Supreme Court of the United States

Transcription

1 No IN THE Supreme Court of the United States AVCO CORPORATION, v. Petitioner JILL SIKKELEE, Respondent On a Petition for Writ of Certiorari to the United States Court of Appeals for the Third Circuit BRIEF AMICUS CURIAE OF ATLANTIC LEGAL FOUNDATION AND NEW ENGLAND LEGAL FOUNDATION IN SUPPORT OF PETITIONERS Of Counsel: MARTIN J. NEWHOUSE New England Legal Foundation 150 Lincoln Street Boston, MA (617) MARTIN S. KAUFMAN Counsel of Record Atlantic Legal Foundation 2039 Palmer Avenue Larchmont, NY (914) mskaufman@atlanticlegal.org Counsel for Amici Curiae October 2016

2 i QUESTION PRESENTED Whether the Federal Aviation Act preempts the application of state-law standards of care in the entire field of aviation safety.

3 ii CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 29.6 of the Rules of this Court, amicus curiae Atlantic Legal Foundation states that it is a 26 U.S.C. 501 (c) (3) nonprofit, nonpartisan, public interest law firm incorporated as a Pennsylvania not for profit corporation. It has no shareholders, subsidiaries or parent corporation. It does not issue stock or other securities. The New England Legal Foundation is a 26 U.S.C. 501 (c) (3) nonprofit, nonpartisan, public interest law firm, incorporated in Massachusetts in 1977 and headquartered in Boston. NELF does not issue stock or any other form of securities and does not have any publicly owned parent, subsidiary, or affiliated companies. NELF is governed by a self-perpetuating Board of Directors, the members of which serve solely in their personal capacities.

4 iii TABLE OF CONTENTS Page QUESTION PRESENTED CORPORATE DISCLOSURE STATEMENT.. TABLE OF AUTHORITIES INTEREST OF AMICUS CURIAE PRELIMINARY STATEMENT BACKGROUND SUMMARY OF ARGUMENT ARGUMENT I. The court of appeals decision conflicts with the decisions of other courts of appeals II. The Third Circuit s decision is erroneous.. III. The question presented is exceptionally important and warrants the Court s review CONCLUSION i ii iv

5 CASES: iv TABLE OF AUTHORITIES Page(s) Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999) passim Air Transport Ass n of America, Inc. v. Cuomo, 520 F.3d 218 (2d Cir. 2008) Air Line Pilots Ass n International v. Quesada, 276 F.2d 892 (2d Cir. 1960) Air Transport Ass n of America, Inc. v. Cuomo, 520 F.3d 218 (2d Cir. 2008) Altria Group v. Good, 555 U.S. 70 (2008) Arizona v. United States, 132 S. Ct (2012).7 Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir. 1988) Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103 (1948) Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973) Cleveland v. Piper Aircraft Corp., 985 F.2d 1438 (10th Cir. 1993) Elassaad v. Independence Air, Inc., 613 F.3d 119 (3d Cir. 2010) passim English v. General Elec. Co., 496 U.S. 72 (1990) Freightliner Corp. v. Myrick, 514 U. S. 280 (1995)

6 v TABLE OF AUTHORITIES (cont d) CASES (CONT D): Page(s) French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989) Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88 (1992) Geier v. American Honda Motor Co., 529 U.S. 861 (2000) Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Commission, 634 F.3d 206 (2d Cir. 2011) Greene v. B.F. Goodrich Avionics Systems, Inc., 409 F.3d 784 (6th Cir. 2005) Hagen v. Utah, 510 U.S. 399 (1994) Jones v. Rath Packing Co., 430 U. S. 519 (1977) Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir. 1974) Kurns v. Railroad Friction Products Corp., 132 S. Ct (2012) Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806 (9th Cir. 2009) Medtronic, Inc. v. Lohr, 518 U. S. 470 (1996).... Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007) Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292 (1944) Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)

7 vi TABLE OF AUTHORITIES (cont d) CASES (CONT D): Page(s) Retail Clerks v. Schermerhorn, 375 U. S. 96 (1963) Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) Riegel v. Medtronic, 552 U.S. 312 (2008) Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988) Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1993) Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) United States v. Christensen, 419 F.2d 1401 (9th Cir. 1969) United States v. Locke, 529 U.S. 89 (2000) United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984) US Airways, Inc. v. O Donnell, 627 F.3d 1318 (10th Cir. 2010) Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th Cir. 2004) Wyeth v. Levine, 555 U.S. 555 (2009)

8 vii TABLE OF AUTHORITIES (cont d) CONSTITUTION: Page(s) U.S. Const. Art. I, 8, cl U.S. Const. Art. VI, cl TREATIES, STATUTES AND LEGISLATIVE HISTORY: Air Commerce Act of 1926, 44 Stat. 568 (1926)... Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S Federal Aviation Act of 1958, Pub. L. No , 72 Stat passim 101(3) (a)(1)-(3) (a)(4)-(5) International Civil Aviation Organization, Multilateral Air Law Treaties, available at secretariat/ legal/lists/ Current%20lists%20of%20parties/ AllItems.aspx Ports and Waterways Safety Act of 1972, 33 U.S. Code 1221, et seq H. R. Rep. No (1958) S. Rep. No (1958)

