*

 The Honorable Albert J. Engel, United States Circuit Judge for the Sixth Circuit Court

of Appeals, sitting by designation.

PUBLISH

UNITED STATES COURT OF APPEALS

Filed 10/4/96

TENTH CIRCUIT

____________________

CURTIS SCHMELING, an individual, )

)

Plaintiff-Appellant, )

)

v. ) No. 95-5184

)

NORDAM, a corporation, )

)

Defendant-Appellee. )

____________________

Appeal from the United States District Court

for the Northern District of Oklahoma

(No. 95-C-143-BU)

___________________

Thomas L. Bright, Tulsa, Oklahoma, for Plaintiff-Appellant.

D. Kevin Ikenberry (Stephen L. Andrew with him on the brief), of Stephen L. Andrew &

Associates, Tulsa, Oklahoma, for Defendant-Appellee.

____________________

Before KELLY, ENGEL,*

and LOGAN, Circuit Judges.

____________________

ENGEL, Circuit Judge.

____________________
2

Plaintiff Curtis Schmeling appeals the district court's grant of summary judgment to

defendant NORDAM, a corporation, in Schmeling's suit following the termination of his

employment with NORDAM. NORDAM is an air repair station, certified by the Federal

Aviation Administration (FAA), that contracts with commercial airlines to manufacture and

perform maintenance work on aircraft parts. Schmeling sued in Oklahoma state court, and

NORDAM removed the case to federal district court. Because we conclude that federal

courts do not have subject-matter jurisdiction over Schmeling's suit, we vacate the judgment

of the district court and remand the case with instructions to remand to the state court.

I.

In September 1994, NORDAM subjected Schmeling to a drug test pursuant to its

drug-testing plan, which was approved by the FAA. Schmeling tested positive and entered

a rehabilitation program. The next month, after completing the program, he took another test

and tested negative. Within three weeks, NORDAM fired Schmeling. Schmeling alleges

that he was terminated in part, at least, because of the positive drug test; NORDAM counters

that its reason for letting Schmeling go was his abusive treatment of one of NORDAM's

secretaries.

Schmeling alleges three separate causes of action stemming from his termination. His

first claim is that NORDAM intentionally violated Oklahoma's Standards for Workplace

Drug and Alcohol Testing Act ("the Oklahoma Act"), Okla. Stat. tit. 40, §§ 551-565.
3

Schmeling does not specify what section of the Oklahoma Act NORDAM violated, but we

infer that he has based his claim on section 562, which provides that

[n]o disciplinary action, except for a temporary suspension or a temporary

transfer to another position, may be taken by an employer against an employee

based on a positive test result unless the test result has been confirmed by a

second test . . . . 

Id. § 562(A). Section 563 of the Act allows any person aggrieved by a willful violation of

the Act to bring a civil action seeking legal and equitable remedies such as compensatory

damages and reinstatement. Schmeling's second claim is that NORDAM's violation of the

Oklahoma Act was against Oklahoma public policy and therefore within an exception to

Oklahoma's at-will employment rule. Although generally in Oklahoma an employer may

legally discharge an employee without good cause, Singh v. Cities Serv. Oil Co., 554 P.2d

1367, 1369 (Okla. 1976), the state recognizes the termination of an at-will employee in

violation of "a clear mandate of public policy as articulated by constitutional, statutory or

decisional law" as a tortious breach of contractual obligations. Burk v. K-Mart Corp., 770

P.2d 24, 28 (Okla. 1989). Schmeling's third claim is that NORDAM's violation of the

Oklahoma Act constituted an intentional infliction of emotional distress.

Schmeling filed suit in Oklahoma state court, and NORDAM timely removed the case

to federal district court. Although Schmeling did not raise any federal questions in his

complaint, NORDAM based removal on the "complete preemption" doctrine, arguing that

"[t]he complete pre-emption of Oklahoma law relating to drug testing of the Plaintiff renders

his claim, from its inception, a claim arising under federal law." According to NORDAM,
4

the Oklahoma Act is preempted by the FAA regulations covering the drug-testing of aviation

employees, 14 C.F.R. Parts 121 and 135, which were promulgated under 49 U.S.C. § 45102.

After removing the case, NORDAM moved to dismiss Schmeling's suit on the

grounds that Schmeling could not bring a private action to enforce the FAA regulations.

