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Ruling on an issue that has divided the federal circuits, the 3rd U.S. Circuit Court of Appeals has revived a New Jersey man’s state law whistleblower claim against an airline, concluding that a lower court improperly dismissed the suit as pre-empted by the federal Airline Deregulation Act. In Gary v. Air Group Inc., a unanimous three-judge panel rejected the views of the 8th Circuit, saying that it “went too far” in holding that a whistleblower provision added to the Airline Deregulation Act in 2000 effectively pre-empted all state whistleblower claims brought by airline employees. Instead, the 3rd Circuit said that the 11th Circuit got it right when it held that state law whistleblower claims are pre-empted only where the claim is one that potentially affects an airline’s rates, routes or services. The 3rd Circuit panel observed that U.S. District Judge Katherine S. Hayden did not have the benefit of the 11th Circuit’s decision when she adopted the 8th Circuit’s reasoning and dismissed Ray Gary’s suit under New Jersey’s Conscientious Employee Protection Act, or CEPA, a “whistleblower” protection law. According to the suit, Gary worked as a co-pilot for Air Group for five months in 2001, flying a Cessna Citation. In July 2001, the suit alleged, Air Group hired James O’Neal Johnson Jr. as pilot-in-command for the Cessna Citation, and Gary spent four days assisting Johnson with preparations for a “route check” required by the Federal Aviation Administration. Gary claims in the suit that he became worried that Johnson was unqualified to pilot an aircraft because he allegedly did not have the required jet time mandated by the FAA; was allegedly unfamiliar with FAA-mandated basic flight procedures; allegedly did not properly proceed with the FAA-mandated pre-flight checklist; allegedly was unfamiliar with the airspace into which he was planning to fly; and allegedly was unfamiliar with how to obtain departure clearance at certain airports. But soon after he expressed those concerns to his supervisors, Gary was fired, the suit alleges. When Gary filed suit under CEPA, lawyers for Air Group moved to dismiss the case on the grounds that his claim was pre-empted by the Airline Deregulation Act. The district court agreed, citing the 8th Circuit’s decision in Botz v. Omni Air International, which held that pre-emption in the airline context was significantly expanded when the Airline Deregulation Act was amended in 2000 to include its own whistleblower provision. In Botz, the 8th Circuit found that the 2000 amendment “now provides a comprehensive scheme for protecting the precise sort of air safety-related conduct Botz engaged in here,” and that the new federal provision was “powerful evidence of Congress’ clear and manifest intent to pre-empt state-law whistleblower claims related to air safety.” On appeal, Gary’s lawyers — Mark A. Berman and Michael A. Baldassare of Gibbons Del Deo Dolan Griffinger & Vecchione — urged the 3rd Circuit to follow the 11th Circuit’s decision in Branche v. AirTran Airways Inc. and hold that Gary’s claim was not pre-empted because was not “related to” Air Group’s “service.” In Branche, the 11th Circuit said it disagreed with the 8th Circuit’s “expansive” reading of the pre-emptive effect of the 2000 amendment. Instead, the 11th Circuit said employment discrimination cases “typically have been held to fall outside the scope of the [Airline Deregulation Act's] pre-emption clause.” Now the 3rd Circuit has sided with the 11th Circuit and revived Gary’s suit. “We find the better view is that expressed by the 11th Circuit,” Senior Judge Leonard I. Garth wrote in an opinion joined by 3rd Circuit Judge Richard L. Nygaard and visiting Senior U.S. District Judge Louis H. Pollak of the Eastern District of Pennsylvania. Garth said the 2000 amendment was “wholly silent on the issue of pre-emption,” and that Congress, in passing it, “presumably was aware of the view of a majority of courts that the [Airline Deregulation Act] did not pre-empt state law retaliatory discharge claims.” As a result, Garth said, “we agree with the 11th Circuit’s conclusion that Congress’ silence renders its intent ‘ambiguous’ at best and thus should not serve as a basis for expanding ADA preemption.” Garth also said there was a well-established principle that courts “should not lightly infer pre-emption,” and that the principle was “particularly apt in the employment law context, which falls squarely within the traditional police powers of the states.” The Air Group was represented in the appeal by attorney Todd H. Girshon of Jackson Lewis in New York.

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