Opposition Brief — Macario v. Pratt & Whitney Canada, Inc.

No. 93-1891

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

T. MICHAEL MACARIO, III.

Petitioner

U.

PRATT & WHITNEY CANADA, INC., et al.,

Respondents

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Third Circuit

BRIEF OF RESPONDENT BEECH AIRCRAFT

CORPORATION IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Tom P. Monteverde*

William M. Shields

MONTEVERDE & HEMPHILL

One Penn Center at

Suburban Station

Suite 1500, 1617 JFK Boulevard

Philadelphia, PA 19103-1815

(215) 557-2900

Attorneys for Respondent,

Beech Aircraft Corporation

Counsel of Record

PACKARD PRESS“ APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA., PA. 19103 (215) 563- 9000

COUNTERSTATEMENT OF QUESTIONS PRESENTED

FOR REVIEW

1. Whether review should be denied because the

decisions below do not create any conflict between

federal courts of appeal on the same or similar issues, do

not conflict with decisions of this Court, and do not

‘present any important questions of federal law to be

resolved.

2. Whether review should be denied because the

decisions below, which recognize the primary jurisdic-

tion of the FAA to decide what modifications can be

made to existing airplanes, are in accordance with

established federal law and no question of federal pre-

emption is presented.

3. Whether review should be denied because the

sole remedy available to a litigant dissatisfied with an

airworthiness directive or other order issued by the FAA

is by appeal of that order pursuant to 49 U.S.C. App.

§ 1486(a); petitioner failed to pursue such an appeal and

cannot collaterally attack the FAA airworthiness direc-

tive in this action.

4. Whether review should be denied because the

Noerr-Pennington doctrine, extending First Amend-

ment protection to Beech’s successful petition to the

FAA for an airworthiness directive, was properly applied

under the circumstances in this case.

