REVISED DECEMBER 26, 2002 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________
No. 01-11393 _______________________
PHILIP J. FRANK,
Plaintiff-Appellee,
versus
DELTA AIRLINES INC.; ET AL.,
Defendants,
DELTA AIRLINES INC.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________ December 3, 2002
Before DAVIS, JONES and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:
BACKGROUND
Philip Frank worked for Delta Airlines, Inc. as an
aircraft mechanic in Dallas, Texas. Upon being selected for a
random drug test performed by LabOne, Inc. in February 2000, Frank
produced a urine sample that contained traces of pyridine, a drug-
masking agent. Delta interpreted Frank’s adulterated sample as a “refusal to test,” fired him, and reported his “refusal to test” to
the Federal Aviation Administration (FAA). Frank sued under three
Texas-law theories: negligence, intentional infliction of emotional
distress, and defamation. The district court denied Delta’s Rule
12(b)(6) motion to dismiss for failure to state a claim, but the
district court and this Court approved an interlocutory appeal
pursuant to 28 U.S.C. § 1292(b).
The issue on appeal is whether Frank’s state-law tort
claims are preempted by 49 U.S.C. § 45106 of the Omnibus
Transportation Employee Testing Act of 1991 (OTETA) and FAA
regulations.1 We hold that Frank’s state-law tort claims are
expressly preempted by federal law and reverse the district court’s
judgment.
DISCUSSION
This court reviews a 12(b)(6) ruling de novo. Shipp v.
McMahon, 234 F.3d 907, 911 (5th Cir. 2000). “When ruling on a
12(b)(6) motion, the court must liberally construe the complaint in
favor of the plaintiff and assume the truth of all pleaded facts.”
Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002). “The court may
dismiss a claim when it is clear that the plaintiff can prove no
1 Unless o therwise specified, all references to FAA regulations in this opinion refer to the regulations in effect at the time of the events upon which Frank bases his claims. Citations to 14 C.F.R. pt. 121, app. I refer to the regulations revised as of January 1, 2000. Citations to 49 C.F.R. pt. 40 refer to the regulations revised as of October 1, 1999.
2 set of facts in support of his claim that would entitle him to
relief.” Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
Preemption by federal law of a common law cause of action is a
question of law reviewed de novo. See Meredith v. Louisiana Fed’n
of Teachers, 209 F.3d 398, 404 (5th Cir. 2000).
Federal law will override state law under the Supremacy
Clause when (1) Congress expressly preempts state law; (2)
Congressional intent to preempt may be inferred from the existence
of a pervasive federal regulatory scheme; or (3) state law
conflicts with federal law or its purposes. English v. Gen. Elec.
Co., 496 U.S. 72, 78-79, 110 S. Ct. 2270, 2275, 110 L. Ed. 2d 65,
74 (1990). This case involves express preemption.2 “‘[T]he
purpose of Congress is the ultimate touchstone’ in every pre-
emption case.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.
Ct. 2240, 2250, 135 L. Ed. 2d 700, 716 (1996).
Provisions preempting state law are abundant in this
area, while corresponding clauses saving state law are modest.
Beginning in 1988, the FAA prescribed an Anti-Drug Program for
Personnel Engaged in Specified Aviation Activities, for which it
issued comprehensive regulations covering, inter alia, the types of
required drug testing, the selection of employees to be tested,
2 Delta also argues that Frank’s state law claims are impliedly preempted. We do not reach this alternative position.
3 qualifications for testing laboratories, the release of test
results on individuals, administrative procedures to challenge the
results, and the reporting of test results and other information to
FAA. See 53 Fed. Reg. 47024 (Nov. 21, 1988);3 14 C.F.R. pt. 121,
app. I; 49 C.F.R. pt. 40. The regulations stated their preemptive
state-law savings intent as follows:
XI. Preemption A. The issuance of these regulations by the FAA preempts any State or local law, rule, regulation, order, or standard covering the subject matter of this rule, including but not limited to, drug testing of aviation personnel performing sensitive safety- or security- related functions.
B. The issuance of these regulations does not preempt provisions of State criminal law that impose sanctions for reckless conduct of an individual that leads to actual loss of life, injury, or damage to property whether such provisions apply specifically to aviation employees or generally to the public.
