Amicus Curiae Brief — Avco Corporation, Petitioner v. Jill Sikkelee, Individually and as Personal Representative of the Estate of David Sikkelee, Deceased, et al.

No. 18-1140

In the

Supreme Court of the United States

AVCO CORPORATION,

Petitioner,

v.

JILL SIKKELEE, INDIVIDUALLY AND AS

PERSONAL REPRESENTATIVE OF THE ESTATE

OF DAVID SIKKELEE, DECEASED,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Third Circuit

AMICUS CURIAE BRIEF OF

EXPERIMENTAL AIRCRAFT ASSOCIATION,

INC. IN SUPPORT OF PETITIONER

AVCO CORPORATION

Michael Resis

Counsel of Record

A lan L. Farkas

SmithA mundsen LLC

150 North Michigan Avenue, Suite 3300

Chicago, Illinois 60601

(312) 894-3200

mresis@salawus.com

Counsel for Amicus Curiae

288090

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

STATEMENT OF INTEREST OF AMICUS

CURIAE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

REV IEW OF THE DI V IDED THIRD

CIRCU I T COU RT OF A PPEA LS

OPINION IS WARRANTED BECAUSE

THE FEDERAL AVIATION ACT AND

FAA REGULATIONS PREEMPT STATELAW DESIGN-DEFECT CLAIMS . . . . . . . . . . . . . 5

A. The Third Circuit’s Divided Opinion

M isappl ied T h is Cou r t ’s Case Law

Recognizing That State Law Is Impliedly

Preempted By Federal Law When It

Is Impossible To Comply With Both

State and Federal Requirements . . . . . . . . . . . . . 5

B. The Federal Av iation Act and FA A

Regulations Field-Preempt State-Law

Defect-Design Claims . . . . . . . . . . . . . . . . . . . . . 14

ii

Table of Contents

Page

C. This Appeal Presents an Exceptionally

Important Question of Law Warranting

Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii

TABLE OF CITED AUTHORITIES

Page

Federal Cases

Abdullah v. American Airlines, Inc.,

181 F.3d 363 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 16

Cipollone v. Liggett Group Inc.,

505 U.S. 504 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

City of Burbank v. Lockheed Air Terminal Inc.,

411 U.S. 624 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Freightliner Corp. v. Myrick,

514 U.S. 280 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Gade v. Nat’l Solid Wastes Management Ass’n,

505 U.S. 88 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Int’l Paper Co. v. Ouelette,

479 U.S. 481 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Kurns v. Railroad Friction Products Corp.,

565 U.S. 625 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Montalvo v. Spirit Airlines,

508 F.3d 464 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 16

iv

Cited Authorities

Page

Mutual Pharmaceutical Co., Inc. v. Bartlett,

570 U.S. 472 (2013) . . . . . . . . . . . . . . . . . . . . . . 5, 10, 11

PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) . . . . . . . . . . . . . . . . . . . 5, 10, 11, 13

Pacific Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n,

461 U.S. 190 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ray v. Atlantic Richfield Co.,

435 U.S. 151 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Sikkelee v. AVCO Corp.,

268 F. Supp. 3d 660 (M.D. Pa. 2017) . . . . . . . . . . . . . 10

Sikkelee v. Precision Airmotive Corp.,

822 F.3d 680 (3d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . 14

Sikkelee v. Precision Airmotive Corp.,

907 F.3d 701 (3d Cir. 2018) . . . . . . . . . . . . . . 6, 9, 10, 11

US Airways, Inc. v. O’Donnell,

627 F.3d 1318 (10th Cir. 2010) . . . . . . . . . . . . . . . . . . 16

United States v. Locke,

529 U.S. 89 (2000) . . . . . . . . . . . . . . . . . . . . . . 12, 15, 17

Wyeth v. Levine,

555 U.S. 555 (2009) . . . . . . . . . . . . . . . . . . . . . . 6, 10, 18

v

Cited Authorities

Page

Federal Statutes

49 U.S.C. § 4012(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

49 U.S.C. § 44701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pub. L. No. 85-726, 72 Stat. 731 (1958) . . . . . . . . . passim