9 viii TABLE OF AUTHORITIES (cont d) REGULATIONS: Page(s) 14 C.F.R C.F.R. part OTHER: T. J. McLaughlin, M.P. Gaston & J.D. Hager, Navigating the Nation s Waterways and Airways: Maritime Lessons for Federal Preemption of Airworthiness Standards, 23 AIR & SPACE LAWYER, no. 2, (2010).... U.S. Department of State, Bureau of Economic and Business Affairs, Open Skies Partners, available at organization/ pdf

10 1 INTEREST OF AMICI CURIAE 1 Atlantic Legal Foundation is a non-profit public interest law firm founded in 1976 whose mandate is to advocate and protect the principles of less intrusive and more accountable government, a market-based economic system, and individual rights. It seeks to advance this goal through litigation and other public advocacy and through education. Atlantic Legal Foundation s board of directors and legal advisory council consist of legal scholars, corporate legal officers, private practitioners, business executives, and prominent scientists. Atlantic Legal s directors and advisors are familiar with the federal, state and local regulation; Atlantic Legal Foundation s directors and advisers have decades of experience with attempting to reconcile sometimes inconsistent legislation or regulations promulgated by levels of government. The Foundation regularly appears as amicus curiae in this Court and inferior federal 1 Pursuant to Rule 37.2(a), amici have given notice of intent to file this brief to all parties more than 10 days before this brief was filed. All parties have consented to the filing of this brief and the consents have been lodged with the Clerk. Pursuant to Rule 37.6, amici affirm that no counsel for any party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae nor their counsel made a monetary contribution to the preparation or submission of this brief.

11 2 and state courts in cases involving issues of economic and regulatory significance to the business community. New England Legal Foundation is a nonprofit, public-interest law firm. NELF s membership consists of corporations, law firms, individuals, and others who believe in NELF s mission of promoting balanced economic growth for the United States and the New England region, protecting the free enterprise system, and defending economic rights. NELF s members and supporters include a cross-section of large and small corporations and companies in New England and elsewhere in the United States. NELF has regularly appeared as amicus curiae in state and federal courts, including the United States Supreme Court, in cases raising issues of general economic and regulatory significance to both the national and the New England business communities. This case is of interest to amici because of the importance to the business community of balanced and uniform regulations that provide clear standards and responsibilities. Amici are concerned that inconsistent or contradictory state standards of care, exposing businesses to multiple and sometimes inconsistent standards, would be counterproductive and can have a deleterious impact on the ability of those businesses to function rationally, efficiently, and in the best interest of the public, especially when a

12 3 comprehensive scheme of federal aviation safety regulations already exists. Federal preemption of state law with regard to aviation safety serves the public interest by maintaining a clear and rational regulatory regime for the aviation industry. STATEMENT In July 2005, David Sikkelee died when the Cessna 172N aircraft he was piloting crashed. The Cessna s engine had been manufactured by a division of AVCO in In 1966, the FAA had issued a type certificate for AVCO s model O-320-D2C engine, i.e., a certificate that the engine design satisfied the requirements of all 2 applicable federal regulations. The O-320 engine incorporated a model MA-4SPA carburetor manufactured by Marvel-Schebler, a company not affiliated with AVCO. The carburetor was a component of the design for which FAA issued the type certificate. App. 71a-72a. The actual engine in question was not installed in the Cessna until many years after it had been manufactured by AVCO pursuant to the FAA issued type-certified design and sold by AVCO. In 2 The type certification process is a design approval process overseen by the FAA and is a prerequisite to manufacturing any aircraft, aircraft engine, or propeller.

13 4 2004, the Cessna's engine had been overhauled 3 and a new carburetor was installed. In 2007, Mr. Sikkelee s widow ( Sikkelee or respondent ) filed suit in the Middle District of Pennsylvania against 17 defendants, including petitioner, as well as Precision Airmotive LLC, and Kelly Aerospace Power Systems, Inc. Sikkelee claimed that the crash resulted from alleged manufacturing and design defects in the Cessna's engine specifically, a malfunction or defect in the engine's carburetor. Sikkelee, No at *7. Sikkelee second amended complaint asserted negligence and strict-liability claims under Pennsylvania law based on allegations that a replacement carburetor installed on an engine made by AVCO Corp. ( AVCO ) violated applicable federal standards of care and was defective at the time of the accident, and that AVCO failed to report information about the defect to the Federal Aviation Administration (FAA). AVCO moved for summary judgment in the district court, arguing that the FAA s issuance of a type certificate for the engine, established compliance with the federal standards of care and that Sikkelee s claims which alleged violations of 3 The carburetor was a replacement carburetor not manufactured by AVCO or any affiliate, and rebuilt or overhauled by Kelly Aerospace, Inc., and Kelly Aerospace Power Systems, Inc. using parts not manufactured or licensed by AVCO. See Petition at 8.