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRE-

SENT? FOR RIBVIIEW occ ccccccccccccnsese i

TABLES GP ALTTRAE aM cc cccccccucnscecsces iii

eet SPOT V ET EPEC CT Cer rT Crt 1

FUR ae 0 6 0 cb davkein hacuenaseasaancees 2

STATUTES AND RULES INVOLVED IN THE

PETITION FOR WRIT OF CERTIORARI .... 2

COUNTERSTATEMENT OF THE CASE ........ 2

Pmctuel TGCS ona cc ccc cc cccescceseens 2

The Decisions of the District Court and the

COOUEE OE FIN o 0.6.0 con nwncduceteaseccecscs 7

REASONS FOR DENYING THE WRIT ......... 9

I. Summary Judgment Was Properly Entered

And Affirmed In Accordance With The Appli-

cable Decisions Of This Court..............- 10

II. The Decisions Below Which Recognize The

Primary Jurisdiction Of The FAA Are In Accor-

dance With Established Federal Law And No

Question Of Federal Preemption Is Presented 12

III. Macario Failed To Appeal The FAA’s Order

And Cannot Collaterally Attack The Airworthi-

WORD TIMID coc cccccvcsccscensesecsseseees 14

IV. The Noerr-Pennington Doctrine Was Properly

Applied In This Action, And There Is No Un-

certainty Regarding Its Application Which

Would Justify The Granting Of The Writ ..... 15

CHS vo cc cccdcddsavcedsceneetcencdss 19

APPENDIX

Federal Aviation Administration Airworthiness

Directive AD92-15-11, Docket No. 91-ANE-06

dated July 17, 1992 (57 Fed. Reg. 31654) .... A-1

ii

TABLE OF AUTHORITIES

Cases: Page

Allied Tube & Conduit Corp. v. Indian Head, Inc.,

Moe Wem. 4Ea, SOD (19GB). 0 wesc cc ccccccctece 17

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

ae a ie a eh cais wi 10

Brownsville Golden Age Nursing Home v. Wells, 839

Pete 155, 160 (36 Cir. 1968). 2... ccccccccs 16

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

CESS So dkae dad c6s'6k vbk ds dvkd'e ves 10, 11

Chicago & N.W. Transportation Co. v. Kalo Brick &

Tile Co., 450 U.S. 311, 324 (1981)............ 14

Columbia v. Omni Internaiional Advertising, Inc.,

GPP BPs OP CPE 6 kn wc cccccccccscdecs 16, 17

Crigler v. Cessna Aircraft Co., 830 F.2d 169 (11th

Co EE ee are ee 13

Eastern Railroads Presidents Conference v. Noerr

Motor Freight, Inc.; 365 U.S. 127 (1961)..... 17

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

AM TSGS 65 oi oUWk sab bees bbe vdcccce cece 12

Gaunce v. deVincentis, 708 F.2d 1290 (7th Cir.),

cert. denied, 464 U.S. 978 (1983)............. 14

Gorman Towers, Inc. v. Bogoslavisky, 626 F.2d

607, 614-15 (8th Cir. 1980).................. 16

Green v. Brantley, 981 F.2d 514 (11th Cir. 1993).. 14

Meyers v. Bethlehem Shipbuilding Corp., 303 U.S.

Dh, Sree We Gee PP CEBU oc cece cicccccacescecs 14

N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.

I UT a eB on ack c cécc dlecccee 15

Nevada Airlines, Inc. v. Bond, 622 F.2d 1017 (9th

ee eee, 14

ili

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Oling v. Airline Pilots Association, 346 F.2d 270,

cert. denied, 382 U.S. 926 (1965). ............ 14

Professional Real Estate Investors v. Columbia Pic-

tures Industries, Inc., _. U.S. —, 113 S. Ct.

Re ao coade nsdn cdcd ce bac bxreceeen 15, 16

Salve Regina College v. Russell, 499 U.S. 225

CRED hnaics ckuccawns seb nkeet sees H4aet ikon 12

U.S. v. Hayes, 264 F.2d 1929 (2d Cir. 1959) ...... 14

United States v. Western Pacific Railroad Co., 352

Re oe | re Tres tT re rer rye 12

Whitney National Bank v. Bank of New Orleans

and Trust Co., 379 U.S. 411, 421-422 (1965).. 14

Williams v. Borough of West Chester, 891 F.2d 458,

SP Ce Rls An 6 0 5 0 bred 8 0 ns0neeeececaes 10

Statutes, Rules and Regulations:

Be TE EE oc cn cceGs Guan cessesceseace 2

Ee ee Is 6h. a 6005 0b 00s bneamt chee 7,14

Oe Se eS bos bs Ka ddhces bs Ch skdeeiseads 13

Sa a ah ek heed debe dd ve neevetnakess 9

14 CPA BOD Bh, Ze ORG BS oo cc ci ccsdvctescewe 13

a oe A Cae re re ren ere 13

We ee ins ao aon secnekee teh shenseeanes 13

57 Fed. Reg. 31654 (July 17, 1992) ........... 6, A-1

No. 93-1891

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

T. MICHAEL MACARIO, III,

Petitioner

v.

PRATT & WHITNEY CANADA, INC., et al.,

Respondents

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Third Circuit

BRIEF OF RESPONDENT BEECH AIRCRAFT

CORPORATION IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondent, Beech Aircraft Corporation, respect-

fully requests that this Court deny the Petition for Writ

of Certiorari.

OPINIONS BELOW

The opinions below are provided in the Appendix to

Petition for Writ of Certiorari (“P-App.”).

1. Beech Aircraft Corporation is a wholly owned subsidiary of

Raytheon Corporation, a publicly owned corporation.

1

2

JURISDICTION

As set forth in the Petition for Writ of Certiorari,

jurisdiction of this Court is evoked under 28 U.S.C.

§ 1254(1).

STATUTES AND RULES INVOLVED IN THE

PETITION FOR WRIT OF CERTIORARI

Section 1486 of the Federal Aviation Act, 49 U.S.C.