Schmeling answered that the case should be remanded to state court because the Oklahoma

Act was not preempted. In the event that he lost this argument, Schmeling moved for leave

to amend his complaint so that he could allege a violation of the FAA regulations. The

district court treated NORDAM's motion as one for summary judgment and granted the

motion, holding that the Oklahoma Act as applied to workers in the aviation industry was

preempted by the FAA regulations. The court further held that Schmeling did not have

standing to bring a private action to enforce the FAA regulations, and it denied Schmeling's

motion for leave to amend his complaint as moot.

II.

Schmeling argues on appeal that under the standard established in English v. General

Electric Co. , 496 U.S. 72 (1990), which held that the extent of federal preemption is a

function of congressional intent, the Oklahoma Act is not preempted by federal law.

NORDAM counters that 49 U.S.C. § 45106(a) and 14 C.F.R. § 121, App. I, ¶ XI(A) evince

legislative and executive intent to preempt state laws such as the Oklahoma Act. Both parties

have proceeded under the assumption that the propriety of NORDAM's removal hinges only
 

1The district court did not directly address this issue; nor did the parties in their briefs on

appeal, other than a short statement by NORDAM. Regardless of whether a jurisdictional

issue has been properly raised, however, we must be careful not to exceed the statutory scope

of our jurisdiction. Louisville & Nashville R.R. v. Mottley , 211 U.S. 149, 152 (1908). In

certain circumstances, we might request additional briefing before deciding a jurisdictional

question not squarely raised by the parties, but in this case, we see no need to do so. The

parties have acknowledged that without federal preemption, there is no federal jurisdiction.

What they have not discussed is merely the scope of the "complete preemption" doctrine.

In light of extensive Supreme Court case law in this area, we are not hampered by a lack of

briefing.

5

on whether federal law preempts the Oklahoma Act. Removal based on "complete"

preemption, however, rests on a legal inquiry that is separate from an assessment of the

merits of a defendant's "ordinary" preemption defense, although there is significant overlap

between the two inquiries. 14A Charles A. Wright et al., Federal Practice and Procedure §

3722, at 71 (2d ed. Supp. 1996). Before considering whether NORDAM's ordinary

preemption argument constitutes a valid defense to Schmeling's three claims, we must decide

whether, under the complete preemption doctrine, this case was properly removed to federal

court.1

A. The Complete Preemption Doctrine

Under the removal statute, 

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 . . . .

28 U.S.C. § 1441(a). Because the parties to this suit are not diverse in their citizenship,

federal courts have original jurisdiction only if the suit raises a federal question, that is, if the
6

suit is an action "arising under the Constitution, laws, or treaties of the United States." Id.

§ 1331.

In deciding whether Schmeling's suit arises under federal law, we are guided generally

by the "well-pleaded complaint" rule, under which a suit arises under federal law "only when

the plaintiff's statement of his own cause of action shows that it is based" on federal law.

Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908). The plaintiff's anticipation

of a defense based on federal law is not enough to make the case "arise under" federal law.

Id. Nor is a defendant's assertion of a defense based on federal law, such as the federal

preemption of the state law on which a plaintiff's claim is based, a proper basis for removal,

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987), even if both parties agree that

the only issue for decision in a case is the validity of a federal preemption defense, Franchise

Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 12 (1983). The plaintiff is the

"master of the claim" and may prevent removal by choosing not to plead a federal claim even

if one is available. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Under the "artful

pleading" doctrine, however, a plaintiff may not defeat removal by failing to plead federal

questions that are essential elements of the plaintiff's claim. Franchise Tax Bd., 463 U.S. at

22. Similarly, removal is permitted when the plaintiff's right to relief requires resolution of

a substantial question of federal law. Id. at 13.

The "complete preemption" doctrine has been referred to as a corollary, Caterpillar,

482 U.S. at 393, or an exception, Oklahoma ex rel. Oklahoma Tax Comm'n v. Wyandotte
7

Tribe, 919 F.2d 1449, 1450 (10th Cir. 1990), cert. denied, 501 U.S. 1219 (1991), to the wellpleaded complaint rule. When the doctrine is properly invoked, a complaint alleging only

a state law cause of action may be removed to federal court on the theory that federal

preemption makes the state law claim "necessarily federal in character." Metropolitan Life,

481 U.S. at 63-64. Unfortunately, the scope of the doctrine is not entirely clear; "[t]he

evolution of the doctrine . . . has been one of fits-and-starts and zig-zags [and] has, not

surprisingly, occasioned both confusion and disagreement among the federal circuit and

district courts." Burke v. Northwest Airlines, Inc., 819 F. Supp. 1352, 1356 (E.D. Mich.