14 5 state-law standards of care were preempted by the Federal Aviation Act ( Act ). The district court, relying on Abdullah v. American Airlines, Inc., 181 F.3d 363 (1999) granted AVCO s motion as to the claims alleging defective design of the carburetor, but denied it as to the claim alleging that AVCO failed to report a known design defect to the FAA in violation of 14 C.F.R The court found the type certificate issued to the manufacturer by the FAA established the federal standard of care, and the issuance of a type certificate for the engine meant that the federal standard of care had been satisfied as a matter of law. See Sikkelee v. Precision Airmotive Corp. et al., No , 2016 U.S. App. LEXIS 7015 (3d Cir. Apr. 19, 2016) (hereafter Sikkelee, No ) at *11. The court denied summary judgment on the failure to warn claim. Id. The Third Circuit agreed to interlocutory review, noting the decision raised novel and complex questions concerning the reach of Abdullah and the scope of preemption in the airlines industry. Id. at *12. The Third Circuit Decision A panel of the Third Circuit reversed, severely limiting the scope of Abdullah. Cdentral to the panel s reasoning was its distinction between claims based on in-air operations and those based on design defects, stating that preemption does not extend to product liability claims. The panel concluded that Congress did not express a clear

15 6 and manifest intent to preempt aircraft products liability claims in a categorical way. Sikkelee, No at *2. Thus, neither the [Act] nor the issuance of a type certificate per se preempts all aircraft design and manufacturing claims. Id. at *2-*3. Rather, the court held that state law applied to product claims, subject to traditional principles of conflict preemption to resolve any conflicts between the pertinent type certificate specifications and state law standards of care. Id. at *3. In Abdullah, the Third Circuit addressed the allegation that, although the airline followed federal in-flight seatbelt regulations, it failed to adequately warn passengers of the need to fasten seatbelts in the face of impending turbulence. Abdullah held that federal aviation regulations occupied the field of air safety and thus preempted any state-created duties of care because the FAA, through the broad authority granted to it by the Act, has implemented a comprehensive system of rules and regulations, which promotes flight safety by regulating pilot certification, pilot pre-flight duties, pilot flight responsibilities, and flight rules, and these regulations must remain uniform. Abdullah, 181 F.3d at 369 (footnotes omitted). The Abdullah court found that federal preemption in the field of air safety was supported by decisions by this Court and other circuits, that had found federal preemption with regard to discrete matters of in-flight operations, including aircraft noise pilot regulation and control of

16 7 flights through navigable airspace. See Sikkelee, No at *16-*17. The Sikkelee court read Abdullah very narrowly. It noted that, although Abdullah described the preempted field as air safety, it really included only in-air operations. Sikkelee, No at *17. The panel stated that Abdullah discussed a catch-all standard of care in FAA regulations for in-air operations (a category not applicable to design and manufacturing), and that Abdullah relied on regulations and other opinions relating only to in-air operations. The court also noted that, in its view, the Third Circuit limited Abdullah in Elassaad v. Indep. Air, Inc., 613 F.3d 119, 121 (3d Cir. 2010), where the court declined to apply Abdullah to the disembarkation of passengers after an airplane came to a complete stop at its destination; this, the Sikkelee panel said made it clear that the field of aviation safety described in Abdullah was limited to in-air operations. Sikkelee, No , *18 (citing Elassaad, 613 F.3d at ). The Sikkelee court observed that, because state law has consistently been applied to product liability claims, the presumption against preemption applies to aviation product liability cases. Sikkelee, No at *23-*24. The panel then analyzed whether Congress expressed a clear and manifest intent to preempt aviation products liability claims. Id. at *24. The Third Circuit found insufficient support for preemption of the entire field of aviation design

17 8 and manufacture. Sikkelee, No at *44. It looked at three indicia of congressional intent: the Act, FAA regulations, and the General Aviation Revitalization Act of 1994 ("GARA"). The panel decided that the Act is ambiguous with regard to preemption, id. at *27, the FAA s regulations provide no evidence of congressional intent to preempt state law products liability claims. Id. at *28, and that GARA's legislative history states explicitly what is implied by the statutory text: Aviation products liability claims are governed by state law. Sikkelee, No at *40 (citing H.R. Rep. No , pt. 2, at 3-7 (1994)). The court seems to have been greatly influenced by its reluctance to interpret[] the Federal Aviation Act in a way that would, in its view, grant immunity from design defect liability in aviation. Sikkelee, No at *35. The court stated it would be a perverse result if issuance of a type certificate would wholly exempt manufacturers and designers from what it termed the bulk of liability for both individual and large-scale air catastrophes. Id. (internal quotation marks and citations omitted). The court did not determine whether plaintiff's allegations in Sikkelee were conflict preempted, rather opting to leave this question for the district court on remand. 4 4 The Sikkelee court held that type certification does not itself establish or satisfy the relevant standard of care for tort actions, nor does it evince congressional intent to