App. § 1486.?

COUNTERSTATEMENT OF THE CASE

Factual Background

Beech Aircraft Corporation (“Beech”) was sued be-

cause it exercised its constitutional right to petition the

government for favorable action. To protect the owners

of more than 4,000 Beech King Air airplanes and their

passengers from being exposed to serious injury or

2. 49 U.S.C. App. § 1486 provides, in pertinent part:

(a) Orders subject to review; petition for review. Any order,

affirmative or negative, issued by the Board or Administrator

[Secretary of Transportation] under this Act, except any order in

respect to any foreign air carrier subject to the approval of the

President as provided in section 801 of this Act shall be subject to

review by the courts of appeals of the United States or the United

States Court of Appeals for the District of Columbia upon petition,

filed within sixty days after the entry of such order, by any person

disclosing a substantial interest in such order. After the expiration

of said sixty days a petition may be filed only by leave of court upon

a showing of reasonable grounds for failure to file the petition

theretofore.

(d) Power of court. Upon transmittal of the petition to the

Board or Administrator [Secretary of Transportation], the court shall

have exclusive jurisdiction to affirm, modify, or set aside the order

complained of, in whole or in part, and if need be, to order further

proceedings by the Board or Administrator [Secretary of Transpor-

tation]. Upon good cause shown and after reasonable notice to the

Board or Administrator [Secretary of Transportation], interlocutory

relief may be granted by stay of the order or by such mandatory or

other relief as may be appropriate.

3

death, and to protect itself from legal liability, Beech

caused the Federal Aviation Administration (“FAA”) to

investigate the safety of the reissuance by Pratt &

Whitney Canada, Inc. (“PWC”) of a PWC Service Bul-

letin (“SB 1330”). Pursuant to SB 1330, PWC, as the

engine manufacturer, would have urged owners of

Beech King Airs equipped with PWC small gas turbine

engines to install filters (“P3 filters”) in the air lines

which by pneumatic force control the rate at which fuel

is delivered to the two turboprop PWC engines (“P3

lines”).

It was in 1989 that PWC, an engine manufacturer,

agreed to reissue SB 1330 pursuant to PWC’s settlement

of a claim which T. Michael Macario (“Macario”) had

asserted on behalf of the estate and heirs of a pilot killed

in a King Air accident. (The original personal injury

action is hereafter referred to as “Macario I.”) However,

the uncontradicted evidence in the district court estab-

lished that Beech was not a party to the suit which PWC

settled with Macario in 1989; had not been aware of, or

participated in any way, in PWC’s negotiations to settle

that suit, and did noi learn of the terms of that settle-

ment until after the settlement was concluded.3

Beech engineers and test pilots had learned from

performing flight tests in 1981 for the certification of one

of the King Air models affected by SB 1330, that

equipping King Airs powered by small turbine engines

with these filters involved a risk to flight safety. Beech

3. While Macario had sued Beech in a companion action, that

action was settled as to Beech before the first trial of Macario J,

which ended in a hung jury as to the liability, if any, of PWC. It was

during jury deliberations at the second trial of Macario J that PWC

and Macario entered into the settlement agreement involved.

4. With the filters installed, the engines accelerated too slowly

for the airplane to meet FAA requirements for balked landing

performance, i.e., a maneuver in which the pilot must abort his

landing and apply full power to the engines to execute a “go-

around.” If the delay in engine acceleration occurred 200 feet over

a runway, it would be extremely difficult for a pilot of ordinary skill

to regain full power before the airplane would impact the runway.

4

had also determined in 1981 that this risk was so

substantial as to cause Beech to have that model King

Air certificated for manufacture and operation without

having such filters installed. The other model King Airs

affected by SB 1330 had also been certificated by Beech

without having P3 filters installed. Furthermore, neither

Beech nor FAA records, over the course of more than

twenty years, had recorded any King Air accidents

attributable to the absence of P3 filters. On the other

hand, as the FAA subsequently confirmed, there are

FAA records which establish that build ups of contami-

nants in such filters do adversely affect the operation of

the engines.