1993). By no means does every federal preemption defense invoke the doctrine; our task is

to determine whether NORDAM's reliance on the doctrine in this case was appropriate. With

this in mind, we examine the relevant Supreme Court cases.

In Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968), the plaintiff corporation

sued in state court to enjoin the defendant union from striking. The suit asserted a state law

breach of contract claim based on a no-strike provision in a collective bargaining agreement.

The defendant removed to federal court. The Supreme Court held that the suit was properly

removed because it arose under section 301 of the Labor Management Relations Act

("LMRA"), 29 U.S.C. § 185, which grants federal jurisdiction over suits for violation of

collective bargaining agreements. Avco, 390 U.S. at 560. Furthermore, the Court added,

previous decisions had established that any case arising under section 301 is controlled by

federal substantive law, even if tried in state court. Id.
8

The Avco Court did not purport to announce a new rule and did not even mention the

word "preempt." Avco has been considered the birth of the complete preemption doctrine,

however, largely because of the Supreme Court's later characterization of the case:

The necessary ground of decision was that the preemptive force of § 301 is so

powerful as to displace entirely any state cause of action "for violation of

contracts between an employer and a labor organization." Any such suit is

purely a creature of federal law, notwithstanding the fact that state law would

provide a cause of action in the absence of § 301. Avco stands for the

proposition that if a federal cause of action completely preempts a state cause

of action any complaint that comes within the scope of the federal cause of

action necessarily "arises under" federal law.

Franchise Tax Bd., 463 U.S. at 23-24 (quoting 29 U.S.C. § 185(a)) (footnote omitted). In

Franchise Tax Board, the Court considered whether federal courts had jurisdiction over a

case filed in state court by a state tax agency against the administrator of a trust fund

regulated by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001

et seq. The agency sought to collect taxes that were due and also requested a declaratory

judgment that section 514 of ERISA, 29 U.S.C. § 1144, did not preempt the agency's

authority to collect money from the trust.

The Court considered whether removal was proper under Avco. The defendant trust

administrator argued that it was because the preemptive effect of ERISA is similar to that of

the LMRA. The Court rejected this argument, finding that whereas section 301 of the

LMRA creates a cause of action under which the plaintiff corporation in Avco could enforce

the LMRA in federal court, the parallel provision of ERISA, section 502(a), does not create

a federal cause of action in favor of state governments. Franchise Tax Bd., 463 U.S. at 24-
9

25. The Court further distinguished Avco on the grounds that "[u]nlike the contract rights

at issue in Avco, the State's right to enforce its tax levies is not of central concern to

[ERISA]." Id. at 25-26.

Four years later, the Supreme Court addressed a question left open in Franchise Tax

Board, id. at 24: whether a state law claim that falls within the scope of section 502(a) of

ERISA is removable to federal court. Metropolitan Life, 481 U.S. at 64. In Metropolitan

Life, the Court considered whether the defendant employer properly removed a suit brought

by a former employee alleging breach of contract and wrongful termination. The Court

found that the plaintiff's state claims were preempted by ERISA but noted that under the

well-pleaded complaint rule, federal preemption is a defense and generally does not authorize

removal. Id. at 63. Citing Avco and Franchise Tax Board, the Court articulated the

emerging "corollary" to the rule as follows: "Congress may so completely pre-empt a

particular area that any civil complaint raising this select group of claims is necessarily

federal in character." Id. at 63-64.

Noting that "the Avco principle" had theretofore been limited to cases involving

section 301 of the LMRA, id. at 64, the Metropolitan Life Court reluctantly extended the

principle to allow the removal of state actions within the scope of section 502(a) of ERISA.

