Section 301's Preemption of State Law Claims: A Model for Analysis, 41 Ala. L.Rev. 377, 405 n.128 (1990); Eric James Moss, Note, The Breadth of Complete Preemption: Limiting the Doctrine to Its Roots, 76 Va. L.Rev. 1601, 1611-18 (1990).
The Supreme Court was even reluctant to extend complete preemption to ERISA, which has a "unique preemptive force." Taylor, 481 U.S. at 65. The Court stated that
even with a provision such as § 502(a)(1)(B) that lies at the heart of a statute with the unique pre-emptive force of ERISA, however, we would be reluctant to find that extraordinary pre-emptive power, such as has been found with respect to § 301 of the LMRA, that converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule. But the language of the jurisdictional subsection of ERISA's civil enforcement provision closely parallels that of § 301 of the LMRA.
Id. (citations omitted). The jurisdictional subsection of ERISA states:
the district courts of the United States shall have jurisdiction, without respect to the amount in controversy or the citizenship of the parties, to grant the relief provided for in subsection (a) of this section in any action.
29 U.S.C. § 1132(f); see Taylor, 481 U.S. at 65. And according to the LMRA,
suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
19 U.S.C. § 185(a). Furthermore, the legislative history of ERISA states that
'all such actions in Federal or State courts are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947.'
Taylor, 481 U.S. at 65-66 (quoting H.R. Conf. Rep. No. 93-1280, p.327 (1974)).
Preemption, like any defense, does not appear on the face of a plaintiff's complaint. Consequently, preemption itself is not a basis for removal. See Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. at 10. The Supreme Court has decided that complete preemption requires both federal preemption of state law and the Congressional intent to make the plaintiff's cause of action removable to federal court. See Taylor, 481 U.S. at 66. "The touchstone of the federal district court's removal jurisdiction is not the 'obviousness' of the pre-emption defense but the intent of Congress. . . . Even an 'obvious' pre-emption defense does not, in most cases, create removal jurisdiction." Id. The preemption case is thus distinguishable from the situation where a state court complaint expressly alleges a federal claim, e.g., a civil rights claim under 42 U.S.C. § 1983. That claim is clearly removable.
As for complete preemption in this case, defendant argues that § 105(a)(1) of the Airline Deregulation Act of 1978, 49 U.S.C. § 1305(a)(1),
together with §§ 411 and 204(a) of the Federal Aviation Act of 1958, 49 U.S.C. §§ 1381(a)
and § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1,
completely preempt plaintiff's cause of action which was brought pursuant to the Illinois Anti-Trust Act. Defendant first argues that the Airline Deregulation Act of 1978 preempts the Illinois Anti-Trust Act, because plaintiff's cause of action relates to rates. The court agrees. Section 1305(a)(1) preempts states from "enacting or enforcing any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier." 49 U.S.C. § 1305(a)(1). In Morales v. Trans World Airlines, Inc., 112 S. Ct. 2031, 2037 (1992), the Court adopted the broad definition of "relates to" that it established for ERISA. It stated that "state enforcement actions [which had] a connection with or reference to airline 'rates, routes, or services' [were] pre-empted under 49 U.S.C. App. § 1305 (a)(1)" even when the applicable state "law, rule, regulation, standard or other provision" was not specifically addressed to the airline industry. See id. at 2037-38. In Morales, the Court decided that state regulation of allegedly deceptive airline fare advertisements relates to rates, because "the obligations imposed by the guidelines could have a significant impact upon the airlines' ability to market their product, and hence a significant impact upon the fares they charge." Id. at 2040. Here, plaintiff has alleged that defendant violated the Illinois Anti-Trust Act by denying discount rates to plaintiff and other travel agencies which did not use a particular computer reservations system. Given the broad meaning which has been given the terms "relates to," the court finds that this action relates to airline rates. The Illinois Anti-Trust Act, which governs anticompetitive behavior, will have "the force and effect of law relating to rates . . . of" United, because United's challenged anticompetitive behavior involves the particular rates charged by United. See 49 U.S.C. § 1305(a)(1).
