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,

v.

JILL SIKKELEE,

Petitioner,

Respondent.

On Petition For a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

BRIEF OF THE PRODUCT LIABILITY

ADVISORY COUNCIL, INC. AND NATIONAL

ASSOCIATION OF MANUFACTURERS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

JONATHAN M. HOFFMAN

Counsel of Record

MB LAW GROUP, LLP

117 SW Taylor St.

Suite 200

Portland, OR 97204

(503) 914-2015

jhoffman@mblglaw.com

PETER C. TOLSDORF

LELAND P. FROST

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10th Street NW

Suite 700

Washington, DC 20001

i

TABLE OF CONTENTS

Page

Identity and Interest of Amici ....................................1

Summary of Argument ...............................................3

Argument ....................................................................5

I.

Simultaneous Compliance with State and

Federal Law is Impossible, and the Federal

Aviation Act and Safety Regulations

Preempt State Law. ............................................5

A. State and federal law are in conflict .............5

B. The Third Circuit’s treatment of conflict

preemption by reason of impossibility is

contrary to this Court’s recent decisions. .....6

II.

Aviation Safety Regulation has Pervasively

Been the Province of Federal Law and

Subject to Little or No Regulation by State

or Local Authorities. .........................................11

A. The Third Circuit erroneously rejected

field preemption. ..........................................11

B. Transportation is at the core of federal

preemption. ..................................................12

III. The Federal Aviation Act Preempts the

Field of Aviation Safety Standards Because

History Demonstrates Long-Standing and

Pervasive Federal Regulation of Aviation. ......15

A. The Air Commerce Act of 1926 ...................16

B. The Civil Aeronautics Act of 1938...............17

ii

C. ICAO and The Federal Aviation Act of

1958 ..............................................................19

D. Congress created a unified federal

system of air safety standards. ...................22

IV. Conclusion .........................................................24

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abdullah v. Am. Airlines, Inc.,

181 F.3d 363 (3d Cir. 1999) ...........................11, 24

Bibb v. Navajo Freight Lines, Inc.,

359 U.S. 520 (1959) ..............................................13

Charleston & W.C. Ry. Co. v. Varnville

Furniture Co,

237 U.S. 597 (1915) ..............................................15

City of Burbank v. Lockheed Air Terminal Inc.,

411 U.S. 624 (1973) ........................................13, 24

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) .................................13

Kurns v. R.R. Friction Prod. Corp.,

565 U.S. 625 (2012) ..............................................13

Mutual Pharmaceutical Co., Inc. v. Bartlett,

570 U.S. 472 (2013) ...................................... passim

Napier v. Atlantic Coast Line R. Co.,

272 U.S. 605 (1926) ..............................................14

Neiswonger v. Goodyear Tire & Rubber Co.,

35 F.2d 761 (N.D. Ohio 1929) ..............................16

iv

New York Cent. Ry. Co. v. Winfield,

244 U.S. 147 (1917) ..............................................14

Pennsylvania R. Co. v. Public Service Comm’n,

250 U.S. 566 (1919) ..............................................13

PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) ...................................... passim