It stressed that ERISA preemption alone was insufficient to recharacterize the plaintiff's

claim as federal. Furthermore, it noted that even the presence of a federal cause of action in

the preemptive federal statute was not necessarily enough to invoke the "extraordinary pre-
10

emptive power" that converts state claims into federal ones. What convinced the Court to

allow removal was the similarity between the jurisdictional subsection of section 502 of

ERISA and section 301(a) of the LMRA. The Court's conclusion was bolstered by the

legislative history of the ERISA provision, which explicitly manifests an intent to treat

ERISA cases the same as LMRA cases with respect to removal. Id. at 65-66. The Court

summarized its application of the Avco doctrine as follows:

[T]he touchstone of the federal district court's removal jurisdiction is not the

"obviousness" of the pre-emption defense but the intent of Congress. Indeed,

as we have noted, even an "obvious" pre-emption defense does not, in most

cases, create removal jurisdiction. In this case, however, Congress has clearly

manifested an intent to make causes of action within the scope of the civil

enforcement provisions of § 502(a) removable to federal court.

Id. at 66. In a concurring opinion, Justice Brennan elaborated,

[O]ur decision should not be interpreted as adopting a broad rule that any

defense premised on congressional intent to pre-empt state law is sufficient to

establish removal jurisdiction. The Court holds only that removal jurisdiction

exists when, as here, "Congress has clearly manifested an intent to make

causes of action . . . removable to federal court." Ibid. (emphasis added). In

future cases involving other statutes, the prudent course for a federal court that

does not find a clear congressional intent to create removal jurisdiction will be

to remand the case to state court.

Id. at 67-68 (Brennan, J., concurring).

Two months after Metropolitan Life, Justice Brennan authored another opinion that

discussed the complete preemption doctrine. In Caterpillar Inc. v. Williams, 482 U.S. 386

(1987), former employees sued their former employer for breach of individual employment

contracts. The employer removed to federal court under Avco. The Supreme Court held that
11

removal was improper because assessment of the plaintiffs' claims did not require an

interpretation of a collective bargaining agreement governed by section 301 of the LMRA.

Id. at 396-97.

The holding in Caterpillar broke no new ground, but the Court's discussion of the

"complete preemption" doctrine--its first reference to the doctrine under this name--strayed

from the narrow path set out in Metropolitan Life. Citing Franchise Tax Board, the Court

wrote that "[o]nce an area of state law has been completely pre-empted, any claim

purportedly based on that pre-empted state law is considered, from its inception, a federal

claim, and therefore arises under federal law." Id. at 393 (emphasis added). This language

represented a departure in that it referred to the complete preemption of an area of state law

as a proper basis for removal, whereas the Franchise Tax Board Court, as quoted in support

by the Caterpillar Court, had noted merely that under Avco, removal could be based on the

complete preemption of a state cause of action. 463 U.S. at 23-24. By focusing on the

preemption of an area of state law rather than the preemption by a federal cause of action of

a state cause of action, Caterpillar neglected the emphasis in the previous cases on whether

the preemptive federal law provided a cause of action on which the plaintiff could base a

claim. Indeed, the Franchise Tax Board Court held that removal was improper because the

plaintiff state agency did not have a federal cause of action under ERISA. 463 U.S. at 24-25.

Moreover, the Metropolitan Life Court found removal to be appropriate not because of the

"unique pre-emptive force of ERISA," id. at 65, but rather because section 502, the civil
12

enforcement provision, manifested Congress's intent to make actions such as the plaintiff's

removable, id. at 65-66. Avco itself, furthermore, rested on a finding that the state cause of

action was preempted by the provision of a federal cause of action in section 301 of the

LMRA. 

NORDAM interprets Caterpillar as supporting the proposition that any time a valid

defense of federal preemption is raised, a defendant may remove to federal court--a

proposition rejected in Metropolitan Life . Although we recognize that Caterpillar, read

alone, is susceptible to such an interpretation, we find, in light of Avco, Franchise Tax Board,

and Metropolitan Life, that the Supreme Court did not intend the doctrine to be interpreted

in that way. See Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 310 (3d Cir.

1994) (rejecting the interpretation urged by NORDAM), cert. denied, 115 S. Ct. 1691 (1995);

Aaron v. National Union Fire Ins. Co., 876 F.2d 1157, 1165 (5th Cir. 1989) (same), cert.

denied, 493 U.S. 1074 (1990); McQuerry v. American Medical Sys., Inc., 899 F. Supp. 366,

369-70 (N.D. Ill. 1995) (discussing how logic dictates against interpretation urged by

NORDAM). We do not read Caterpillar as derogating the statement in Metropolitan Life

that "the touchstone of the federal district court's removal jurisdiction is . . . the intent of

Congress." 481 U.S. at 66. The Caterpillar Court purported merely to apply the complete

preemption doctrine, not to amend it. We see no reason to find that Justice Brennan's opinion

intended to veer from the course set by the opinion he authored in Franchise Tax Board and

by his caution in Metropolitan Life that absent "clear congressional intent to create removal
13

jurisdiction," the "prudent" approach is to remand to state court. Id. at 67 (Brennan, J.,

concurring).