14 C.F.R. pt. 121, app. I § XI.A and B (1989). The FAA regulations
have remained for all practical purposes identical since that time.
Congress reinforced and confirmed FAA’s authority when,
in 1991, it enacted OTETA to combat drug and alcohol abuse by
individuals employed in the airline industry and, among other
things, authorized random drug testing of employees in safety-
3 In 1994, the FAA regulations were amended to comply with OTETA and to clarify various requirements. Anti-Drug Program for Personnel Engaged in Specified Aviation Activities, 59 Fed. Reg. 42922 (Aug. 19, 1994).
4 sensitive positions.4 See OTETA, Pub. L. No. 102-143, 105 Stat.
952, 952-956 (1991) (codified as amended at 49 U.S.C. §§ 45101-
45106). One provision permitted the FAA to “continu[e] in effect”
pre-existing drug testing regulations.5 Further, after minor
intervening linguistic amendments, the preemptive section of OTETA
currently provides:
Effect on State and local government laws, regulations, standards, or orders. A State or local government may not prescribe, issue, or continue in effect a law, regulation, standard, or order that is inconsistent with regulations prescribed under this chapter. However, a regulation prescribed under this chapter does not preempt a State criminal law that imposes sanctions for reckless conduct leading to loss of life, injury, or damage to property. 49 U.S.C. § 45106(a).
4 Aircraft mechanics, like Frank, are included in the category of employees who perform safety-sensitive functions. 14 C.F.R. pt. 121, app. I § III.E. 5 49 U.S.C. § 45106(c) currently states:
Other regulations allowed. This section does not prevent the Administrator from continuing in effect, amending, or further supplementing a regulation prescribed before October 28, 1991, governing the use of alcohol or a controlled substance by airmen, crewmembers, airport security screening employees, air carrier employees responsible for safety-sensitive functions (as decided by the Administrator), or employees of the Administration with responsibility for safety-sensitive functions.
Amendments to the statute since the events upon which Frank bases his claims do not substantively affect the statute’s applicability in this case. In 2001, Pub. L. No. 107-71, § 139(3), 115 Stat. 640 replaced the term “contract employees” with “employees.”
5 Together, the statute and regulations confirm the
preeminence of FAA’s drug-testing responsibility over any
applicable state regulation. By overriding any state “law,
regulation, standard, or order” that is “inconsistent” with FAA’s
regulations, see § 49 U.S.C. § 45106(a), supra, Congress
accomplished three things. First, it supported the preemption,
where necessary, of state common-law negligence claims. See CSX
Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S. Ct. 1732,
1737-38, 123 L. Ed. 2d 387, 396-97 (1993) (“law, rule, regulation,
order, or standard” included common-law negligence claims).
Second, it approved FAA’s authority to issue pre-emptive
regulations both before and after OTETA was passed, with the sole
limitation against preempting certain state criminal laws.
Further, the narrow savings language implied a broad scope for
federal preemption, since an exception for state criminal laws
would hardly have seemed necessary if state law were only narrowly
preempted. See Forsyth v. Barr, 19 F.3d 1527, 1543 (5th Cir. 1994)
(preemption provisions and savings clauses should be read together
without rendering either superfluous).6
6 We are aware of the Supreme Court’s recent decision in Sprietsma v. Mercury Marine, 537 U.S.___, 2002 U.S. LEXIS 9067 (U.S. Dec. 3, 2002), holding that the Federal Boat Safety Act (FBSA) does not preempt common-law claims, and conclude that it does not control the outcome of this case for three reasons. First, although the Supreme Court concluded that the FBSA’s express preemption language does not encompass common-law claims, the preemption language in the FAA regulations is more similar to the Federal Railroad Safety Act language held by the Supreme Court in CSX to include common-law negligence claims. Second, the FBSA’s broad savings clause implies
6 Notwithstanding these indicia of a broad preemptive
intent, Frank contends that his claims cannot have been preempted.
He asserts that the statutory language mandates narrower preemption
than FAA’s regulations; that “covering the subject matter,” as
contained in the regulations, represents a narrow basis for
preemption; and that his claims are not “covered” by the FAA’s drug
testing regime. We address each of these arguments in turn.