As soon as Beech learned what PWC proposed to do

about reissuing SB 1330, Beech brought this existin 7

information to the attention of the FAA. Beech requesteu

that the FAA conduct an investigation to determine

whether or not the installation of those filters would in

fact create a risk to flight safety in the various Beech

aircraft models involved.

The FAA met with Beech and PWC, reviewed the

documented basis for Beech’s concerns, and determined

that PWC had issued SB 1330 in its original form

without consulting Beech or performing flight tests to

determine the effect of the installation of such filters on

the King Air models involved. Then, the FAA, and later

its Canadian counterpart, acting at the instance of

Beech alone, stayed PWC’s reissuance of SB 1330

pending the FAA’s completion of an investigation of the

possible flight safety risks involved.

While that investigation was in progress, Macario’s

counsel instituted the present proceeding. PWC was

5. The foregoing is what the documentary record ciearly

establishes was Beech’s initial request of the FAA; there is no

evidence whatsoever that Beech’s original interition was, as alleged

by Petitioner (Petition, at p. 10, fn. 3), “to make certain that the

service bulletin was never [re]Jissued.”

5

sued for breach of contract, Beech for tortious interfer-

ence with contract, and both PWC and Beech on a

multitude of other theories, most notably “civil conspir-

acy” and “concerted tortious action.” The object of the

suit was to force PWC to reissue SB 1330 in its original

form, but on an “urgent compliance” basis, and to

punish Beech for allegedly interfering improperly with

Macario’s settlement with PWC.¢

The FAA continued its investigation, closely moni-

tored and (through its own test pilot) actually partici-

pated in Beech flight tests which confirmed the exist-

ence of the potential safety of flight problem reported

initially by Beech.

Not until FAA investigators had determined for

themselves the validity of Beech’s concerns, and its staff

had decided to recommend issuance of the Airworthi-

ness Directive ultimately issued, did PWC corroborate or

support Beech’s expressions of concern. Only after PWC

engineering representatives met with Beech engineers

at the FAA’s direction to clarify their apparent differ-

ences, did PWC acknowledge the validity of Beech’s

concern.

Ultimately, after considering as well test data, letters

and affidavits from experts who expressed contrary

opinions submitted by Macario’s counsel, the FAA

caused PWC to limit the application of the reissued SB

1330 to only two King Air models.”? The FAA issued an

6. Although Macario contends (Petition, at p. 3) that the

motivation for the alleged conspiracy was to avoid the “preclusive

effect” that a verdict in Macario I would have in the Sunbird

litigation, Macario ignores the fact that a verdict adverse to PWC in

the Macario I case would not have been binding on Beech in

Sunbird because Beech was not a party to Macario I nor otherwise

a privy to its disposition. Moreover as to Macario’s contention

(Petition, at p. 5) that Beech had a “substantial financial exposure”

in the Sunbird litigation, that litigation was resolved, and not as a

class action, with no payment whatever by Beech.

7. The Beech King Air models F90 and A100 (the airplane

piloted by Macario had been an A100) were not included by the FAA

because those airplanes were certified for flight with engine ground

6

Airworthiness Directive® which required owners of all of

the other King Air models affected by SB 1330 in its

original form to remove any filters which might have

been installed pursuant to the original, entirely optional,

bulletin.?