Lower courts have applied different versions of the complete preemption doctrine.

One commentator has identified two distinct interpretations of the doctrine: the "complete

preemption" model and the "replacement preemption" model. Robert A. Ragazzo,

Reconsidering the Artful Pleading Doctrine, 44 Hastings L.J. 273, 280-88 (1993); see

McQuerry, 899 F. Supp. at 369 ("Supreme Court precedent on the issue of `jurisdiction by

preemption' admits of two readings."). Under the "complete preemption" model, courts focus

on the merits of a preemption defense--the degree to which federal law preempts state law--

without considering whether federal law provides a cause of action. E.g., McCoy v.

Massachusetts Inst. of Technology, 950 F.2d 13, 15 n.1 (1st Cir. 1991), cert. denied, 504 U.S.

910 (1992). Under the "replacement preemption" model, courts permit removal only if

congressional intent to allow removal is manifested by the replacement of the state law cause

of action with a federal cause of action. E.g., Railway Labor Executives Ass'n v. Pittsburgh

& Lake Erie R.R., 858 F.2d 936, 942 (3d Cir. 1988). Courts have tended to favor results

consistent with the replacement preemption model, although they have rarely addressed the

conflict between the two interpretations. See Ragazzo, supra, at 295.

The tension in the Supreme Court cases can be resolved by reading "complete

preemption" as a term of art. We read the term not as a crude measure of the breadth of the

preemption (in the ordinary sense) of a state law by a federal law, but rather as a description
14

of the specific situation in which a federal law not only preempts a state law to some degree

but also substitutes a federal cause of action for the state cause of action, thereby manifesting

Congress's intent to permit removal. This reading is supported by the Supreme Court's

original use of the term. Although Caterpillar was the first case in which the Court used the

phrase "complete pre-emption," the Franchise Tax Board Court used variations of these

words together, writing that removal was proper "if a federal cause of action completely

preempts a state cause of action." 463 U.S. at 24. This usage reveals that "complete

preemption" refers to the replacement of a state cause of action with a federal one. With this

understanding of "complete preemption," we see nothing in Caterpillar that modifies the

requirement established in the earlier cases that a federal cause of action be available. See

Erwin Chemerinsky, Federal Jurisdiction § 5.2.3, at 267 ("[I]t appears that a state court suit

is removable to federal court based on a claim of preemption if Congress created a cause of

action in the allegedly preemptive statute.") (2d ed. 1994).

Before today, this court had not affirmatively resolved which interpretation to follow.

In Oklahoma ex rel. Oklahoma Tax Commission v. Wyandotte Tribe, 919 F.2d 1449 (10th

Cir. 1990), cert. denied, 501 U.S. 1219 (1991), we quoted a Supreme Court statement

consistent with the "complete preemption" model: "Congress may so completely pre-empt

a particular area that any civil complaint raising this select group of claims is necessarily

federal in character." Id. at 1450 (quoting Metropolitan Life, 481 U.S. at 63-64). In Carland

v. Metropolitan Life Insurance Co., 935 F.2d 1114 (10th Cir.), cert. denied, 502 U.S. 1020
15

(1991), although we quoted the same statement, our conclusion that "[a] state law claim will

convert to a federal claim only if the claim is preempted by ERISA and within the scope of

ERISA's civil enforcement provisions" was consistent with the "replacement preemption"

model. Id. at 1119. In deciding that removal based on preemption is permissible only if

federal law provides a replacement cause of action, we extend Carland beyond the confines

of ERISA.

