Amicus Curiae Brief — Avco Corporation, Petitioner v. Jill Sikkelee, Individually and as Personal Representative of the Estate of David Sikkelee, Deceased, et al.
Supreme Court briefApr 22, 2019
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No. 18-1140
IN THE
Supreme Court of the United States
————
AVCO CORPORATION,
Petitioner,
v.
JILL SIKKELEE,
Respondent.
————
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit
————
BRIEF OF AEROSPACE INDUSTRIES
ASSOCIATION OF AMERICA, INC. AS
AMICUS CURIAE IN SUPPORT OF PETITIONER
————
JAMES W. HUNT
MARK R. IRVINE
FITZPATRICK & HUNT,
PAGANO, AUBERT LLP
633 West Fifth Street
60th Floor
Los Angeles, CA 90071
(213) 837-2100
PAUL N. BOWLES III
Counsel of Record
NORA C. DEVITT
FITZPATRICK & HUNT,
PAGANO, AUBERT LLP
12 East 49th Street
31st Floor
New York, NY 10017
(212) 937-4033
paul.bowles@fitzhunt.com
Counsel for Amicus Curiae
April 22, 2019
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
CORPORATE DISCLOSURE STATEMENT
Amicus curiae, Aerospace Industries Association of
America, Inc. (AIA) is a not-for-profit trade association
representing the interests of the aerospace and
defense industry in the United States. It has no publicly owned parent corporation, subsidiary, or affiliate,
nor has it issued shares or debt securities to the public.
No publicly held company owns 10% or more of any
stock in AIA.
(i)
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .....
i
TABLE OF AUTHORITIES ................................
iv
INTEREST OF THE AMICUS CURIAE ............
1
SUMMARY OF ARGUMENT .............................
2
ARGUMENT ........................................................
3
THE SIGNIFICANT FEDERAL SAFETY
INTEREST
AT
STAKE
WARRANTS
GRANTING THE PETITION .............................
3
I. The federal government’s paramount
interest in aircraft safety forged the
comprehensive regulatory framework
governing
aircraft
design
and
manufacture ..............................................
4
II. Exclusive federal control and a uniform
regulatory framework are vital to
maintaining the safest and most
advanced aviation industry in the world .
7
III. The Third Circuit’s holdings usurp
federal control of aviation safety and
disrupt the FAA’s entire regulatory
framework .................................................
10
CONCLUSION ....................................................
16
APPENDIX
APPENDIX: List of Aerospace Industries
Association of America, Inc. Member
Companies ......................................................
(iii)
1a
iv
TABLE OF AUTHORITIES
CASES
Page(s)
Abdullah v. American Airlines, Inc.,
181 F.3d 363 (3d Cir. 1999) ......................
6
City of Burbank v. Lockheed Air Terminal Inc.,
411 U.S. 624 (1973) ...................................
4
Crosby v. National Foreign Trade Council,
530 U.S. 363 (2000) ...................................
8
Montalvo v. Spirit Airlines,
508 F.3d 464 (9th Cir. 2007) .....................
5
Nat’l Fed’n of the Blind v. United Airlines Inc.,
813 F.3d 718 (9th Cir. 2016) .....................
5
Northwest Airlines v. Minnesota,
322 U.S. 292 (1944) ...................................
4
PLIVA, Inc. v. Mensing,
564 U.S. 604 (2011) ............................. 2, 3, 4, 13
Sikkelee v. Precision Airmotive Corporation,
822 F.3d 680 (3d Cir. 2016) .................... 3, 4, 10
Sikkelee v. Precision Airmotive
Corporation, 907 F.3d 701 (3d Cir. 2018) .. 3, 6, 10
CONSTITUTIONS
U.S. Const. art. II, § 2, cl. 2 .......................... 8, 14
STATUTES
49 U.S.C.A. § 40101(a) .................................
5
49 U.S.C.A. § 40101(a)(3) .............................
5
49 U.S.C.A. § 40101(d)(1) .............................
5
49 U.S.C.A. § 44701 ......................................
6
v
TABLE OF AUTHORITIES—Continued
Page(s)
49 U.S.C.A. § 44701(a) .................................
6
49 U.S.C. § 44704(b) ..................................... 9, 13
REGULATIONS
14 C.F.R. pt. 21 .............................................
11
14 C.F.R. § 21.95 (2019) ............................... 9, 13
14 C.F.R. § 21.113 (2019) ............................. 9, 13
14 C.F.R. pt. 23 .............................................
6
14 C.F.R. pt. 25 .............................................
6
14 C.F.R. pt. 27 .............................................
6
14 C.F.R. pt. 29 .............................................
6
14 C.F.R. pt. 33 .............................................
6
14 C.F.R. pt. 35 .............................................
6
14 C.F.R. § 183.1(a) ...................................... 12, 13
14 C.F.R. § 183.29(a)-(i) ............................... 12, 13
14 C.F.R. § 183.41(a) .................................... 12, 13
14 C.F.R. § 183.57 ........................................
13
49 C.F.R. pt. 831 ...........................................
14
49 C.F.R. § 831.20(a)(1) (2018) ....................
14
49 C.F.R. § 831.21(a) (2019) .........................
14
INTERNATIONAL TREATIES AND AGREEMENTS
Agreement on Cooperation in the Regulation of Civil Aviation Safety, U.S.-E.U,
Jun. 30, 2008, T.I.A.S. 11-501 ..................