Federal Regulations

14 C.F.R. § 21.319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

14 C.F.R. § 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

14 C.F.R. § 39.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

14 C.F.R. § 39.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Other Sources

“A ircraft Certification Ser vice,” retrieved

f r om ht t p: / w w w. f a a . g ov/ab out /of f ic e _

or g / he a dq u a r t e r s _ of f i c e s /a v s /of f i c e s /

air/, (last accessed March 20, 2019) . . . . . . . . . . . . . . . 7

“A i r w o r t h i n e s s D i r e c t i v e s M a n u a l ”

(FAA-IR-M-8040.1C) (May 17, 2010) . . . . . . . . . . . . . 8

vi

Cited Authorities

Page

“Guide for Obtaining a Supplemental Type

Certificate,” FA A Advisory Circular No.

21-40A, September 27, 2007, retrieved from

http://rgl.faa.gov/Regulatory_and_Guidance_

Library/rgAdvisoryCircular.nsf/0/1baee87b

a684597d862573690056b687/$FILE/AC%20

21-40A.pdf, (last accessed April 15, 2019) . . . . . . . . . 9

“New Certification Rule for Small Airplanes

Becomes Effective,” retrieved from http:/www.

faa.gov/news/updates/?newsId=88746, (last

accessed March 20, 2019) . . . . . . . . . . . . . . . . . . . . . . . 9

“Supplemental Type Certificates,” retrieved from

http:/www.faa.gov/aircraft/air_cert/design_

approvals/stc/, (last accessed March 21, 2019) . . . . 8, 9

“Type Certification,” Order 8110.4C, retrieved

from http:/www.faa.gov/documentLibrary/

media/Order/FAA_Order_8110_4C_Chg _6.

pdf, (last accessed March 21, 2019) . . . . . . . . . . . . . . 12

FAA Advisory Circular (Nov. 17, 2011) (AC No:

23.1309-1E, 11(b), Application of § 23.1309(a)(4),

as adopted by Amendment 23-49) . . . . . . . . . . . . . . . 12

FA A A d v i s or y C i r c u l a r ( Nov. 17, 2 011)

(AC No: 23.1309-1E, 12(d)) . . . . . . . . . . . . . . . . . . . . . 12

FA A A d v i s o r y C i r c u l a r ( D e c . 9 , 2 010)

(AC No 33.91-1 (6)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . 13

1

STATEMENT OF INTEREST

OF AMICUS CURIAE.1

Experimental Aircraft Association, Inc. (EAA) is

a non-profit 501(c)(3) community of passionate aviation

enthusiasts that promotes and supports recreational

flying. EAA’s mission is to grow participation in aviation

by promoting the spirit of aviation. EAA has 220,000

members including 75,000 pilots, 7,500 student pilots, and

15,000 aircraft mechanics. EAA’s members are spread

across all 50 states (and 125 countries).

EAA is headquartered in Oshkosh, Wisconsin, where

it hosts an annual gathering known as “AirVenture,” or,

alternatively, “Oshkosh.” Through AirVenture, EAA

promotes aircraft ownership, safety and maintenance. 115

manufacturers, 220 part suppliers, and 35 maintenance,

repair and overhaul facilities display their offerings to

600,000 visitors over the course of one week each summer.

EAA works closely with Federal elected officials and

the Federal Aviation Administration (FAA) on legal and

regulatory reforms to increase safety while mitigating the

costs of owning and renting aircraft, including efforts to

streamline regulations that stymie innovation.

EAA encourages participation in aviation through

programs that attract new pilots (the EAA Young Eagles

Program provided 170,000 introductory flights in the

1. All parties consent to the filing of this amicus curiae brief

and notice of intent to file was provided more than 10 days prior to

filing. This amicus brief was not authored by counsel for a party

in whole or in part and was not funded by a party or a party’s

counsel in whole or in part. No person other than amicus curiae,

their members, or their counsel made a monetary contribution to

its preparation or submission.

2

past 3 years), educational forums (including 50 webinars

and 1,500 live forums annually), workshops on aircraft

building and maintenance, and a variety of opportunities

to engage in recreational flying. EAA works on legal and

regulatory reforms that increase safety while making

f lying more accessible, including the application of

contemporary medical standards to pilot assessments and

the development of new classes of pilots’ licenses.