18 9 Sikkelee is anomalous because the court sought the FAA s guidance, then largely disregarded it. The court requested the FAA file a brief addressing the scope of field preemption, the existence and source of any federal standard of care for design defect claims, and the role of the type certificate in determining whether the relevant standard of care has been met. Sikkelee, No at *29 n. 9. The FAA, responding to the court s request, stated quite directly, [t]he field preempted by the Federal Aviation Act [] extends broadly to all aspects of aviation safety and includes products liability claims based on allegedly defective aircraft and aircraft parts by preempting state standards of care. See FAA Letter brief of Sept. 21, 2015 to Marcia M. Waldron, Clerk of Court for the United States Court of Appeals for the Third Circuit, at *7. The preempt the field of products liability; rather, because the type certification process results in the FAA's preapproval of particular specifications from which a manufacturer may not normally deviate without violating federal law, the type certificate bears on ordinary conflict principles. Sikkelee, No at *54. Conflict analysis raises the issue whether the alternative design suggested by a plaintiff would necessitate a defendant seeking FAA approval of the new design; if so, the claim is preempted, because even if an alternative design aspect would improve safety, the mere possibility that the FAA would approve a hypothetical application for an alteration does not make it possible to comply with both federal and state requirements. Sikkelee, No at *57 (internal citation omitted).

19 10 FAA explained: The Act requires the Department o f T r a n s p o r ta tio n, th r o u g h t h e F A A Administrator, to impose uniform national standards for every facet of aviation safety, including the design of aircraft and aircraft parts, FAA Letter brief at *2, thus impliedly preempting any state-created standard of care in the field of aircraft design and manufacturing. The Sikkelee court dismissed these unequivocal statements by the FAA, saying that it recognized the while FAA is well equipped to understand the technical and complex nature of the subject matter over which they regulate, the FAA's arguments were entitled to respect only to the extent [they] ha[ve] the power to persuade. Sikkelee, No at *29-*30. The court considered a letter brief filed by the FAA, but disregarded the FAA s conclusion that the Act and FAA regulations were intended to create federal standards of care for manufacturing and design defect claims. Sikkelee, No at *34. The court, did give some credence to the FAA s opinion with regard to type certificates. The FAA stated, [b]ecause the type certificate embodies the FAA s determination that an aircraft, aircraft engine, or propeller design complies with federal standards, any conflicts between state standards of care and a type certificate should be resolved through ordinary conflict preemption principles. FAA Letter Brief at *2. The FAA argued that if the FAA has expressly approved the specific design aspect that

20 11 a plaintiff challenges, any claim that the design should have been different would conflict with the FAA s application of the federal standard and [would] be preempted. FAA Letter Brief at *3. In such cases, the type certificate establishes the applicable standard of care because the FAA has already applied the relevant federal standard during the type certification process, and the manufacturer is bound to manufacture its aircraft or aircraft part in compliance with the type certificate. Id. at *10-*11. The court considered the FAA s type certification process but concluded the process cannot as a categorical matter displace the need for compliance in this context with state standards of care. Id. at *36. SUMMARY OF ARGUMENT Review is warranted because the split among circuits on whether arbitration the Federal Aviation Act and implementing regulations preempt state law standards of care is clear. Review is also warranted because the decision below was incorrect. It ignores this Court s teaching that Congress intented to regulate aviation safety pervasively. Permitting the application disparate state standards would be inimical to that clear Congressional purpose.

21 12 ARGUMENT I. THE COURT OF APPEALS DECISION CONFLICTS WITH DECISIONS OF OTHER COURTS OF APPEALS The Third Circuit s holding that the FAA does not preempt the entire field of aviation safety deepens an existing circuit conflict. The Second and Tenth Circuits have held that the Act 5 preempts the entire field of aviation safety while the Ninth and Eleventh Circuits have held to the contrary. The Court should grant review to resolve this conflict and provide definitive guidance concerning the preemptive scope of the Act. A. Circuits Holding the Act Preempts State Law The Second and Tenth Circuits have expressly held that the Federal Aviation Act preempts state regulation in the entire field of aviation safety and the First and Fifth Circuits have implicitly so stated. In Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Commission, 634 F.3d 206 (2011), the Second Circuit held that the Act preempts the entire field of aviation safety, in a case involving a dispute over the application of state environmental laws to the removal of trees adjacent to an airport. Id. at In considering whether the state laws were 5 As did the Third Circuit itself in Abdullah.

