Robert A. Husmann v. Trans World Airlines, Inc. , 169 F.3d 1151 ( 1999 )

MORRIS SHEPPARD ARNOLD, Circuit Judge,

dissenting.

One may concede that El Al Israel Airlines, Ltd. v. Tseng, — U.S.-, 119 S.Ct. 662, 666-68, 142 L.Ed.2d 576 (1999), holds that Mr. Husmann’s state-law claim is preempted, but that does not necessarily mean that it is removable to a federal district court. The state courts are (indeed, they must be) open to preemption defenses, and the court does not indicate why the preemption created by the Warsaw Convention is the kind that allows a defendant to evade the well-pleaded complaint rule. Most of the cases that the court relies on were not removed to a federal court, and in none of them was the question of whether removal was proper raised or decided.

Some highly respected commentators on matters touching on federal jurisdiction have noted that “[b]ecause of the obvious federalism implications of the complete-preemption doctrine, its application has been extremely limited by the courts.” C. Wright, A. Miller, and E. Cooper, 14B Federal Practice and Procedure: Jurisdiction 3d § 3722.1, at 517 (1998). Indeed, those same commentators offer the view that “most attempts by state court defendants to remove by invoking the complete-preemption doctrine have been rebuffed by the federal courts on a motion by the plaintiff to remand.” Id., at 543-45.

Most courts that have faced the question of complete preemption have asked whether Congress intended not merely to provide a federal defense to a state cause of action but to transform that cause of action into a federal one. To show that Congress intended to “federalize” a state-law claim is a heavy burden for a defendant to carry. He or she must show that the federal law in question (here, the Warsaw Convention) contains a civil enforcement provision that creates a cause of action that replaces the relevant state law and that Congress has specifically granted jurisdiction to the federal courts to enforce the rights created. Only then can a court conclude that Congress intended to make the claims removable. See Aaron v. National Union Fire Insurance Company, 876 F.2d 1157, 1164-65 (5th Cir.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990).

In the case before us, the court does not indicate why it believes Mr. Husmann’s case is completely preempted, and it seems clear to me that the defendant’s removal of the case cannot survive the application of the principles outlined in Aaron: The defendant has not directed our attention to any statute, nor has my research revealed any, specifically conferring federal jurisdiction over claims under the Warsaw Convention. In these circumstances, I would be hard put to find a congressional intention to make this case removable. I would therefore reverse the judgment of the district court and remand the case for remand to the state court from which, I believe, it was improperly removed.