EAA gives voice to the recreational aviation community

and provides a perspective that may assist the Court in

determining whether the FAA or a state-law jury has the

final say on the safety of aircraft design standards under

the Federal Aviation Act (Pub. L. No. 85-726, 72 Stat. 731

(1958) (codified as amended at 49 U.S.C. §§ 40101–49105))

and the FAA’s comprehensive regulatory scheme. EAA

supports the petition for a writ of certiorari filed by AVCO

Corporation to review the judgment of the Third Circuit.

Indeed, recognition of FAA’s preemptive authority over

aircraft design standards is paramount to the safety of

air transportation and the health of civil aviation.

EAA respectfully submits that, as Congress intended,

the FAA’s deliberative, expert, scientific approval process

is best equipped to determine appropriate initial aircraft

design standards and when design modifications and

new parts should be approved. Our uniquely national

civil aviation industry relies on uniform and exclusively

national standards to avoid a hodgepodge of conflicting

state-law standards established on an ad-hoc basis by

tribunals that lack the experience, resources, or broad

perspective employed by the FAA. Should the decision

below stand, maintenance, repair and overhaul facilities,

and individual mechanics will face unprecedented

3

uncertainty and confusion over the standards to which

they must conform when repairing or replacing FAAapproved component parts for aircraft that typically

operate in multiple jurisdictions. The EAA members who

own, maintain or rent aircraft will also face increased

uncertainty and second-guessing of the airworthiness

of their aircraft despite compliance with FAA-approved

design standards. Naturally, this will have a disastrous

impact on participation in aviation at a time when our

nation and EAA are combatting a critical shortage

of aircraft mechanics and pilots. The ramifications of

the Third Circuit’s divided opinion and judgment, if

not reversed, will have dramatic, long lasting impacts

throughout the aviation industry and the individuals and

businesses that depend on our industry.

Above all, EAA favors safe and reliable aircraft design

and modification standards as Congress intended, through

the assurances provided by the FAA’s rigorous multi-step

certification process, not piecemeal by state-law courts.

Based on the perspective and experience of its many

members, and to avoid upsetting the carefully balanced

interests recognized by the FAA’s regulatory scheme,

EAA respectfully submits that the Federal Aviation

Act and FAA regulations necessarily preempt state-law

design defect claims.

SUMMARY OF ARGUMENT

Under this Court’s recent case law, design-defect

claims are conflict-preempted when federal law makes it

physically impossible for a private party to unilaterally

modify a product design to meet a state-tort law duty

without prior regulatory agency approval. In this case,

4

both the majority opinion and the dissent recognized that

FAA approval was necessary prior to the implementation of

any change in design to the aircraft engine. Nevertheless,

the Third Circuit, over a dissent, held that the designdefect claim was not preempted without clear evidence

that the FAA would have rejected the proposed design

change. Rather than promote safety, the result will lead

only to confusion and a catch-22 over the safety standards

that govern aircraft design. If the engine manufacturer

and other aircraft entities in the downstream distribution

chain immediately adopt an alternative design to meet

their state law obligation, they will find themselves in

violation of federal law; conversely, if they rely on the FAAapproved design until the FAA approves the proposed

change, they will have violated their state-tort law duties.

Based on this Court’s settled precedent, the design-defect

claim was conflict-preempted when it was physically

impossible for the engine to be modified without prior

FAA approval to comply with both federal and state law.

Moreover, the possibility of tort liability against regulated

aviation manufacturers, envisioned in the Federal Aviation

Act, does not require that juries be granted the authority

to mandate design changes under penalty of tort liability.

Conflict-preemption aside, the Federal Aviation Act

and FAA regulations field-preempt all aspects of air

safety, including design-defect claims. Since the FAA

regulations are so pervasive, and the federal interest

so dominant, this leads to the reasonable inference that

Congress has left no room for different state standards

governing the design and safety of aircraft engine parts.

The usual assumption against federal preemption does not

apply in areas such as aviation which has a long history of

significant federal dominance.