22 13 preempted, the Second Circuit noted its statement in Air Transport Ass n of America, Inc. v. Cuomo, 520 F.3d 218, 225 (2008) (per curiam) that Congress intended to occupy the entire field of air safety and thereby preempt state regulation of that field. Id. at 210). The court adopted its dicta in Air Transport Ass n as the holding in Goodspeed Airport, that the Act preempts the entire field. Id. at 210 & n.5 (citing, inter alia, US Airways, 627 F.3d at 1326, and Abdullah, 181 F.3d at ). The court ultimately determined that the state laws at issue, which were environmental laws that do not refer to aviation or airports, did not implicate the preempted field. Id. at The Tenth Circuit, in US Airways, Inc. v. O Donnell, 627 F.3d 1318 (2010), held that the Act occupies the entire field of aviation safety, overruling its own prior holding in Cleveland v. Piper Aircraft Corp., 985 F.2d 1438 (1993). US Airways, involved a state s enforcement of its state liquor law against an airline because a passenger who became intoxicated on a flight later caused a car accident. The airline argued that the Act occup[ied] the field of aviation safety to the exclusion of state regulation and thus preempted the New Mexico law. Id. at In US Airways, the Tenth Circuit held that the Act preempts the entire field of aviation safety. See 627 F.3d at The court began by explaining that the presumption against preemption did not apply because the field of aviation safety has long been dominated by federal

23 14 interests. Id. at 1325 (internal quotation marks omitted). On the merits of the preemption question, the court observed that the Act was enacted to create a uniform and exclusive system of federal regulation in the field of air safety. Id. at 1326 (quoting City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 639 (1973)). The court cited both the language of the Act, which explicitly directs the [FAA] to promulgate regulations for the safe flight of civil aircraft in air commerce, id. (quoting 49 U.S.C (a)), and the its legislative history, which emphasized the need to have one agency of government, and one agency alone, be responsible for issuing safety regulations, id. (quoting H.R. Rep. No. 2360, 85th Cong., 2d Sess. 22 (1958)). The Tenth Circuit cited Abdullah. See 627 F.3d at The Tenth Circuit, in Cleveland had held that a manufacturer's obtainment of FAA certification does not preempt state product liability claims because certification is, by its very nature, a minimum check on safety. 985 F.2d 1438, (10th Cir. 1993). The Cleveland court also found no implied preemption of state product liability claims, because there is no irreconcilable conflict between the FAA regulations and state common law standards. Id. at In its Cleveland decision the Tenth Circuit had rejected a manufacturer s argument that the Act preempts state-law standards of care as applied to aviation design-defect claims, holding that the Act did not (continued...)

24 15 In Witty v. Delta Air Lines, Inc., 366 F.3d 380 (2004), the Fifth Circuit determined that a failure-to-warn claim regarding the risk of developing deep-vein thrombosis was field- and conflict-preempted under the Act. Id. at 385. The court observed that Congress had directed the FAA to promulgate air safety standards and regulations, including standards and regulations relating to aircraft design, and that, [p]ursuant to its congressional charge to regulate air safety, the [FAA] has issued a broad array of safety-related regulations, including airworthiness standards. Id. at 384. Because Congress enacted a pervasive regulatory scheme covering air safety concerns that includes (...continued) 6 demonstrate Congress s clear and manifest intent to occupy the field of airplane safety. Id. at 1444 (internal quotation marks omitted). In so holding, the Tenth Circuit heavily relied on Congress enactment of an express preemption clause forbidding state regulation of air rates and routes in the Airline Deregulation Act of 1978, and concluded that Congress did not intend to preempt the entire field of aviation safety. 985 F.2d at After Cleveland was decided, however, this Court clarified that an express pre-emption provision imposes no unusual, special burden against pre-emption. Geier v. American Honda Motor Co., 529 U.S. 861, 873 (2000) (internal quotation marks omitted). In US Airways, the Tenth Circuit recognized that in Geier the Court had rejected [the] reasoning motivating its earlier Cleveland decision, and it thus considered the the preemptive scope of the Act with no deference to Cleveland. See 627 F.3d at 1326.

25 16 regulation of the warnings and instructions that must be given [to] airline passengers, the Fifth Circuit determined that the plaintiff s claim was preempted, although it did not explicitly delimit the scope of the preempted field. Id. at 385. In the First, Fourth, and Seventh Circuits, no decisions have discussed aviation product liability preemption specifically. However, these courts have concluded that some preemption exists in the not-fully-defined field of aviation safety. See French v. Pan Am Express, Inc., 869 F.2d 1, 4 (1st Cir. 1989) (in a case involving a pilot s claim that his employer could not test him for drug use because of a state law bannin g such testing, the First Circuit upheld the employer s preemption argument, finding that Congress intended to occupy the field of pilot regulation related to air safety ). In Smith v. Comair, 134 F.3d 254, (4th Cir. 1998) the court held that claims based on an air carrier s boarding procedures were preempted by federal law, but state claims of false imprisonment and intentional infliction of emotional distress were not preempted because those claims were based on conduct distinct from [the carrier s] determination not to grant permission to board ). In Bennett v. Southwest Airlines Co., 484 F.3d 907 (7th Cir. 2007) the court found that some standards of care in state law aviation negligence claims are furnished by federal regulations.

