Williams v. United Airlines, Inc. ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY WILLIAMS,  No. 05-17072
Plaintiff-Appellant,
v.  D.C. No.
CV-04-03787-CW
UNITED AIRLINES, INC; RON KING,
OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Submitted August 13, 2007*
San Francisco, California
Filed August 31, 2007
Before: Eugene E. Siler, Jr.,** M. Margaret McKeown, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge McKeown
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
11179
WILLIAMS v. UNITED AIRLINES 11181
COUNSEL
Anthony L. Williams, Oakland, California, pro se, for the
plaintiff-appellant.
Michael Mankes and Michael G. Pedhirney, Littler Mendel-
son, San Francisco, California, for the defendants-appellees.
OPINION
McKEOWN, Circuit Judge:
Anthony L. Williams appeals the district court’s dismissal
of his complaint alleging violations of the Federal Airline
Deregulation Act’s Whistleblower Protection Program (the
“WPP”), 49 U.S.C. § 42121, and related state law claims. At
issue in this case is whether an aggrieved employee may bring
a suit in federal district court to allege violations of the WPP.
We hold that the WPP does not create such a right of action
and affirm the district court’s dismissal of Williams’s action
on the basis that the district court lacked subject matter juris-
diction.
11182 WILLIAMS v. UNITED AIRLINES
BACKGROUND
Anthony L. Williams worked at United Airlines’s Oakland
Maintenance Facility from 1989 until his termination in 2003.
His direct supervisor was Ron King.1
In September 2004, Williams filed a pro se complaint
against United, alleging retaliatory discrimination under the
WPP and three state law tort claims. He claimed that United
terminated him in retaliation for a dispute related to an alleged
safety violation. The district court exercised jurisdiction over
the federal claim pursuant to 28 U.S.C. § 1331, and supple-
mental jurisdiction over his state law claims. Williams’s retal-
iatory discrimination claim was dismissed on summary
judgment, and his state law claims were dismissed under Fed-
eral Rule of Civil Procedure 12(b)(6).
On appeal, United does not challenge the district court’s
exercise of jurisdiction. Nonetheless, we are “obliged to raise
questions of the district court’s subject-matter jurisdiction sua
sponte.” Hart v. United States, 817 F.2d 78, 80 (9th Cir.
1987); see also Ins. Corp. of Ir., Ltd. v. Compagnie des Baux-
ites de Guinee, 456 U.S. 694, 702 (1982) (“[T]he consent of
the parties is irrelevant, principles of estoppel do not apply,
and a party does not waive the requirement by failing to chal-
lenge jurisdiction early in the proceedings.” (internal citations
omitted)). We uphold the dismissal of the action not on the
merits but because the district court lacked jurisdiction. See
Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 686 (9th Cir.
2007) (“We may affirm on any basis supported by the record,
whether or not relied upon by the district court.”).
1
We refer to United Airlines and King collectively as “United.”
WILLIAMS v. UNITED AIRLINES 11183
ANALYSIS
I. THE WHISTLEBLOWER PROTECTION PROGRAM
[1] The WPP was enacted as part of the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century,
Pub. L. No. 106-181, Title V, § 519(a), 114 Stat. 61, 145-49
(2000). The program was designed to “provide protection for
airline employee whistleblowers by prohibiting the discharge
or other discrimination against an employee who provides
information to its employer or the Federal government about
air safety or files or participates in a proceeding related to air
safety.” H.R. Rep. No. 106-167, pt. 1, at 100 (1999).
[2] Consistent with this goal, the WPP established a
detailed administrative scheme for the investigation and reso-
lution of claims brought by airline employees. See 49 U.S.C.
§ 42121(b); 29 C.F.R. Part 1979. An aggrieved employee may
file a complaint with the Secretary of Labor (“Secretary”)
within 90 days after the date on which a violation of the WPP
occurs. 49 U.S.C. § 42121(b)(1). Once an employee files a
complaint and presents a prima facie case pursuant to
§ 42121(b)(2)(B)(i), the Secretary must conduct an investiga-
tion and issue a final order. See id. §§ 42121(b)(2)(A),
(b)(3)(A). The statute explicitly provides for review of the
Secretary’s final order in the courts of appeal. See id.