The FAA took this action because it determined that

an unsafe condition existed. The installation of P3 filters

did cause excessive engine acceleration times which

could result in the inability of a pilot to safely perform

the balked landing maneuver, i.e., where the pilot must

abort the landing, accelerate the engines to full power

and execute a “go-around.” The FAA specifically con-

sidered and rejected each and every contention of Ma-

cario’s counsel and his experts. The FAA found that

Beech’s flight tests, conducted at the FAA’s request,

were properly conducted in a conservative manner to

determine the “worst case” effect that a P3 filter would

have. The FAA also found that flight tests conducted by

Macario’s counsel and his experts without FAA supervi-

sion or participation were invalid and that the tests were

idle speeds set at 62% or higher because of their specific propeller

installations (four bladed propellers, rather than three bladed pro-

pellers as on the other models).

8. The Airworthiness Directive AD 92-15-11, Docket No.

91-ANE-06, was published in the Federal Register on July 17, 1992.

57 Fed. Reg. 31654. A copy of the Airworthiness Directive and the

Supplementary Information published with it are set forth as

Appendix A to this Brief (“R-App. A”).

9. Although Macario states (Petition, at p. 4) that the Notice of

Proposed Rulemaking, published by the FAA proposing the Airwor-

thiness Directive, did not include airplanes of other manufacturers

equipped with PWC engines, Macario neglects to inform the Court

that in the Supplementary Information published in the Federal

Register with the final Airworthiness Directive, the FAA stated that

the FAA agreed that other model airplanes were potentially affected

and identified one additional model series of another manufacturer

that was directly affected. The FAA further stated that it was

evaluating flight test results and that additional rulemaking might

follow. (R-App. A-5)

7

conducted improperly, without known fuel control cali-

bration, and with poor contro! over the test conditions.1°

Macario failed to exercise his exclusive remedy to

seek review of the FAA’s action by petitioning the court

of appeals as provided by § 1486(a) of the Federal

Aviation Act, 49 U.S.C. App. § 1486(a). Thereafter, the

district court entered summary judgment in favor of

Beech.

The Decisions of the District Court and the Court of

Appeals

Beech’s motion for summary judgment was based

on a detailed deposition and documentary record with

respect to the 1981 Beech flight tests and their results;

detailed correspondence with and from the FAA regard-

ing the reissuance of SB 1330; deposition testimony and

records of the 1990 Beech flight tests conducted with

the FAA as part of the FAA’s investigation; deposition

excerpts from the FAA witnesses as to the reasons for

the FAA’s actions, the validity of the Beech flight test

parameters and data and the invalidity of experimental

flight test data submitted by Macario’s counsel here;

deposition excerpts from PWC’s personnel and its coun-

sel regarding the settlement establishing that Beech was

not consulted by PWC before or during the settlement

negotiations with Macario, and affidavits from Beech’s

counsel establishing that Beech was not even aware of

the settlement until! after it occurred.™

10. Macario contends (Petition, at p. 5) that the engine fuel

control settings used by Beech would make the engine uncertifi-

able. However, the FAA also determined that Beech’s use of a

ground cr in-flight idle of 51% was approved in accordance with the

limitations imposed by the engine manufacturer, PWC. (R-App.

A-5)

11. Contrary to Macario’s assertion (Petition, at p. 10, fn. 3), it

was Beech who provided the district court with documentary

evidence of Beech’s contacts with the FAA regarding the proposed

reissuance of SB 1330.

8

The very experienced district judge did not grant

summary judgment in favor of Beech and PWC until he

had reviewed the lengthy briefs, the detailed documen-

tary record and listened to oral arguments with respect

to the alleged merits of Macario’s multifarious conten-

tions. In fact, at oral argument, the district judge asked

Macario’s counsel to submit evidence establishing the

existence of any conspiracy between Beech and PWC

(P-App. A-14), and granted him additional time for such

a submission. Macario failed to produce any such evi-

dence and the district court properly granted summary

judgment on Macario’s civil conspiracy and concerted

action claims (P-App. A-14).

As to Macario’s claim for fraud in the inducement,

the district court properly found that, once again, Ma-

cario had failed to produce evidence that Beech had

influenced PWC in negotiating the terms of the settle-

ment agreement (P-App. A-17).