26 17 B. Circuits Holding the Act Does Not Preempt State Law The Third Circuit in Sikkelee joined the Ninth and Eleventh Circuits in holding that the Federal Aviation Act does not preempt the entire field of aviation safety. Of the circuits that have decided cases involving preemption in the aviation product liability context, only the Ninth and Eleventh Circuits had directly found that FAA regulations do not preempt the field. The Eleventh Circuit has expressly rejected the preemption of state-law standards of care in a case in which plaintiff pilot who alleged that the defective design of a helicopter seat aggravated injuries he sustained in a crash. Public Health Trust of Dade County v. Lake Aircraft, Inc., 992 F.2d 291 (11th Cir. 1993). See id. at 292. The Eleventh Circuit held that the Act does not preempt design-defect claims. Id. at 295. The court rejected defendant s argument that the Act preempted the state-law claims, because product liability claims fall outside the scope of the Airline Deregulation Act s express preemption clause, 7 such claims are not preempted under federal law. 7 See 49 U.S.C The Eleventh Circuit's opinion is based largely on Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), where the Supreme Court held that, in the face of an express preemption clause, there can be no implied preemption. See 49 U.S.C (b), formerly 49 U.S.C. 1305(a) ( ADA ) (preempting state laws relating to rates, routes, or services of an air carrier). However, the (continued...)

27 18 The Ninth Circuit, in Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806 (2009), held that the Act does not preempt state-law standards of care with respect to the design-defect claim relating to the airplane s stairs. Id. at 812. In Martin, a pregnant woman slipped and fell down the stairs while exiting the airplane, causing injury to her and the fetus. The manufacturer relied on an earlier Ninth Circuit decision, Montalvo v. Spirit Airlines, 508 F.3d 464, 471 (2007), that had held that the entire field of aviation safety is preempted. Id. at 809. In Martin the Ninth Circuit held that whether the Act preempts state-law regulation of aviation safety depends on the pervasiveness of the specific regulations promulgated by the FAA. See id. at 811. Because the FAA had not promulgated pervasive regulations concerning the aircraft stairs at issue in that case, the court concluded that the state-law standard of care remained applicable. See id. at (...continued) 7 Supreme Court has since clarified that Cipollone does not establish an iron-clad rule against finding implied preemption under a statute containing an express preemption clause. See Geier v. Am. Honda Motor Co., 529 U.S. 861, (2000). Nonetheless, courts in the Eleventh Circuit continue to apply Public Health s broad holding. See, e.g., Lucia v. Teledyne Continental Motors, 173 F. Supp. 2d 1253, (S.D. Ala. 2001) (finding no federal preemption of state law product liability claims against airline engine manufacturer).

28 19 Arguably, the Ninth Circuit has left the door open to finding preemption through the use of the pervasive regulations standard. See Martin, 555 F.3d at 811; Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007); see also Gilstrap v. United Air Lines, Inc., 709 F.3d 995 (9th Cir. 2013). If an area is pervasively regulated, FAA regulations preempt the state law claim. Gilstrap, 709 F.3d at (if a claim is preempted, the second step is to determine whether there are any applicable state standards of care that are also preempted). The Ninth Circuit has stated this standard should not be read expansively to conclude that the [Act] preempts all state law personal injury claims. Martin, 555 F.3d at 810. While they reach the same conclusion that the Act does not preempt the entire field of aviation safety, the Third, Ninth, and Eleventh Circuits have adopted different approaches to evaluating the Act s preemptive scope. In Sikkelee, the Third Circuit took the narrowest, most literal view of what is meant by in-air operations, leading it to ignore the realities of aircraft operations and safety justify its departure from its earlier decision in Abdullah. II. THE DECISION BELOW IS INCORRECT. The Third Circuit s decision in Sikkelee was substantively incorrect. The court of appeals erred iny holding that the Act does not preempt the application of state-law standards of care in the entire field of aviation safety. The court s

29 20 distinction between in-air operations and other aspects of aviation safety is arbitrary, has no basis in reality, and has no basis in the Act and the applicable FAA regulations. Preemption may be found if the scope of the statute indicates that Congress intended federal law to occupy the legislative field ( field preemption ), or if there is an actual conflict between state and federal law ( conflict preemption ). Altria Group v. Good, 555 U.S. at 76-77; Freightliner Corp. v. Myrick, 514 U. S. 280, 287 (1995); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984); Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). Field preemption arises when Congress occupies an entire field of a substantive area of law, thus precluding any type of state interference in that field. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); Abdullah, 181 F.3d at 367. States are precluded from regulating conduct in a field that Congress has determined must be regulated by it exclusively, and intent to preclude can be inferred from a framework of regulation so pervasive... that Congress left no room for the States to supplement it or where a federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Rice v. Santa Fe Elevator