Ray v. Atl. Richfield Co.,

435 U.S. 151 (1978) .................................. 13, 14, 24

Rosenhan v. United States,

131 F.2d 932 (10th Cir. 1942)..............................18

Schneidewind v. ANR Pipeline Co.,

485 U.S. 293 (1988) ..............................................11

Sikkelee v. AVCO Corp.,

268 F.Supp.3d 660 (M.D. Pa. 2017) ......................9

Sikkelee v. Precision Airmotive Corp.,

45 F. Supp.3d. 431 (M.D. Pa. 2014) ....................12

Sikkelee v. Precision Airmotive Corp.,

822 F.3d 680 (3d Cir. 2016) ....................... 4, 12, 19

Sikkelee v. Precision Airmotive Corp.,

907 F.3d 701 (3d Cir. 2018) ......................... passim

Swetland v. Curtiss Airports Corp.,

41 F.2d 929 (N.D. Ohio 1930), modified,

55 F.2d 201 (6th Cir. 1932)..................................16

Tincher v. Omega Flex, Inc.,

104 A.3d 328 (Pa. 2014) .........................................8

v

United States v. Causby,

328 U.S. 256 (1946) ..............................................16

United States v. Christensen,

419 F.2d 1401 (9th Cir. 1969)..............................23

United States v. Drumm,

55 F. Supp. 151 (D. Nev. 1944)............................18

United States v. Locke,

529 U.S. 89 (2000) ................................................20

Wyeth v. Levine,

555 U.S. 555 (2009) ................................................9

Statutes

Air Commerce Act of 1926, Act of May 20,

1926, ch 344, 44 Stat. 568 .............................16, 17

Civil Aeronautics Act of 1938,

52 Stat. 973 ........................................ 17, 18, 19, 20

Federal Aviation Act of 1958 ............................ passim

Federal Food, Drug, and Cosmetic Act ......................3

72 Stat. 775, § 601, 49 U.S.C. §1431 (1970) .......23, 24

72 Stat. 798, 49 U.S.C. §1508 (1970) ........................16

Tank Vessel Act...................................................14, 23

Other Authorities

14 C.F.R. Parts 21-43 ................................................20

vi

Charles S. Rhyne, Federal, State and Local

Jurisdiction over Civil Aviation, 11 Law

& Contemp. Probs. 459, 464 (1946).....................18

Eugene A. Weibel, Problems of Federalism

in the Air Age-Part I, 24 J. Air L. &

Comm. 127, 140 (1957) ........................................16

Frederick A. Ballard, Federal Regulation of

Aviation, 60 Harvard L. Rev. 1235, 1240

(1947) ....................................................................17

Geoffrey M. Hand, Should Juries Decide

Aircraft Design? Cleveland v. Piper

Aircraft Corp. and Federal Preemption

of State Tort Law, 29 U.S.F. L. Rev. 741,

749 (1995) .............................................................16

H.R. Rep. 85-2360, 1958 U.S.C.C.A.N. 3741 ............23

Michael Milde, INTERNATIONAL AIR

AND SPACE LAW (2d ed. 2012) p. xii..........16, 19

Senate Report 1811 ....................................... 21, 22, 23

William P. MacCracken, Jr., Air

Regulations, 131 Annals Am. Acad. Pol.

& Soc. Sci. at 118-119 (1927). ..............................17

1

IDENTITY AND INTEREST OF AMICI

Amicus Curiae Product Liability Advisory Council,

Inc. (“PLAC”) is a non-profit association whose

corporate members represent a broad cross-section of

American and international product manufacturers.

These companies seek to contribute to the

improvement and reform of law in the United States

and elsewhere, with emphasis on the law governing

the liability of product manufacturers. PLAC’s

perspective derives from the experiences of a

corporate membership that spans a diverse range of

industries in various facets of the manufacturing

sector. Several hundred of the leading product

liability defense attorneys in the country are also

sustaining (nonvoting) members of PLAC. Since

1983, PLAC has filed more than 1,100 briefs as

amicus curiae in both state and federal courts,

presenting the broad perspective of manufacturers

seeking to improve the application and development

of the law as it affects product liability.

PLAC's complete membership list is available at

https://plac.com/PLAC/AboutPLACAmicus. 1

Amicus Curiae the National Association of

Manufacturers

(“NAM”)

is

the

largest

manufacturing association in the United States,

representing small and large manufacturers in every

industrial sector and in all fifty states.

No counsel for a party authored this brief in whole or in part

and no person other than Amici and their counsel made a

monetary contribution to its preparation or submission.

Petitioner and Respondent have consented to the filing of this

brief.

1

2

Manufacturing employs more than twelve million

men and women, contributes $2.25 trillion to the U.S.

economy annually, has the largest economic impact

of any major sector, and accounts for more than

three-quarters of all private-sector research and

development in the nation. The NAM is the voice of

the manufacturing community and the leading

advocate for a policy agenda that helps

manufacturers compete in the global economy and

create jobs across the United States.

Aviation has become an instrumental and efficient

method for the transportation of people and goods

throughout this country and beyond. No state should

dictate the design of every aircraft that flies over its

territory; the Federal Government has sole

responsibility for that task. Amici and the public

share a vital interest in fostering consistent safety

standards for aviation, in accordance with the

Federal Government’s comprehensive regulation of

design and performance of this critical mode of

transportation.

Amici’s members include not only manufacturers of

aircraft and related products, but also consumers of

America’s air transportation. We support the public

interest in sustaining and improving a vibrant,

efficient, safe, and reliable transportation system

that benefits us all. Consequently, Amici are

concerned about actions that result in unpredictable

regulation by each state, county, city, or jury. Our

members, as well as the public, benefit from the

safety, predictability and reliability of the unified

system of regulation that Congress has created for

aviation.

3

Amici also share a strong interest in federal

preemption. Corporate members of our organizations

design, manufacture, or distribute products

regulated by a variety of federal agencies. Many

must also confront laws in some states that are

inconsistent with federal law. No one benefits from

uncertainty about which legal requirements apply.

If allowed to stand, the Third Circuit’s decision on

conflict preemption could result in years of legal

uncertainty, not only in aviation, but in

manufacturing a wide range of other products.

AVCO Corporation’s petition for certiorari in this

case should be granted so that the Federal Aviation

Act, like other preemptive federal statutes and

comprehensive regulations, such as the Federal Food,

Drug, and Cosmetic Act, will be interpreted and

applied in a consistent and coherent manner.

SUMMARY OF ARGUMENT

Because federal law requires prior approval by the

Federal Aviation Administration of any aircraft or

aircraft component design, a state law that requires

a change in design conflicts with federal law and is

preempted because simultaneous compliance with

state and federal law is impossible. If allowed to

stand, the Third Circuit’s misinterpretation of

conflict preemption will have ominous consequences

for manufacturers far beyond the aviation

community.

Moreover, the Federal Government has assumed

responsibility for safety regulation of aviation almost

as long as airplanes have flown. Its pervasive and

4

unified system of regulation encompasses the design,

manufacture, alteration, maintenance, and operation

of aircraft and preempts the field of aircraft safety

standards.

The Third Circuit’s misguided decisions are on

issues of great importance to manufacturers. Its

rejection of conflict preemption, Sikkelee v. Precision

Airmotive Corp., 907 F.3d 701 (3d Cir. 2018)

(“Sikkelee II”), flatly contradicts this Court’s recent

and definitive holdings on impossibility conflicts. In

so doing, the decision threatens to undo this Court’s

clear criteria articulated in PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) (“Mensing”), and Mutual

Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. 472

(2013) (“Bartlett”), thereby threatening a broad

range of Congress’s important policy choices—

including, but also beyond, aviation.