5

Finally, review is warranted because the scope of

federal preemption is a question of exceptional public

importance that only this Court can answer. If the decision

below is permitted to stand, the standards governing

every detail of aircraft design will no longer be uniform

or exclusively national in enforcement.

ARGUMENT

REVIEW OF THE DIVIDED THIRD CIRCUIT

COURT OF APPEALS OPINION IS WARRANTED

BECAUSE THE FEDERAL AVIATION ACT AND

FAA REGULATIONS PREEMPT STATE-LAW

DESIGN-DEFECT CLAIMS

A.

The Third Circuit’s Divided Opinion Misapplied

This Court’s Case Law Recognizing That State

Law Is Impliedly Preempted By Federal Law

When It Is Impossible To Comply With Both

State and Federal Requirements

The issue in this case turns on a straightforward

application of this Court’s recent federal preemption law.

Under the case law, the issue is whether a type

cer tif icate holder could independently—that is,

unilaterally, without prior FAA approval—accomplish

under federal law what state law purportedly required

of it—modification of the design of the carburetor’s

fastening mechanism as set forth in the FAA issued type

certificate. See, e.g., Mutual Pharmaceutical Co., Inc. v.

Bartlett, 570 U.S. 472, 487 (2013); PLIVA, Inc. v. Mensing,

564 U.S. 604, 620 (2011). If the answer to the question is

no, as EAA submits is the only correct answer under the

6

comprehensive FAA regulatory regime, then the inquiry

ends—as that answer suffices to demonstrate a conflict

between the type certificate holder’s federal and state

obligations, making it physically impossible to comply

with both.

The majority opinion of the Third Circuit correctly

determined that under the applicable FAA regulations,

prior FAA approval was necessary for any major design

changes to aircraft components covered by an FAA

issued type certificate. Sikkelee v. Precision Airmotive

Corp., 907 F.3d 701, 711 (3d Cir. 2018). The majority of

the panel further noted that minor design changes could

be “approved using a method acceptable to the FAA.”

Id. at 711-12 (citing 14 C.F.R. § 21.319). Ultimately, the

majority did not decide whether the design change at

issue was major or minor. However, the majority concluded

that the type certificate holder could not show that it

was impossible to comply simultaneously with federal

mandates and state-law tort duties. Id. at 712. While the

majority observed that “the Federal Aviation Act and FAA

regulations require FAA approval of a type certificate

and changes to it” (id. at 713), the majority also found

that the certificate holder was not “stuck with the design

initially adopted and approved” and noted that the holder

had “made numerous changes to the type certificate”

which the FAA had approved in short order. Id. Thus,

according to the majority, based on the FAA regulations

for the approval of changes to type certificates, the type

certificate holder could not show that it was physically

impossible to comply with a state-mandated change in

design without providing clear evidence that the FAA

would have rejected the change. Id. at 714 (citing Wyeth

v. Levine, 555 U.S. 555, 571 (2009)).

7

The FAA regularly encourages and adopts revisions

to aircraft design standards. Avenues for design

changes include Airworthiness Directives (“ADs”),

Supplemental Type Certificates (“STCs”), amendments

t o A i r wor th i ness St a nda rds developed by FA A

Directorates and implemented via rulemaking subject to

the Administrative Procedures Act, and, most recently,

comprehensive revisions to 14 C.F.R part 23 (14 C.F.R.

§ 23 et al., “Airworthiness Standards: Normal Category

Airplanes”). However, this all takes place through a

carefully managed process, and no changes are permitted

without FAA approval.

Further, in contrast with the relatively narrow range

of partisan experts utilized by the courts, the FAA

office responsible for overseeing certification and design

changes, the Aircraft Certification Service (“AIR”),

utilizes “more than 1300 engineers, scientists, inspectors,

test pilots and other experts responsible for oversight

of design, production, air worthiness certification,

continued airworthiness certification, and continued

airworthiness programs for all U.S. civil aviation products

and foreign products.” (“Aircraft Certification Service,”

retrieved from http:/w w w.faa.gov/about/office_org/

headquarters_offices/avs/offices/air/,last accessed March

20, 2019). “AIR collaborates with the International Civil

Aviation Organization (ICAO) and other Civil Aviation

Authorities (CAA) to maintain and further the safety of

the international air transportation system.” Id.