§ 42121(b)(4). In the event of non-compliance with the Secre-
tary’s final order, either the Secretary or the employee may
bring a civil action in a federal district court to compel com-
pliance with the Secretary’s order. Id. § 42121(b)(5), (b)(6).
II. NO PRIVATE RIGHT OF ACTION IN FEDERAL DISTRICT
COURT UNDER THE WPP
In its brief on appeal, United posits that the district court
has original federal subject matter jurisdiction because Wil-
liams filed a claim under a federal statute. Under 28 U.S.C.
§ 1331, “[t]he district courts shall have original jurisdiction of
11184 WILLIAMS v. UNITED AIRLINES
all civil actions arising under the Constitution, laws, or trea-
ties of the United States.” However, this general federal-
question jurisdiction statute is applicable only when the plain-
tiff sues under a federal statute that creates a right of action
in federal court. See Merrell Dow Pharms. Inc. v. Thompson,
478 U.S. 804, 807-12 (1986); see also Utley v. Varian
Assocs., Inc., 811 F.2d 1279, 1283 (9th Cir. 1987). Thus the
threshold question is whether an aggrieved employee may
bring a suit under the WPP in federal district court.
In exercising jurisdiction, the district court noted that the
administrative filing requirement in § 42121(b)(1) is phrased
permissively: “A person who believes that he or she has been
discharged or otherwise discriminated against . . . may . . . file
. . . a complaint with the Secretary of Labor alleging such dis-
charge or discrimination.” 49 U.S.C. § 42121(b)(1) (emphasis
added). Focusing on this language, the district court con-
cluded that “exhaustion of administrative remedies” was not
required before bringing a claim under the WPP in federal
district court.2
The district court’s construction of the permissive language
in § 42121(b)(1) conflates the concepts of administrative
exhaustion and subject matter jurisdiction. Administrative
exhaustion generally refers to the requirement that a com-
plainant first pursue available administrative remedies before
filing a suit in a judicial forum. Here, the question is not
whether Williams must first file an administrative complaint
2
The district court’s reliance on Fadaie v. Alaska Airlines, Inc., 293 F.
Supp. 2d 1210 (W.D. Wash. 2003), was misplaced. The conclusion in
Fadaie that “Fadaie could have elected to forego his administrative
options and file his [WPP] whistleblower claims directly in a court of
law,” id. at 1220, was apparently based on a misinterpretation of the rele-
vant discussion in Branche v. Airtrain Airways, Inc., 342 F.3d 1248, 1264
(11th Cir. 2003). In fact, Branche was clear that “under the WPP the plain-
tiff cannot directly file a civil action against his employer, but instead
must file a complaint with the Secretary of Labor.” Id. at 1261 n.8 (citing
49 U.S.C. § 42121(b)(1)).
WILLIAMS v. UNITED AIRLINES 11185
before filing a claim in federal district court; rather, the ques-
tion is whether Williams could have brought this action at all
in federal district court. If the WPP does not create such a
right of action, Williams may not sue in federal district court
even after filing a complaint with the Secretary of Labor.
[3] That an aggrieved employee “may” file an administra-
tive complaint with the Secretary of Labor under
§ 42121(b)(1) does not, by itself, imply that jurisdiction is
also authorized in federal district courts. As the Supreme
Court has often repeated, “[f]ederal courts are courts of lim-
ited jurisdiction. The character of the controversies over
which federal judicial authority may extend are delineated in
Art. III, § 2, cl. 1 [of the United States Constitution]. Jurisdic-
tion of the lower federal courts is further limited to those sub-
jects encompassed within a statutory grant of jurisdiction.”
Ins. Corp. of Ir., 456 U.S. at 701.