In addition, the Third Circuit’s earlier rejection of

field preemption, Sikkelee v. Precision Airmotive

Corp., 822 F.3d 680 (3d Cir. 2016) (“Sikkelee I”),

demonstrated

an

erroneous

application

of

established law and misinterpreted historical facts

surrounding the Federal Government’s pervasive

and long-standing regulation of aviation safety.

5

ARGUMENT

I.

SIMULTANEOUS COMPLIANCE WITH STATE

AND FEDERAL LAW IS IMPOSSIBLE, AND THE

FEDERAL AVIATION ACT AND SAFETY

REGULATIONS PREEMPT STATE LAW.

A. State and Federal Law Are in Conflict.

Plaintiff alleges here that Pennsylvania law required

the Lycoming Engines Division of AVCO to modify

the FAA-approved design of the carburetor attached

to its engine to use safety wire to secure the bolts

that attach the float bowl and throttle body. Sikkelee

II, 907 F.3d at 710. As the Third Circuit

acknowledged, the Federal Aviation Regulations

prohibited

the

engine

manufacturer

from

independently changing the design of the carburetor

without prior FAA approval.

It is impossible for a manufacturer to comply both

with state law and the Federal Aviation Act. The

history of federal aviation regulation demonstrates

why federal regulation preempts state law under

principles of field preemption as well as conflict

preemption. The Third Circuit blithely concluded

that “State-law claims, such as Sikkelee’s,

supplement the federal scheme and further its

central purpose: safe aircrafts.” Sikkelee II, 907 F.3d

at 714-715. Locally-imposed aviation safety

standards,

however

well-intentioned,

are

incompatible with, and undermine the FAA’s

mission of establishing unified regulation to enhance

air safety.

6

Juries look at a single accident in hindsight, years

after the event. They need not balance the safety

benefits of a proposed change in design (such as

using safety wire on a carburetor) with the existing

design, except insofar as it would have affected the

single accident. By contrast, the FAA can look at the

overall safety history of the aircraft as well as its

components. It has access to safety data, product

experience, and unbiased expertise, which enable it

to weigh all the criteria relating to safety and make

a logical decision that is far more likely to improve

overall safety than a decision based on the evidence

in one lawsuit.

B.

The Third Circuit’s Treatment of

Conflict Preemption by Reason of

Impossibility is Contrary to this

Court’s Recent Decisions.

The Third Circuit’s rejection of impossibility

preemption is puzzling. The panel in Sikkelee II

simply bypassed the definitive holding of this Court’s

two recent decisions on this form of preemption,

Mensing (2011) and Bartlett (2013). Both of these

decisions clarified—and should have resolved—the

issue in the present case.

In Mensing, plaintiffs alleged that a generic drug

carried inadequate warnings. 564 U.S. at 610. As

here, the duties imposed by state product liability

principles were immediate and “required the

Manufacturers to use a different, stronger label than

the label they actually used.” Id. at 617. Federal law,

however, “prevented the Manufacturers from

independently changing their generic drugs’ safety

labels,” without first “ask[ing] for FDA assistance in

7

convincing the brand-name manufacturer to adopt a

stronger label,” id., because federal law required

that branded and generic drug labeling be “the

same” at all times. 2

This conflict made it impossible for the defendant

manufacturers in Mensing to comply simultaneously

with both federal and state law, requiring

preemption of state law. “The question for

‘impossibility’ is whether the private party could

independently do under federal law what state law

requires of it.” Id. at 620. In Mensing the FDA had to

approve and coordinate label changes to ensure that

branded and generic labeling remained at all times

verbatim, as the statute required. Mensing thus

recognized the preemptive significance of mandatory

intervention by a federal agency. “[W]hen a party

cannot satisfy its state duties without the Federal

Government’s special permission and assistance,

which is dependent on the exercise of judgment by a

federal agency, that party cannot independently

satisfy those state duties for pre-emption purposes.”

Id. at 623-24. Where “state law imposed a duty on

the Manufacturers to take a certain action, and

federal law barred them from taking that action . . .

[state-law] tort claims are pre-empted.” Id. at 624.

In Bartlett, another product liability matter

involving a generic drug, the Court reiterated and

2

Id. at 613 (“A manufacturer seeking generic drug approval,

on the other hand, is responsible for ensuring that its warning

label is the same as the brand name’s.”) (citing 21 U.S.C.

§§355(j)(2)(A)(v); 355(j)(4)(G); 21 C.F.R. §§314.94(a)(8),

314.127(a)(7)).

8

reinforced its preemptive holding in Mensing. To

circumvent Mensing, the plaintiff alleged a “design

defect” claim. Id. at 479. However, the independence

principle recognized in Mensing also applied to

design-related claims because, as with warnings,

federal statute requires that generic and branded

drug designs be the “same.” Id. at 477. Any changes

to drug design require prior FDA approval. After

approval, “the manufacturer is prohibited from

making any major changes to the ‘qualitative or

quantitative formulation of the drug product,

including active ingredients, or in the specifications

provided in the approved application.’” Id. (quoting

21 C.F.R. §314.70(b)(2)(i)). Thus, under federal law,

“redesign was not possible” because the statute

“requires a generic drug to have the same active

ingredients, route of administration, dosage form,

strength, and labeling as the brand-name drug on

which it is based.” Id. at 483-84 (citation omitted).

