Whether an airline employee can avail himself of state whistleblower protections currently depends on which federal circuit he finds himself in. He should hope not to be in the Eighth Circuit, which continues to find state whistleblower laws preempted by the federal Airline Deregulation Act (ADA), even where the employee reports serious safety violations (John A. Watson v. Air Methods Corp., No. 15-1900 (8th Cir. 2016)).
John W. was a flight paramedic for Air Methods Corp., which transports and provides in-flight medical care for patients being airlifted to hospitals. Air Methods is an “air carrier” for purposes of federal aviation regulations. John allegedly witnessed numerous federal safety violations by the flight crew, which he reported to Air Methods’ corporate office. After the company terminated his employment, he sued Air Methods in Missouri state court for wrongful discharge in violation of public policy, claiming he was fired for reporting illegal activity to his superiors.
Air Methods removed the case to federal court, then sought dismissal based on the Eighth Circuit’s holding in Botz v. Omni Air International, 286 F.3d 488 (8th Cir. 2002). In Botz, the appeals court ruled the ADA preempted a state wrongful discharge claim in a case where a flight attendant had refused to work a round-trip international flight that exceeded maximum crew working hours. The district court granted Air Methods’ motion and John appealed.
The crux of the Botz ruling was ADA’s express preemption clause, which supersedes state laws and regulations “related to a price, route, or service of an air carrier.” Quoting the U.S. Supreme Court in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), the court in the instant case wrote: “This section has a ‘broad preemptive purpose,’ precluding state laws ‘specifically addressed to the airline industry’ and generally applicable laws that indirectly relate to air carriers’ rates, routes, or services.”
In Botz, the Eighth Circuit panel found that under the preemption clause, state whistleblower protection laws “have a forbidden connection with an air carrier’s service under any reasonable interpretation of Congress’s use of the word ‘service.’” The court held the ADA’s preemptive effect was “bolstered by” the Whistleblower Protection Program of the Wendell H. Ford Aviation Investment and Reform Act of 2000. WPP amended ADA to create a “single, uniform scheme for responding to air carrier employees’ reports of air-safety violations.” The Botz court found the WPP to be “powerful evidence of Congress’s clear and manifest intent to preempt state-law whistleblower claims related to air safety.”
Three other federal circuits—the Eleventh, Ninth, and Third—have declined to follow Botz in cases where an airline employee asserted only that he was fired for making a post hoc safety report, as opposed to refusing a work assignment. The courts’ reasoning was that such reports do not have the same disruptive effect in their potential to ground flights. These circuits also disagreed with Botz’s analysis of WPP. John W. urged the Eighth Circuit to distinguish Botz in his case on the grounds suggested by the other circuits: He had filed post hoc safety reports and had not refused a work assignment.
The court declined, concluding: “We are constrained by circuit precedent to rule that [John’s] claim is preempted.” Because Botz had ruled that the plain language of ADA and WPP also preempted a whistleblower-retaliation claim based on reporting an alleged safety violation to an employer, John’s claim could not be distinguished.
In the alternative, John urged the court to overrule Botz in relevant part, but the court concluded that because one three-judge panel cannot overrule another, John would have to petition for a rehearing en banc.
The Seventh Circuit Court of Appeals has not yet weighed in on the issue, however several recent cases in the Northern District of Illinois have declined to adopt Botz.
The consumer and tax payer rights law firm of Lubin Austermuehle represents whistleblowers who are pursuing qui tam lawsuits at any level of government or for violations of the securities laws and IRS code, including claims under the Illinois Whistleblower Act, the Chicago whistleblower ordinance, the Dodd-Frank Act and the federal False Claims Act. Based in Chicago and Oak Brook, Ill., our Evanston and Naperville area qui tam and False Claims Act lawyers stand ready to represent whistleblowers throughout the United States — regardless of whether prosecutors have decided to join the lawsuit. If you know about fraud against a government agency and you’re ready to speak up, you can learn more about whistleblower lawsuits at a free, confidential consultation. To set one up, please contact Lubin Austermuehle online or call 630-333-0333 today.
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