9
vi
TABLE OF AUTHORITIES—Continued
Page(s)
International Civil Aviation Organization,
Convention on International Civil Aviation,
Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S.
295 .............................................................
14
OTHER AUTHORITIES
Aerospace Industries Ass’n, 2017 Facts and
Figures U.S. Aerospace & Defense (June
15, 2017), available at https://www.aiaaerospace.org/report/2017-facts-figures/ ...
7
Aerospace Industries Ass’n, Foreign Trade:
The Facts on Trade, http://www.aiaaero
space.org/research-center/statistics/indu
stry-data/foreign-trade/ (last visited Apr.
16, 2019) ....................................................
7
Boeing, Statistical Summary of Commercial Jet Airplane Accidents, Worldwide
Operations, 1959 – 2017 (Oct. 2018),
available at http://www.boeing.com/resou
rces/boeingdotcom/company/about_bca/pdf/
statsum.pdf ...............................................
9
FAA, Aviation Safety: Bilateral Agreement
Listing, http://www.faa.gov/aircraft/air_
cert/international/bilateral_agreements/
baa_basa_listing/ (last visited Apr. 16,
2019) ..........................................................
9
vii
TABLE OF AUTHORITIES—Continued
Page(s)
GE Passport Achieves FAA Certification for
Business Jet Applications, GE AVIATION
(May 23, 2016), available at https://www.
geaviation.com/press-release/business-ge
neral-aviation/ge-passport-achieves-faacertification-business-jet ..........................
11
H.R. REP. NO. 85-2360 (1958), reprinted in
1958 U.S.C.C.A.N. 3741 ...........................
5
Letter Brief from the Dep’t of Transp. and
the FAA as Amici Curiae (Sept. 2, 2015),
Sikkelee v. Precision Airmotive Corp., 822
F.3d 680 (3d. Cir. 2016) (No. 14-4193),
2015 WL 5665724 (2015) .................... 11, 12, 13
Oxford Economics, Economic Benefits from
Air Transport in the U.S. (2011),
available at https://www.iata.org/public
ations/economics/Reports/voa-country-re
ports/Benefits-of-Aviation-US-2011.pdf ...
8
S. REP. NO. 85-1811 (1958) ...........................
6
The FAA and Industry Guide to Product
Certification (3d ed. 2017), available at
https://www.faa.gov/aircraft/air_cert/desi
gn_approvals/media/CPI_guide_II.pdf .........
12
U.S. Dep’t of Transp., FAA Order 8110.4C,
Type Certification (Mar. 28, 2007) ...........
11
INTEREST OF THE AMICUS CURIAE1
Founded in 1919, AIA represents more than 340 of
the nation’s major aerospace and defense manufacturers and suppliers, producers of products and systems
ranging from commercial aircraft, engines and avionics, to manned and unmanned defense systems and
space and satellite communications systems. Amicus
curiae lists its members in the appendix herein.
Together with amicus curiae General Aviation Manufacturers Association, Inc. (GAMA), AIA represents
most of the aviation manufacturers in the United States.
AIA’s member companies’ comprehensive expertise
in aircraft design, manufacturing, and certification
will prove useful to the Court in considering the
questions regarding aviation manufacturing, design,
and safety presented in this case. Its members’
products reach all corners of the commercial aviation
industry in America, and are counted on to safely move
America’s passengers across the skies on a daily basis.
The Federal Aviation Administration (FAA) certifies
these commercial aviation products as airworthy
under federal regulatory safety standards, and AIA
member companies work extensively with this agency
through all phases of regulation covering safe design,
manufacture, operation, and airworthiness of their
products. The Third Circuit’s decisions have profound
1
Counsel of record received timely notice of the intention to file
this brief, and all parties have consented to its filing. Letters of
consent to the filing of this brief executed by all parties have been
lodged with the Clerk of the Court pursuant to Rule 37.2. In
accord with Rule 37.6, Amicus states that no party or counsel for
a party made a monetary contribution for the preparation or
submission of this brief, and this brief was not authored, in whole
or in part, by counsel for a party.
2
and sweeping implications for this regulatory framework, AIA, and the entire aviation industry.
SUMMARY OF ARGUMENT
Safe product design and manufacture are the cornerstones of America’s aviation industry. For nearly a
century, the federal government has recognized aviation
safety as a paramount federal interest. Congress
expressed its clear intent that federal law exclusively
govern aviation safety by enacting the Federal Aviation
Act and creating the Federal Aviation Administration
(FAA) to serve as the sole regulator of aircraft design
and manufacture. This clear congressional intent is
furthered by the industry’s constant pursuit of advancing safety pursuant to uniform federal regulations.
Congress authorized the FAA to establish this
comprehensive regulatory framework to oversee the
aviation industry and protect the flying public. The
Third Circuit’s decisions, which substitute state-court
created law for well-crafted federal standards, usurp
the FAA’s role and disrupt Congress’ carefully
constructed regulatory framework.
