide the framework

for the parties’ argum ents on appeal, they

are disc usse d in detai l bel ow.4 Omni assigned Botz to work b oth legs of a round-trip flight from Alaska to Jap an. Botz believ ed this a s signme nt would require her to violate a Federa l Av iation Re gulation limitin g a flight attendant’s “duty period” to no longer than twenty hours. See 14 C.F.R. § 121.467.

5 The New Je rsey statute, N.J.S.A. § 34:1 9- 1 et seq ., containsthe ident

ical “ refusal ” provisi on at iss ue in Botz

. However, that

provision is not implicate d in the present ap peal.

11 1. Botz v. Omni

Air Inte rnational OmniAir International, Inc. t erminated Anna Botz’s emplo ym ent as a fli ght atte

ndant afte

r she refused a fli ght assignm ent that she believed violated fed eral sa fety regulations. 4 Botz then filed suit alleging Omni violat ed Minnesota’s whistleblow er statute 5 by discharging her in retaliation for re fusing the a ssignm ent and for r

eporting t

he allegedsafety violation to Omni. Omni mo ved to dism iss the action pursuant t

o Rule 12(b)( 6) on the g round th at the state whistleblower

provisionswere both expressl y a nd i mplie dly12 preempted

by the ADA and WPP. The distr ict cour t grante d the motion a nd the Eighth Ci

rcuit Cour

t of Appealsaffirm

ed. On appeal, the co urt focused on the fact th at Botz, a flight attendant, ref

used to fly as assigned: “W hen applied to the facts su rroundin g Botz’s disch arge, the Minn eso t a whist lebl owe r statute has a forbidden connection with aircarrier services. Itincludesbroad author izati on to flight attendants to refuse assignments , jeopardizing an air carrie r’s abilityto complete itsscheduled flights.” Botz, 286 F.3d at 494. The court held th at Botz’s clai m was expressl y pr eempt ed by the ADA based on its conclu sion th at “[t]he Min nesota whistleblower

statut e affect s air- carri er ser

vice by authorizing

aflight attend ant to refuse a ssignm ents and protecting her when she does.” Id . at 495. The Eighth Circuit then t

urned to the

impac t of the WPP

on ADA preem

ption. It found that “[t

]he fact t hat the W

PP13 now provides a

com pre hensive s cheme

for protec ting the precise sort of air safety -related conduct Botz engaged in here, is . . . power

ful evidenc e of Congress ’s cle ar and manife st inte

nt to pre-empt state-law wh istleblower claims related to air safety.” Id . at 496. Th us, it conclud ed that “[w] hile the plain language of the AD A’s pre-emption p rovisio n en compasses Botz’s claim s, the W

PP makes it unmistakable that such claims are pre-em

pted.” Id . at 498. 2. Branche v. Airtran Airways, Inc. Bran che was em

ploy ed as an a

ircra ft inspec tor for Airtra n. He was require d to conduct s afety inspect ions of air cra ft prior to t akeoff. Bra

nche all eged that

he was terminat

ed after he reported several alle ged safety viola tionsto the

FAA. In particu lar, Branche alle ged that on one occasion an Airtran planelanded with one of its engines running at a temperat ure that exceede d F AA safety

guidelines. Branche recom mended14 to Air tran’s mai ntenance supervisor that the engine be subjected to a detailed inspec tion but h e was overru le d and th e plane subsequent

ly took off

. Branche brought suit

unde r Florida’s Whistleblower Act. After discover y, Airtra n moved for

summary judgment a

rguing that Branche’s state law claim wasexpressly preempted

by t he ADA. The District

C ourt grant

ed the m otion but the

Court of Appeals r everse d. On appeal, the Eleve

nth Circuit noted tha

t “em ployment discriminat

ion actions ty picall

y ha ve been hel d to fall out side the scope of the ADA’s pre-emption clause.” B ranche , 342 F.3d at 1259 (citationsom itte d). It c oncluded tha t “given t he particulariti es of Branch e’s claim that he was dischar ged for h is posthoc repor

ting o f Airt

ran’ s sa fety viola tions , webelieve that th is ca se is more analogou s to the majority of those [employ ment discriminat