As in Pennsylvania, relevant state law in Bartlett

“impose[d] design-defect liability only where the

design of the product created a defective condition

unreasonably dangerous to the user.” 570 U.S. at

482 (quoting Vautour v. Body Masters Sports

Industries, Inc., 784 A.2d 1178, 1181 (N.H. 2001)) 3

To avoid an “unreasonably dangerous” product

“would require redesigning the [product]: A

3 Cf. Tincher v. Omega Flex, Inc., 104 A.3d 328, 380 (Pa. 2014)

(“[T]he critical inquiry in affixing liability is whether a product

is ‘defective’; in the context of a strict liability claim, whether a

product is defective depends upon whether that product is

‘unreasonably dangerous.’” In Pennsylvania, “the notion of

‘defective condition unreasonably dangerous’ is the normative

principle of the strict liability cause of action.” Id. at 400.

9

[product’s] usefulness and its risk of danger are both

direct results of its . . . design.” Id. at 483. In

Mensing,

impossibility

preemption

therefore

precluded any “design defect” claim based on

“redesigning” the product. Id. 4 “When federal law

forbids an action that state law requires, the state

law is without effect.” Id. at 486 (citation and

quotation marks omitted).

Like the defendants in Mensing and Bartlett,

petitioner here could not unilaterally change the

design of its product because FAA regulations

precluded it from unilaterally changing its design.

So, the answer in the present case should have been

simple: It was impossible to comply with both state

and federal law because, indisputably, the petitioner,

as in Mensing/Bartlett, could not alter the type

design of the engine without prior FAA review and

approval. Yet the Third Circuit panel was “not

persuaded” [by] PLIVA and Bartlett. Sikkelee II, 907

F.3d at 713. Purporting to rely on Wyeth v. Levine,

555 U.S. 555 (2009), Sikkelee II sought to distinguish

this Court’s more recent decisions on the ground

that agency preapproval—although undisputedly

4 A second prong of Bartlett similarly held that a “stop selling”

claim, imposing liability for not removing a federally-approved

product from the market altogether, was also preempted. Id. at

488-89. Amici do not understand plaintiffs here to be arguing

that the defendant should have stopped selling their product.

Indeed, Lycoming did not manufacture or install the carburetor

on the aircraft at the time of the accident. Sikkelee v. AVCO

Corp., 268 F.Supp.3d 660, 663 (M.D. Pa. 2017).

10

required 5 —was, relatively speaking, easy. See 907

F.3d at 713 (defendant “has made numerous changes

to the type certificate . . ., which the FAA approved

in short order”).

That is not the test for impossibility. Sikkelee II

perversely penalizes regulated entities when they

have previously obtained agency approval to make

other design changes. A regulated manufacturer is

entitled to preemption both when its submissions for

agency pre-approval obviously comply with relevant

administrative requirements, and when those filings

draw intense agency scrutiny. Nor does it matter

that “[t]here is no evidence in the record showing

that the FAA would not have approved a change.”

Sikkelee II, 907 F.3d at 714. To the contrary, “[t]he

question for ‘impossibility’ is whether the private

party could independently do under federal law what

state law requires of it.” Mensing, 564 U.S. at 620

(emphasis added). Here, the Third Circuit found that

the petitioner could not act independently. Sikkelee

II thus misapplied this Court’s impossibility

preemption precedent in the first appellate decision

fully considering that precedent in the context of the

Federal Aviation Act.

Judge Roth’s dissent in Sikkelee II got it right. It

pointed out that preemption “is readily apparent

when we consider the question of impossibility in the

precise language provided by the Supreme Court:

Could Lycoming independently do under federal law

5 The panel conceded that “the Federal Aviation Act and FAA

regulations require FAA approval of a type certificate and

changes to it.” Sikkelee II, 907 F.3d at 713.

11

what state law required of it, i.e., alter the design of

the carburetor’s fastening mechanism from lock-tab

washers to safety wire? Under the applicable FAA

regulations, the answer to that fundamental

question is clearly no, regardless of whether such a

change would have been minor or major.” Id. 907

F.3d at 723.

This Court should grant review to ensure that its

recent holdings in Mensing and Bartlett, which

finally brought clarity to a complex subject, and

which impact a wide variety of amici’s members, and

not undone.

II.

AVIATION

SAFETY

REGULATION

HAS

PERVASIVELY BEEN THE PROVINCE OF

FEDERAL LAW AND SUBJECT TO LITTLE OR

NO REGULATION BY STATE OR LOCAL

AUTHORITIES.

A.

The Third Circuit Erroneously

Rejected Field Preemption.

Even in the absence of an express preemption

clause, a court should infer that Congress intended

to occupy the field “where the pervasiveness of the

federal regulation precludes supplementation by

the states, where the federal interest is sufficiently

dominant, or where ‘the object sought to be

obtained by the federal law and the character of

obligations imposed by it ... reveal the same

purpose.’” Schneidewind v. ANR Pipeline Co., 485

U.S. 293, 299-300 (1988), quoting Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947). Based

upon this principle, the Third Circuit in Abdullah

12

v. Am. Airlines, Inc., 181 F.3d 363, 365 (3d Cir.