This Court’s “impossibility” conflict preemption standard, as set forth in PLIVA, Inc. v. Mensing, 564 U.S.
604, 623-24 (2011), establishes that federal law will
have preemptive effect when a manufacturer may not
alter a previously certified product without prior agency
approval. The Third Circuit’s refusal to correctly
apply “impossibility” preemption to aviation manufacturing effectively dismantles the FAA’s role as the sole
arbiter of aviation safety by transferring the role of
deciding design changes to state courts and juries directly contrary to the Federal Aviation Act’s instruction. By improperly placing conflict preemption
analysis with respect to aviation design issues outside
3
the scope of PLIVA, the Third Circuit's decision
thwarts the federal government’s predominance in the
matter of aircraft safety. Furthermore, the Third
Circuit’s earlier 2016 decision undermines the uniform
safety regime in holding that the scope of preemption
over the field of aviation safety is limited to
“in-air operations.” That decision directly contravenes
longstanding federal policy aimed at uniformity,
undercutting an entire industry’s (and the flying
public’s) reliance on uniform air safety standards.
Upholding Congress’ mandates for federal control
over aviation safety and for uniform aviation safety
standards is vital to the broader industry’s task of
advancing the significant federal interest in public
safety. This Court should accordingly grant the
petition for certiorari.
ARGUMENT
THE
SIGNIFICANT
FEDERAL
SAFETY
INTEREST AT STAKE WARRANTS GRANTING
THE PETITION.
The Third Circuit’s opinions on conflict and field
preemption disregard this Court’s clear directives on
when federal law supplants state law as the “supreme
law of the land.”
The Third Circuit’s conflict
preemption holding in Sikkelee v. Precision Airmotive
Corporation, 907 F.3d 701, 712-16 (3d Cir. 2018)
(“Sikkelee II”) eviscerates the concept of “impossibility”
that PLIVA recognizes: that state law is preempted
when federal government approval is required before
a design change. PLIVA, 564 U.S. at 623-24. Likewise,
in rejecting field preemption in its 2016 decision,
Sikkelee v. Precision Airmotive Corporation, 822 F.3d
680 (3d.Cir. 2016) (“Sikkelee I”), the Third Circuit
failed to adequately take into account the significant
4
federal interest in aviation safety underpinning the
comprehensive regulations governing aircraft design
and manufacture. 822 F.3d at 687.
In fact, Congress’ overarching interest in aircraft
safety is precisely why it created the FAA and
prescribed that design and manufacture of aviation
products be governed solely by the FAA’s regulations.
Proper application of this Court’s “impossibility
preemption” analysis under PLIVA, and the related
doctrine of field preemption, is necessary to achieving
Congress’ directive for uniform federal control over
aviation safety.
I. The federal government’s paramount interest in aircraft safety forged the comprehensive regulatory framework governing
aircraft design and manufacture.
The federal interest in aviation safety and uniformity dates back nearly a century. Even prior to
Congress’ enactment of the current scheme under the
Federal Aviation Act, Justice Jackson recognized the
“intensive and exclusive” federal control of aviation
under the Air Commerce Act of 1926 when he wrote
that “[p]lanes do not wander about in the sky like
vagrant clouds. They move only by federal permission,
subject to federal inspection . . . and under an intricate
system of federal commands.” Northwest Airlines v.
Minnesota, 322 U.S. 292, 303 (1944) (Jackson, J.,
concurring). Justice Rehnquist later recognized that
this led Congress to act with the “paramount substantive concerns” of federally regulating “all aspects of air
safety . . .” when enacting the Federal Aviation Act of
1958. City of Burbank v. Lockheed Air Terminal Inc.,
411 U.S. 624, 644 (1973) (5-4 decision) (Rehnquist, J.,
dissenting) (disagreeing with the majority over
whether the local noise rule at issue was preempted
5
but agreeing with the majority that the act impliedly
preempted all aspects of air safety).
Thus in 1958, Congress expressed that “[i]t is essential that one agency of government, and one
agency alone, be responsible for issuing safety regulations if we are to have timely and effective guidelines
for safety in aviation.” H.R. REP. NO. 85-2360 (1958),
reprinted in 1958 U.S.C.C.A.N. 3741, 3761 (emphasis
added); see also Nat’l Fed’n of the Blind v. United
Airlines Inc., 813 F.3d 718, 724 (9th Cir. 2016)
(recognizing that “‘preemptive intent is more readily
inferred’ in the field of aviation, because it is ‘an area
of the law where the federal interest is so dominant.’”)
(quoting Montalvo v. Spirit Airlines, 508 F.3d 464, 471
(9th Cir. 2007)).
By promulgating the Federal Aviation Act and
establishing what is now known as the FAA,
Congress codified the significance and primacy of the
federal government’s interest in aviation safety.
Section 40101 of the Act (codifying the Federal
Aviation Reauthorization Act of 1996), sets out the
federal government’s policy and mandates that in
carrying out the Act, the FAA shall consider the public
interest of “assigning, maintaining, and enhancing
safety and security as the highest priorities in air
commerce.” 49 U.S.C.A. § 40101(d)(1) (West 2000).