30 21 Corp., 331 U.S. 218, 230 (1947); English, 496 U.S. at This appeal involves field preemption, which occurs when Congress has indicated an intent to occupy a given field to the exclusion of state law. Schneidewind, 485 U.S. at 300. Such an intent may be inferred where the pervasiveness of the federal regulation precludes supplementation by the States [or] where the federal interest in the field is sufficiently dominant. Id. The purpose of Congress is the ultimate touchstone of pre-emption analysis. Riegel v. Medtronic, 552 U.S. 312, 334 (2008), quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). The purpose of Congress is the ultimate touchstone in every pre-emption case. Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) (quoting Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963)). Congress may indicate pre-emptive intent through a statute s express language or through the statute s structure and purpose. See Jones v. Rath Packing Co., 430 U. S. at 525 (1977). 9 8 The three categories of preemption are not rigidly distinct, and indeed, field preemption may be understood as a species of conflict preemption. English, 496 U.S. at 79 n. 5; accord Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 104 n. 2, (1992). 9 Conflict preemption, occurs when there is an irreconcilable conflict between federal and state standards or when the imposition of a state standard in would frustrate the objectives of the federal law. Silkwood, 464 (continued...)

31 22 State standards as to aircrafyt design and manufacture are preempted because the Act creates a comprehensive scheme governing aviation safety and leaves no room for supplementation by state-law standards of care. Permitting states to impose their own standards of care governing aircraft design, as the Third Circuit did here, would give rise to the very disuniformity the Act was intended to prevent and threatens to undermine aviation safety. The Court should grant review to rectify this dangerous error. The purpose of passing the Act was to create a system of unified rules to promote safety and efficiency. City of Burbank v. Lockheed, 411 U.S. 624 (1973) and the Act requires a uniform and exclusive system of federal regulation if the congressional objectives underlying [it] are to be fulfilled. Id. at 639. The federal interest in aviation safety derives from the uniquely national (and indeed international) nature of aviation. By its nature, aviation requires a unique degree of national coordination. As Justice Jackson observed air is an element in which to navigate is even more inevitably federalized by the commerce clause than is navigable water. Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303 (1944) (Jackson, J., (...continued) 9 U.S. 238, 256; Abdullah, 181 F.3d at 366. The Sikkelee court did not rule on conflict preemption, remanding that issue to the trial court.

32 23 concurring) He recognized that federal control over aviation is intensive and exclusive because planes move only by federal permission...under an intricate system of federal commands. Id. The Supreme Court has recognized that the federal interest in aviation requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled. City of Burbank, 411 U.S. at 639. Exclusive federal control is also required to comply with the numerous international treaties with respect to aviation to which the United States 10 is a party. The United States obligation to 10 The Convention on International Civil Aviation specifies conditions under which the aircraft of one signatory nation can enter the airspace of another. See Convention on International Civil Aviation, art. 33, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S The Act authorizes the FAA to accept foreign airworthiness certifications if the certifying nation is in compliance with its obligations under international law for the safety oversight of civil aviation. 49 U.S.C (e)(1), (3). The International Civil Aviation Organization lists over 50 multilateral conventions and protocols applicable to civil aviation; the United States is a signatory to the vast majority. See International Civil Aviation Organization, Multilateral Air L a w T r e a t i e s a v a i l a b l e a t h t t p : / / w w w. i c a o. i n t / s e c r e t a r i a t / l e g a l / Lists/Current%20lists%20of%20parties/AllItems.aspx (last visited Oct. 10, 2016) In addition, the United States is a party to more than 70 bilateral Open Skies Agreements (as at January 12, 2015), see U.S. Department of State, Bureau (continued...)

33 24 implement international aviation agreements and the FAA s authority to do so explain why Congress demanded national uniformity regarding [air] commerce. United States v. Locke, 529 U.S. 89, 103 (2000). Congress recognized the uniquely national nature of aviation because the federal government bears virtually complete responsibility for the promotion and supervision of this industry in the public interest. S. Rep. No , at 5 (1958) (emphasis added) and also recognized the indivisible nature of aviation safety regulation, and centralized authority in the FAA to issue national, uniform regulations. H. R. Rep. No , at 1-2, 7, 22, 27 (1958); S. Rep. No , at 1. Numerous provisions of the Act confirm that Congress intended the FAA s regulation of aviation safety to be complete. Section 601 requires the FAA to regulate what occurs during flight, see, e.g., Act 601(a)(4)-(5); qualification of pilots, id. 602; air carriers, id ; air navigation facilities, id. 606; flight schools, id Of special note, the very first category of aviation safety regulation under the purview of the FAA is (...continued) 10 of Economic and Business Affairs, Open Skies Partners, a v a i l a b l e a t h t t p : / / w w w. s t a t e. g o v / documents/organization/ pdf (last visited Mar. 16, 2015); these bilateral agreements give the signatory nations reciprocal rights for their airlines to use the airspace and airports of the other signatory.

