FILED

NOT FOR PUBLICATION

AUG 6 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RYAN JOSEPH; et al., No. 19-15110

Plaintiffs-Appellants, D.C. No. 2:18-cv-00448-JCM-NJK

v.

BERKELEY GROUP, LLC, DBA NV MEMORANDUM*

Jets,

Defendant-Appellee.

RYAN JOSEPH; et al., No. 19-15146

Plaintiffs-Appellees, D.C. No. 2:18-cv-00448-JCM-NJK

v.

BERKELEY GROUP, LLC, DBA NV

Jets,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted May 5, 2020** Seattle, Washington

Before: TASHIMA, W. FLETCHER, and RAWLINSON, Circuit Judges.

Three pilots formerly employed by The Berkeley Group, LLC, dba NV Jets,

allege in causes of action one and two that defendant NV Jets constructively and

wrongfully terminated their employment by retaliating against them for complaints

about aviation safety violations; in cause of action three that NV Jets failed to

provide meal and rest breaks as required by Nevada law and failed to comply with

the federal Fair Labor Standards Act (“FLSA”); and in cause of action four that

NV Jets intentionally inflicted emotional distress by subjecting them to verbal

abuse. NV Jets removed the pilots’ suit, initially filed in state court, to federal

district court.

The district court held that causes of action one and two were preempted by

federal law. It held that the state-law meal and rest break claim was not preempted.

It dismissed the FLSA claim on the merits. The parties agree that the FLSA claim

was properly dismissed. The FLSA claim was the basis for federal subject matter

jurisdiction. Under 28 U.S.C. § 1367(c), the district court declined to exercise

supplemental jurisdiction over the surviving state-law claims for failure to provide

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 meal and rest breaks and for intentional infliction of emotional distress. It

dismissed those claims without prejudice.

The pilots and NV Jets cross-appealed. We reverse in part, vacate in part,

and remand.

1. We reverse the district court’s holding that federal law preempts the

pilots’ state-law wrongful termination claims. Our reversal, however, does not

extend to preemption with respect to the standard of care required by the federal

aviation safety standards. State law cannot alter the federally required standard of

care; to the extent that it might be read to do so, it is preempted.

We have held that the Federal Aviation Act of 1958, 49 U.S.C. §§ 40103 et

seq., and the Federal Aviation Administration’s regulations implementing that

statute occupy the field of aviation safety standards. Ventress v. Japan Airlines,

747 F.3d 716, 721 (9th Cir. 2014) (citing Montalvo v. Spirit Airlines, 508 F.3d 464,

473–76 (9th Cir. 2007)). However, even where federal law pervasively regulates

aviation safety, “the scope of field preemption extends only to the standard of

care.” Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1006 (9th Cir. 2013). The

Act’s savings clause allows state tort law to provide additional remedies where a

plaintiff alleges a violation of the safety standards set by federal regulations. Id. at

1010; see 49 U.S.C. § 40120.

3 The pilots here alleged in their complaint that NV Jets retaliated against

them for complaints about violations of specific federal regulations, including

those governing minimum equipment list specifications, liferaft requirements, and

flight time limitations. Because their wrongful termination claims rest on a

violation of the aviation safety standards set by federal law and do not seek to

impose a state-law standard, federal law does not preempt their claims. See

Ventress, 747 F.3d at 722–23 & n.7; Gilstrap, 709 F.3d at 1006.

2. We reverse the district court’s order to the extent it held that federal law

does not preempt the pilots’ state-law claims with respect to meal and rest breaks.

Federal regulations applicable to NV Jets’s operations provide detailed standards

governing the duration of pilots’ rest breaks between duty periods. See 14 C.F.R.

§ 135.267. Those standards preempt the pilots’ claims that they were entitled

under state law to breaks of different frequency and duration.

3. We vacate the district court’s order to the extent it declined to exercise

supplemental jurisdiction over the pilots’ state-law claims. Vacating the order will

allow the district court to determine in the first instance whether dismissal under 28

U.S.C. § 1367(c) is appropriate, considering the state-law claims that remain after

our decision in this appeal. In making that determination, the district court may

assess whether a remand to state court, rather than dismissal without prejudice,

4 “may best promote the values of economy, convenience, fairness, and comity,”

particularly if a statute of limitations would bar refiling of claims initially timely

filed in state court. Carnigie-Mellon Univ. v. Cohill, 484 U.S. 343, 351–53 (1988).

The pilots have suggested to us that their claims may be time-barred in state court

if dismissed by the federal court; we have some doubt about whether this is true, in

light of the tolling provision of 28 U.S.C. § 1367(d). See Artis v. District of

Columbia, 138 S. Ct. 594, 598 (2018); cf. Kim v. Dickinson Wright, PLLC, 442

P.3d 1070, 1075 (Nev. 2019) (en banc). However, we leave that question to be

decided by the district court. We leave the proper disposition of the pilots’

remaining state-law claims to the sound discretion of the district court.

Each party shall bear its own costs on appeal.

REVERSED in part, VACATED in part, and REMANDED.

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