Similarly, section 40101(a) (regarding economic regulations) mandates that the federal government
shall recognize “the clear intent, encouragement, and
dedication of Congress to further the highest degree of
safety in air transportation and air commerce, and to
maintain the safety vigilance that has evolved in air
transportation and air commerce and has come to be
expected by the traveling and shipping public.” 49
U.S.C.A § 40101(a)(3).
6
This paramount safety interest drove Congress’
mandate that the FAA prescribe the safety standards
for design and manufacture of aircraft, aircraft engines,
and propellers under 49 U.S.C.A. section 44701(a),
which in turn required the FAA to promulgate the
pervasive set of regulations that includes careful
details for the design and manufacturing standards
governing aviation products in the United States. See
49 U.S.C.A. § 44701; see also 14 C.F.R. pts. 23, 25, 27,
29, 33, 35.
The Third Circuit previously recognized that “aviation is unique among transportation industries in its
relation to the federal government – it is the only one
whose operations are conducted almost wholly within
federal jurisdiction, and are subject to little or no
regulation by States or local authorities.” Abdullah v.
American Airlines, Inc., 181 F.3d 363, 368 (3d Cir.
1999) (citing S. REP. NO. 85-1811 (1958)) (“the Federal
Government bears virtually complete responsibility
for the promotion and supervision of [the aviation]
industry in the public interest.”).
In 2018, however, the Third Circuit held that
“impossibility preemption” does not apply to petitioner
because it had the ability to request a design change
from the FAA and had not shown that the FAA would
reject such a request. Sikkelee II, 907 F.3d at 712-14.
This holding usurps the federal government’s role in
exclusively controlling aviation safety, because it
effectively gives state courts and juries the role of
deciding design change issues. Such effect directly
contravenes specific congressional intent, dating back
nearly a century, that the federal government be the
sole arbiter in the field of aviation for the sake of uniformity and safety. The Third Circuit’s 2016 holding
that federal law does not preempt the field of design
7
standards similarly disregards the Third Circuit’s
earlier recognition of federal exclusivity. In doing so,
it ignores the established federal policy and interest in
aviation safety, and undermines the uniform regime
that has been the foundation of America’s aviation
industry.
II. Exclusive federal control and a uniform
regulatory framework are vital to maintaining the safest and most advanced
aviation industry in the world.
Commercial aviation is one of America’s largest and
most important industries, and the design and manufacture of safe products is central to industry success.
The aviation industry accordingly works tirelessly to
advance public safety and has achieved extraordinarily high levels of safety-conscious design, production,
and operation under FAA control.
The significance of the aerospace industry’s contribution to the United States economy is undisputable. AIA estimates that, in 2016, the U.S. Aerospace
and Defense (A&D) industry supported 2.4 million
American jobs, generated $872 billion in sales, and
reduced the U.S. trade deficit by a record $90.3 billion.
Aerospace Industries Ass’n, 2017 Facts and Figures
U.S. Aerospace & Defense (June 15, 2017), available at
https://www.aia-aerospace.org/report/2017-facts-figures/.
Commercial aerospace alone generated $303.5 billion
in sales and accounted for 490,000 end-use manufacturing jobs. See id. at 3 - 4.
Moreover, U.S. A&D continues to be America’s
leading net exporting industry, with exports growing
by 26 percent between 2012 and 2017. Aerospace
Industries Ass’n, Foreign Trade: The Facts on Trade,
8
http://www.aiaaerospace.org/research-center/statistics/
industry-data/foreign-trade/ (last visited Apr. 16, 2019).
These statistics demonstrate that the aviation industry generates tremendous economic benefits for the
United States. As highlighted by a U.S. country report
prepared by Oxford Economics, with the help of the
International Air Transport Association (IATA), in
2011, “the U.S. has the world’s largest aviation
manufacturing sector” and “[t]he connections created
between cities and markets represent an important
infrastructure asset that generates benefits through
enabling foreign direct investment, business clusters,
specialization and other spill-over impacts on an
economy’s productive capacity.” Oxford Economics,
Economic Benefits from Air Transport in the US, 4 - 5
(2011), available at https://www.iata.org/publications/
economics/Reports/voa-country-reports/Benefits-of-Av
iation-US-2011.pdf.
Ultimately, “[t]he aviation sector contributes $669.5
billion in Gross Value Added (GVA) to the US, equivalent to 4.9% of the US economy”; it “supports 9.3
million jobs in the US”; and in 2010, it paid “over $57.4
billion in tax including income tax receipts from
employees, social security contributions and corporation tax levied on profits.” Id.
International trade within the aviation industry
depends on the primacy of federal law. Article II of the
Constitution empowers the federal government, not
states, to enter into treaties and agreements with
foreign nations. See U.S. Const. art. II, § 2, cl. 2;
see also Crosby v. National Foreign Trade Council,
530 U.S. 363, 381 (2000) (“This clear mandate and
invocation of exclusive national power belies any
suggestion that Congress intended the President’s
effective voice to be obscured by state or local action.”).