FAA ADs are issued pursuant to 14 C.F.R § 39.5 to

correct an unsafe condition in a product.14 CFR § 39.5.

ADs are legally enforceable rules that apply to aircraft,

aircraft engines, propellers, and appliances. 14 CFR § 39.3.

8

FAA personnel are guided by an extensive and detailed

FAA publication, the “Airworthiness Directives Manual”

(FAA-IR-M-8040.1C) (May 17, 2010), which provides

specific guidance of considerations to be evaluated,

including mandates of the Administrative Procedures

Act (public review, comment and promulgation of the

AD), FAA regulations, and Department of Transportation

Rulemaking Policies and Procedures. Id. The manual

details when an AD should be issued, including issuance

of emergency ADs as necessary to maintain aviation

safety. Id. Throughout over 70 pages of guidance, the

manual assists FAA personnel in carrying out the FAA’s

Congressional mandate to preserve aviation safety. Id.

Once again, this careful, deliberative process would be

entirely undermined if state court juries are empowered

to dictate when modifications should or should not be

implemented.

STC(s) provide another method to achieve approved

revisions to aircraft designs. The FAA grants an STC

when an applicant, other than the original manufacturer,

receives approval to modify an aeronautical product from

its original design. (“Supplemental Type Certificates,”

retrieved from http:/w w w.faa.gov/aircraft/air_cert/

design_approvals/stc/, last accessed March 21, 2019). These

modifications are often more efficient than the original

product, offer added safety characteristics, and may even

provide an economical alternative that provides aircraft

operators with the safety and advantages of equipment

that they would not have been able to otherwise afford.

Id. By way of example, EAA’s STC program has granted

owners the ability to install modern instrumentation

and autopilot equipment on older aircraft with minimal

cost or difficulty through close coordination with FAA

9

technicians. Again, these advances become available for

installation only after the strict FAA standards are met

and demonstrated through rigorous testing. Id. See also,

“Guide for Obtaining a Supplemental Type Certificate,”

FA A Advisory Circular No. 21-40A, September 27,

2007, retrieved from http://rgl.faa.gov/Regulatory_and_

Guidance_Library/rgAdvisoryCircular.nsf/0/1baee87ba6

84597d862573690056b687/$FILE/AC%2021-40A.pdf, last

accessed April 15, 2019.

Recently, with EAA’s urging and support, the FAA

implemented new streamlined rules to govern the

airworthiness certification standards for small general

aviation aircraft. 14 C.F.R § 23; (“New Certification Rule

for Small Airplanes Becomes Effective,” retrieved from

http:/www.faa.gov/news/updates/?newsId=88746, last

accessed March 20, 2019). The newly published standards

were developed in response to Congressional mandates to

facilitate safety advancements for these types of aircraft.

“The new Part 23 also promotes regulatory harmonization

among the FA A’s foreign partners, including the

European Aviation Safety Agency, Transport Canada

Civil Aviation, and Brazil’s National Civil Aviation

Authority. Harmonization may help minimize certification

costs for airplane and engine manufacturers…who want

to certify their products for the global market.” Id. No

doubt, the Congressional goals advanced by this Part 23

rewrite would be thwarted by exposing manufacturers to

differing and inconsistent state aircraft design standards.

As noted by both the majority (907 F.3d at 711-12)

and the dissent below (id. at 722, 724), under the FAA

regulatory scheme, a type certificate holder cannot

implement even a minor design change without FAA

10

approval. Regardless of whether the type design change is

major or minor, or whether the type certificate is amended

or supplemented, as both the majority and the dissent

recognized, some form of FAA approval is necessary

prior to the implementation of every design modification

to the engine. Id. Here, as in every case, asking whether

the FAA would have likely approved the alternative

design is not the same as saying that the manufacturer

could independently implement the alternative design on

its own initiative without obtaining FAA approval. The

FAA’s comprehensive regulatory scheme, which leaves

no discretion to a private party to implement design

modifications unilaterally, makes this case more clearly

analogous to Bartlett and PLIVA than to Wyeth.