We do not hold that a federal cause of action must provide the same remedies as

offered by the preempted state cause of action. Avco held that the chance that the "nature of

the relief" available under federal law might be different from that under state law does not

affect the jurisdictional analysis. 390 U.S. at 561. In Caterpillar, the Ninth Circuit had

stated that "[a] state law cause of action has been `completely preempted' when federal law

both displaces and supplants the state law--that is, when federal law provides both a

superseding remedy replacing the state law cause of action and preempts that state law cause

of action." Williams v. Caterpillar Tractor Co., 786 F.2d 928, 932 (9th Cir. 1986). Rightly

or wrongly, the Supreme Court read the "superseding remedy" language as contrary to Avco's

holding that the nature of the relief available is irrelevant to the jurisdictional question. 482

U.S. at 391 n.4; see Ragazzo, supra, at 295 ("[T]he Caterpillar Court seemed to

misapprehend the Ninth Circuit's exposition of the replacement preemption model."). We

therefore clarify that although a federal cause of action is a prerequisite to removal under the
16

complete preemption doctrine, the federal cause of action need not provide the same remedy

as the state cause of action.

B. Application of the Complete Preemption Doctrine

Deciding whether removal in this case was proper under the complete preemption

doctrine requires a two-part analysis: first, whether, as NORDAM alleges, the FAA

regulations preempt the state laws relied on by Schmeling--namely, the Oklahoma Act and

Oklahoma common law on the intentional infliction of emotional distress and on the public

policy exception to the employment-at-will rule; and second, whether Congress intended to

allow removal in such cases, as manifested by the provision of a federal cause of action to

enforce the FAA regulations.

For reasons of comity and prudence, we first undertake the second inquiry, which

potentially has less relevance to the merits of the case than does the first inquiry. Our

analysis under the complete preemption doctrine is jurisdictional and therefore preliminary

to any consideration of the merits. See First Fed. Sav. & Loan Ass'n v. Detroit Bond &

Mortgage Inv. Co., 687 F.2d 143, 145 (6th Cir. 1982) ("The jurisdiction issue must be

affirmatively resolved before the merits of the preemption issue can be reached . . . ."). We

choose to avoid, if possible, the awkwardness of simultaneously (1) holding that we lack

jurisdiction and (2) commenting on the merits of the preemption defense. See First Fed. Sav.

& Loan Ass'n, 687 F.2d at 146 (Weick, J., dissenting) ("To hold that federal courts under

these circumstances are powerless to enforce compliance with federal law borders on being
17

ridiculous."). We further seek to avoid the unseemly encroachment on the province of the

state courts that would result from such a posture. Congress has the authority to grant federal

jurisdiction in cases when a federal question arises only in a defense; indeed, before 1887,

federal courts had such jurisdiction. Railroad Co. v. Mississippi, 102 U.S. 135, 140 (1880);

see Act of Mar. 3, 1887, ch. 373, 24 Stat. 552, amended by Act of Aug. 13, 1888, ch. 866,

25 Stat. 433. In determining that federal courts do not have jurisdiction in certain cases,

Congress has deemed that state courts should evaluate whatever federal questions might arise

in such cases.

In arguing that he has a private cause of action to enforce the FAA regulations,

Schmeling relies on the four factors set out in Cort v. Ash, 422 U.S. 66 (1975), to determine

whether a private right of action under a certain federal law exists: (1) whether the plaintiff

is one for whose benefit the statute was enacted; (2) whether there is evidence of legislative

intent, explicit or implicit, to create or deny a private remedy; (3) whether the existence of

a private right of action would be consistent with the underlying legislative purpose of the

statute; and (4) whether the cause of action is in an area traditionally left to state law. Id. at

78. Since Cort, however, the Supreme Court has refined this inquiry. Miller v. United

States, 710 F.2d 656, 667 (10th Cir.), cert. denied, 464 U.S. 939 (1983). The four-factor

analysis has in effect been condensed into factor (2)--whether Congress, expressly or by

implication, intended to create a private cause of action. Transamerica Mortgage Advisors,

Inc. v. Lewis, 444 U.S. 11, 15-16 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575
18

(1979); see also Thompson v. Thompson, 484 U.S. 174, 189 (1988) (Scalia, J., concurring)

("[W]e effectively overruled the Cort v. Ash analysis in Touche Ross [and Transamerica],

converting one of its four factors (congressional intent) into the determinative factor."). The

other Cort factors are relevant insofar as they assist in determining congressional intent.

Touche Ross, 442 U.S. at 575-76.