9
Currently, there are 48 bilateral treaties with foreign
nations, including the European Union, permitting
reciprocal certification of products manufactured and
certified by the FAA when exported to signatory
countries. See FAA, Aviation Safety: Bilateral
Agreement Listing https://www.faa.gov/aircraft/air_cert/
international/bilateral_agreements/baa_basa_listing/
(last visited Apr. 16, 2019). These bilateral agreements recognize the FAA’s regulatory standards as
preeminent in governing the design and manufacture
of U.S. aviation products. See, e.g., Agreement on
Cooperation in the Regulation of Civil Aviation Safety,
U.S.-E.U, art. 2, Jun. 30, 2008, T.I.A.S. 11-501.
In fact, the 10 year period between 2006 and 2015
demonstrates good reason for such treaties, as it was
one of the safest periods of aviation in American
history. See Boeing, Statistical Summary of Commercial Jet Airplane Accidents, Worldwide Operations,
1959 – 2017, 18 (Oct. 2018), available at http://
www.boeing.com/resources/boeingdotcom/company/ab
out_bca/pdf/statsum.pdf.
As discussed in further detail below, the FAA’s role
as the sole arbiter of safe product design and
manufacturing compliance is paramount to achieving
the track record of safety that exists in modern
aviation. In enforcing this role, the FAA’s regulatory
framework requires not just three levels of product
certification (type certification, production certification, and airworthiness certification), but it also
imposes restrictions on the aviation industry where
any type of change to a product’s design, whether
“minor change” or “major change” as defined in the
regulations, require advance FAA approval. See
FAA C.A. Br. 4 (citing 49 U.S.C. § 44704(b)); 14 C.F.R.
§§ 21.113, 21.95 (2019). This control responsibility is
10
central to achieving the uniformity that Congress
specifically sought when enacting the Federal Aviation
Act and creating the FAA.
In sum, one of America’s strongest industries depends
on the federal regulatory framework arising from the
robust Federal Aviation Act. The Third Circuit’s
holdings in Sikkelee I and Sikkelee II, and the uncertainty presented by division in the circuits, threaten to
interfere with and disrupt the FAA’s industry oversight and control, and the industry’s ability to advance
the federal safety interest as a result.
III. The Third Circuit’s holdings usurp federal
control of aviation safety and disrupt the
FAA’s entire regulatory framework.
In furtherance of the federal government’s
significant interest in public protection, the FAA and
the aviation industry have worked interdependently
and collaboratively to utilize engineering expertise to
promote safety under a uniform and pervasive federal
regulatory framework addressing the design, manufacture, and certification of aircraft and aircraft components.
The Third Circuit’s opinions in the instant matter
disrupt the FAA’s control under this regime. Without
a determination from this Court, state juries, judges,
and legislatures are free to create the very patchwork
of varying safety standards that the Federal Aviation
Act sought to prevent. Because the aviation industry
relies on a uniform federal regulatory framework to
advance public safety, the practical effect of the Third
Circuit’s opinions allowing for the potential of varied
state standards is inherently disruptive.
The Third Circuit itself recognized that the FAA’s
certification process is “intensive and painstaking.”
Sikkelee I, 822 F.3d at 684. As a recent example,
11
General Electric Aviation’s Passport engine for business jets accumulated more than 2,400 hours and 2,800
cycles in ground and flight testing during its type
certification process. See GE Passport Achieves FAA
Certification for Business Jet Applications, GE AVIATION
(May 23, 2016), available at https://www. geaviation.
com/press-release/business-general-aviation/ge-passportachieves-faa-certification-business-jet. “By the time
the Passport [engine] enters into service, it will have
accumulated the equivalent of 10 years of flying for a
[business jet] operator with more than 4,000 hours and
8,000 cycles.” Id. Such magnitude of time and
engineering analysis demonstrates the comprehensiveness of the federal regulations.
As the FAA noted in its amicus brief solicited by
the Third Circuit, the issuance of a type certificate
“involves the analysis of vast amounts of information,
including data, drawings, and other details about the
aircraft or part for which an applicant seeks approval.”
Letter Brief from the Dep’t of Transp. and the FAA as
Amici Curiae to Marcia M. Waldron, Clerk of the
Court, United States Court of Appeals for the Third
Circuit (Sept. 21, 2015) (Letter Brief of FAA), Sikkelee
v. Precision Airmotive Corp., 822 F.3d 680, 684 (3d.
Cir. 2016) (No. 14-4193), 2015 WL 5665724 at *14.
“The type certification process is an exhaustive, iterative process” involving multiple stages and collaborative
input from both the FAA and the applicant. Id.
The process encompasses five phases, including
Conceptual Design, Requirements Definition, Compliance Planning, Implementation, and Post-Certification.
14 C.F.R. pt. 21; U.S. Dep’t of Transp., FAA Order
8110.4C, Type Certification (Mar. 28, 2007). Interaction between applicants and the FAA is crucial to
12
ensuring safety throughout the process, which often
spans upwards of a decade.
As part of the FAA’s control over, and philosophy
to engage, engineering expertise to advance safety
during the process, the FAA, in conjunction with
GAMA and AIA, has published The FAA and Industry
Guide to Product Certification (the “FAA Guide”),
describing these phases.
Each phase encompasses a series of tasks, requisite
information, “deliverables” (i.e., documents and information that are prerequisites for subsequent Phases
and must be completed before entering the next Phase,
unless otherwise mutually agreed by the FAA and
applicant), and mandatory criteria for success. The
FAA and Industry Guide to Product Certification, 7-11
(3d ed. 2017), 7-11, available at https://www.faa.gov/
aircraft/air_cert/design_approvals/media/CPI_guide_I
I.pdf.
