Michael Chapman v. Lab OneMichael Chapman v. Lab One
I.
The facts of these two actions are similar. Both Daniel Howell and Michael
The procedural postures of the two cases are slightly different. Howell brought his action in Nebraska state court against both LabOne and Union Pacific. His complaint alleged that Union Pacific was vicariously liable for the actions of its agent, LabOne. The defendants removed the action to the United States District Court for the District of Nebraska based on an assertion of federal question jurisdiction. The district court denied Howell‘s motion to remand, concluding that under the doctrine of “complete preemption,” Howell‘s state-law claims should be considered federal claims arising under federal law. The district court then granted motions to dismiss filed by LabOne and Union Pacific on the ground that the FOTETA does not provide for a private right of action. The court also granted Union Pacific‘s motion for summary judgment on the alternative ground that Howell‘s claims against Union Pacific were preempted by the RLA.
Michael Chapman and his wife filed an action in Iowa state court against LabOne only. LabOne removed the action to the United States District Court for the Southern District of Iowa based on diversity and federal question jurisdiction. The district court then granted LabOne‘s motion to dismiss. The court reasoned that the Chapmans’ claims were predicated on the manner in which LabOne tested the urine specimen and reported the results to Union Pacific, and that the FRSA and its corresponding regulations “‘substantially subsumed the subject matter’ of state tort law regarding the standards for drug testing railroad employees.” Accordingly, the district court found that the Chapmans’ state common-law claims were preempted.
On appeal, the Chapmans and Howell contend that the district courts erred in holding that their state law claims were preempted by the FRSA, the FOTETA, and their implementing regulations.1 In addition, Howell asserts that because his claims are not preempted by federal law, his case was improperly removed to federal court and his motion to remand the case to state court should have been granted. Because the two cases present closely related issues, we consolidated their ap
II.
In 1985, the Secretary of Transportation, through the Federal Railroad Administration (“FRA“), adopted regulations to control the use of alcohol and drugs in the operation of our nation‘s railroads. Control of Alcohol and Drug Use in Railroad Operations,
The FRA implemented the random drug testing program in 1988. Random Drug Testing,
The FRA amended its drug testing regulations in 1989, in part to remain consistent with the drug testing procedures issued by the Department of Transportation. Alcohol/Drug Regulations,
An employee required to participate in body fluid testing ... shall ... evidence consent to taking of samples .... The employee is not required to execute any document or clause waiving rights that the employee would otherwise have against the employer, and any such waiver is void. The employee may not be required to waive liability with respect to negligence on the part of any person participating in the collection, handling, or analysis of the specimen or to indemnify any person for the negligence of others.
The FRA anti-waiver provision is still in effect.
In 1991, Congress for the first time mandated drug testing in the railroad industry by passing the FOTETA, which amended the FRSA and required the Secretary of Transportation to promulgate regulations establishing programs for drug testing railroad employees.
The preemptive effect of the FRA‘s regulations is governed by
III.
The doctrine of preemption arises from the Supremacy Clause of the Constitution, which requires that state law must give way when it conflicts with or frustrates federal law.
The doctrine of “complete preemption” establishes more than a defense to a state-law claim. On occasion, the Supreme Court has concluded that “the pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts’ an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (quoting Metropolitan Life, 481 U.S. at 65, 107 S.Ct. 1542). When an area of state law has been “completely preempted,” then 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. As such, “complete preemption” of a state-law cause of action provides a basis for removal of an action to federal court.
A.
We address first whether federal preemption is a defense to the state common-law claims advanced in the complaint filed by the Chapmans. Because the FOTETA contains an express preemption clause, we focus in the first instance on the plain language of the statute, because it “necessarily contains the best evidence of Congress’ pre-emptive intent.” Easterwood, 507 U.S. at 664, 113 S.Ct. 1732. The preemption clause in
In Easterwood, the Supreme Court held that the preemption clause of the FRSA (as then in effect) authorized the Secretary to preempt common-law claims. 507 U.S. at 675, 113 S.Ct. 1732. According to former
After Easterwood, Congress superseded
One might question whether the text of
Nonetheless, the Chapmans and Howell have not urged that the text of
B.
Assuming the Secretary has authority to preempt state common-law claims concerning drug testing, a common-law cause of action is preempted when the Secretary prescribes a regulation or issues an order “that covers the subject matter of the State requirement.”
LabOne points to federal drug testing regulations that set forth requirements for federally mandated drug testing, including preparation for testing, specimen collection procedures, laboratory analysis procedures, quality assurance and quality control, and requirements for reporting of test results. See
In considering whether the regulations preempt state common law, we bear in mind that as with the original FRSA provision before it, the FOTETA preemption provision is “employed within a provision that displays considerable solicitude for state law in that its express pre-emption clause is both prefaced and succeeded by
We conclude that the Secretary‘s regulations do not preempt the common-law claims pleaded by the Chapmans. Important to our decision is a drug testing regulation promulgated by the Secretary that specifically contemplates the existence of common-law negligence actions arising from the drug testing process. In 1989, the Secretary directed that a federal employee required to participate in body fluid testing “may not be required to waive liability with respect to negligence on the part of any person participating in the collection, handling or analysis of the specimen or to indemnify any person for the negligence of others.”
