Bennett, Mariko L.A. v. Southwest Airlines ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3486
MARIKO L.A. BENNETT, et al.,
Plaintiffs-Appellants,
v.
SOUTHWEST AIRLINES CO.,
THE BOEING COMPANY, and
CITY OF CHICAGO,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 06 C 317 et al.—Charles P. Kocoras, Judge.
____________
ARGUED APRIL 5, 2007—DECIDED APRIL 26, 2007
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Before EASTERBROOK, Chief Judge, and BAUER and
WOOD, Circuit Judges.
EASTERBROOK, Chief Judge. Southwest Airlines flight
1248 landed in a snowstorm at Chicago Midway Interna-
tional Airport on December 8, 2005. Conditions were
near the federal minimum for safe landings on Midway’s
Runway 31C, which at 6,522 feet is among the shortest
main runways at a commercial airport. A successful
landing of the Boeing 737-700 depended on the pilot’s
ability to come in at a moderate speed, touch down near
the start of the runway, and apply the thrust reversers
promptly. As things turned out, however, the wheels
2 No. 06-3486
touched down 2,000 feet into the runway and thrust
reversers did not deploy until 18 seconds later, when the
plane was only 1,000 feet from the runway’s end. The
plane smashed through a barrier and a fence; it came to
rest in a street, where it crushed a car and killed one of
the occupants. Twelve other people on the ground were
injured, though the plane’s 98 passengers and five
crewmembers were safe.
No. 06-3486 3
Tort suits filed in state court have been removed by the
defendants (Southwest, Boeing, and Chicago) on the theory
that plaintiffs’ claims arise under federal law. See 28
U.S.C. §1331, §1441(a). The district court denied a motion
to remand but certified the decision for interlocutory
appeal, which we accepted. 28 U.S.C. §1292(b). Defen-
dants’ early theory that federal law occupies the field of
aviation safety and thus “completely preempts” all state
law has been abandoned. We must decide whether plain-
tiffs’ claims arise under federal law because federal
aviation standards play a major role in a claim that
Southwest (as operator of the flight), Boeing (as manufac-
turer of the airframe), or Chicago (as operator of the
airport) acted negligently.
Illinois tort law supplies the claim for relief. On that
much all parties agree. For decades aviation suits have
been litigated in state court when the parties were not of
diverse citizenship. Most plaintiffs in this suit are citizens
of Illinois, as are both Boeing and the City of Chicago, so
jurisdiction cannot be maintained under 28 U.S.C. §1332.
But Grable & Sons Metal Products, Inc. v. Darue Engineer-
ing & Manufacturing, 545 U.S. 308, 314 (2005), held that
a claim nominally resting on state law may “arise under”
federal law, permitting removal under §1441(a), when it
“necessarily raise[s] a stated federal issue, actually
disputed and substantial, which a federal forum may
entertain without disturbing any congressionally approved
balance of federal and state judicial responsibilities.”
Defendants maintain, and the district court held, that
this standard is satisfied for aviation accidents because of
the dominant role that federal law plays in air transport.
Notice how we put this: The defendants do not contend,
nor did the district court find, that resolution of this suit
revolves around any particular disputed issue of federal
law. For all we can see, everything will depend on a fact-
bound question such as whether the pilots should have
4 No. 06-3486
executed a missed approach or, having elected to land,
exercised adequate diligence in activating the thrust
reversers; whether Boeing should have told air carriers
not to count on thrust reversers when calculating how
much runway they need; or whether Chicago should have
closed the airport because of bad weather. The meaning
of federal statutes and regulations may play little or no
role. As defendants (and the district court) saw things,
however, this does not matter: all suits about commercial
air travel belong in federal court because the national
government is the principal source of rules about safe air
transportation, and uniform application of these norms is
desirable. So put, the argument would extend Grable
and the arising-under jurisdiction well beyond the scope
the Justices are willing to tolerate.
In the main, a claim “arises under” the law that creates
the cause of action. See American Well Works Co. v. Layne
& Bowler Co., 241 U.S. 257 (1916) (Holmes, J.). The Court
has ruled, however, that this is a sufficient rather than a
necessary condition of the arising-under jurisdiction, see
Gully v. First National Bank in Meridian, 299 U.S. 109(1936), and by holding out the possibility (realized in
Grable) that a contested federal issue in a state-law suit
may allow jurisdiction under §1331 the Court has greatly
complicated the analysis. For the Court has also held that
a federal issue, even an important one, usually is insuf-
ficient for §1331 jurisdiction.
Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S.
804 (1986), provides a good example. Thompson alleged
that a drug that the Food and Drug Administration had
approved for sale was inadequately labeled as a matter of
federal law, and that this shortcoming should lead to
recovery in tort under state law. The drug’s manufacturer
argued that this claim arose under federal law because
the adequacy of the label must be assessed under federal
substantive standards. The Supreme Court granted the
No. 06-3486 5
premise—that a court must apply federal law to determine
whether the drug had been labeled properly—but denied
the conclusion that this made the plaintiff ’s claim “arise
under” federal law. Whether poor labeling supports
recovery, and if so what damages are appropriate, are
matters of state law that belong in state court, the Justices
concluded.