On this point, ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d
513, 516 (3d Cir. 1998), is instructive. ErieNet involved a
class action suit under the Telephone Consumer Protection
Act, which provides that “[a] person or entity may . . . bring
in an appropriate court of that State . . . an action based on a
violation of this subsection.” 47 U.S.C. § 227(b)(3) (emphasis
added). The class members argued that Congress’s use of the
word “may” indicated that the statute did not limit jurisdiction
to state courts. ErieNet, 156 F.3d at 516. The Third Circuit
rejected this argument, explaining that “[t]he appellants’ argu-
ment that the permissive reference to state courts implies the
existence of federal jurisdiction is undercut by the fact that
there is no presumption of jurisdiction in the federal courts.”
Id. (citing Sheldon v. Sill, 49 U.S. 441 (8 How.), 442 (1850)).
[4] In short, the “may” language in § 42121(b)(1) merely
confers authority on the Secretary of Labor to accept com-
plaints from aggrieved employees. Whether the WPP grants
11186 WILLIAMS v. UNITED AIRLINES
federal district courts jurisdiction to entertain claims alleging
violations of the WPP is a separate question.3
Because the WPP does not expressly grant a right of action
in federal district court, we consider whether there is an
implied right of action under the statute.4 In Cort v. Ash, the
Supreme Court announced four factors to consider when
deciding whether a private right of action is implicit in a fed-
eral statute:
First, is the plaintiff one of the class for whose espe-
cial benefit the statute was enacted—that is, does the
statute create a federal right in favor of the plaintiff?
Second, is there any indication of legislative intent,
explicit or implicit, either to create such a remedy or
to deny one? Third, is it consistent with the underly-
ing purposes of the legislative scheme to imply such
a remedy for the plaintiff? And finally, is the cause
of action one traditionally relegated to state law, in
an area basically the concern of the States, so that it
would be inappropriate to infer a cause of action
based solely on federal law?
422 U.S. 66, 78 (1975) (internal quotations and citations omit-
ted).
Since Cort, the Supreme Court has focused on the second
3
Under the WPP, an aggrieved employee may bring an action in federal
district court to enforce the Secretary of Labor’s final order. 49 U.S.C.
§ 42121(b)(6). The right to enforce the Secretary’s final order in federal
district court should not be confused with the right to file a claim in fed-
eral district court to allege violations of the statute.
4
Administrative regulations may also imply a right of action in federal
court. See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 536-37
(9th Cir. 1984) (Securities and Exchange Act regulation). Here, the rele-
vant regulations (29 C.F.R. Part 1979) simply elaborate upon the adminis-
trative scheme set forth in 49 U.S.C. § 42121. It is therefore unnecessary
to separately analyze those regulations.
WILLIAMS v. UNITED AIRLINES 11187
Cort factor—whether there is congressional intent to create a
private right of action. See Alexander v. Sandoval, 532 U.S.
275, 286 (2001) (stating that “[s]tatutory intent . . . is determi-
native.”); Love v. Delta Air Lines, 310 F.3d 1347, 1351-52
(11th Cir. 2002) (explaining that since the late 1970s, the
Supreme Court has “gradually receded from its reliance on
three of these four factors, focusing exclusively on legislative
intent”); see also Thompson v. Thompson, 484 U.S. 174, 189
(1988) (Scalia, J., concurring) (arguing that Touche Ross &
Co. v. Redington, 442 U.S. 560, 575-576 (1979), and Trans-
america Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18
(1979), effectively overruled Cort).
[5] The plain language of the WPP supports the view that
Williams is a member of the special class the statute was
designed to protect. See Cannon v. Univ. of Chi., 441 U.S.
677, 690-91 (1979) (“There would be far less reason to infer
a private remedy in favor of individual persons if Congress,
instead of drafting Title IX with an unmistakable focus on the
benefitted class, had written it simply as a ban on discrimina-
tory conduct . . . .”). However, “even where a statute is
phrased in such explicit rights-creating terms, a plaintiff suing
under an implied right of action still must show that the stat-
ute manifests an intent ‘to create not just a private right but
also a private remedy.’ ” Gonzaga Univ. v. Doe, 536 U.S. 273,
284 (2002) (emphasis in original) (quoting Sandoval, 532
U.S. at 286). Here, there is no evidence that Congress
intended to create a direct remedy in federal district court.