Contrary to the majority opinion’s pronouncement

(913 F.3d at 715), the result reached by the majority will

not promote air safety, but lead only to confusion and

uncertainty over the standards governing the safety

of aircraft parts and put regulated private parties in a

catch-22. Had the manufacturer adopted an alternative

engine design immediately, without FAA approval to meet

a state-tort law duty, it would have violated federal law. 2

Maintenance, repair and overhaul facilities, and individual

airplane mechanics using the alternatively designed

engine, would find themselves in violation of federal law,

and would be vulnerable to state tort liability by adhering

to the FAA-approved engine design. Moreover, once FAAapproved standards are forced to yield to state tort law,

2. As set forth in the district court opinion, the proposed

design changes included using a fuel injection system in lieu of

the carburetor, safety lock wire and different gasket material.

Sikkelee v. AVCO Corp., 268 F. Supp.3d 660, 697 (M.D. Pa. 2017).

11

then mechanics and repair facilities become vulnerable

to conflicting and changing standards among the various

(and often unpredictable) states where the subject aircraft

may operate. In any event, it would have been physically

impossible to repair an engine so that it would comply with

both federal and state law, let alone multiple states’ laws.

The Third Circuit believed otherwise because other

changes had been made to the approved engine design

over time. 907 F.3d at 713. That misses the point of the

comprehensive FAA regulatory regime. Those changes

were made only with prior FAA approval. The issue under

this Court’s conflict-preemption law is not whether a

manufacturer can change the agency-approved product,

but whether it may do so of its own volition without agency

approval. When prior agency approval is required without

exception, as is true of the subject engine design under

the applicable FAA regulations, Bartlett and PLIVA

instruct that the state-law design-defect claim is conflictpreempted.

Although federal and state standards may share the

same goal of aircraft safety, the common end alone does

not obviate the conflict in the different means chosen

under federal and state law. Crosby v. Nat’l Foreign

Trade Council, 530 U.S. 363, 379 (2000) (observing that “a

common end hardly neutralizes conflicting means”) (citing

Gade v. Nat’l Solid Wastes Management Ass’n, 505 U.S.

88, 103 (1992) (“‘[I]t is not enough to say that the ultimate

goal of both federal and state law’ is the same”) (quoting

Int’l Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)).

The FAA is charged with balancing an array of

interests that are far broader then the elements used to

weigh tort liability. For example, the standards for type

12

certification include considerations of whether a feature

ensures no failure, has redundancy and “annunciation,”

is reliably independent of its redundancy and properly

indicates its current status of functionality to the pilot

(FAA Advisory Circular (Nov. 17, 2011) (AC No: 23.13091E, 11(b), Application of § 23.1309(a)(4), as adopted by

Amendment 23-49, at 18); how a feature addresses or

interacts with external environmental conditions such as

atmospheric turbulence, lightning, and precipitation (id.

12(d), at 19); the environmental effect within the airplane,

such as vibration and acceleration loads, variations in

fluid pressure and electrical power, and fluid or vapor

contamination due to either the normal environment or

accidental leaks or spillage and handling by personnel

(id.); and the FAA must consider environmental and

noise impacts (“Type Certification,” Order 8110.4C,

retrieved from http:/www.faa.gov/documentLibrary/

media/Order/FA A_Order_8110_4C_Chg _6.pdf, last

accessed March 21, 2019). Of course, these concerns

do not appear in Pennsylvania jury instructions and

the FAA’s determination of the essential factors to be

considered when certifying aircraft parts would be

entirely undermined by requiring the aviation industry

to adopt designs that ignore these factors (and a laundry

list of others).

As this Court has recognized, the appropriate inquiry

remains whether the purposes and objectives of the federal

scheme, including the intent to establish a workable,

uniform system, is consistent with state regulation. United

States v. Locke, 529 U.S. 89, 115 (2000). When it comes to

the design of aircraft and air safety, different standards

would thwart the national objective of uniformity. Federal

regulation is based on an intensive, painstaking multi-step

13

FAA approval process that is lacking at the state level.