As to Macario’s claim that Beech tortiously inter-

fered with Macario’s contractual relationship with PWC,

the district court concluded that Beech did no more than

exercise its constitutional right to petition the govern-

ment (i.e., the FAA) and, thus, Beech’s actions were

protected under the Noerr-Pennington doctrine and

could not be the basis for tort liability (P-App. A-12).

As to Macario’s claim for unjust enrichment, the

district court properly held that that doctrine did not

apply where the relationship between the parties (Ma-

cario and PWC) was founded on a written agreement or

express contract (P-App. A-15).

As to Macario’s claim for misappropriation of a

property right, the district court properly held that any

right which Macario might otherwise have had to the

reissuance of SB 1330 was subject to the power of the

FAA to authorize or prohibit such action, and that

because the FAA had determined that SB 1330 should

not be issued in its original form, Macario had no

property right in SB 1330 (P-App. A-13).

a ey

9

The court of appeals affirmed the district court’s

decision, holding that:

We have carefully considered all of the issues and

arguments raised by Macario, and we find that the

district court’s judgment is correct in all respects.

(P-App. A-4).12

REASONS FOR DENYING THE WRIT

Rule 10 of this Court provides:

A review on Writ of Certiorari is not a matter of right,

but of judicial discretion. A Petition for Writ of

Certiorari will be granted only when there are spe-

cial and important reasons therefor.

The Rule goes on to describe “the character of the

reasons” the Court will consider in passing on a Petition

for Certiorari, such as: (1) conflicts between federal

courts of appeal on the same issue; (2) wide departures

by a federal court of appeals from the “accepted and

usual course of judicial proceedings”; and (3) a decision

by a federal court of appeals on an important question of

federal law which has not been, but should be, settled by

this Court, or which “has decided a federal question in a

way in conflict with applicable decisions of this Court.”

When measured by the foregoing standards, the

defects of the present Petition are both clear and fatal.

The decisions below do not conflict with any decisions of

this Court, do not create any conflict between courts of

appeal on the same or similar issues, and do not present

any important questions of federal law to be resolved by

this Court.

12. Contrary to Macario’s contentions (Petition, at p. 6), the

court of appeals did not base its affirmance of the summary

judgment in favor of Beech on plaintiff's civil conspiracy and tort of

concerted action counts solely on first amendment grounds. The

court also concluded that “. . . the district court properly determined

that insufficient evidence exists in the record to establish a genuine

issue of material fact concerning wrongful activity on the part of

Pratt or Beech.” (P-App. A-3).

10

I. Summary Judgment Was Properly Entered And Af-

firmed In Accordance With The Applicable Decisions Of

This Court.

The district court properly set forth the applicable

standards for deciding a motion for summary judgment,

(P-App. A-6-7) citing this Court’s decisions in Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) and

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

More specifically, the district court held:

Therefore, the party opposing the motion must come

forward with “more than a mere scintilla of evidence

in its favor” and ‘ “cannot simply reassert factually

unsupported allegations contained in its pleading.’ ”

Williaris v. Borough of West Chester, 891 F.2d 458,

460 (3d Cir. 1989) (citing Anderson, 477 U.S. at

249, 325).

(P-App. A-7).

Despite Macario’s protestations to the contrary, that

is exactly what he attempted to do in this case. Macario

failed to produce any evidence contradicting the deposi-

tion testimony and the affidavits submitted by Beech

which conclusively established that Beech was not con-

sulted about and had no knowledge of the Macario I

settlement. Macario also failed to produce any evidence

of a conspiracy or concerted action by PWC and Beech.

Weither the district court nor the court of appeals

decided any issues of fact in granting summary judg-

ment in favor of Beech. The FAA determined that P3

filters should not be installed on certain Beech King

Airs, and Macario never challenged the FAA’s action.

The Airworthiness Directive established that Beech had

done nothing more than lawfully exercise its constitu-

tional right to be heard on an issue of obvious concern

for the welfare of Beech and its customers.

