Amicus Curiae Brief — Beech Aircraft Corp. v. Elsworth

No. 84-1471

\e

\) Rd

Ne

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

BEECH AIRCRAFT CORPORATION,

Petitioner,

vs.

Doris ELSworTH, MILDRED BEST, SANDRA DUNAWAY,

and Jo ANN Miro,

Respondents.

BRIEF OF THE BOEING COMPANY, CESS)! A AIRCRAFT

COMPANY, GULFSTREAM AEROSPACE CORPORATION,

LOCKHEED CORPORATION, McDONNELL DOUGLAS

CORPORATION AND PIPER AIRCRAFT CORPORATION

AS AMICI CURIAE IN SUPPORT OF THE PETITION

OF BEECH AIRCRAFT CORPORATION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT

OF CALIFORNIA

April 15, 1985

JOHN J. HENNELLY, JR.*

Curtis M. DOMBEK

BRYAN, CAVE, MCPHEETERS

& McRoBerTS

500 North Broadway

St. Louis, Missouri 63102

(314) 231-8600

KEITH GERRARD

RICHARD,C. COYLE

THOMAS J. MCLAUGHLIN*

PERKINS, ColE, STONE, OLSEN

& WILLIAMS

1900 Washington Building

1325 Fourth Avenue

Seattle, Washington 98101

(206) 682-8770

*Counsel of Record

St. Louis Law Printing Co., Inc.,

411 No. Tenth Street 63101 314-231-4477

No. 84-1471

IN THE |

Supreme Court of the United States

OCTOBER TERM, 1984

BEECH AIRCRAFT CORPORATION,

Petitioner,

vs.

Doris ELSWORTH, MILDRED BEsT, SANDRA DUNAWAY,

and Jo ANN Miro,

Respondents.

MOTION OF AMICI CURIAE FOR LEAVE TO FILE BRIEF

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

The Boeing Company, Cessna Aircraft Company,

Gulfstream Aerospace Corporation, Lockheed Corporation,

McDonnell Douglas Corporation and Piper Aircraft Corpora-

tion hereby respectfully move for leave to file the attached brief

as amici curiae in support of the petition of Beech Aircraft Cor-

poration for writ of certiorari to the Supreme Court of Califor-

nia in this case. The interest of amici curiae in this case arises

from their business as manufacturers of commercial and private

aircraft and related equipment. Amici curiae have requested —

consent to the filing of this brief from the parties to this action.

Petitioner has given its consent, but respondents have refused

consent.

In the Federal Aviation Act of 1958, 49 U.S.C. § 1421(a)(1),

Congress directed the Secretary of Transportation to establish

uniform, minimum standards for aircraft design, materials,

workmanship, construction, and performance. Congress also

established an agency certification process to permit the FAA to

verify compliance with these standards prior to the manufacture

and operation of aircraft. In the instant case, however, the

California Supreme Court concluded that a trial court may

make its own independent determination as to whether a par-

pen

ticular aircraft complies with these standards and may predicate

a finding of negligence per se on a judge’s or jury’s own inter-

pretation and application of these standards. If this decision is

permitted to stand, it will emasculate the uniform federal stan-

dards set by Congress and the Federal Aviation Administration

concerning the certification of aircraft and will subject the peti-

tioner and amici curiae to widely varying and conflicting stan-

dards governing the certification of aircraft. The decision also

violates Congress’ intent to vest primary jurisdiction over the in-

terpretation and application of uniform federal standards for

the certification of aircraft in the Federal Aviation Administra-

tion. Finally, the decision will result in the review of federal ad-

ministrative decisions and regulations by state and federal

courts in future aviation accident cases, in iolation of § 1486 of

the Federal Aviation Act.

The brief which amici curiae request permission to file ad-

dresses important issues raised by the Court’s decisions in

Silkwood v. Kerr-McGee Corp., ____ U.S. ___, 104 S.Ct. 615

(1984) and United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), __. U.S. ___, 104 S.Ct. 2755

(1984) but never previously decided by the Court. For the

reasons stated above, the views of amici curiae expressed in the

attached brief are worthy of the Court’s consideration in

deciding whether to grant the petition of Beech Aircraft Cor-

poration for writ of certiorari.

John J. Hennelly, Jr.*

Curtis M. Dombek

Bryan, Cave, McPheeters

& McRoberts

500 North Broadway

St. Louis, Missouri 63102

(314) 231-8600

April 15, 1985

Keith Gerrard

Richard C. Coyle

Thomas J. McLaughlin*

Perkins, Coie, Stone, Olsen

& Williams

1900 Washington Building

1325 Fourth Avenue

Seattle, Washington 98101

(206) 682-8770

*Counsel of Record

TABLE OF CONTENTS

it ceak ee tebaeebectaa

ne gp akdiubkacedsdaueus

Reasons Why the Writ Should be Granted ............

I.

II.

Iil.

The Determination By The FAA That The

Aircraft Complied With Applicable FAA

Regulations Preempts Adjudication Of The

Identical Issue In Personal Injury And

Wrongful Death Litigation ................

A. The Scheme of Federal Regulation is so

Pervasive as to Preclude State Action .......