1999), recognized “implied federal preemption of

the entire field of aviation safety.” However, the

Third Circuit reversed course in Sikkelee, holding

that preemption in aviation was limited to “in-air”

activities and “‘was at odds with the federal

regulatory scheme governing aviation design and

manufacturing.”” Sikkelee I, 822 F.3d at 689-690,

quoting from Sikkelee v. Precision Airmotive Corp.,

45 F. Supp.3d. 431, at 460 (M.D. Pa. 2014). The

history of aviation regulation, as set forth below,

provides no basis for such a distinction.

B.

Transportation is at the Core of

Federal Preemption.

Conflicts over regulation of transportation have long

been at the core of federal field preemption. The

Constitution’s Framers recognized the dominant

federal interest in regulating interstate commerce.

Article I Section 8 of the Constitution delegates to

Congress the power “[t]o regulate Commerce ...

among the several States….” Alexander Hamilton

discussed a major shortcoming of the absence of such

a power in the Articles of Confederation, fearing that

the nation would be undermined by “interfering and

unneighborly regulations of some States” if “a

national control” did not restrain them. The

Federalist No. 22, p. 135 (A. Hamilton) (Heritage

Press 1945). He cited the problems of the German

empire, in which “the fine streams and navigable

rivers with which Germany is so happily watered are

rendered almost useless” because of the “multiplicity

of duties” the various princes and states exacted

upon merchandise.

13

Thus, in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1

(1824), the Court rebuffed New York’s attempt to

reestablish the unilateral burdens on interstate

transportation. Chief Justice Marshall’s opinion

declared that the commerce power was “plenary” (22

U.S. at 197); it was “complete in itself, may be

exercised to its utmost extent, and acknowledges no

limitations, other than are prescribed in the

constitution.” 22 U.S. at 196. The Court declared

that the power over commerce “is vested in Congress

as absolutely as it would be in a single government.”

22 U.S., at 220-221. The Court has since upheld

preemption to restrain local regulation of many

modes of transportation, historically via field

preemption. See, e.g. Ray v. Atl. Richfield Co., 435

U.S. 151, 165-167 (1978) (ship design standards);

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520

(1959) (trucking); Kurns v. R.R. Friction Prod. Corp.,

565 U.S. 625 (2012) (railroads); and City of Burbank

v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973)

(aviation).

As explained below, the Federal Government has

always assumed the responsibility for regulation of

aviation,

including

regulation

of

design,

manufacturing, alteration, and airworthiness, for

nearly a century. In 1926, when Congress first

decided to regulate aviation, it relied upon this

Court’s precedents preluding states from stepping in.

The Court had recently held that one state could not

require trains to have a platform in the rear despite

the Interstate Commerce Commission allowing a

caboose without a platform. See Pennsylvania R. Co.

v. Public Service Comm'n, 250 U.S. 566 (1919); see

14

also Napier v. Atlantic Coast Line R. Co., 272 U.S.

605 (1926).

In the present era, the Court has held that the

Federal

Government’s

“evident

congressional

intention to establish a uniform federal regime

controlling the design of oil tankers” under the Tank

Vessel Act preempted the state of Washington from

attempting to impose standards of its own. Ray v.

Atl. Richfield Co., 435 U.S. 151, 166 (1978).

To allow state-by-state regulation of aircraft design

would be at least as disruptive as states’ attempts to

regulate equipment on trains or ships. If each state

could regulate the design of aircraft, one can only

imagine the disruption, delay, and added danger to

require an airplane to land and replace equipment in

the airplane in accordance each state’s demands. 6

The Court long ago recognized the “weighty

considerations why the controlling law should be

uniform, and not change at every state line.” New

York Cent. Ry. Co. v. Winfield, 244 U.S. 147 (1917).

State law intervention is preempted even if it

purports to “help” achieve the Federal Government’s

objectives. As Justice Holmes wrote, “When

Congress has taken the particular subject-matter in

hand, . . . a state law is not to be declared a help

because it attempts to go farther than Congress has

6 Such an extreme hypothetical may seem implausible, but our

history (and Britain’s) includes the railroads’ “gage wars,”

when railroad companies used different gages of track, and

some communities fought to preserve a unique gage, for their

own economic advantage. See Sarah H. Gordon, PASSAGE TO

UNION:

HOW

THE

RAILROADS

TRANSFORMED

AMERICAN LIFE, 1829-1929, 114-115, 151 (1996).

15

seen fit to go.” Charleston & W.C. Ry. Co. v.

Varnville Furniture Co, 237 U.S. 597, 604 (1915).

III.

THE FEDERAL AVIATION ACT PREEMPTS THE

FIELD OF AVIATION SAFETY STANDARDS

BECAUSE HISTORY DEMONSTRATES LONGAND

PERVASIVE

FEDERAL

STANDING

REGULATION OF AVIATION.

The Federal Government’s central role in aviation

regulation began nearly a century ago. Petition, p. 4.