The FAA Guide identifies two primary documents
that advance this multi-phase certification process –
the Partnership Safety Plan (PSP) and Project Specific
Certification Plan (PSCP). Id. at 1. The FAA retains
sole authority to approve these documents and sole
approval authority at every step of the certification process. See Letter Brief of FAA, 2015 WL 5665724 at *15.
When appropriate, the FAA also possesses several
practical tools to access the knowledge, experience, and
expertise of an applicant’s organization and thereby
evaluate the entire “cradle-to-grave” life cycle of
product development in performance of its regulatory
mandate. See 14 C.F.R. §§ 183.41(a), 183.1(a),
183.29(a) - (i). This process enables the FAA to utilize
additional engineering expertise held within the aviation industry’s knowledge base, while eliminating
13
conflict-of-interest. See 14 C.F.R. §§ 183.41(a),
183.1(a), 183.29(a) - (i), 183.57. Even where the FAA
taps industry expertise it retains its exclusive control
over certification standards and whether they are met:
“no matter what role a manufacturer plays in the typecertification process, the decision to approve the type
design ultimately rests with the FAA.” See Letter
Brief of FAA, 2015 WL 5665724 at *15.
The FAA’s regulations control certification of product
design and manufacture at the outset, and require
FAA review and approval before any design change
may occur. See, Letter Brief of FAA 4 (citing 49 U.S.C.
44704(b)); 14 C.F.R. §§ 21.113, 21.95. This control
responsibility is therefore central to achieving the
uniformity that Congress specifically intended when
enacting the Federal Aviation Act and creating the
FAA. Permitting state courts and juries to mandate
inconsistent design changes outside of the carefully
constructed regulatory regime contravenes the foundational purpose of the Federal Aviation Act and FAA.
Thus, proper application of this Court’s “impossibility
preemption” test from PLIVA is instrumental to maintaining the paramount federal interest in aviation
safety and retaining the exclusive control that the
FAA exercises over compliance of safe product design
and manufacture.
The federal government’s role in regulatory aviation
safety does not stop with aircraft certification. The
National Transportation Safety Board (Safety Board)
is a coordinate federal entity that advances selfcorrection of safety issues arising in the context of civil
aviation accidents and incidents. The Safety Board’s
regulations provide that it is “authorized to investigate . . . each accident involving a civil aircraft in the
United States, and any civil aircraft registered in the
14
United States when an accident occurs in international waters.” See 49 C.F.R. § 831.20(a)(1) (2018).
Importantly, regulation through liability under
state law is not contemplated within the Safety
Board’s regulations governing its investigation of civil
aviation accidents in America. See 49 C.F.R. pt. 831
(Investigation Procedures). Rather, in recognition of
the complementary role of the FAA, the Safety Board
regulations contemplate that “the [Safety Board] will
provide for the participation of the Administrator of
the FAA in the investigation of an aircraft accident
when participation is necessary to carry out the duties
and powers of the FAA Administrator.” See 49 C.F.R.
§ 831.21(a) (2019).
Additionally, by exercising its exclusive Article II
powers with respect to aviation, the federal government has long sought to unify safety regulation of
aviation by promoting international standards as well.
State-level intervention is contrary to – and inconsistent with – this federal priority. The federal
government instead remains responsible for engaging
in the bilateral agreements directly with other countries
as referenced above. See U.S. Const. art. II, §2, cl. 2.
Furthermore, under Article II, the federal government
entered into the Convention on International Civil
Aviation. This Convention places the United States
amongst other signatory nations with the duty and
power to regulate aviation under the International
Civil Aviation Organization (ICAO). International Civil
Aviation Organization, Convention on International
Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S.
295. The global system of aviation therefore also
depends on the exclusive federal nature of aviation in
America.
15
This comprehensive federal structure demonstrates
a conscious effort to instill safety into all actions
related to aviation via unified safety standards. In
sharp contrast, the Third Circuit’s opinion rejecting
conflict preemption attacks this conscious effort. It
opens up a patchwork of varying state laws and effectively places corrective decision-making with juries
years after a crash occurs. Absent the preemptive
effect of the federal regulations, a jury trial is subject
to the limited focus of adjudicating rights and liabilities between partisan adversaries without considering
the broader public policy to advance aviation safety
both domestically and internationally. Under the
Third Circuit’s approach, inexperienced lay jurors will
be in a position to supplant the many decades of safety
expertise integrated into the overarching federal
aviation system, and to undermine the industry’s
ability to achieve its unmatched record of safety under
the uniform regulatory framework.
Furthermore, by rejecting the application of field
preemption, the Third Circuit’s earlier opinion undercuts the aircraft certification process carefully set
forth by the FAA’s regulatory framework. Permitting
state judges, juries, and legislatures to second guess
federal evaluation of aircraft design would have the
potential to render virtually meaningless a certificate
applicant’s years of work and thousands of tests to
obtain FAA approval. Determining the scope of the
FAA regulations’ preemptive effect will resolve that
disruption, and advance the public safety interest at
stake.