B. The Federal Interest in Aircraft Certifica-

tion is so Dominant as to Preclude State Ac-

C. The Cojects Sought by the Federal Law

Pe FI iso cnc c4 ca 60d %tkoeaes

D. Reconsideration of FAA Certification in

Trial Courts is Preempted Because it Pro-

duces Results Inconsistent with Federal Ob-

NN ii me wk kee Geet h cine cow ts bobs vee ees

The Court Below Erred In_ Interpreting

PE hind baweewliendenaenwsduewe

The Doctrine Of Primary Jurisdiction Re-

quires Trial Courts To Defer To The FAA

For A Decision On Allegations That An Air-

14

ii

IV. The Federal Aviation Act of 1958 Precludes

Review Of FAA Aircraft Certification By

IN G08 5 5 Wi Weeki eh ine bake 18

ae as, Laci pas bk 6 he mene ae wk SS 20

TABLE OF AUTHORITIES

Cases:

Chicago & North Western Transportation Co. v. Kalo

Brick & Tile Co., 450 U.S. 311 (1981)............ 12, 13

City of Burbank v. Lockheed Air Terminal, 411 U.S.

DIGS A kine cy epl cnet ce asue a eube tects 4, 6,8

City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir.

ECan OU uadid sana ae ehw inane FEES 18

City of Tacoma v. Taxpayers, 357 U.S. 320 (1958) ..... lo

Far East Conference v. United States, 342 U.S. 570

TS OE hee ee Pee 1 re ee ee 16, 17

Fidelity Federal Savings & Loan Ass’n v. de la Cuesta,

ed as ag kines acube cas 4

Fisher v. Bell Helicopter Co., 403 F. Supp. 1165

EE OE kk y a sie ak bk dadwae kamkcemacs 13, 14

General American Tank Car Corp. v. El Dorado Termi-

nal Co., 3086 U.S. 422 (1940) .. 0... cece cc ccces 17

Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th

Cir. 1974), cert. denied, 421 U.S. 978 (1975) ...... 8

Nader v. Volpe, 466 F.2d 261 (D.C. Cir. 1972) ........ 19

ili

Natural Gas Pipeline Co. of America v. United States,

pot we & fe | errr es Tee 15

Nevada Airlines v. Bond, 622 F.2d 1017 (9th Cir. 1980) . 18

New York v. Federal Aviation Administration, 712 F.2d

a ae eee ey eamer eS = re 18

Northwest Airlines v. Minnesota, 322 U.S. 292 (1944)... 6, 8

O’Donneil v. Bond, 510 F. Supp. 925 (D.D.C. 1981) ... 18, 19

Pacific Gas & Electric v. State Energy Resources Con-

servation and Development Commission, 461 U.S.

PR Cs a cath Cpa hindeSsdpreeeanennonas 4,5,7

In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732

Ss I ib oon vO 06os hae ava waked eens 8

Pennsylvania Railroad v. United States, 363 U.S. 202

BSE RSE re rece eee re noes amr Sree es em ae 16

Rice v. Santa Fe Elevator Corp., 331 U.S. 216 (1947) ... 4

Rimer v. Rockwell International Corp., 641 F.2d 450

SED ba xd'ea vn ep eh t dees eeop any ee nsns 15, 16

Silkwood v. Kerr-McGee Corp., __. U.S. ___., 104

OG iis rca awn seeee4n ees bens aan 1,4, 5, 7, 13

Sima Products Corp. v. McLucas, 612 F.2d 309 (7th

Cir.), cert. denied, 446 U.S. 908 (1980) .......... 18

Texas & Pacific Railway v. Abilene Cotton Oil Co., 204

EE ois h vi ckasnissnescenwenveuss 7, 10

United States v. S. A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), __. U.S. ___., 104

EE oh ds cash Ke cenced suas 1, 3, 6, 11, 15, 19

United States v. Western Pacific Railroad, 352 U.S. 59

SEs Si Ke v6 NaC beh Weis Ok Cable che es 17

iv

Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S.

ESS ERS are were < ile ce Sense a area marae ye 16, 17

Statutes

TE ee oe, vedhakahseweeeke 18

| Be er eee ret eee Poe ee 11

Te ee een eee uae 11

ee RS wknd Kianh nh 6 4R READ 20 Ce ves 11

Ee Ska Gk. bigaWa'e'e Wh seb 0.22 wen 11

ree. pi phhMRh ewes 64:46 00 gee 11

SPR IE on cso nccdeecs teens qeeeasusutens 11

Ce ie eek genes aeeaean 11

eed che cic anahas se CESSES 11

a. 2s tdia wbeKis 04s sesuaaee saaeen il

EA a Oe ey ey ee re ee eee re 11

de ec. une es ubkn dea bk debs senekeas 11

I SOG oo a pains Wawa eeeees 1!

ee la Se cebesdbabaees 11

ee ies a Seek wbanec eae 11

ERSTE RE ene ye ses tre wae 11

i ed os oases dueeuaeay 2, 5

ee OS oi cawehee oe werngas 5

a nes Cee wadew ineene 14, 19

ee eae oe a keuk pees oa eked 17

edie a wea bese wets 15

Ne Ci in euch deueenkus « 8

i la hin ti wa cla wind es M4

Te a ee we we ai's 17

TE a eke ee kes 18, 19

ee oe iia wsh Gwe eaeavesbeves 6

Rais SONG OES Sik cc bea Sde aad aeeddnceacss 14

Miscellaneous

H. R. Rep. No. 2360, 85th Cong., 2d Sess., reprinted in

1958 U.S. Code Cong. & Ad. News 3741....... 5, 6, 9, 16

H. R. Rep. No. 97-108, Part I, 97th Cong., Ist Sess.,

reprinted in 1981 U.S. Code Cong. & Ad. News

PENA WARSE Sa wpne 60 ch bac ce eeNe se cheek baebs 8

PUR EEE oN eu bbewbesh ceded ccacnivensees 15

ons Key loneseesnla sc saneabna cas 14

Ra es GO OOO SOE oc cc cece caccccreccecess 2

No. 84-1471

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

BEECH AIRCRAFT CORPORATION,

Petitioner,

vs.