Aviation was still novel, but Congress recognized the

need for uniform laws and regulations. Id., p. 5. The

Federal Government’s 1926 regulations established

airworthiness and safety standards that controlled

every aspect of the design of aircraft, parts approved

for installation, and alterations. Id., pp. 6-8.

By the time Charles Lindbergh flew the Spirit of St.

Louis across the Atlantic to Paris in 1927, the

Federal Government had already undertaken

comprehensive regulation. The scope of such federal

regulation was unprecedented. This regulatory

system evolved, first, in 1926 to regulate all

interstate aviation; next, in 1938 to extend

regulation to all aviation that might affect interstate

aviation (which includes all domestic aviation) as

well as the design of aircraft and their components.

A preeminent expert in international aviation law

wrote, “Aviation is probably the most extensively

and strictly regulated human activity. The technical

and operational complexity and the concern for

safety and security in the operation of aircraft are

16

reflected in detailed legal regulation that is enforced

by national and international mechanisms.” 7

A.

The Air Commerce Act of 1926.

The Air Commerce Act of 1926, Act of May 20, 1926,

ch 344, 44 Stat. 568 (“1926 Act”) was regarded as the

“first comprehensive federal code for the regulation

of air navigation” and covered examination and

licensing of pilots and mechanics, registering and

licensing of airplanes, issuance of airworthiness

certificates for airplanes, inspection of aircraft, air

traffic rules, and rating of airports. 8 The 1926 Act

gave the United States “‘complete and exclusive

national sovereignty in the air space’ over this

country.” United States v. Causby, 328 U.S. 256, 260

(1946). See also, 72 Stat. 798, 49 U.S.C. §1508 (1970).

Courts interpreted the 1926 Act as requiring

uniformity of regulation to the extent that intrastate

travel would interfere with the flow of interstate

commerce and, to that extent, as disallowing

conflicting state rules. 9

Section 3 of the 1926 Act directed the Secretary of

Commerce to promulgate regulations, inter alia, to

7 44 Stat. 568 (1926); Michael Milde, INTERNATIONAL AIR

AND ICAO (2d ed. 2012) p. xii (“Milde”).

8 Eugene A. Weibel, Problems of Federalism in the Air Age-Part

I, 24 J. Air L. & Comm. 127, 140 (1957) (“Weibel”).

9 Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761, 763

(N.D. Ohio 1929); Swetland v. Curtiss Airports Corp., 41 F.2d

929, 940 (N.D. Ohio 1930), modified, 55 F.2d 201 (6th Cir.

1932), cited in Geoffrey M. Hand, Should Juries Decide Aircraft

Design? Cleveland v. Piper Aircraft Corp. and Federal

Preemption of State Tort Law, 29 U.S.F. L. Rev. 741, 749 (1995).

17

“[p]rovide for the rating of aircraft of the United

States as to their airworthiness,” and review the

“full particulars of the design and of the calculations

upon which the design is based and of the materials

and methods used in the construction.” 44 Stat. at

569-570. The first airworthiness regulations, enacted

within a year of the passage of the 1926 Act,

established standards for the critical aircraft

systems. 10 The 1926 Act and regulations improved

aviation safety. 11 The regulations were incrementally amended, then recodified in 1937 and

renamed the Civil Air Regulations. Ballard at 1240.

B.

The Civil Aeronautics Act of 1938.

By the mid-1930s, safety lapses led to wellpublicized

accidents,

culminating

in

a

Congressman’s death in a 1935 crash. Id., at 12401241. The result was enactment of the Civil

Aeronautics Act of 1938, 52 Stat. 973 (“1938 Act”). It

was generally agreed that federal regulation should

extend to the utmost limits of the Constitution; “that

it should cover both commercial and private flying;

and that it should include both economic and safety

regulation.” Id. at 1252. The 1938 Act also

empowered the Civil Aeronautics Authority to

oversee all aspects of air commerce, including “any

operation or navigation of aircraft which directly

affects, or which may endanger safety in, interstate,

overseas, or foreign air commerce.” (emphasis added).

10 William P. MacCracken, Jr., Air Regulations, 131 Annals Am.

Acad. Pol. & Soc. Sci. at 118-119 (1927).

11 Frederick A. Ballard, Federal Regulation of Aviation, 60

Harvard L. Rev. 1235, 1240 (1947) (“Ballard”).

18

This broader definition of “air commerce” embraced

“all areas in which this fast-moving activity could

operate.” Weibel, 24 J. Air L. & Comm. at 142. The

1938 Act thereby subsumed whatever powers the

states might have had to regulate intrastate aviation.

The keystone of the 1938 Act was, “Full control over

the production and use of aircraft from drawing

board and flight performance to overhaul and

obsolescence, the margin of reserves from aircraft

parts to flight fuel minima, the maximum pilot hours,

minimum safe altitudes of flight, and air traffic

rules. . . .”Id. This broad language empowered the

Federal Government to regulate safety issues arising

from intrastate air activities as well as interstate

operations. 12 Contemporary commentators immediately recognized that the 1938 Act left no room for

state regulation of aviation safety. 13 The Act “so

practically covers the field that there is very little

left for the states to do in aviation except, perhaps,

establish and maintain airports, and cooperate with

the Federal Government.” 14 The “chief function” of

the Act was “the control of safety,” including “[f]ull

control over the production and use of aircraft from

drawing board and flight performance to overhaul

12 See e.g. Rosenhan v. United States, 131 F.2d 932, 935 (10th

Cir. 1942); accord, United States v. Drumm, 55 F. Supp. 151 (D.