We agree with the Ninth Circuit that “[n]egligence is a state common law tort, and it would make no sense for the regulation to prohibit requiring the employee to waive negligence claims if those claims were preempted and could not be made.” Ishikawa v. Delta Airlines, Inc., 343 F.3d 1129, 1133 (9th Cir.), amended, 350 F.3d 915 (9th Cir.2003); see also Drake v. Lab. Corp. of Am. Holdings, 290 F.Supp.2d 352, 373 (E.D.N.Y.2003). Because the regulations specifically contemplate the existence of a common-law cause of action for negligence, we do not interpret them to subsume substantially the subject matter of common-law negligence. Nor do we discern an intent of the Secretary impliedly to preempt such causes of action, particularly since an express preemption clause gives rise to an inference that implied preemption is foreclosed. Freightliner Corp., 514 U.S. at 289, 115 S.Ct. 1483.
At oral argument, LabOne contended that the FRA‘s comments to the final rule when promulgated in 1989, see
We are not persuaded that the principal authorities cited by LabOne, Peters v. Union Pacific Railroad Co., 80 F.3d 257 (8th Cir.1996), and Frank v. Delta Airlines, Inc., 314 F.3d 195 (5th Cir.2002), require a different result. Although Frank did construe the Department of Transportation‘s drug testing regulations to preempt certain common-law claims, that case involved an action against an employer. Id. at 197. The court thus did not take into account the anti-waiver provision, which is directed to negligence on the part of others involved in the collection, handling, and analysis of specimens. See Ishikawa, 350 F.3d at 916. Our decision in Peters addressed whether regulations concerning the certification of train engineers by railroad companies preempted an employee‘s claim against a railroad company for alleged conversion of his engineer certificate in violation of state law. 80 F.3d at 260-61. Unlike the drug testing regulations, the rules at issue in Peters did not contain a provision that could be construed as a savings clause through which the Secretary preserved state common-law claims, and Peters is thus distinguishable.
In addition to their common-law negligence claims, the Chapmans also brought common-law claims alleging breach of contract, defamation, negligent misrepresentation, fraudulent misrepresentation, interference with business relations, intentional infliction of emotional distress, invasion of privacy, and loss of spousal consortium. As the FRA anti-waiver provision specifically addresses only negligence, there remains the question whether other common-law claims are preempted by the federal regulations. One district court, noting the legislative history of the FOTETA (which expressed concern about state legislation that might preclude drug testing)4 and the several regulatory provisions that contemplate potential lawsuits by aggrieved employees, has held that analogous drug testing regulations of the Federal Aviation Administration were only intended to preempt positive state enactments. Drake, 290 F.Supp.2d at 373-74 (citing
At least with respect to the common-law claims asserted in these actions, all of which arise from LabOne‘s alleged deficient performance in the drug testing process, we conclude that there is no clear and manifest purpose of the Secretary to preempt these related common-law claims. In addition to the considerations cited in Drake, we note that when the FRA first adopted its drug testing rule in 1988, it expressed concern about positive state enactments. The agency‘s final commentary observed that “some states have enacted laws which limit or regulate drug testing by private employers,” and explained that “issuance of this random drug testing rule will preempt any state legislation regarding random drug testing for railroad employees, whether or not inconsistent with
In light of the presumption against preemption that we are bound to apply in this area, and the overall structure and history of the FRA‘s drug testing regulations, we conclude that the common-law claims alleged by the Chapmans are still available.
C.
With respect to Howell‘s case, it follows naturally from our previous discussion that we also do not believe this is an area where the preemptive force of a federal statute is so extraordinary that it not only provides a federal defense to a state common-law claim, but also converts any state-law cause of action into a federal claim from its inception. The doctrine of “complete preemption” has been applied primarily in cases arising under § 301 of the Labor Management Relations Act of 1947 (LMRA), see Avco Corp. v. Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), and the Employee Retirement Security Act of 1974 (ERISA), which was modeled after the LMRA. See, e.g., Metropolitan Life, 481 U.S. at 64-65, 107 S.Ct. 1542. In those areas, Congress intended for the federal courts to fashion a body of “federal common law” that would govern disputes arising under the federal statutes. E.g., Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). Given our conclusion that the applicable statute and regulations concerning drug testing do not establish an intent to preempt the substantive common law at issue, however, we also believe that Congress did not “completely preempt” the state causes of action. See Magee v. Exxon Corp., 135 F.3d 599, 601-02 (8th Cir.1998).
Moreover, we find the FRSA and the FOTETA to be distinguishable from other statutory schemes in which courts have found complete preemption. Both the ERISA and the LMRA include a specific jurisdictional provision stating that the district courts of the United States shall have jurisdiction to grant relief based on the private right of action created elsewhere in the statutes. Metropolitan Life, 481 U.S. at 65, 107 S.Ct. 1542. We relied on the existence of similar provisions in finding complete preemption by the Indian Gaming Regulatory Act. Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 545 (8th Cir.1996). As the district court observed, however, neither the FRSA nor the FOTETA provides a private right of action for a person aggrieved by negligence in the analysis of a drug test, and the absence of an alternative cause of action militates against a finding of complete preemption. See Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 26, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). While LabOne argues that there existed a “comprehensive regulatory scheme” by which Howell could challenge the result of his drug test, the regulations themselves declare that “[n]othing in this
Having explored the statutory and regulatory schemes involving drug testing of railroad employees, we are not persuaded that Congress intended to “completely preempt” state law causes of action in this area. Therefore, we conclude that Howell‘s action should not be removed to federal court based on the existence of federal question jurisdiction.
* * * * * *
For the foregoing reasons, we reverse the judgments of the district courts and remand for further proceedings not inconsistent with this opinion.
Notes
§ 20106. National uniformity of regulation
Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security 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 or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), 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 or security when the law, regulation, or order—
(1) is necessary to eliminate or reduce an essentially local safety or security hazard;
(2) is not incompatible with a law, regulation, or order of the United States Government; and
(3) does not unreasonably burden interstate commerce.