Doris ELSworRTH, MILDRED Best, SANDRA DUNAWAY,

and Jo ANN Miro,

Respondents.

BRIEF OF THE BOEING COMPANY, CESSNA AIRCRAFT

COMPANY, GULFSTREAM AEROSPACE CORPORATION,

LOCKHEED CORPORATION, McDONNELL DOUGLAS

CORPORATION AND PIPER AIRCRAFT CORPORATION

AS AMICI CURIAE IN SUPPORT OF THE PETITION

OF BEECH AIRCRAFT CORPORATION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT

OF CALIFORNIA

PRELIMINARY STATEMENT

This matter presents important issues not previously address-

ed by this Court concerning the relationship between the prin-

ciples set forth in United States v. S.A. Empresa de Viacao

Aerea Rio Grandense (Varig Airlines), __. U.S. ___., 104 S.

Ct. 2755 (1984) and Silkwood v. Kerr McGee Corp., ____ U.S.

—___., 104 S. Ct. 615 (1984). Respondents are the heirs of the

pilot and three passengers who died in the 1974 crash of a Travel

Air twin engine airplane manufactured by petitioner Beech Air-

craft Corporation. The principal issue presented is the follow-

ing:

May the states and the federal trial courts sitting in diversity

cases conduct their own independent review of discretionary air-

a ew

worthiness standards published by the Federal Aviation Ad-

ministration (‘‘FAA’’) and hold the manufacturer of an aircraft

liable for a violation thereof, even though the FAA has deter-

mined that the aircraft meets all FAA certification requirements

and has issued a certificate to that effect?

INTEREST OF THE AMICI CURIAE

The amici curiae submitting this brief are manufacturers of

commercial and private aircraft and related equipment. The

Supreme Court of the State of California in this case held that

the doctrine of negligence per se may be applied to hold such

manufacturers liable for a violation of the FAA’s discretionary

airworthiness standards, even though the FAA has certified the

aircraft in question as meeting federal safety requirements. The

effect of this decision is to permit state and federal trial courts

to review the decision of the FAA to certify aircraft and decide

for the FAA how its airworthiness standards must be inter-

preted and applied in connection with the certification of air-

craft.

The decision of the California Supreme Court is of major

comsequence to the aerospace industry. Under the Federal

Aviation Act of 1958, 49 U.S.C. §1301 ef seq., an elaborate

system of uniform, federal regulation has been established to

regulate the design and manufacture of civilian aircraft. Ex-

tremely technical and complex judgments concerning these

design and manufacturing processes have been entrusted by

Congress to the Federal Aviation Administration. Exhaustive

design reviews, inspections and testing are conducted by the

FAA and its designated representatives prior to the manufacture

of any new aircraft. The FAA has published a number of

guidelines, referred to as airworthiness standards, which it con-

siders in the process of certifying a new aircraft design. Many of

these standards are highly technical. (Typical examples are the

standards pertaining to transport aircraft structures, 14 C.F.R.

§§ 25.301-25.581, which have been lodged with the Court.)

on: on

However, these airworthiness standards are not intended to

serve as the definitive criteria for aircraft design and are subject

to the expert interpretation of the FAA. To preserve flexibility,

the FAA retains discretion to depart from these standards or to

supplement them with additional requirements.

When the FAA has been satisfied that an aircraft meets an

appropriate level of safety, whether or not in strict compliance

with the airworthiness standards, the FAA issues a type cer-

tificate approving the aircraft design. A production certificate

may subsequently be issued for the manufacture of duplicate

aircraft. Finally, at the conclusion of the development process,

an airworthiness certificate is issued if the FAA finds that the

particular aircraft in question conforms to the type certificate

and is in a condition for safe operation.

Respondents in the case at bar argued that the aircraft in

question was unlawfully certified by the FAA, because it

allegedly failed to meet five airworthiness standards read to the

jury at the close of the trial. Permitting this type of ad hoc,

piecemeal, independent and de novo review by courts and juries

when the FAA has already certified the aircraft in question will

introduce conflicts and uncertainty as to the governing stan-

dards for aircraft certification and inevitably undermine the in-

tegrity of the process.

The result will be a court-by-court review of FAA certifica-

tion policy, resulting in considerable confusion in an area in

which Congress intended to maintain a uniform, federal stan-

dard. It has the potential to impair rather than advance aircraft

safety, because it will undermine uniformity in design standards

and will produce a more complicated, less efficient and more ex-

pensive process of aircraft certification.

The decision below is in conflict with this Court’s recent deci-

sion in United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), _. U.S. ___., 104 S. Ct. 2755

(1984), and represents a wholesale shifting to the manufacturer

ae ae

of the federal liability for certification decisions that was held

barred in that case. The decision also misconstrues the Court’s

recent decision in Silkwood v. Kerr McGee Corp., ___. U.S.

___., 104 S. Ct. 615 (1984), and conflicts with recent decisions

of the United States Court of Appeals for the Sixth Circuit and

the United States District Court for the District of Columbia on

the use of Federal Aviation Regulations to support a theory of

negligence per se.

REASONS WHY THE WRIT SHOULD BE GRANTED

I. The Determination By The FAA That The Aircraft

Complied With Applicable FAA Regulations Preempts

Adjudication Of The Identical Issue In Personal Injury

And Wrongful Death Litigation

This Court has recognized four grounds for finding that

federal law preempts state law in the same field:

[1] The scheme of federal regulation may be so pervasive as

to make reasonable the inference that Congress left no

room for the States to supplement it.... Or [2] the Act of

Congress may touch a field in which the federai interest is

so dominant that the federal system will be assumed to

preclude enforcement of state laws on the same subject....