Frank’s statutory argument is simply incorrect. Focusing
on the above-noted provision that preempts any state law found
“inconsistent” with FAA’s regulations, he argues that his claims
are not “inconsistent” with FAA’s drug testing regulations; indeed,
only a competing regime of state-prescribed drug testing
regulations would, in his view, be preempted. What Frank misses,
however, is that in 49 U.S.C. § 45106(c), supra n.5, Congress
expressly included the agency’s pre-existing preemption regula-
tions among those that could be continued in effect. This point
has been demonstrated above. It is to those regulations that one
must turn in order to analyze the scope of preemption.
Frank moves to stronger ground when he attributes a
narrow preemptive purpose to the “covering the subject matter”
that there are a number of common-law claims to save, while the narrow savings clause in this case suggests a broad scope for federal preemption. Finally, this case involves the preemptive effect of adopted FAA regulations as opposed to the preemptive effect of the Coast Guard’s decision not to regulate propeller guards in Sprietsma.
7 preemption in FAA’s regulations. See 14 C.F.R. pt. 121, app. I
§ XI.A, supra. Analogous language in the Federal Railroad Safety
Act of 1980 (FRSA) has been held to require a fairly close
correspondence between the federal regulations and the preempted
state claim. Frank relies on two FRSA cases from this circuit to
support his argument that OTETA and FAA regulations do not preempt
his state law claims. See United Transp. Union v. Foster, 205 F.3d
851 (2000); Rushing v. Kansas City S. Ry. Co., 185 F.3d 496 (1999).
The FRSA provision, like that of the FAA, prescribes preemption of
state law “covering the subject matter” of federal regulations.7
In Foster and Rushing, this court applied the Supreme Court’s
interpretation of that term as requiring federal regulations to
“substantially subsume the subject matter of the relevant state
law” for preemption to lie. Foster, 205 F.3d at 860 (quoting CSX
7 The FRSA preemption provision reads:
Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order-- (1)is necessary to eliminate or reduce an essentially local safety hazard; (2)is not incompatible with a law, regulation, or order of the United States Government; and (3)does not unreasonably burden interstate commerce.
49 U.S.C. § 20106.
8 Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S. Ct. 1732,
1738, 123 L. Ed. 2d 387, 397 (1993)); Rushing, 185 F.3d at 515
(same). In applying FRSA preemption, this court followed the
Supreme Court in “eschew[ing] broad categories such as ‘railroad
safety,’ focusing instead on the specific subject matter contained
in the federal regulation.” Foster, 205 F.3d at 860 (citing CSX,
507 U.S. at 665-75, 113 S. Ct. at 1738-43, 123 L. Ed. 2d at 397-
404); see also Rushing, 185 F.3d at 515 (same).
This court concluded in both Rushing and Foster that an
FRSA regulation covering the sound capacity of audible signaling
devices, 49 C.F.R. § 229.129, does not “cover” or “substantially
subsume” the subject matter of when such devices are sounded. In
Rushing, this court held that the FRSA regulation did not as a
matter of law preempt a nuisance claim based on the blowing of
train whistles at night, Rushing, 185 F.3d at 516; and we held in
Foster that the same FRSA regulation did not preempt a Louisiana
state statute requiring the sounding of an audible signal by train
operators at specified locations, Foster, 205 F.3d at 862.
Nevertheless, Foster determined that another aspect of the
regulations preempted a state statute requiring locomotive engines
to be equipped with a signaling device that could be heard at a
distance of not less than one-quarter mile, id. at 861, and that
FRSA regulations governing the use of information on event
9 recorders preempted a state statute requiring railroad employees to
notify officers investigating train accidents of the existence of
event recorders on trains, id. at 863.
While Rushing and Foster provide some support for Frank’s
argument, they do not finally control this case. The analysis in
every preemption case differs depending on the language, structure,
and subject matter of the provisions at issue. Although the FRSA
and FAA regulatory preemption provisions both use the language
“covering the subject matter,” there are notable differences
between the provisions and their respective subject matter. For
example, the Supreme Court observed that the FRSA “displays
considerable solicitude for state law” in that the term “covering”
in the FRSA preemption provision is “both prefaced and succeeded by
express saving clauses.” CSX, 507 U.S. at 665, 113 S. Ct. at 1738,
123 L. Ed. 2d at 397. In contrast, OTETA and the FAA regulations
each contains a single savings clause that exempts only state
criminal laws from preemption, implying that state law claims are
otherwise broadly preempted. Another difference between FRSA and
FAA preemption lies in the fact that there is a stronger federal
interest in aviation safety than there is in railroad safety.