Defendant next argues that the Federal Aviation Act and the Sherman Anti-Trust Act together govern anticompetitive conduct by the airlines and that the Sherman Act provides the sole remedy for plaintiff. Defendant cites the legislative history of the Federal Aviation Act in support of its argument. In that history, Congress' intention to preempt state laws governing competitive practices is evident. The house report states that
in addition to protecting consumers, federal regulation insures a uniform system of regulation and preempts regulation by the states. If there was no Federal regulation, the states might begin to regulate these areas, and the regulations could vary from state to state. This would be confusing and burdensome to airline passengers, as well as to the airlines.
H.R. No. 793, 98th Cong., 2d Sess. 4 (1984), reprinted in 1984 U.S.C.C.A.N. 2857, 2860. The report also addresses facts similar to this case. It states that
the CAB is currently considering allegations that large airlines which sell computer reservations systems to travel agents are using their monopoly powers in the CRS industry unlawfully to eliminate competition in the sale of air transportation. More recently, there have been concerns that large carriers will use the right to interline with them as a device to restrain competition unfairly. . . . Section 411 furnishes a means of controlling abuses in this area, thereby helping preserve the system of interlining and the major benefits it brings to consumers.
Id. at 2861.
The question presented is whether this language in the legislative history of the Federal Aviation Act, the preemption provision in the Deregulation Act and the availability of a federal cause of action under the Sherman Anti-Trust Act is enough from which to conclude that Congress intended to make plaintiff's cause of action removable to federal court. Because the Supreme Court has expressed reluctance to invoke the complete preemption doctrine, it is necessary to compare this case to the areas and cases where this doctrine has been applied. Defendant has not pointed out, and the court does not find, any jurisdictional language in the Deregulation, Federal Aviation or Sherman Anti-Trust Acts similar to the language quoted above from ERISA and the LMRA. Another notable difference is that the Supreme Court's complete preemption cases have involved only individual federal statutes, while here, defendant attempts to show complete preemption by arguing one statute, enacted at one time, preempts the state cause of action and two other statutes, enacted at other times, evince the Congressional intent to make the state cause of action removable to federal court.
Defendant has mainly relied upon Trans World Airlines, Inc. v. Mattox, 897 F.2d 773 (5th Cir. 1990), aff'd in part, rev'd in part sub nom., Morales v. Trans World Airlines, 119 L. Ed. 2d 157, 112 S. Ct. 2031 (1992) (did not address complete preemption issue), and Illinois Corporate Travel, Inc. v. American Airlines, Inc., 889 F.2d 751 (7th Cir. 1989), cert denied, 495 U.S. 919, 109 L. Ed. 2d 311, 110 S. Ct. 1948 (1990). In Mattox, the Fifth Circuit stated that "Congress did intend to preempt so completely the particular area of state laws 'relating to rates, routes, or services' as to preclude state court actions." 897 F.2d at 787. There, the court decided that a complaint filed in state court, which alleged a violation of the Texas Deceptive Trade Practices Act through deceptive advertising of air fares, was completely preempted by the Airline Deregulation Act. See id. at 787-88. In Illinois Corporate Travel, the Seventh Circuit held that the Airline Deregulation Act preempted plaintiff's state claims based on price advertising. 889 F.2d at 754.
These cases are not helpful to this court's analysis of the second part of the complete preempt ion question. First, Illinois Corporate Travel only concerns the initial preemption question. Second, the court is not convinced by the reasoning in Mattox. There, the Fifth Circuit did the initial preemption analysis but not the second part of the analysis. The court emphasized the express preemption provision in the Deregulation Act, see Mattox, 897 F.2d at 787-88, and did not analogize to the LMRA, ERISA or the Supreme Court cases involving complete preemption. The court did examine in some detail the legislative history of civil aviation. See id. at 776-78 (quoting H.R. No. 793, 98th Cong., 2d Cong., 2d Sess. 4 (1984), reprinted in 1984 U.S.C.C.A.N. 2857, 2860, which is also quoted supra). That legislative history, however, simply demonstrates Congress' intent to preempt state regulation, not Congress' intent to make state causes of action removable to federal court.
The Supreme Court has been reluctant to extend the complete preemption doctrine. Indeed, the doctrine is an exception to the well-pleaded complaint rule, and exceptions, by their very nature, should be construed narrowly. Defendant has failed to show Congress' intent to completely preempt the Illinois Anti-Trust Act through the enactment of the Airline Deregulation, the Federal Aviation and the Sherman Anti-Trust Acts.
For the foregoing reasons, plaintiff's motion to remand is granted.
DATED: August 27, 1992
ENTER: John F. Grady
United States District Judge