Likewise, [3] the object sought to be obtained by the

federal law and the character of obligations imposed by it

may reveal the same purpose.... Or [4} the state policy may

produce a result inconsistent with the objective of the

federal statute.

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Ac-*

cord, Pacific Gas & Electric v. State Energy Resources Conser-

vation and Development Commission, 461 U.S. 190, 203-05

‘1983); Fidelity Federal Savings & Loan Ass’n v. de la Cuesta,

458 U.S. 141, 158 (1982); City of Burbank v. Lockheed Air Ter-

minal, 411 U.S. 624, 633 (1973). There can be little doubt that

we

federal regulation of aircraft certification meets all of the fore-

going criteria and thereby preempts st* ¢ activity in this field.'

A. The Scheme of Federal Regulation is so Pervasive

as to Preclude State Action

The Federal Aviation Act of 1958 (the ‘‘Act’’), 49 U.S.C.

§1301 et seg., vested plenary authority to regulate the design

and manufacture of commercial and private aircraft in the

Federal Aviation Administration (the ‘‘FAA’’). Section 601 of

the Act, codified at 49 U.S.C. § 1421, empowers the Ad-

ministrator ‘‘to promote safety of flight of civil aircraft in air

commerce by prescribing and revising from time to time ...

{sjuch minimum standards governing the design, materials,

workmanship, construction, and performance of aircraft, air-

craft engines, and propellers as may be required in the interest

of safety ...’’

The House Report on the Act clearly expresses this congres-

sional intent:

The new Federal Aviation Agency would be headed by a

civilian Administrator with plenary authority to ... (d)

[mJake and enforce safety regulations governing the design

and operation of civil aircraft.

H.R. Rep. No. 2360, 85th Cong., 2d Sess., reprinted in 1958

U.S. Code Cong. & Ad. News 3741, 3741-42 (hereinafter

‘*House Report’’). The legislative history emphasizes the im-

portance of a uniform, well planned, federal system of safety

regulations:

The most carefully thought out and designed equipments

alone cannot make for safety in air traffic operations.

Something more than communications and intricate

' In Silkwood, the Court indicated that the traditional preemption

tests could be grouped into two basic categories, but at the same time

the Court reaffirmed its earlier holdings, including Pacific Gas, which

analyze preemption questions under the four traditional tests.

a en

guidance devices must be provided. There must be a well

planned system, operated by qualified technicians working

within the framework of rules devised to provide safety

features necessary for modern-day air operations.

The most careful consideration must be given in the draf-

ting of these regulations. An understanding of the system

sought to be achieved and a knowledge of the problems

faced at the operations level are necessary if the regulations

are to accomplish their purpose.

House Report at 3746-47.

This Court has long recognized the pervasive nature of

federal regulation in the field of aviation:

Federal control is intensive and exclusive. Planes do not

wander about in the sky like vagrant clouds. They move

only by federal permission, subject to federal inspection,

in the hands of federally certified personnel and under an

intricate system of federal commands. The moment a ship

taxis onto a runway it is caught up in an elaborate and

detailed system of controls.

City of Burbank v. Lockheed Air Terminal, 411 U.S. 624,

623-34 (1973), quoting Northwest Airlines v. Minnesota, 322

U.S. 292, 303 (1944) (Jackson, J., concurring). ‘‘As originally

enacted, the... Act vested. ..all regulatory authority over avia-

tion safety” in the FAA. Varig, 104 S.Ct. at 2760 n.5.

Although the Federal Aviation Act preserves existing state

remedies, 49 U.S.C. § 1506,” the Court has held that language

? The California Supreme Court relied on 49 U.S.C. §1506 for its

holding that Congress had not occupied the field of aircraft regula-

tion. At the same time, however, the court conceded that federal law

*“‘may have completely occupied the field of regulation of aircraft

safety and certification.’’ 37 Cal. 3d at 549. Indeed it has. Moreover,

it is important to note that consistent with the dictates of § 1506,

respondents’ state law remedies will in no way be cut off by reversal of

the decision below. Plaintiffs would still be able to recover compen-

satory damages for negligence or product defects.

BE, Bese

like that in §1506 cannot be permitted to undermine the unifor-

mity that Congress intends to achieve with federal regulation.

Texas & Pacific Railway v. Abilene Cotton Oil Co., 204 U.S.

426, 446 (1907).

This Court has indicated that state action motivated by safety

concerns is preempted when the federal government has oc-

cupied the field of safety regulation in a particular industry.

Pacific Gas & Electric v. State Energy Resources Conservation

and Development Commission, 461 U.S. 190, 212-13

(1983)(upholding regulation motivated by economic concerns).

In this case, the California Supreme Court conceded in its opin-

ion that it was acting out of a concern for safety.’ Such state

action unquestionably has been preempted under the reasoning

of Pacific Gas.‘

B. The Federal Interest in Aircraft Certification is so

Dominant as to Preclude State Action

The California Supreme Court’s decision in this case totally

ignores that a ‘‘dominant federal interest’’ may serve as a basis

for preemption, see 37 Cal. 3d at 548, even though this test has

been firmly established by the Court. Even a brief examination

of the relevant interests reveals that the design, manufacture,

testing and certification of aircraft are of nationwide concern.

Congress recognized this inherent feature of aviation in the

Federal Aviation Act when it called for a well planned, federal

system of aircraft certification and safety regulation. As this

> The court’s motivation is unmistakable: ‘‘An inquiry in a state

court into ... the requirements of the safety regulations, would assist

the FAA in policing a manufacturer’s compliance....’’ 37 Cal. 3d at

551. ‘‘A state court investigation ... promotes the safety of the travel-

ing public.’’ Jd.