ion claims].” Id. at

1260. Notably , the15 court did not “d ispute the Eig hth Circuit’s c onclusi on that the grounding of an airplane is relat ed to services.” Id . at 1262. Rather , it fou nd “in thiscase, the connec tion – or, indeed, the potent ial connec tion – between Branche’s actions and air ca rrier servic es is fa

r more attenua ted than in Botz .” Id

. Turning to the

impact of the WPP , the Eleventh Circuit disagree d with the expansive effect given to that pr ovision by the Eighth C ircuit. The Branche court emphasized the fact that the WPP “says nothi ng about preemption” and found that silence“ambi guous” as t o Congressi onal inte

nt regar ding preem ptionof state la w whi stleblower claims. Id . at 1263. It thus concluded that “the WPP changed nei ther the natur e of Florida’s Whistleblower Act nor the language o f the ADA’s pre-em ptionprovision in any m eaningful way.” I

d

. at 1264. Rather, “[i]n

deciding pr

e-em ption, whet

her before

or after t he

. . . WPP, the question we must answer r emains the sa

me: Is the16 state law in question ‘related to’ ai r carrier ‘ services’?” Id

. Because Branche’s claim was not, it was not preempte d by t he ADA. Here, as we have n oted, see no te 3 supra , the District Court dism

issed Ga ry ’s cas e prior t

o the filing of

the Eleventh Circuit’s decisi on in Branche and thus d id not hav e the benefit of that court’s ana lysis. Instead, the District Court, adopting the reasoning of the Eig hth Circuit in Botz, determ ined that the ADA’s expresspreem ption p r ovision w as significantly expanded by t

he WPP am

endment and as such held that Gary ’s state law cla im waspreem

pted. IV. On appe al, Gary

urgesthe Co urt t

o foll ow Branche and hold that the ADA does not p reempt his state law claim because his claim

is not “related to” The Air Group’s6 However the “se rvice” compon ent of the A DA is interpr eted, see , e.g. , Taj Mahal Travel , 164 F.3d a t 194 ( “[W]e do not find it c onceptually helpfulto distinguish ‘oper ation or maintenance

of aircraft’ from ‘service. ’”); Branche, 342 F.3d at 1256-5 8, Ga ry ’s com

plaint a nd the act ions all egedly

taken by himcannot be deem ed to be related to the “service o f an air carrier.” This is particularly so in light of the ADA’s p rimarily economic focus. See Abdullah v. Am. Airlines, Inc. , 181 F.3d 363, 368 (3d Cir. 1999) (descr ibing the ADA as an “econo mic deregulation statute”)

. 17 “service.” 6 He further

contends t

hat the Cour

t should adopt the Eleve nth Circuit’s ana

ly sis tha t the addition of the W

PP did not expand t

he scope of t

he ADA’s pre empti on provision. 1. Express

Preemption We hold Gar

y’ s claim is not

express ly

preem pted by the ADA because its connection to The Air Group’s “service of an air c arrie

r”, ac tual or pot

ential , is simply

too rem ote and too atte nuated to fa

ll within the scope

of the ADA, 49 U.S. C. § 4171 3(b)(1). G ary’s claim is predicated on a complaint to his superviso rs about Joh nson’s qu alifications and his18 “reas onabl[e] belie[f] that Mr. Johnson woul d violate and/or had violated Federal Aviation Administr ation Regulations.” Compl. at ¶ 6. Unlike Botz, Gary never refused a work assignm ent, and t hus his re port to The Ai

r Group about Johnson did not ha

ve the pote

ntial t o interr upt servi ce by ground ing a particular flight. Indeed, the r elation of G ary’s whistleblower repo rt to “service” iseven more attenuate d than Branche’s rep orts. Gary’s actions did not in terrupt any scheduled flights, no r did they have the pot

ential to ground any

schedule d flights, for the sim ple rea son that no fl

ights wer e schedul ed. Inst

ead, Gary ’s act

ions are more pr operly viewed ascompar

able to a garden var

iety employ ment c laim , albeit in the pr esent context, on e that is related to saf ety. 2. Impact of t

he WPP on ADA Pree mption The Air Group’ s princi

pal argum

ent on appea

l, and the19 basis upon which the D istrict Court rend ered its decision, is that the a dditi on of the