Grable reached a different conclusion when the state
proceeding amounted to a collateral attack on a federal
agency’s action. The IRS seized a parcel of Grable’s land;
although the agency gave notice by certified mail, Grable
did not request a hearing, so the IRS sold the land and
applied the proceeds to Grable’s taxes. Grable did not
redeem within 180 days of the sale. Years later it filed a
quiet-title action under state law, contending that it
should be confirmed as the parcel’s owner because the
IRS’s notice did not satisfy federal requirements. The
only contested issue in the suit was one of federal law, and
the main effect of the suit if Grable should prevail would
be to require the federal government to reimburse the
parcel’s buyer, disgorging money that had been credited as
taxes. The Court held that such a claim arises under
federal law because, apart from the procedural device (a
quiet-title action), there was nothing in it but federal law,
with the potential to affect the national government’s
revenues. The Court thought a federal forum especially
appropriate for contests arising from a federal agency’s
performance of duties under federal law, doubly so given
the effect on the federal Treasury.
Defendants’ argument that Grable brings within §1331
all actions in which federal law may play an important role
was made to the Supreme Court in Empire Healthchoice
Assurance, Inc. v. McVeigh, 126 S. Ct. 2121 (2006), and
squelched. Empire Healthchoice, which administered a
program of health insurance for federal employees, filed
suit in federal court seeking to recover from an insured
6 No. 06-3486
who had settled a tort claim and failed to turn over any
of the proceeds as the policy’s subrogation clause required.
Empire Healthcare’s theory was that because the policy’s
terms, including the requirement of reimbursement, had
been prescribed by federal regulation, the claim for
reimbursement itself arises under federal law. The Court
held, however, that the claim arose under the con-
tract—and, as in Merrell Dow, that the influence of fed-
eral law on the outcome of a contract (or tort) suit is not
enough to support the arising-under jurisdiction. Respond-
ing to an argument that Grable equated an important
federal issue with a claim arising under federal law, the
Court replied:
Whether Grable received notice adequate under
[26 U.S.C.] §6335(a), we observed, was “an essen-
tial element of [Grable’s] quiet title claim”; indeed,
“it appear[ed] to be the only . . . issue contested in
the case.” This case is poles apart from Grable.
The dispute there centered on the action of a
federal agency (IRS) and its compatibility with a
federal statute, the question qualified as “substan-
tial,” and its resolution was both dispositive of the
case and would be controlling in numerous other
cases. Here, the reimbursement claim was trig-
gered, not by the action of any federal department,
agency, or service, but by the settlement of a
personal-injury action launched in state court, and
the bottom-line practical issue is the share of that
settlement properly payable to Empire. Grable
presented a nearly “pure issue of law,” one “that
could be settled once and for all and thereafter
would govern numerous tax sale cases.” In con-
trast, Empire’s reimbursement claim . . . is fact-
bound and situation-specific. . . . In sum, Grable
emphasized that it takes more than a federal
element “to open the ‘arising under’ door.” This
No. 06-3486 7
case cannot be squeezed into the slim category
Grable exemplifies.
126 S. Ct. at 2137 (internal citations omitted; paragraphs
merged).
What the Court said about Grable in Empire
Healthchoice can be said here too. We have a fact-specific
application of rules that come from both federal and state
law rather than a context-free inquiry into the meaning
of a federal law. State issues, such as the amount of
damages, may well predominate. Plaintiffs do not chal-
lenge the validity of any federal agency’s or employee’s
action. If they did—for example by suing the United States
under the Federal Tort Claims Act on a theory that the
air traffic controllers were negligent—then the supple-
mental jurisdiction would support resolution in federal
court of the claims against Southwest Airlines, Boeing,
and Chicago. See 28 U.S.C. §1367(a), which changes the
outcome of Finley v. United States, 490 U.S. 545 (1989).
The Supreme Court thought it significant in Grable
that only a few quiet-title actions would present federal
issues. That enabled the Court to conclude that its deci-
sion would not move a whole category of litigation to
federal court or upset a balance struck by Congress.
Things are otherwise with air-crash litigation: defendants’
position, if accepted, would move a whole category of suits
to federal court. And it would upset a conscious legislative
choice—not one made in §1331, perhaps, but surely the
one made when 28 U.S.C. §1369 was enacted in 2002. That
statute permits suit in federal court when a single air
crash (or other disaster) leads to at least 75 fatalities and
minimal diversity is present. Those lines would be ren-
dered meaningless if, as defendants maintain, every
aviation case is federal. Section 1369 makes sense only
if transportation disasters are litigated in state court
unless they satisfy the new statute’s terms.