* As discussed infra in part 1.D., this result is unaffected by the

Court’s recent holding in Si/kwood v. Kerr-McGee Corp., ___ U.S.

—___., 104 S.Ct. 615 (1984).

Bers Sn

2

Court’s holdings have consistently recognized, planes are

manufactured and operated by ‘‘federal permission, subject to

federal inspection, in the hands of federally certified personnel

and under an intricate system of federal commands.’’ Lockheed

Air Terminal, 411 U.S. at 634; Northwest Airlines, 322 U.S. at

303. Moreover, the same federal interest dominates the regula-

tion of aircraft design and manufacture:

The interest of the federal government in regulating the

design and manufacture of aircraft is just as intensive, per-

vasive, exclusive and great as its interest in regulating the

“affairs of the nation’s airways.’’ ... The preemption by

the federal government of the entire field of aviation is il-

lustrated in ... Lockheed Air Terminal ... and Northwest

Airlines ....

In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732, 747

(C.D. Cal. 1975). Accord, Kohr v. Allegheny Airlines, Inc., 504

F.2d 400, 403-04 (7th Cir. 1974), cert. denied, 421 U.S. 978

(1975).

The exclusive federal control of aircraft certification also ex-

tends to post-accident design changes. In the event of an acci-

dent, the federal scheine provides for the issuance of safety

recommendations to the FAA by the National Transportation

Safety Board. 49 U.S.C. § 1441(a)(3). The FAA may either ac-

cept or reject these recommendations based on its own review of

the relevant safety considerations. 49 U.S.C. § 1906. This two-

tier federal scheme is no mere formality. In the legislative

history to the Independent Safety Board Act of 1981 Congress

recognized ‘‘that it is not likely that every safety suggestion

made by the Board will be accepted....’”? H.R. Rep. 97-108, 97th

Cong., Ist Sess., reprinted in 1981 U.S. Code Cong. & Ad.

News 1729, 1731. Policy judgments concerning certification

and safety regulation are dominated by the same federal interest

whether they arise in the manufacturing process or in the event

of an aviation accident.

ae pom

C. The Objects Sought by the Federal Law Preclude State

Action

It is apparent that one of the primary objects sought by Con-

gress in the Federal Aviation Act was a uniform, well planned,

federal system of aircraft certification and safety regulation.

House Report at 3746-47; see discussion in Part I.A, supra. To

achieve this objective, Congress vested plenary authority for air-

craft certification and safety regulation in the FAA. House

Report at 3741-42. Congress, in addition, limited review of

FAA decisions to a well defined administrative process. See 49

U.S.C. §§ 1481 et seg. The regulatory scheme which Congress

put in place clearly manifests its intent to accomplish these goals

through preemptive regulation. The decision below ignores and

clearly subverts that intent.

D. Reconsideration of FAA Certification in Trial Courts

is Preempted Because it Produces Results Inconsistent with

Federai Objectives

One of the most disturbing aspects of the decision below is

the conflict it creates between the certification standards

established by the FAA and what amounts to a state standard

for aircraft certification.

The question of aircraft certification was intended to be the

exclusive province of the FAA. The California Supreme Court,

nonetheless, endorsed a process whereby every trial court may

review, reverse and contradict the FAA. The relitigation of air-

craft certification and safety regulation by the state courts or

federal courts sitting in diversity actually threatens to under-

mine safety—one of the primary objects of the entire certifica-

tion process. There is good reason to conclude that safety

would be best enhanced by uniformity. Standardization of air-

craft designs promotes quality control and ease of maintenance

and operation. Congress recognized these benefits when it

decided to vest plenary authority over certification in the FAA.

House Report at 3746-47. Congress also recognized the impor-

way pare

tance of uniform, coordinated post-accident regulation of air-

craft design changes by providing for the review of the NTSB’s

rece7\ ended design changes by the FAA prior to implementa-

tion. See 49 U.S.C. § 1906.

The California Supreme Court’s decision promises to replace

this uniform, federal scheme mandated by Congress with a

patchwork of conflicting state standards. ‘‘[U]nless all courts

reached an identical conclusion a uniform standard. ..would be

impossible.’’ Abilene, 204 U.S. at 440. If the decision stands,

judges and juries will be free to interpret the Federal Aviation

Act and the Federal Aviation Regulations for themselves and

decide whether aircraft certified by the FAA should have been

certified. The best proof of this danger is respondent’s own

closing argument at the trial of this case:

[T)his airplane is uncertifiable. It was uncertifiable then

and it is uncertifiable now.

‘

This airplane could not have legally been built then; it

couldn’t legally have been built now....

But what about the FAA? What about the CAA, the

people charged by the Congress of the United States to

protect us from manufacturing errors and mistakes and

from bad airplanes? What about the CAA? They approved

this thing. ‘ Sigs

Well, that may have sounded good before we started,

but I hope it doesn’t sound good any more, because the

people in whom the people of the United States through

the Congress of the United States have placed their trust

don’t do their job....

See A>pellant’s Opening Brief in the Court of Appeal of the

State of California at 13, 19, 2nd Civil No. 63299 (June i8,

1982). With the blessing of the trial court, these arguments were

made in the face of FAA certification of the aircraft. The jury

plainly was invited to reconsider for itself whether the FAA

could legally certify the plane, notwithstanding Congress’ un-

a om

mistakable intent that decisions on the certification of aircraft

are to be an exclusive, discretionary function of the FAA.’