When, as here, unilateral compliance with both is not

simultaneously possible, state regulation must yield to the

supremacy of federal regulation of the approved design.

If permitted to stand, the result reached by the

majority will not complement the federal regulatory

scheme, but actually conflict with and subvert it. The

public, as well as EAA members, should be able to rely on

the type-certification process for aircraft parts and design

changes with the confidence that they have been approved

after analysis of vast amounts of technical data, drawings

and other details about the component and testing to

exacting specifications by experts under FAA auspices.

Rather than expose the manufacturer and all other

aviation entities in the distribution chain downstream to

a patchwork of state-law tort liability, as the Third Circuit

has done here, it should be left to Congress and the FAA

to make changes to the law and the regulations governing

the approval process for aircraft design modifications as

deemed necessary, following appropriate consideration.

See PLIVA, 564 U.S. at 626.

Finally, EAA and its members have a direct stake

in receiving assurance that all parts and components

on the aircraft have been thoroughly tested across the

conditions that may be encountered in flight, and that

certainty is not provided by our judicial system. By way

of example, engine certification requires testing in low

temperatures, with contaminated fluids, under vibration,

in simulated crash scenarios, sand and dust, icing, fungus,

altitude variations, water infiltration, and fire conditions

FAA Advisory Circular (Dec. 9, 2010) (AC No 33.91-1 (6)

(b), at 2). EAA members should not have to wonder which

considerations were satisfied in the airplane they have

14

entrusted with their lives; they should have the confidence

that comes only from the uniform, comprehensive, expert

and preemptive design certification process established

by Congress.

B. The Federal Aviation Act and FAA Regulations

Field-Preempt State-Law Defect-Design

Claims

In its earlier opinion, the Third Circuit held that

the Federal Aviation Act and FAA regulations did not

field-preempt state-law defect-design claims. Sikkelee v.

Precision Airmotive Corp., 822 F.3d 680, 693-96 (3d Cir.

2016).

Wholly apart from conflict-preemption, this Court

should grant certiorari and hold that the scheme of

federal regulation of air safety is so pervasive and the

federal interest so dominant as to field-preempt all aspects

of aviation safety, including state-law defect-design

claims. The fact that the Federal Aviation Act directs

the Administrator of the FAA to promote the safety

and the development of air travel by fixing “minimum

standards governing the design, materials, workmanship,

construction, and performance of aircraft, aircraft

engines, and propellers” (49 U.S.C. § 44701), in conjunction

with the FAA’s all-encompassing scheme of regulation

governing flight performance, structural characteristics,

design and construction, leads to the reasonable inference

that Congress left no room for different and various state

standards governing aircraft design.

Field preemption may be found when the scope of a

federal statutory and regulatory scheme impliedly shows

15

that Congress intended that federal law occupy a field

exclusively. Kurns v. Railroad Friction Products Corp.,

565 U.S. 625, 630-31 (2012) (citing Freightliner Corp. v.

Myrick, 514 U.S. 280, 287 (1995)). Field preemption results

when a “scheme of federal regulation [is] so pervasive

as to make reasonable the inference that Congress left

no room…to supplement it,” because then “the federal

interest is so dominant that the federal system will be

assumed to preclude enforcement of state laws on the

subject.” Pacific Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983);

see also Cipollone v. Liggett Group Inc., 505 U.S. 504,

516 (1992). Any assumption of non-preemption does not

apply when a state regulates in an area with a history

of significant federal presence. Locke, 529 U.S. at 108

(making the observation in the context of national and

international maritime commerce). Field-preemption

extends to damages suits involving state common-law

duties and standards of care. Kurns, 565 U.S. at 637-38.

This Court has recognized field preemption under the

Federal Aviation Act (City of Burbank v. Lockheed Air

Terminal Inc., 411 U.S. 624, 638-39 (1973) (preempting

in conjunction with Noise Control Act state and local

control over aircraft noise at airports) and under other

federal statutes (Kurns, 565 U.S. at 630-31) (Locomotive

Inspection Act field-preempted failure-to-warn and

defect-design claims relating to asbestos brake pads and

engine valves containing asbestos used in locomotives);

Ray v. Atlantic Richfield Co., 435 U.S. 151, 163-68 (1978)

(Ports and Waterways Safety Act created uniform and

national standards that field-preempted different or more

stringent state pilotage requirement, limitation on oil

tanker size, and tanker design and construction rules)).