While states have traditionally exercised responsibility and
10 authority regarding certain areas of railroad safety,8 aviation
safety has largely been a matter of highly regulated federal
concern. French v. Pan Am Express, Inc., 869 F.2d 1, 5 (1st Cir.
1989).
Most important, in Foster and Rushing, without guidance
from the FRSA, this court had to determine the subject matter of
the preempting regulations and consequently drew lines between
subjects such as the sound capacity of audible signaling devices
and when such devices are sounded. Here, the FAA preemption
provision defines the preempted subject matter of the regulations
as “the subject matter of 14 CFR parts 65, 121, and 135, including
but not limited to, drug testing of aviation personnel performing
safety-sensitive functions.” 14 C.F.R. pt. 121, app. I § XI.A
(emphasis added). Deference to state law claims is not at all
protected by this language in the way that the analogous FRSA
provision is hedged about. The “subject matter” of “drug testing
of aviation personnel” is far broader than that prescribed in FRSA.
All this said, even if we construe “covering the subject
matter” as the Supreme Court did in CSX, and eschew the broad
subject matter of “drug testing” for the specific subject matter of
Frank’s claims and FAA regulations under the “substantially
8 For example, states have traditionally had responsibility and authority regarding grade crossing improvements. See CSX, 507 U.S. at 665, 113 S. Ct. at 1738, 123 L. Ed. 2d at 397 n.5.
11 subsume” test, we conclude that FAA regulations in any event
preempt Frank’s state law claims.
Frank’s complaint sets forth three tort law causes of
action: negligence, intentional infliction of emotional distress,
and defamation. First, Frank alleges that Delta was negligent in
utilizing LabOne to administer the drug testing of Delta employees,
as the company knew or should have known that LabOne administered
improper tests and incorrectly interpreted the results. Both the
selection of a laboratory to perform drug testing of employees in
safety-sensitive functions and the procedures for such testing are
“substantially subsumed” by FAA regulations. The regulations
require employers to use laboratories certified by the Department
of Health and Human Services pursuant to the DHHS “Mandatory
Guidelines for Federal Workplace Drug Testing Programs”;
regulations also require compliance with detailed testing
procedures set forth in 49 C.F.R. part 40. See 14 C.F.R. pt. 121,
app. I § I. Alleged victims of improper drug testing can seek
recourse through an administrative procedure that includes judicial
review in the federal courts.9 Allowing Frank to avail himself of
9 See, e.g., 14 C.F.R. pt. 121, app. I § VI.C. Employee Request for Test of a Split Specimen. Further, individuals such as Frank may file a written complaint with the FAA Administrator. 49 U.S.C. § 46101(a)(1). If there are reasonable grounds for an investigation, the Administrator will investigate the complaint, id., and can order depositions, subpoena witnesses and records, administer oaths, examine witnesses, and receive evidence, 49 U.S.C. § 46104. Upon finding a violation, the Administrator “shall issue an order to compel compliance.” 49 U.S.C. § 46101(a)(4). Review of an
12 Texas’s negligence regime would impose duties on Delta that are
independent from and duplicative of the duties FAA imposes on
airline industry employers.10
Frank’s complaint also pleads a claim for intentional
infliction of emotional distress (IIED) based on Delta’s combined
actions regarding his drug test. Again, FAA regulations
“substantially subsume” the subject matter of Delta’s alleged
actions and preempt Frank’s IIED claim.11 Specifically, Frank’s
IIED claim alleges that Delta, intentionally or recklessly, falsely
accused Frank of adulterating his specimen and refusing to be
tested. Within 49 C.F.R. part 40, Section 40.25(e)(2) enumerates
the exclusive grounds for believing that an individual may alter
his specimen. The presence of pyridine in Frank’s sample could
fall under § 40.25(e)(2)(iii) as “conduct clearly and unequivocally
indicating an attempt to substitute or adulterate the sample.”