In Varig Airlines, the Court expressed concern about judicial

second-guessing of FAA decisions in tort actions:

[W)hatever else the discretionary function exception may

include, it plainly was intended to encompass the discre-

tionary acts of the Government in its role as a regulator of

the conduct of private individuals. ...Congress wished to

prevent judicial ‘“‘second-guessing’’ of legislative and ad-

ministrative decisions grounded in social, economic and

political policy through the medium of an action in tort.

104 S. Ct. at 2765. The case at bar involves the same type of

**second-guessing”’ and is squarely at odds with the regulatory

scheme enacted by Congress, implemented by the FAA and in-

terpreted by this Court in Varig.

* The ramifications of this decision would extend to all industries in

which products are certified by federal agencies in the interest of safe-

ty. This would include, inter alia, certification of pesticides and

agricultural products by the Department of Agriculture under 7

U.S.C. §§ 136a, 136b, 243, 1380a and 2259; certification testing for

compliance of consumer products with safety standards prescribed by

the Consumer Product Safety Commiission under 15 U.S.C. § 2063(b);

certification of drugs and food additives by the Food and Drug Ad-

ministration under 2! U.S.C. §§ 356, 357, 360b and 376; certification

and licensing of offshore mining facilities by the National Oceanic and

Atmospheric Administration under 30 U.S.C. § 1413; certification of

marine sanitation devices by the Environmental Protection Agency

under 33 U.S.C. § 1322; certification of electronic products for radia-

tion emissions by the Department of Health and Human Services

under 42 U.S.C. § 263f; certification of nursing facilities by the

Department of Health and Human Services under 42 U.S.C. § 1396a;

and certification of compliance of motor vehicles with emission stan-

dards by the Department of Health and Human Services under 42

U.S.C. § 1857f-5. Under the reasoning of the California Supreme

Court, trial courts in cases involving any of these products could

second-guess the federal agencies’ judgment and hold that the product

in question was unlawfully certified.

pom

It is impossible to imagine how individual manufacturers will

contend with the conflicts created by this decision. If a court

finds that one model of an aircraft fails to meet its own inter-

pretation of some FAA regulation, a manufacturer will be con-

fronted with a dilemma. Must it ask the FAA to recertify the

aircraft? What is it to do with regard to similar model aircraft,

of which there may be hundreds or thousands? What will the

implications be if some manufacturers take such action and

others do not? Economic and competitive factors ir. the in-

dustry would further complicate the manufacturers’ efforts to

formulate a response. Moreover, if a manufacturer requesis

recertification, it is entirely unclear how the FAA should res-

pond to such a request.

The decision poses an equally serious d’ mma for commer-

cial and private aircraft operators. If a court in a civil damage

action decides an aircraft was improperly certified, serious legal

uncertainty attaches to all operators of that aircraft who con-

tinue to operate it. Could a state court subsequently find the

operator liable under common law theories of negligence for

operating an improperly certified aircraft? Potential liability

should another accident occur could be staggering. On the

other hand, should an entire fleet be grounded on the basis of

ad hoc decisions by lay judges and jurors? The economic im-

plications of such decisions for the troubled airline industry

would be enormous. These are the types of potential problems

that mandate a uniform federal policy of aircraft certification

and safety regulation, and this policy will be frustrated if the

decision below stands.

Preemption is not avoided simply because plaintiffs seek

monetary compensation for damages sustained in an aviation

accidert. This Court has recently stated that it will not permit

the states ‘‘to use the threat of damages to require. . .exactly

what [an agency] is empowered to excuse.’’ Chicago & North

Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S.

311, 326 (1981). In the case at bar, as in Kalo Brick, the findings

by the agency, ‘‘made pursuant to the authority delegated by

_~

Congress, simply leave no room for further litigation over the

matters respondent seeks to raise in state court.’’ 450 U.S. at

327. As the Court indicated in Kalo Brick, federal law preempts

‘‘common-law causes of action for damages stemming from...

negligence and tort --hen the judgments...necessary to the

decision have already been made’’ by the federal agency. 450

U.S. at 327. The critical aspect of the case at bar is not that

respondents seek to recover on a negligence theory or a theory

of strict liability, but that they invoke a theory that directly at-

tacks the FAA’s decision to certify the aircraft.

In this respect, the decision of the California Supreme Court

represents a misconstruction of the Court’s recent decision in

Silkwood v. Kerr-McGee Corp., ___. U.S. ___., 104. S.Ct. 615

(1984). In Silkwood, this Court ruled that state court claims for

punitive damages based on tortious conduct of companies

regulated by the Nuclear Regulatory Commission were not

preempted by the federal regulatory scheme. 104 S.Ct. at 626.

However, the Court acknowledged in Silkwood that state law

theories of tort recovery would be preempted if they come into

**irreconcilable conflict’’ with the federal standard or ‘‘would

frustrate the objectives of the federal law.’’ 104 S. Ct. at 626.

Although the California Supreme Court acknowledged these

limitations on the scope of Silkwood, the court’s decision com-

pletely disregards and undermines them. This case presents an

irreconcilable conflict between the FAA and the State of

California. A claim based upon a theory of negligence per se,

unlike the claim for punitive damages in Si/kwood, required the

state court to set aside the FAA’s decision on certification of the

aircraft and substitute its own interpretation of the governing

federal regulations. The interpretation adopted by the state

court is in direct conflict with the FAA’s inte) pretation and

must, therefore, bow to federal preemption vader the FAA

regulatory scheme.

The California Supreme Court’s decision is also at odds with

the federal case of Fisher v. Bell Helicopter Co., 403 F. Supp.