16
CONCLUSION
This Court should grant the petition for certiorari.
Respectfully submitted,
JAMES W. HUNT
MARK R. IRVINE
FITZPATRICK & HUNT,
PAGANO, AUBERT LLP
633 West Fifth Street
60th Floor
Los Angeles, CA 90071
(213) 837-2100
PAUL N. BOWLES III
Counsel of Record
NORA C. DEVITT
FITZPATRICK & HUNT,
PAGANO, AUBERT LLP
12 East 49th Street
31st Floor
New York, NY 10017
(212) 937-4033
paul.bowles@fitzhunt.com
Counsel for Amicus Curiae
April 22, 2019
APPENDIX
1a
APPENDIX
List of Aerospace Industries Association of
America, Inc. Member Companies
Source: http://www.aia-aerospace.org/membership/ourmembers/ (last accessed Apr. 16, 2019)
Full Members
3M Company
AAR Corporation
Accenture
Acutec Precision Aerospace
ACUTRONIC Group
AD American Distributors, INC
Aerion Corporation
Aernnova Aerospace
Aero Metals Alliance
Aerojet Rocketdyne
Aero-Mark, LLC
AeroVironment, Inc.
AGC Aerospace & Defense
Aireon LLC
Air Liquide
Advanced Logistics for Aerospace (ALA)
AlixPartners
Allied Telesis, Inc.
Alta Devices
Amazon
2a
American Pacific Corporation
Analytical Graphics, Inc.
Apex International Management Co.
Applied Composites
Arch Tuscaloosa
Arconic
Astronautics Corporation of America
Astronics Corporation
Athena Manufacturing, LP
AUSCO, Inc.
Avascent
B&E Group, LLC
BAE Systems
Ball Aerospace
Belcan Corporation
Benchmark Electronics, Inc.
Bombardier Aerospace
Boom Technology
Booz Allen Hamilton
Boston Consulting Group
BRPH
Burns & McDonnell
BWX Technologies, Inc
CADENAS PARTsolutions
CAE
3a
Capgemini
Celestica, Inc.
Click Bond, Inc.
Cobham
CPI Aerostructures
Crane Aerospace & Electronics
Collins Aerospace
Cubic Corporation
Cyient Ltd.
Cytec Engineered Materials, Inc.
Deloitte Consulting LLP
Delta Flight Products
Denison Industries
Ducommun Incorporated
DXC Technology Company
Eaton Corporation
Elbit Systems of America
Embraer Aircraft Holding, Inc.
Enjet Aero, LLC
EPS Corporation
Ernst & Young LLP
Esterline Technologies
Exostar LLC
Flight Safety International, Inc.
FS Precision Tech, LLC
4a
FTG Circuits, Inc.
Garmin
Gamma Aerospace LLC
General Atomics Aeronautical Systems Inc.
General Dynamics Corporation
General Electric Aviation
Global Partner Solutions
GSE Dynamics
Harris Corporation
HCL America, Inc.
HEICO Corporation
Hellen Systems LLC
Hexcel Corporation
Honeywell Aerospace
Huntington Ingalls Industries
IBM Corporation
Integral Aerospace
Iron Mountain
Jabil Defense & Aerospace Services, LLC
JRI, Inc.
Kaman Aerospace Corporation
KPMG, LLP
Kratos Defense & Security Solutions, Inc.
L3 Technologies
5a
Leidos Corporation
LIMCO AIREPAIR, INC.
Lockheed Martin Corporation
LORD Corporation
LS Technologies, LLC (LST)
MAG (Momentum Aerospace Group)
ManTech International Corporation
Marotta Controls, Inc.
Meggitt USA
Mercury Systems
Microsemi Corporation
Moog, Inc.
MTorres America, Inc.
National Technical Systems (NTS)
NEO Tech
Net-inspect LLC
New England Airfoil Products, Inc.
Nokia
Norsk Titanium
Northrop Grumman Corporation
O’Neil & Associates, Inc.
Orbital ATK
Pacific Design Technologies, Inc.
Parker Aerospace
Plexus Corp.
6a
PPG Aerospace-Sierracin Corporation
Precision Hawk
PRIMUS Technologies Corporation
PTC
PWC Aerospace & Defense Advisory Services
Raytheon Company
Range Generation Next, LLC
Rhinestahl Corporation
RIX Industries
Rolls-Royce North America, Inc.
Salesforce
SAP America, Inc.
Securitas Critical Infrastructure Services, Inc.
Siemens PLM Software
Sierra Nevada Corporation, Space Systems
Sparton Corporation
Special Aerospace Services, LLC
Spirit AeroSystems
Stratolaunch Systems Corporation
SupplyOn North America, Inc.
Tech Manufacturing, LLC
Textron, Inc.
The Aerospace Corporation, Civil Systems
Group
The Boeing Company
The Lundquist Group
7a
The Padina Group (TPG), Inc.
Therm, Inc.
TIP Technologies
Tribus Aerospace Corporation
TriMas
Triumph Group, Inc.
TT Electronics
Unitech Aerospace
United Technologies Corporation
Universal Protection Service
Vantage Associates, Inc
Verify, Inc.
Virgin Galactic, LLC
Woodward, Inc.
