Opinion
Case No. 3D02-1405
Opinion filed July 9, 2003.
An appeal from the Circuit Court for Dade County, Amy N. Dean, Judge. LOWER TRIBUNAL NO. 01-23224.
Tilgham Vieth, P.A.; Lauri Waldman Ross, for appellant.
Clarke, Silvergate, Campbell, Williams Montgomery, and Spencer H. Silvergate, and Hannesson I. Murphy, and J. Michael M. Marshall, for appellee.
Before COPE, GREEN and RAMIREZ, JJ.
Stephen P. Roland appeals an order dismissing his Florida whistleblower lawsuit on grounds of federal preemption. We conclude that federal law authorizes a railroad employee to invoke the protection of a state whistleblower statute. That being so, there can be no issue of federal preemption.
I.
Plaintiff-appellant Roland was employed as a railroad policeman by defendant-appellee Florida East Coast Railway ("FEC"). His amended complaint alleges:
6. During his employment with the FEC, Plaintiff repeatedly reported, objected to, and refused to participate in violations of federal and state laws to other commissioned officers of the State of Florida, which violations created a substantial and specific danger to the public's safety, health, and welfare, including the following:
a) Refusing to notify the [Environmental Protection Agency], [Department of Environmental Resources Management], and local departments about material leaks in the FEC's Miami Springs yard and of the contamination of air and ground water in the surrounding area, which includes homes within 200 feet and well fields for Miami-Dade County;
b) Burglary upon a warehouse leased to an FEC tenant; and
c) Warrant less, illegal wiretaps on FEC employees.
7. As a result of his report of violations of laws, Plaintiff was terminated by the Defendant FEC.
R. 38. Plaintiff alleged that his termination was in violation of Florida's whistle blower statutes. See § 448.101- 448.105, Fla. Stat. (2000).
Section 448.102, Florida Statutes, provides:
448.102 Prohibitions. An employer may not take any retaliatory personnel action against an employee because the employee has:
(1) Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice.
(2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.
(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.
Plaintiff also alleged a violation of section 112.3187, Florida Statutes (2000). It is not clear to us that Section 112.3187 applies to the plaintiff, but that question is not before us.
The FEC successfully moved for dismissal, arguing that there is a federal whistleblower statute which protects railroad employees, 49 U.S.C. § 20109, and that the federal statute necessarily preempts any state whistle blower act.
We respectfully disagree with the trial court on the preemption issue. We do so because the federal whistleblower statute states, in relevant part:
(d) Election of remedies.--An employee of a railroad carrier may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the carrier.
49 U.S.C. § 20109(d). Florida's whistleblower statute is "another provision of law." The federal whistle blower statute thus allows a railroad employee to proceed (1) under the federal whistle blower statute, or (2) under any other whistle blower statute (such as the Florida statute at issue in this case), but not both.
For its argument that the Florida whistle blower statute has been preempted, the FEC relies on Rayner v. Smirl, 873 F.2d 60 (4th Cir. 1989), but that case is not on point. The Rayner decision does not cite, or analyze, the effect of 49 U.S.C. § 20109(d).
The FEC argues that allowing enforcement of state whistle blower statutes would be inconsistent with the federal regulatory scheme. But that policy decision was for Congress. In drafting 49 U.S.C. § 20109(d) Congress explicitly allowed an aggrieved employee to pursue "another provision of law . . ." A state whistle blower statute is another provision of law.
We emphasize that in adjudicating the Florida whistle blower case, any applicable federal law and regulations regarding the operations and safety standards of railroads are, of course, controlling. As we view the matter, Congress has allowed an aggrieved plaintiff to elect to proceed in state court on a whistle blower claim. However, wherever federal law and regulations govern railroad operations and safety standards, federal law will remain controlling and will be applied by the state court.
For the stated reasons, we reverse the dismissal order and remand for further proceedings consistent herewith.
We respectfully disagree with the position of the concurring opinion. That is because in the trial court, the plaintiff waived the pleading deficiency and proceeded to address the issue on the merits. Memorandum of Law in Opposition to Motion to Dismiss for Lack of Subject Matter Jurisdiction, at 2. The plaintiff stated:
Initially, it should be noted that the FEC has answered the Amended Complaint and has not raised the affirmative defense of preemption. Neither has the FEC sought leave to amend it[s] Answer to allege this new theory of defense. While . . . the procedural deficiencies of the FEC's Motion to Dismiss could eventually be cured, meeting the issue head on reveals that even if properly before the Court, the [Federal Railroad Safety Act] does not preempt this action or serve as a basis for subject matter dismissal.
Id.
As the plaintiff bypassed any reliance on the FEC's failure to plead the affirmative defense, that is not a proper basis for reversal here.
RAMIREZ, J., concurs. Roland v. Florida East Coast Railway
Case No. 02-1405
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
I write separately because I believe this case should be reversed on procedural grounds.
Roland instituted this action for wrongful discharge under Florida's Whistle Blower Statute, for retaliatory discharge due to his reporting of alleged illegal activities by FEC. FEC answered asserting various affirmative defenses. Preemption was not one of these. Months later, FEC filed a motion to dismiss the complaint, claiming that the trial court lacked subject matter jurisdiction because Roland's state law claims were completely preempted by the Federal Railway Safety Act. Roland opposed the motion, arguing that there was no preemption of his claims.
See §§ 112.3187 and 448.102, Fla. Stat. (1999).
Following the majority's rationale that § 20109 provides for concurrent jurisdiction, this then becomes a case of "defensive preemption." Defensive preemption arises when a state court has concurrent jurisdiction to consider claims under a federal statute. See Worth v. Universal Pictures, Inc., 5 F. Supp.2d 816, 820 (C.D.Cal. 1997). In a "defensive preemption" case, preemption must be raised as an affirmative defense or it is waived. See, id. See also Martin v. Eastern Airlines, Inc., 630 So.2d 1206, 1208 (Fla. 4th DCA 1994) (finding that preemption, an affirmative defense within the scope of both the Florida and Federal Rules of Civil procedure, is waived if not set forth in the answer). Here, given the plain language of 49 U.S.C. § 20109, that a railway employee may seek protection under FRSA or "another provision of law," both the federal and state courts have jurisdiction over this matter. Thus, the preemption argument was "defensive."
FEC did, however, acknowledge in the court below that preemption is ordinarily an affirmative defense but urged that the preemption here was "complete" and therefore went to subject matter jurisdiction. The trial court erroneously agreed and granted FEC's motion dismiss.
Complete preemption arises where a federal statute vests exclusive jurisdiction in the federal courts. See Metropolitan Life Ins. Co. v. Taylor, 41 U.S. 58 (1987); Smith v. GTE Corp., 236 F.3d 1292 (11th Cir. 2001).
Since FEC did not raise preemption in its pleadings, this argument was waived, and the motion to dismiss was improperly considered. Accordingly, I would reverse on this ground.