OOOO

—

1165 (D.D.C. 1975). Fisher, like the instant case, presented, in-

ter alia, a claim of negligence per se based on violations of air-

worthiness standards established by the FAA. In Fisher, the

FAA decided to continue certification of a helicopter for a grace

period of fifty hours, although it had determined that certain

bolts on the helicopter needed to be replaced in the interest of

safety. The District Court for the District of Columbia heid

that the FAA’s decision to continue certification precluded a

finding of negligence per se based on the failure of the bolts to

meet FAA airworthiness standards. 403 F. Supp. at 1174.

Il. The Court Below Erred In Interpreting Federal Law

The decision below also threatens to undermine FAA policy

by distorting the FAA’s regulations governing certification. The

court below misinterpreted those regulations by assuming that

they establish mandatory design criteria for the manufacturer.‘

In fact, they establish only discretionary guidelines for the

FAA.

Under the Federal Aviation Act, the FAA certifies aircraft

based on a discretionary judgment of the aircraft’s safety. 49

U.S.C. § 1423(2). Pursuant to the Act, the FAA has adopted a

large number of ‘‘airworthiness standards’’ that the FAA itself i

may apply in determining whether to certify a particular air-

craft,’ but the FAA retains authority to grant or deny certifica-

tion on the basis of safety standards different from or in addi-

tion to these. The applicable regulations provide expressly that

the airworthiness standards published in FAR Parts 23-29 are

* By statute, the California doctrine of negligence per se applies only

if a person, inter alia, ‘‘violate|s] a statute, ordinance, or regulation of

a public entity.’’ Cal. Evid. Code § 669(a) (West Supp. 1985).

"The current guidelines for various types of airplanes appear in the

Federal Aviation Regulations (“‘FAR’’), Parts 23-29, 14 C.F.R. §§

Fe de 5 ane the Civil Aeronautics Regulations (““CAR‘’), Parts 3,

a

— pn

only one alternative means of qualifying an aircraft for cer-

tification. The FAA will also certify the aircraft if ‘‘any

airworthiness provisions not complied with are compensated for

by factors that provide an equivalent level of safety.”’ 14 C.F.R.

§ 21.21(b)(1). Conversely, the regulations provide that the Ad-

ministrator may impose ‘‘special conditions’’ above and beyond

what is contained in the airworthiness standards. 14 C.F.R. §

21.21(b).

While manufacturers design to these standards, they serve

merely as guidelines to the FAA and do not impose any legal

duties on the manufacturer. It is the FAA, not the manufac-

turer, that decides whether an aircraft should be certified. A

failure of an aircraft design to meet these standards, although it

may result in a denial of certification, does not involve the viola-

tion of any legal duty imposed on the manufacturer.

Consistent with their status as guidelines, the FAA’s airwor-

thiness standards are not the subject of any of the prohibitions

established in the Act. The Act’s prohibitions relate solely to

the violation of the terms of FAA production certificates or the

operation of aircraft that have not been properly certified. 49

U.S.C. § 1430(a). Moreover, this Court recently acknowledged

in the Varig Airlines case that the FAA’s certification pro-

cedures are discretionary in nature and are protected by the

‘discretionary function’’ exception to the Federal Tort Claims

Act."

By permitting a finding of negiigence per se based on airwor-

thiness standards, the decision below conflicts with the reason-

ing of the sixth circuit in Rimer v. Rockwell International

* Although the Varig case addressed specifically the FAA’s decision

to use a “‘spot-check’’ program to monitor compliance with its regula-

tions, the case has subsequently been interpreted to be ‘‘wholly ap-

plicable’’ to more general claims of negligent inspection and certifica-

tion by the FAA. Natural Gas Pipeline Co. of America v. United

States, 742 F.2d 502, 504 (9h Cir. 1984).

~~ ==

Corp., 641 F.2d 450 (6th Cir. 1981). There the court held that

provisions in the Federal Aviation Regulations that do not im-

pose “‘specific duties’”’ cannot serve as a basis for a finding of

negligence per se. 641 F.2d at 454-55. Under this test, the air-

worthiness standards in this case could not have served as a

basis for a finding of negligence per se, because they do not im-

pose any “‘specific duties’’ on the manufacturer. The California

Supreme Court ignored the discretionary nature of those

standards and presumed some legal duty on the manufacturer

to comply with them. The Court should grant the petition in

order to correct this error of federal law which distorts the FAA

certification scheme.

Ill. The Doctrine Of Primary Jurisdiction Requires Trial

Courts To Defer To The FAA For A Decision On Allega-

tions That An Aircraft Does Not Comply With FAA

Regulations

Respondent’s negligence per se theory in this case is

predicated on allegations that the aircraft in question was im-

properly certified. However, respondent made no effort to bring

these allegations before the FAA for agency decision prior

to asserting them in court. For this reason, the procedure sanc-

tioned by the California Supreme Court in this case violates the

principle of primary jurisdiction, under which courts are re-

quired to defer to administrative agencies on matters which fall

within their special expertise. Weinberger v. Bentex Phar-

maceuticals, Inc., 412 U.S. 645 (1973); Pennsylvania Railroad

v. United States, 363 U.S. 202 (1960); Far East Conference v.

United States, 342 U.S. 570 (1952). The decision below

threatens to clog and complicate aviation accident cases with ad-

ministrative certification questions that Congress intended to be

directed to the FAA. It also undermines the uniformity and

consistency that Congress hoped to achieve by vesting primary

jurisdiction over air safety in the FAA. House Report at

3746-47.

ee A ite

The doctrine of primary jurisdiction applies with equal force

to issues committed to agency decisionmaking, ‘‘even though

the facts after they have been appraised by the specialized com-

petence serve as a premise for legal consequences to be judicially

defined.’’ Far Eastern Conference v. United States, 342 U.S.

570, 574-75 (1952), quoted in Bentex Pharmaceuticals, 412 U.S.

at 654. The Court reaffirmed this principle in United States v.