Nev. 1944).

13 See, e.g., Willebrandt, 11 J. Air L & Comm. at 204-205;

Charles S. Rhyne, Federal, State and Local Jurisdiction over

Civil Aviation, 11 Law & Contemp. Probs. 459, 464 (1946);

Ballard, 60 Harvard L. Rev. at 1278; Weibel, 24 J. Air L.&

Comm. at 142.

14 Willebrandt, at 205.

19

and obsolescence.” 15 The Federal Government had

already occupied the field of regulating air safety

long before the Federal Aviation Act of 1958.

C.

ICAO and The Federal Aviation Act

of 1958.

In 1944, the Federal Government led the effort to

extend its aviation safety rules internationally and

thereby unify aviation law worldwide with the

formation of the International Civil Aviation

Organization (“ICAO”). 16 While not directly

addressing the specific regulations at issue here, this

country’s leadership in establishing international

norms for aviation standards through ICAO confirms

the fact that federal regulation was intended to be

the uniform source of regulation of aviation safety

standards and that they should not vary from state

to state.

The Third Circuit trivialized the preemptive effect of

the Federal Aviation Act of 1958, stating that the

applicable statutory provision governing product

design was simply “adopted verbatim from the 1938

Civil Aeronautics Act . . .which clearly did not

preempt state law products liability claims.” Sikkelee

I, 822 F.3d at 693. Virtually none of the cases it cited

addressed preemption. But the 1958 Act’s

continuation and improvement of long-standing

15 Weibel, at 142.

16 61 Stat. 1180 (1944); see also, Milde, supra, which discusses

the significance of the Convention on International Civil

Aviation in Chicago.

20

federal regulations 17 demonstrates that “the federal

interest has been manifest,” is now “well

established,” and there has been a “history of

significant federal presence.” United States v. Locke,

529 U.S. 89, 99, 108 (2000).

The Federal Aviation Act of 1958 (the “Act”) and

regulations adopted to implement the Act, retained

and further expanded federal regulatory control over

aircraft design at a critical time when aviation

technology was rapidly changing. The Act furthered

the objective of a unified aviation system by

combining tasks previously split among numerous

agencies into one.

The calamity that most directly prompted the

Federal Aviation Act of 1958 was a mid-air collision

between two airliners over the Grand Canyon on

June 30, 1956, that killed all 128 passengers. It was

then the worst aviation disaster in history. And it

was readily avoidable. Both aircraft had departed

the same airport within a few minutes of each other,

with the slower plane in the lead. Tragically, the

trailing plane caught up, despite both aircraft known

to be at the same altitude and on the same course.

Due to the lack of a uniform system of air traffic

control, no traffic advisories were given to either

aircraft. 18 The disaster graphically illustrated the

need for complete and uniform overhaul of the

nation’s air traffic control system, but it also

17 Compare CAR Parts 04-18 with 14 C.F.R. Parts 21-43. CARs

are available at https://dotlibrary.specialcollection.net.

18 See David Geto, AVIATION DISASTERS: THE WORLD’S MAJOR

AIRLINER CRASHES SINCE 1950, 22-24 (2d ed. 1996).

21

highlighted other shortcomings in the post-1938-Act

regime that were already under investigation by

Congress and the President.

Nor was this disaster an isolated event. Preceding

the Grand Canyon disaster, there had been 65 other

midair collisions in the United States between 1950

and 1955. 19 Although the accident led to a proposal

for a new Federal Aviation Agency, the legislation

bogged down for two years until still more mid-air

collisions between military jets and commercial

aircraft in California, Nevada, and Maryland in 1958

triggered emergency hearings in Congress and

adoption of the Act. U.S. Senate, 85th Congress 2d

Session, Report No. 1811, July 9 (legislative day

July 7, 1958), pp. 7-8 (“Senate Report 1811”). 20

Technological and economic developments, as well as

the mid-air crashes, highlighted the need to overhaul

the law. The most important feature of the 1958 Act

was to ensure that safety regulation of aviation

would be indivisible by consolidating regulatory

power in a single federal entity, the Federal Aviation

Agency and modern-day FAA.

Theresa L. Kraus, THE FEDERAL AVIATION

ADMINISTRATION: A HISTORICAL PERSPECTIVE, 19032008, 7 (2008).

20 See also, John Nance, BLIND TRUST, 99-103 (1986). Senate

Report 1811 can be found at

(https://1.next.westlaw.com/Link/Document/Blob/I388941606a2

f11de8625010000000000.pdf?targetType=GAO&originationCon

text=document&transitionType=DocumentImage&uniqueId=e1

a40209-c11f-4037-bba8660b20ec8483&contextData=(sc.Search).

19

22

D.

Congress Created a Unified Federal

System of Air Safety Standards.

Aviation had advanced rapidly prior to 1958. In

recommending adoption of the Federal Aviation Act,

the Senate Committee on Interstate and Foreign

Commerce reported these statistics: In barely twenty

years, aircraft registration figures had more than

tripled, from 29,000 to 90,000. Senate Report 1811. p.