Associate Members
Acme Industrial Company
Acument Global Technologies
Aerospace Alloys, Inc.
Air Industries Group
Airbus
Airfasco Industries, Inc.
Albany International
Alfing Corporation
Allen Aircraft Products, Inc.
American Data Solutions
8a
AMI Metals, Inc.
Anoplate
Arnold Magnetic Technologies-Precision Thin
Materials Division
Arrow Electronics, Inc.
Arrowhead Products Corporation
Arundel Machine Tool Co., Inc.
Asia-Pacific Engineering Consulting Services,
LLC
Assent Compliance, Inc.
Astronova
ATC Aerospace
ATI Defense
Automatic Screw Machine Products Company
Barnes & Thornburg LLP
Barnes Aerospace
BE&K Building Group
Boyle Ogata Bregman
Breeze-Eastern Corporation
Brogdon Machine, Inc.
Butler America Aerospace, LLC
Celltron, Inc.
Chess Consulting LLC
CIT Corporate Finance, Aerospace & Defense
Concord Investment Partners
Consolidated Industries, Inc.
9a
Consolidated Precision Products
Co-Operative Industries Defense, LLC
Craig Tools, Inc.
Crestwood Technology Group
Dassault Systemes
Dayton T. Brown, Inc.
Draper
EEI Manufacturing Services
EL-COM
Electroimpact
Embry-Riddle Aeronautical University
Enduralock
EnerSys
ENSCO. Inc.
Enterprise Florida, Inc.
ETA Global, Inc.
Etteplan
Exotic Metals Forming Company, LLC
Exxelia Group
Fairmont Consulting Group
Ferco Aerospace Group
Flatirons Solutions, Inc.
FLIR
Freedom Alloys
Frontier Electronic Systems Corporation
10a
Future Metals, LLC
Gartner
G.S. Precision
GDCA
General Motors
H&S Swansons’ Tool Company
Hangsterfer’s Laboratories, Inc.
HDL Research Lab, Inc.
Hercules Heat Treating Corporation
Hi-Temp Insulation Inc.
Hoar Program Management (HPM)
Hogan Lovells
Houlihan Lokey
Howell Instruments
Hughes Bros. Aircrafters, Inc.
Impresa Aerospace, LLC
Indiana Economic Development Corporation
Industrial Metals Intl., Ltd.
Integrated Support Systems, Inc.
InterConnect Wiring
ITT Corporation
Janes Capital Partners
Janicki Industries
JAS Forwarding Worldwide
Jones Day
11a
K&L Gates
Kellstrom Defense, A Merex Group Company
Kitco Defense
Kulite Semiconductor Products, Inc.
Lake Engineering
Landstar Transportation Logistics
Latitude Corp.
Leonardo DRS
Level 3 Inspection LLC
LISI Aerospace
LMI Aerospace, Inc.
LMI (Logistics Management Institute)
Materion Brush, Inc.
Meyer Tool, Inc.
Mid-Atlantic Aviation Partnership
Mid-State Aerospace, Inc.
Missouri Partnership
Morris Machine Company, Inc.
National Machine Group
Norton/Saint-Gobain
Oerlikon Balzers
Ohio Aerospace Institute
Omega Aerial Refueling Services, Inc.
Pattonair
Paulo
12a
Pentecom, LLC
Perillo Industries, Inc.
Philadelphia Gear, A Timken Power Systems
Brand
Phillips Screw Company
Piedmont Triad Airport Authority
Plymouth Engineered Shapes
Precision Gear, Inc.
Precision Tube Bending
Proponent
R&D Manco
RA Industries
Radant Technologies, Inc.
RAM Company, Inc.
Renaissance Strategic Advisors II, LLC
Rocker Industries
RUAG Aerostructures
S&H Machine
Safran USA
Samuel Aerospace Metals
SDL (formerly XyEnterprise)
Seabury Capital
Seacast, Inc.
Seal Science, Inc.
Sechan Electronics, Inc.
SELEX Galileo Inc.
13a
Senior Aerospace
Service Steel Aerospace
Servotronics, Inc.
Shapiro Metals
SIFCO Industries, Inc.
Signicast
Smiths Interconnect
Software AG Government Solutions
Southern Manufacturing Tech, Inc
Space Florida
Spincraft
Stanley Engineered Fastening – Helicoil
Division
Stroco Manufacturing, Inc.
Supply Dynamics, LLC
Tactair Fluid Controls, Inc.
TATA Advanced Systems Limited
Tata Consultancy Services
TechSolve, Inc.
TECT
TEK Precision Company, Ltd.
TEVET, LLC
Thales USA, Inc.
The Cirlot Agency
Thermacore, Inc.
Tiodize Co., Inc.
14a
TOMI Engineering, Inc.
Torotel Products, Inc.
Triman Industries
TTI Inc.
TTM Technologies, Inc.
Turbine Controls Inc. (TCI)
TW Metals
Haslam College of Business Aerospace &
Defense Business Inst. Associate
Valbruna Stainless
Venable
VMH International
Walbar Engine Components
Web Industries, Inc
Whitcraft, LLC
WSI Industries
X-Ray Industries, Inc.
Yarde Metals
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.