order can be sought in a U.S. Court of Appeals, and the decision of the U.S. Court of Appeals can be reviewed by the Supreme Court under 28 U.S.C. § 1254. 49 U.S.C. § 46110. 10 Cf. Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 353, 120 S. Ct. 1467, 1474, 146 L. Ed. 2d 374, 383 (2000); CSX, 507 U.S. at 671, 113 S. Ct. at 1741, 123 L. Ed. 2d at 401 (Regulations promulgated through the Federal Highway Administration, 23 C.F.R. §§ 646.214(b)(3) and (4), “cover the subject matter of state law which, like the tort law on which respondent relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings.”). 11 Even if federal law did not preempt Frank’s IIED claim, under Texas law, termination from employment without more, even if the termination is wrongful, does not give rise to a claim of IIED. Brewerton v. Dalrymple, 997 S.W.2d 212, 216-17 (Tex. 1999); Southwestern Bell Mobile Sys., Inc., 971 S.W.2d 52, 54 (Tex. 1998).
13 Similarly, 14 C.F.R. part 121, app. I § II defines “refusal to
submit” as conduct that clearly obstructs the testing process; the
presence of a masking agent such as pyridine in a testing sample
could clearly obstruct the testing process.
Frank’s IIED claim is also based on allegations that
Delta refused to administer a proper drug test, improperly
interpreted his test results, improperly relied on tests that have
no scientific validity under the circumstances, and failed to
consider circumstances that affected his test. FAA regulations
“substantially subsume” the subject matter of all of these
allegations, as they prescribe detailed specimen collection
procedures and detailed laboratory analysis procedures, and they
mandate the design, implementation, and review of quality assurance
procedures to monitor each step of the drug-testing process. 49
C.F.R. §§ 40.25-40.31.
Delta’s refusal to retest Frank is yet another ground for
Frank’s IIED claim that is “substantially subsumed” by FAA
regulations. Section 40.25(f)(16) of 49 C.F.R. specifies when a
second sample shall be taken, and various sections of 14 C.F.R.
part 121, app. I specify when retesting is either required or
allowed. See, e.g., 14 C.F.R. pt. 121, app. I § V.F (requiring
retesting following a refusal to submit or a verified positive drug
test result before an employee can return to perform a safety-
14 sensitive function); id. § VI.C (allowing employee to request
testing of a split specimen if test of primary specimen results in
a confirmed positive test result).12
Frank’s claim of defamation per se alleges that Delta
published information regarding Frank’s “refusal to test” within
Delta and to the FAA either knowing that the information was false
or with reckless disregard for its falsity. Frank also claims that
Delta could have reasonably foreseen that Frank would have to self-
publish the slanderous information when seeking other employment.
FAA regulations require employers to notify the FAA of an
employee’s refusal to submit to a drug test and also govern the
release of drug-testing results to third parties. 14 C.F.R. pt.
121, app. I § VI.D-E. In passing OTETA and approving preexisting
FAA regulations, Congress recognized the need for adequate
safeguards to protect an individual’s right of privacy and to avoid
harassment and undue harm to an individual’s reputation or career
development. See OTETA, Pub. L. No. 102-143, 105 Stat. 952, 953
(1991). If Delta violated any FAA regulations and improperly
disseminated the results of Frank’s drug test, his proper recourse
is through the administrative regime. As with the other tort law
12 Finally, Frank’s IIED claim is based on Delta’s publication of erroneous test results that allegedly ruined his career as an aircraft mechanic. Delta’s publication of Frank’s test results is “substantially subsumed” by regulations that will be discussed in connection with Frank’s defamation claim.
15 claims, FAA regulations “substantially subsume” the subject matter
of Frank’s defamation claim and expressly preempt it.
CONCLUSION
Frank’s claims of negligence, intentional infliction of
emotional distress, and defamation are expressly preempted by 49
U.S.C. §45106(c) and 14 C.F.R. pt. 121, app. I § XI.A. The
district court’s denial of Delta’s 12(b)(6) motion to dismiss for
failure to state a claim is REVERSED and judgment is RENDERED for
Delta.
REVERSED and RENDERED.