Because there is no direct expression by Congress of an intent to provide a private

cause of action to a plaintiff in Schmeling's situation--no federal counterpart to section 563

of the Oklahoma Act--Schmeling relies on congressional findings noting that the FAA drugtesting laws are meant in part to benefit aviation employees. These findings show that

Congress wanted to protect "an individual's right of privacy" and to ensure that "no

individual is harassed by being treated differently from other individuals," but they do not

show that Congress intended employees to have a private right of action to enforce the drugtesting laws. Department of Transportation and Related Agencies Appropriations Act, 1992,

Pub. L. No. 102-143, § 2, 105 Stat. 917, 955-56. Schmeling also cites a regulation providing

that information related to a drug test shall be disclosed to relevant parties if an employee is

involved in a lawsuit arising from a positive drug test. 49 C.F.R. § 40.35. This regulation

does not, however, manifest congressional intent to create a private right of action. See

Salomon v. Roche Compuchem Lab., Inc., 909 F. Supp. 126, 127-28 (E.D.N.Y. 1995)

(holding that plaintiff had no private right of action to enforce 49 C.F.R. § 40.37, which

provides that employees have access to records relating to their drug tests).
19

Congressional intent as to who has the power to enforce the drug-testing laws is clear

in 49 U.S.C. §§ 46106-46108. Section 46106 provides that the FAA Administrator may

bring a civil action to enforce the laws. Section 46107(b) allows the United States Attorney

General to bring a such an action at the request of the FAA Administrator. Schmeling

interprets § 46108 as allowing enforcement of all FAA regulations by an "interested person,"

but the statute clearly limits such actions to those enforcing § 41101(a)(1), which requires

air carriers to hold FAA certificates. Schmeling seeks to enforce not this certificate

requirement, but rather the drug-testing laws. Nowhere has Congress manifested an intent

to allow a person other than the FAA Administrator or the Attorney General to enforce the

drug-testing laws. The statutory construction principle of expressio unius est exclusio

alterius is not conclusive; it is possible for Congress to create certain rights of action

expressly and others impliedly within the same statute. Herman & MacLean v. Huddleston,

459 U.S. 375, 387 n.23 (1983); National R.R. Passenger Corp. v. National Ass'n of R.R.

Passengers, 414 U.S. 453, 458 (1974). Still, we find no evidence that Congress intended to

create the right of action asserted by Schmeling, and we conclude that such a right does not

exist.

Because Congress has neither expressly nor impliedly provided Schmeling with a

federal cause of action to enforce the FAA drug-testing laws, we follow the "prudent course"

advised by Justice Brennan and hold that Schmeling's suit is not subject to removal under the

complete preemption doctrine. Schmeling perhaps could have chosen to base his complaint
 

2Schmeling's complaint is not an example of "artful pleading"; he does not seek to

circumvent federal jurisdiction by omitting federal issues that are essential to his claims. 

Rather, he relies on legal grounds unique to state law, such as the tort of intentional infliction

of emotional distress. To hold that "complete preemption" exists under these circumstances

would be to endow the federal legislation with a far broader reach than Congress intended.

20

on federal law, but as the master of his claim, he chose not to do so.2

 Were we to read the

complete preemption doctrine as requiring only a certain degree of ordinary preemption,

rather than the replacement of a state cause of action, we might or might not hold that

removal was proper. In light of our contrary interpretation of the doctrine and our holding

that Schmeling does not have a federal cause of action, however, we need not reach the

merits of NORDAM's preemption defense and leave this issue for the state court to decide.

See Franchise Tax Bd., 463 U.S. at 7, 26. If the state court holds that the Oklahoma Act is

preempted by federal law, it may need to consider whether Schmeling has a private right of

action under federal law. We express no opinion as to the effect of our answer to this

question in any later proceedings in state court. Compare Whitman v. Raley's Inc., 886 F.2d

1177, 1182 (9th Cir. 1989) (holding that when a federal court remands to state court for lack

of federal jurisdiction, "no rulings of the federal court have any preclusive effect on the

substantive matters before the state court") with Kerbow v. Kerbow, 421 F. Supp. 1253, 1260

(N.D. Tex. 1976) (holding that despite remand to state court for lack of federal jurisdiction,

ruling that plaintiff lacked standing to sue under federal statute would have res judicata effect

in state court).
21

III.

For the foregoing reasons, the judgment of the district court is VACATED and the

case is REMANDED to the district court with instructions to remand to the state court.