16

In recognition of the pervasive federal scheme

and dominant federal interest, courts of appeals have

recognized field-preemption under the Federal Aviation

Act and FAA regulations. See, e.g., US Airways, Inc. v.

O’Donnell, 627 F.3d 1318, 1326-27 (10th Cir. 2010) (state

regulation of alcoholic beverage service on flights fieldpreempted); Montalvo v. Spirit Airlines, 508 F.3d 464,

468 (9th Cir. 2007) (any state-imposed duty to warn

airline passengers about risks of deep vein thrombosis

field-preempted); Abdullah v. American Airlines, Inc.,

181 F.3d 363, 371-74 (3d Cir. 1999) (entire field of aviation

safety field-preempted).

As this Court recognized in Ray, the reference to

“minimum standards” set forth in the Federal Aviation

Act is not a “litmus test” and does not necessarily mean

that Congress invited state authority to impose more

stringent standards. 435 U.S. at 168 n.19. On the contrary,

field-preemption was found in Ray where it was clear

that Congress intended the promulgation of uniform

standards and enforcement on the national level. Id. And

while Congress took care in the Federal Aviation Act to

include a savings clause providing that “[a] remedy under

this part is in addition to any other remedies provided by

law” (49 U.S.C. § 4012(c)), the quoted language has been

interpreted to mean simply that a state-law tort action is

to proceed based on violation of the standards set forth in

the federal statute and corresponding FAA regulations.

Abdullah, 181 F.3d at 475-76. As this suit was not and

could not be predicated on any such violation of federal

law, this Court should hold that the design-defect claim

was field-preempted by the Federal Aviation Act and the

corresponding FAA regulations.

17

C.

This Appeal Presents an Exceptionally

Important Question of Law Warranting

Review

Finally, this appeal presents an exceptionally

important question of law on the extent of federal

preemption of state-law under the Federal Aviation Act

and FAA regulations.

Aircraft design has a long history of significant federal

presence going back to the infancy of aviation. It is no

exaggeration to say that aviation and aircraft design have

been dominated by federal interests. This Court has been

mindful that in areas dominated by a federal presence,

such as national and international maritime commerce,

state regulation can upset the careful regulatory scheme

established by federal law. Locke, 529 U.S. at 106. Aviation,

no less than maritime commerce, requires national

uniformity in aircraft design.

EAA and its members will be profoundly impacted

by this decision. They have benefitted from a safe,

uniform, expert, and comprehensive approach to aircraft

certification. EAA hopes this largely successful approach

to certification will be maintained. The problems

associated with delegating certification to juries who will

evaluate safety under the lens of tort liability rather than

maintaining the uniform Federal scheme envisioned by

Congress are not theoretical to EAA and its members;

they have grave concerns for the consequences they will

suffer if the unbiased experts at the FAA no long have

the final say on aircraft product design.

If allowed to stand, the opinion and judgment of the

Third Circuit will upset the careful balance of interests

18

established by the FAA regulatory regime. The standards

governing every detail of aircraft design will no longer

be uniform or exclusively national in enforcement. If

that were not enough, the Third Circuit’s extension of

the “clear evidence” test of Wyeth will be applied beyond

aviation to other heavily federal-regulated industries.

The question that only this Court can answer is of

exceptional public importance across all such regulated

industries where federal law imposes uniform standards

and requires advance agency approval for any product

design modification.

CONCLUSION

For all of the foregoing reasons, the amicus curiae,

Experimental Aircraft Association, Inc., asks that the

Court grant certiorari and upon review, that it reverse

the judgment of the United States Court of Appeals for

the Third Circuit upon finding that the state-law defectdesign claims are federally preempted.

Respectfully submitted,

Michael Resis

Counsel of Record

A lan L. Farkas

SmithA mundsen LLC

150 North Michigan Avenue, Suite 3300

Chicago, Illinois 60601

(312) 894-3200

mresis@salawus.com

Counsel for Amicus Curiae