34 25 aircraft design, manufacture, inspection, and maintenance, id. 601(a)(1)-(3). Consistent with Congressional intent, the FAA has pervasively regulated the entire field of aviation safety. The federal regulations address [] virtually all areas of air safety. Air Transport Ass n of America, Inc. v. Cuomo, 520 F.3d 218, 224 (2d Cir. 2008) (per curiam), particularly with respect to the design and manufacture of aircraft; United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 805 (1984). The Act provides that the FAA shall issue minimum standards required in the interest of safety * * * for the design, material, construction, quality of work, and performance of aircraft, aircraft engines U.S.C (a)(1) (emphases added). The FAA has issued implementing regulations that prescrib[e] the general design and construction requirements for reciprocating and turbine aircraft engines. 14 C.F.R (emphasis added). FAA s regulations regarding the design, m anufacture and maintenance of the aircraft components at issue in this case are detailed, thorough, and pervasive. The Sikkelee court s narrow reading of Abdullah is mistaken. It contends that the holding of Abdullah does not apply to the design or manufacture of aircraft or aircraft components, and cites Elassaad in support. To the contrary, Elasaad recognized that the design and manufacture of aircraft are part of the preempted

35 26 field when it specifically included the regulations in 14 C.F.R. part 23 (prescribing safety standards for aircraft with 19 or fewer seats, which includes the airplane which David Sikkelee was flying) within the preempted field. 613 F.3d at 128, n The Third Circuit s reading of Abdullah and its extremely narrow concept of the preempted field of air safety leads to the anomalous conclusion that regulations governing in-flight food or beverage service are more pertinent to flight safety than regulations prescribing standards for aircraft design, construction and maintenance because design, construction and maintenance do not occur, literally, while the airplane is in flight. The Third Circuit in Elassaad noted that regulations detail[ing] certification and airworthiness requirements for aircraft parts the category of regulations at issue here were among the regulations... concern[ing] aspects of safety that are associated with flight and thus within the preempted field. Elassaad, 613 F.3d at See Abdullah, 181 F.3d 363 at 367 [W]e hold that federal law establishes the applicable standards of care in the field of air safety, generally, thus preempting the entire field from state and territorial regulation. (emphasis added, citations omitted) and Elassaad, 613 F. 3d at 125 ( We held that there was implied preemption of the entire field of aviation safety.... )(citation omitted, emphasis added) and 613 F.3d at 126.

36 27 As far as we can tell, no other federal court has limited the preemptive power of the Act and the FAA regulations to in-air operations. The Sikkelee decision is anomalous because the court sought the FAA s guidance, then largely disregarded it. The court asked the FAA to file a brief addressing the scope of field preemption, the existence and source of any federal standard of care for design defect claims, and the role of the type certificate in determining whether the relevant standard of care has been met. Sikkelee, at n. 9. The FAA, responding to the court s request, stated quite directly, [t]he field preempted by the Federal Aviation Act [] extends broadly to all aspects of aviation safety and includes products liability claims based on allegedly defective aircraft and aircraft parts by preempting state standards of care. See FAA Letter to Marcia M. Waldron, Clerk of Court for the United States Court of Appeals for the Third Circuit, at *7, (Sept. 21, 2015). The FAA explained: The Act requires the Department of Transportation, through the FAA Administrator, to impose uniform national standards for every facet of aviation safety, including the design of aircraft and aircraft parts, FAA Letter brief at *2. [U]niform national standards for every facet of aviation safety impliedly preempt any state-created standard of care in the field of aircraft design and manufacturing. The Sikkelee court dismissed these unequivocal statements by the FAA, saying that it recognized the while FAA is well equipped to

37 28 understand the technical and complex nature of the subject matter over which they regulate, the FAA's arguments were entitled to respect only to the extent [they] ha[ve] the power to persuade. Sikkelee, No at *29-*30. The Third Circuit s decision was mistaken on the merits of an important question that affects air safety and interstate and international commerce and must be rectified. III. THE QUESTION PRESENTED IS IM P O R T A N T A N D W A R R A N T S REVIEW. The question whether the Federal Aviation Act preempts the entire field of aviation safety is indisputably important. State regulation of aircraft design, manufacturing or maintenance, whether through regulation by 50 states or through tort litigation threatens to encourage forum shopping, frequent litigation, and will frustrate the very uniformity that ensures aviation safety. The circuit split on that question is fully developed and ripe for resolution by this Court. The split is unlikely to resolve itself and this Court should intervene now to resolve it.

38 29 CONCLUSION This Court should grant the Petition. Respectfully submitted, Martin S. Kaufman Counsel of Record Atlantic Legal Foundation 2039 Palmer Avenue, #104 Larchmont, New York (914) Of Counsel: Martin J. Newhouse New England Legal Foundation 150 Lincoln Street Boston, MA (617) October 2016 [6,361 words]