Macario contends (Petition, at p. 8) that PWC could

have taken action to allow the Airworthiness Directive to

be amended to include the filter, amd Macario also

na ;

11

claims (Petition, at p. 10) that Beech did not submit any

affidavits from its engineers or test pilots regarding the

alleged actions that PWC could have taken to obtain an

amendment of the Airworthiness Directive from the

FAA.13 Such arguments are specious. Beech objected to

SB 1330 as originally proposed, not after some potential

future modifications to the PWC engines or Beech King

Airs. The salient fact is that the FAA issued an Airwor-

thiness Directive requiring the removal of P3 filters on

those Beech King Airs covered by the Airworthiness

Directive.

Macario contends that review by the Court is nec-

essary to resolve questions left open by Anderson and

cites the dissenting opinions of Justices Brennan and

Renquist. However, the present case does not involve

any complicated evidentiary standards nor does it

present any difficulty in applying the Court’s decision in

Anderson to the facts of this case. Here, quite simply,

Macario failed to produce any evidence of fraud, con-

spiracy or concerted action on the part of Beech.

Celotex Corp. v. Catrett, supra, does not support

Macario’s position. There, this Court held that F.R.C_P.

56 does not require the moving party to support its

motion for summary judgment with affidavits or other

similar materials “negating the opponent's claim.”

Finally, Macario argues (Petition, at p. 11) that the

court of appeals “abdicated its duty of responsible appel-

late review,” contending that the court of appeals

granted some “deference” to the district court’s decision

granting summary judgment. The court of appeals’

opinion states that the court carefully considered all of

13. Macario fails to consider the fact that any change in the

flight idle of the King Air airplanes would require extensive flight

testing and modification of other Significant flight limitations,

including stall speed. Such a change would also require a re-

certification by the FAA, and, in certain Significant respects, the

issuance of new flight instructions to the owners of more than 4,000

existing aircraft. The FAA has concluded that no justification exists

for requiring such changes.

12

the issues and arguments raised by Macario. There is no

indication that the court of appeals did not apply the

correct standard of review, i.e., a plenary review. Maca-

rio’s reliance on Salve Regina College v. Russell, 499

U.S. 225 (1991) is misplaced. There, the Court held that

the court of appeals committed reversible error when it

applied “appellate deference” to an interpretation of

state law made by the district judge sitting in that state,

and that a court of appeals must review a district court’s

determination of state law de novo.

Here, no deference to the decision of the district

court as such was extended. Summary judgment was

properly entered by the district court and affirmed by the

court of appeals in accordance with the prior decisions of

this Court.

II. The Decisions Below Which Recognize The Primary

Jurisdiction Of The FAA Are In Accordance With

Established Federal Law And No Question Of Federal

Preemption Is Presented.

Neither the district court nor the court of appeals

held that Macario’s claims were preempted by federal

law. Their decisions do not even mention federal pre-

emption. The district court did recognize the doctrine of

primary jurisdiction, holding that “[w]hile the court is

proficient in many areas, it preserves matters of safety in

aviation to the expertise of the FAA” (P-App. A-8).

Primary jurisdiction applies whenever enforcement

of a claim involves the resolution of technical issues

which have been committed by Congress to the exper-

tise of a regulatory body. United States v. Western

Pacific Railroad Co., 352 U.S. 59, 64 (1956). In Far

East Conference v. United States, 342 U.S. 570 (1952),

this Court stated, it is:

. now firmly established, that in cases raising

issues of fact not within the conventional experience

of judges or cases requiring the exercise of admin-

istrative discretion, agencies created by Congress for

13

regulating the subject matter should not be passed

over. This is so even though the facts after they have

been appraised by specialized competence serve as a

premise for legal consequences to be judicially de-

fined.

Id. at 574.