WPP ex pande d the s cope o f the ADA preemption provision to encompass s tate law whistleblower claims. The Botz court analyzed the WPP to that effec t. Botz herself argued tha

t the WPP “ was not int

ended to pre -empt State whi stlebl ower prote ctions be cause, if it had be en, Congress c ould easily

have ma de such pre empti on expressby including language in the WPP ind icating that it was a whistleblowing air-carri er employ ee’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 la nguage of the ADA’ s preem ption provision encompassed Bo tz’s claims, the WPP “made it unmistakable that s uch claims ar e preempted.” Id . at 498. While Botz set s fort

h its inte rpretat ion of t he WPP , we find the b etter view is that exp ressed by the Eleventh Circuit20 in Branche – the WPP did not alter the ADA anal

ys is in any meaningful w ay. Two factors sup port this con clusion. First, the plain language of t he WPP is wholly

silent on the issue o f preemption. In enacting the W PP, Con gress presumably

was aware of the view of a majority of courts that the ADA did not pr

eempt state law ret aliat ory dischar ge claims. See Branche , 342 F.3 d at 1262 . Thus, we ag ree with the Eleventh Circuit’s conclusion that Congress’ silence rendersits int

ent “am biguous” at

best and t

hus should not serve as a basis fo r expandin g ADA p reemption. See id

. Second, o ur holdin g is reinforce d by the wellestablished principle t

hat “courts should not lightlyinfer preemption.” Int’l Paper C o. v. Ouellette , 479 U.S. 481, 491 (1987). This is particularly apt in the employ

ment law context which falls “squarely within the traditional police powers of the states, and as such should not be disturbed7 The Air Gro up makes the add itional argument tha t Gary’ s state law cla

i m is im pliedly preem pted under t

he 21 lightly .” Branche , 342 F.3 d at 1259 (citation omitted). We therefore ag ree with the Ele venth Circu it that Botz went too far

in expanding ADA pr

eempt ion. Inst ead, the operative qu estion remains wheth er the state law claim is rel ate d to ai

rli ne pri ces , rout

es, or se rvic es. Beca

use, as we earli er acknowl edged, the elem ents of ai rline pr ices a nd routes are not in issue on this appeal , we hold that Gary ’s state law whistle

blower claim isnot “related to” the “s ervice of an air carrier” w ithin the meaning of 49 U .S.C. § 41713(b)(1). Hence, Ga

ry ’s ret aliat ion claim is not preempted by the ADA as amended by the WPP. The order of t

he Distr ict Court will be r everse d and the matter remanded for f

urther proc eedings con sistent with this opinion. 7doctrine s of field a nd conflict

preem ption. We

decline to find his cla im so pr eempt ed. In general , the exi stence of an expres s pr eem

ption pr ovision supports th e inference th at there is no im plie d preem ption. See F reig htliner Corp. v. Myrick , 514 U.S. 280, 289 (1995); Horn v. Thorat ec Corp. , 376 F.3d 163, 16 6 (3d Cir. 2004). With respect to conflict preemption, the Supreme Court has left open th e possibility that a federallaw could pr ovide for bo th express and c onflict preemptio n. See Freightliner , 5 1 4 U.S. at 289. However, courts of appeals in general have been extremely reluctant to infer conflict

preemption in the face of an express preem

ption provis ion. See, e.g., Horn , 376 F.3d at 166. The Air Group argues that CEPA should be preempted because it servesas an obst

acle t o employ ees’ r eporting s afety

violati ons to the FAA. That argument is flawed, however, bec ause CEPA and the WPP are no t reporting statu tes but a re rat he r parallel remedial statutes designed

to protect airline employ ees who are fired in retaliati on for w histle blow ing activities. See Medtronic, I nc. v. Lohr , 518 U.S. 470, 496-97 (19 96) (no conflict pree mp tionin the case of parallel state and f ederal statuto r y remedies for the s ame conduct and harm).