Western Pacific Railroad, 352 U.S. 59 (1956). There, the Court

formulated the following general rule:

“Primary jurisdiction’’...applies where a claim is

originally cognizable in the courts, and comes into play

whenever enforcement of the claim requires the resolution

of issues which, under a regulatory scheme, have been

placed within the special competence of an administrative

body; in such a case the judicial process is suspended pen-

ding referral of such issues to the administrative body for

its views.

352 U.S. at 63-64. See also General American Tank Car Corp.

v. El Dorado Terminal Co., 308 U.S. 422, 433 (1940).

In the instant case, respondent has used alleged violations of

FAA certification guidelines as a premise for a legal finding of

negligence per se. The decision below authorizes tort plaintiffs

in this and future cases to Jo an end run around federal pro-

<2dures governing product certification. In this case, statutory

procedures were readily available to respondents for a proper,

administrative determination of the certification issue. The

Federal Aviation Act provides that the FAA may at any time

reconsider the certification of aircraft and revoke existing cer-

tificates in response to a complaint filed by ‘‘{a]ny person.’’ 49

U.S.C. §§1429, 1482(a). The Court should grant the writ and

hold that the proper procedure for resolving respondents’

allegations about certification of this aircraft was to file a com-

plaint with the FAA.

lw OE aces

IV. The Federal Aviation Act Of 1958 Precludes Review

Of FAA Aircraft Certification By Trial Courts

Even if the FAA had denied respondents’ allegations and

declined to find improper certification, it was nonetheless er-

roneous for the trial court to entertain respondents’ challenge to

the certification of the aircraft, because Congress has vested ex-

clusive jurisdiction over the review of FAA certification deci-

sions in the federal courts of appeals.

In connection with the delegation of authority to an ad-

ministrative agency, Congress may specify a particular forum

for the judicial review of agency action, and the courts must en-

force that choice. City of Tacoma v. Taxpayers, 357 U.S. 320,

336 (1958). In the Federal Aviation Act, Congress chose to vest

jurisdiction over challenges to an FAA ‘“‘order’’ in the United

States courts of appeals. 49 U.S.C. § 1486(a). This provision

establishes that Congress did not intend trial courts to review

the FAA’s orders. Moreover, the federal courts have con-

sistently respected the exclusive jurisdiction established in

§1486(a). New York v. Federal Aviation Administration, 712

F.2d 806 (2d Cir. 1983); Nevada Airlines v. Bond, 622 F.2d 1017

(%h Cir. 1980); Sima Products Corp. v. McLucas, 612 F.2d 309

(7th Cir.), cert. denied, 446 U.S. 908 (1980); City of Rochester

v. Bond, 603 F.2d 927 (D.C. Cir. 1979).

The certification of the aircraft in this case constituted an

“‘order’’ within the meaning of § 1486(a).° The administrative

record supporting certification decisions is extensive, including

manufacturers’ design and performance data and results of

* Under the Administrative Procedure Act, ‘‘order’’ includes “‘the

final disposition. ..in a matter other than rule making but including

licensing.”” 5 U.S.C. §551(6). A “‘license’’ includes ‘‘an agency per-

mit, certificate, approval...or other form of permission.”’ Jd. §

551(8). Accordingly, FAA certifications have been held to be

“‘orders”’ reviewable in the courts of appeals under § 1486(a). O’Don-

nell v. Bond, 510 F. Supp. 925 (D.D.C. 1981).

_— vn

numerous tests and analyses conducted by the FAA.'® See 49

U.S.C. § 1423. This record has been held adequate to allow

complete judicial review. O’Donnell, 510 F. Supp. at 930. The

courts have indicated that statutorily ordered methods of review

may be lield inappropriate only in extreme instances. Nader v.

Volpe, 466 F.2d 261, 266 (D.C. Cir. 1972). There is no basis

here for making an exception to the rule that only the federal

courts of appeals are authorized to review FAA certification

decisions.

Respondents in this case have completely ignored the pro-

cedures provided in § 1486. Faced with the FAA’s official

determination that the aircraft complied with all applicable

FAA regulations and was qualified for FAA certification, they

_ sought what amounts to a de novo review of this FAA decision

in a tort action in the state courts of California. Although

respondents seek money damages in the case at bar, their claims

and the court’s findings are based on a theory of negligence per

se that looks behind the FAA’s certification of the aircraft and

reviews whether that certification was proper, i.e., whether the

aircraft in question complied with all certification requirements

at the time of certification. The decision of the California

Supreme Court in this case conflicts with the consistent inter-

pretation of § 1486 by the feceral courts, and subverts the con-

gressional scheme limiting review of FAA certification to the

U. S. courts of appeals.

'° In Varig, the Court acknowledged one manufacturer’s estimate

that the certification process may require the production of some

**300,000 engineering drawings and changes, 2,000 engineering

reports, and 200 other reports.’’ 104 S.Ct. at 2761 n.7.

at em

CONCLUSION

For the reasons stated, this Court should grant the petition

for writ of certiorari, reverse the opinion of the California

Supreme Court and reinstate the opinion of the California

Court of Appeal.

Respectfully submitted,

John J. Hennelly, Jr.*

Curtis M. Dombek

Bryan, Cave, McPheeters

& McRoberts

500 North Broadway

St. Louis, Missouri 63102

(314) 231-8600

Keith Gerrard

Richard C. Coyle

Thomas J. McLaughlin*

Perkins, Coie, Stone, Olsen

& Williams

1900 Washington Building

1325 Fourth Avenue

Seattle, Washington 98101

(206) 682-8770

*Counsel of Record

April 15, 1985