8 No. 06-3486
Although defendants stress that air transportation spans
multiple states (the flight in question departed from
Baltimore-Washington International Thurgood Marshall
Airport, and Southwest Airlines’ system crisscrosses the
nation), which makes a uniform set of rules desirable,
they do not contend that all state variation is impermissi-
ble. Damages, for example, depend wholly on state law.
And one must be wary of uniformity-based arguments
articulated at a high level of generality. How flights
proceed while airborne, and which safety devices an
airframe should carry, may well be subjects on which only
one national rule is tolerable. Many other subjects,
however, vary from airport to airport. The situation at
Midway Airport illustrates this vividly.
We’ve already mentioned the length of its runways. Had
flight 1248 landed at Chicago O’Hare International
Airport, whose shortest runway is about 1,000 feet longer
than Midway’s longest, there would have been no problem.
(O’Hare’s longest runway is 13,000 feet, with open ground
after that before a plane encounters cars and trucks.)
O’Hare’s very existence complicated the landing of flight
1248. Because Midway and O’Hare are less than 15 miles
apart, the paths of planes approaching each airport
must be managed carefully to avoid collisions. On Decem-
ber 8, 2005, a path that would have enabled flight 1248 to
land into the wind—and thus at a slower speed relative to
the ground—would have taken it through space reserved
for planes approaching O’Hare. Flight 1248 therefore had
to land with the wind at its tail, adding approximately
1,000 feet to the length required for it to stop. See the
National Transportation Safety Board’s preliminary
advisory on this accident (Dec. 15, 2005). Location-specific
considerations of this kind demonstrate that resolution
of plaintiffs’ claims in state court will not jeopardize
any uniform rule that might be applied at Phoenix or
Anchorage.
No. 06-3486 9
Midway was built in 1923 to accommodate the planes of
that era; a residential neighborhood grew up around it
and severely limits expansion. Runways well suited to the
DC-3 and the Lockheed Constellation are uncomfortably
short for large jets in foul weather. Federal authorities
might not allow the construction today of a commercial
airport with runways the length of Midway’s, and hemmed
in by residential development. But neither have they
ordered Midway to be closed or limited to propeller
airplanes. The City and the federal officials have negoti-
ated for years about proposals to lengthen Midway’s
runways or establish buffer zones around them. Lengthen-
ing the runways would require the acquisition of residen-
tial land and extensive rerouting of local streets. Whether
to make such changes is not something determined by
“uniform” norms. Federal law can and does lay down
minimum standards—given the layout of Midway Airport,
a landing is safe if certain conditions are met. But even
then whether to land is a decision made by the pilot
rather than federal regulators and is influenced by
factors such as whether all safety equipment is functional
and whether the crew has experience with snow.
Appeals to “uniform national rules” do not explain
Midway’s operational limits or fully control landing
operations there during snowstorms. A Boeing 737-700
requires between 3,500 and 4,700 feet of dry runway
(depending on the plane’s landing weight) at Chicago’s
altitude in calm winds, with flaps at 40/ and the use of
brakes but not thrust reversers. (Boeing document D6-
28326-6, “737 Airplane Characteristics for Airport Plan-
ning,” page 291.) How that figure translates to an actual
landing affected by wind, snow, and thrust reversers, and
how much safety margin should be preserved for the
benefit of passengers and people near an airport, is the
sort of situation that is governed by context-sensitive
doctrines such as the law of negligence. The particulars
10 No. 06-3486
of flight 1248’s landing may never recur; a search for a
“uniform federal rule” to govern such a situation would be
a hunt for a will-o’-the-wisp.
This circuit has held many times that claims related to
air transport may be litigated in state court. Hoagland v.
Clear Lake, 415 F.3d 693 (7th Cir. 2005); Bieneman v.
Chicago, 864 F.2d 463 (7th Cir. 1988); cf. Illinois v.
Chicago, 137 F.3d 474 (7th Cir. 1998). Grable does not
change this conclusion. That some standards of care used
in tort litigation come from federal law does not make the
tort claim one “arising under” federal law. See Vorhees v.
Naper Aero Club, Inc., 272 F.3d 398 (7th Cir. 2001); Rogers
v. Tyson Foods, Inc., 308 F.3d 785 (7th Cir. 2002); Chicago
v. Comcast Cable Holdings, L.L.C., 384 F.3d 901 (7th Cir.
2004) (federal defenses do not justify removal, even if the
federal issue is the only one in dispute). No court of
appeals has held either before or after Grable that the
national regulation of many aspects of air travel means
that a tort claim in the wake of a crash “arises under”
federal law. Abdullah v. American Airlines, Inc., 181 F.3d
363, 375-76 (3d Cir. 1999), strongly implies that the
“arising under” jurisdiction is unavailable; we now hold
that this is the right conclusion.
The judgment is reversed, and the case is remanded to
the district court with instructions to remand the litiga-
tion to state court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-26-07