4. Takeoffs and landings had ballooned from five

million to 65 million per year, and scheduled carriers,

whose planes represented only two percent of all

operating aircraft, were flying over 32 billion

passenger miles per year, an increase of 450 percent

since the close of World War II. Id. Private aircraft

were being added at a rate of 500 per month. Id.

Airlines had replaced the railroads as the principal

means of long-haul passenger transportation. Id.

In addition to the rapid increase of the sheer volume

of flights, the speed and technological complexity of

advanced aircraft increased, too. These advances

occurred in both military and civilian aviation. The

Senate Committee report noted that the military’s

“well-recognized reliance on jet-propelled military

airpower” had transformed aviation into “the most

dynamic of American industries.” Id. p. 5. The

advent of commercial jet airliners was recognized as

“imminent,” and a “frontier . . . in as much need of

law and order as ever.” Id.

The Committee

considered aviation to be “unique” among

transportation industries because “it is the only one

whose operations are conducted wholly within the

federal jurisdiction, and are subject to little or no

regulation by States or local authorities.” Id.

Consequently, the report concluded, “the Federal

23

Government bears virtually complete responsibility

for the promotion and supervision of this industry in

the public interest.” Id. The Federal Government’s

pervasive control of aviation regulation was thus

already recognized before the 1958 Act was enacted.

The Committee recognized the need to unify safety

regulation. “In no area of its activities is the [Civil

Aeronautics] Board more completely dependent upon

its staff of experts than in the field of safety

rulemaking.” Id. Because of “the belief that aviation

safety is essentially indivisible,” all safety regulation

was placed in the hands of a single agency, the new

FAA. 72 Stat. at 775, 798, §§ 601, 1108. The Act

empowered the FAA, and the FAA alone, to

promulgate and enforce air safety regulations—a

task that had previously divided among multiple

agencies. 72 Stat. at 775, 798, §§ 601, 1108. These

changes finally resulted in a system in which

“aviation safety is essentially indivisible.” Senate

Report 1811, at 11 (emphasis supplied); see also H.R.

Rep. 85-2360, 1958 U.S.C.C.A.N. 3741, p. 7.

Thus, over the course of several decades, Congress

ensured unified federal regulation of aviation safety,

first by promulgating nation-wide comprehensive

safety regulation in 1926, then in 1938 regulating

intrastate as well as interstate aviation, in 1944

leading the effort to unify international standards

via ICAO, and then consolidating all federal safety

regulation in one agency in 1958. See United States v.

Christensen, 419 F.2d 1401, 1404 (9th Cir. 1969).

The rationales for preemptive safety regulation

echoed the same concerns that the Court recognized

in holding that the Tank Vessel Act preempted the

24

state of Washington from attempting to impose

standards for tankers. Ray, supra, 435 U.S. at 165167.

This issue is critically important, not only to amici’s

members, but also to the public. In the past century,

the federal regulatory system has vastly improved

the safety of air commerce, even as rapid changes in

technology have made aviation more complex.

Ensuring that safety regulation remains unified, as

Congress intended, or Balkanized, makes a real

difference in everyone’s future safety.

Congress gave the FAA responsibility for setting the

minimum safety standards for all aspects of aviation.

72 Stat. 775, § 601, 49 U.S.C. §1431 (1970). The

interdependence of its responsibilities “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 v.

Lockheed Air Terminal Inc., 411 U.S. 624, 639 (1973).

The Third Circuit rightly concluded in Abdullah that

federal regulations preempt the field of aviation

safety standards. It should not have retreated from

that conclusion in Sikkelee.

IV.

CONCLUSION

The long-standing and pervasive federal requirement of advance approval of every design,

manufacturing process, aircraft component, and

alteration, makes it impossible for a manufacturer to

alter the design of an approved product legally

without the FAA’s prior approval. The Third

Circuit’s trivialization of this requirement, see 907

F.3d at 713, is not only inconsistent with Mensing

25

and Bartlett, but also risks causing wider chaos in

other federally-regulated industries.

State-imposed aviation safety standards are

inconsistent with federal law. Opponents of

preemption may argue that state law that sets a

higher safety standard than FAA regulations is

acceptable because the FAA is duty-bound to

improve aviation safety. But such an assertion

overlooks the fact that Congress also gave the FAA

and its predecessor federal agencies total control of

aviation safety regulation. It did so because of the

recognition that the safest system of regulation is a

one that applies consistently, wherever the aircraft

is designed, manufactured maintained, and flies. It

is impossible to reconcile the powers of the FAA and

ad hoc safety standards by the states.

Federal law preempts the field of aviation safety

because Congress has long recognized that aviation

safety standards cannot vary from state to state. Its

actions since 1926 have broadened the scope of

federal regulation, but the steps taken have been to

unify the federal regulatory system, which is the

only system of comprehensive aviation safety rules

that we have.

26

Amici respectfully ask that the Court

certiorari in the above-captioned case.

JONATHAN M. HOFFMAN

Counsel of Record

MB LAW GROUP, LLP

117 SW Taylor St.

Suite 200

Portland, OR 97204

(503) 914-2015

jhoffman@mblglaw.com

APRIL 2019

grant

PETER C. TOLSDORF

LELAND P. FROST

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10th Street NW

Suite 700

Washington, DC 20001