Because congressional intent is clear, the third and fourth fac-
tors in Cort are unnecessary to our analysis.
Congress established a carefully-tailored administrative
scheme in the WPP and provided exclusive judicial review of
the Secretary’s order in the courts of appeal. 49 U.S.C.
§ 42121(b)(4). Congress also expressly granted federal district
courts original jurisdiction over suits brought to enforce the
Secretary’s final orders. Id. § 42121(b)(5), (b)(6). “The
explicit provision of these elaborate enforcement mechanisms
11188 WILLIAMS v. UNITED AIRLINES
strongly undermines the suggestion that Congress also
intended to create by implication a private right of action in
a federal district court but declined to say so expressly.” Love,
310 F.3d at 1357. As the Supreme Court counseled in Trans-
america, 444 U.S. at 19, “it is an elemental canon of statutory
construction that where a statute expressly provides a particu-
lar remedy or remedies, a court must be chary of reading oth-
ers into it.” See also Nat’l Railroad Passenger Corp. v. Nat’l
Ass’n of R.R. Passengers, 414 U.S. 453, 458 (1974) (“A fre-
quently stated principle of statutory construction is that when
legislation expressly provides a particular remedy or reme-
dies, courts should not expand the coverage of the statute to
subsume other remedies.”).
The legislative history of the WPP does not warrant a dif-
ferent conclusion. Congress was silent on the question of
whether an aggrieved employee may bring a suit in federal
district court to allege a violation of the WPP, and “implying
a private right of action on the basis of congressional silence
is a hazardous enterprise, at best.” Touche Ross & Co., 442
U.S. at 571.
Congress modeled the WPP after many of the existing fed-
eral whistleblower protection statutes. See H.R. Rep. No. 106-
167, at 100 (“There are currently over a dozen Federal laws
protecting whistleblowers including laws protecting nuclear
plant workers, miners, truckers, and farm laborers when act-
ing as whistleblowers.”). Notably, certain federal whistle-
blower statutes expressly grant a right of action in federal
district court. See, e.g., 31 U.S.C. § 3730(h) (Whistleblower
protection under the False Claims Act) (“An employee may
bring an action in the appropriate district court of the United
States for the relief provided in [31 U.S.C. § 3730].”); 46
U.S.C. § 2114(b) (Protection of Seaman against Discrimina-
tion) (“A seaman discharged or otherwise discriminated
against in violation of [46 U.S.C. § 2114] may bring an action
in an appropriate district court of the United States.”). The
explicit authorization of district court jurisdiction found in
WILLIAMS v. UNITED AIRLINES 11189
these other federal whistleblower statutes demonstrates that
Congress clearly knows how to provide for such jurisdiction
when it intends to do so.
[6] In short, the plain language of the WPP and its statutory
scheme counsel against implying a right of action in federal
district court. This conclusion is in accord with cases in which
courts have considered almost identical statutory language in
other federal statutes and held that such statutes do not imply
a right of action in federal district court. See, e.g., Love, 310
F.3d at 1351-60 (anti-discrimination provision under the Air
Carrier Access Act); Norman v. Niagara Mohawk Power
Corp., 873 F.2d 634, 637-38 (2d Cir. 1989) (whistleblower
protection provision under the Energy Reorganization Act);
Taylor v. Brighton, Corp., 616 F.2d 256, 258-64 (6th Cir.
1980) (whistleblower protection provision in the Occupational
Safety and Health Act).
III. STATE LAW CLAIMS
[7] The dismissal of Williams’s federal claim requires dis-
missal of his state law claims. See Schultz v. Sundberg, 759
F.2d 714, 718 (9th Cir. 1985) (explaining that “dismissal of
federal claims before trial dictates that the pendent state
claims should also be dismissed”). Although diversity juris-
diction provides an independent basis for federal jurisdiction
over state law claims, complete diversity is lacking in this
case because both Williams and King are citizens of Califor-
nia. See 28 U.S.C. § 1332; Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 553 (2005) (noting the requirement
of complete diversity between a plaintiff and each of the
defendants).
AFFIRMED.