A new case from the Ninth Circuit is, well, kind of disturbing in view of the recent loss of the Malaysian Airlines flight. Although we don’t know what caused that plane to crash, “pilot gone whack-o” is one of the theories cited as credible, and there have been instances in which commercial pilots evidently took a plane full of passengers to their own judgment. In Ventress v. Japan Airlines, et al, 2014 DJDAR 3996 (3/28/14), pilot Martin Ventress claimed that JAL retaliated against him for raising safety concerns regarding another pilot, including submitting two safety reports to the FAA. Ventress says JAL responded by requiring him to submit to psychiatric fitness for duty examinations. Evidently, these examinations did not go well, and Ventress was fired (or constructively discharged). Ventress brought an action in which he contended that his employer retaliated against him for making the safety complaints about another pilot. The district court ruled that the claim had to be dismissed because the Federal Aviation Act, the federal law regulating, among other things, pilot certification, “preempted the field”. The federal law provides a system, the court observed, for evaluating pilot fitness. If claims like Ventress made could go forward, the court observed, the courts would have to be involved in evaluating the fitness of both Ventress and the other pilot Ventress claimed was unfit. Since that would intrude on the FAA’s system, the claim had to be dismissed.
Now, the Ninth Circuit is generally considered friendly, or at least not hostile, to plaintiffs, including employment plaintiffs. So, I’m not suggesting the decision was wrong on the law. The court decided that Congress wants it this way, and that’s the end of it as far as the court is concerned. So, the question is whether the federal law is wise. Is it a good idea to say, “if a pilot says another pilot is unfit, it’s OK for the employer to fire him; it doesn’t matter if the pilot was right or wrong, or whether the pilot made the claim in good faith – looking into that would cause us to second guess the FAA’s pilot certification decisions”? I don’t think so. I’d like pilots to feel very secure in making such allegations, even at the cost of baseless allegations being made. Because, really, if a pilot is unfit, who is in the best position to observe that before something makes that unfitness painfully and deadly obvious? The court’s decision doesn’t say anything about what the FAA provides, if anything, in the way of protecting airline personnel from retaliation for raising concerns about the fitness of pilots they work with. I’m guessing, “not much”. But, whatever protection there is, it’s the only protection available, because this decision means that state whistleblower laws don’t apply.