Here, the district court properly concluded that the

FAA should first decide the technical safety issues

involved in the application of P3 filters.14 The FAA did so

and issued its Airworthiness Directive. An airworthiness

directive has the force of law. Crigier v. Cessna Aircraft

Co., 830 F.2d 169 (11th Cir. 1987). Once the Airworthi-

ness Directive was issued, the courts below properly

held that the Airworthiness Directive established PWC’s

State law affirmative defenses to Macario’s contract

claim, and established that Macario had no property

interest in the reissuance of SB 1330.

Neither the district court nor the court of appeals

held that the Macario’s claims were preempted by fed-

eral law. Accordingly, there are no conflicts with deci-

sions by other federal courts of appeal on the issue of

14. The Federal Aviation Act, 49 U.S.C. § 1421(a), directs the

FAA to establish minimum safety standards governing, among

other things, the design of aircraft engines, and to certify the types

of engines that meet those requirements. The FAA has carried out

its mandate by enacting regulations which set forth the process for

obtaining safety certifications, the standards that must be met by

aircraft and aircraft engines before they can be mass produced, and

procedures for testing and design review to ensure regulatory

compliance. 14 C.F.R. Parts 21, 22 and 33.

The FAA is authorized to promulgate new standards for exist-

ing aircraft and to issue Airworthiness Directives requiring design

changes in the interest of safety, if it finds:

(a) an unsafe condition exists in a product; and

(b) that condition is likely to exist or develop in other products of

the same type design. 14 C.F.R. § 39.1.

If the FAA finds such unsafe condition, it is authorized, and has the

discretion to

prescribe inspections and the conditions and limitations, if any,

under which those products may continue to be operated. 14

C.F.R. § 39.11.

Ls

14

federal preemption, and no important question of federal

law to be resolved by this Court.

Ill. Macario Failed To Appeal The FAA’s Order And

Cannot Collaterally Attack The Airworthiness Direc-

tive.

In essence, Macario is attempting to collaterally

attack the FAA’s decision.'5 It is well settled that collat-

eral attacks upon administrative orders are impermissi-

ble. Meyers v. Bethlehem Shipbuilding Corp., 303 U.S.

41, (1938); Chicago & N.W. Transportation Co. v. Kalo

Brick & Tile Co., 450 U.S. 311, 324 (1981); Whitney

National Bank v. Bank of New Orleans and Trust Co.,

379 U.S. 411, 421-422 (1965); Gaunce v. deVincentis,

708 F.2d 1290 (7th Cir.), cert. denied, 464 U.S. 978

(1983).

Congress has provided a statutory procedure for

review of FAA orders. 49 U.S.C. App. § 1486(a). A party

aggrieved by an order of the FAA may file a petition for

review in the courts of appeal. Jd. That procedure is the

exclusive remedy for a party dissatisfied with an FAA

order. 49 U.S.C. App. § 1486(d). Green v. Brantley, 981

F.2d 514 (11th Cir. 1993); Gaunce v. deVincentis, 708

F.2d 1290 (7th Cir.), cert. denied, 464 U.S. 978 (1983);

Nevada Airlines, Inc. v. Bond, 622 F.2d 1017 (9th Cir.

1980); Oling v. Airline Pilots Association, 346 F.2d 270

(7th Cir.), cert. denied, 382 U.S. 926 (1965); U.S. v.

Hayes, 264 F.2d 1929 (2d Cir. 1959).

15. Macario contends that the information provided to the

FAA was false (Petition, at p. 17), that the FAA ignored comments

against the regulation (/d.), that the regulatory process was orches-

trated by litigation counsel for the respondents (/d.), that the

Airworthiness Directive should be amended to include P3 filters

(Petition, at p. 10), and that the engine fuel control settings for the

Beech flight tests were improper (Petition, at p. 5).

15

Here, Macario failed to exercise his rights under

§ 1486(a) of the Federal Aviation Act. Certainly, there-

fore, Macario should not be permitted to attack the

FAA's decision collaterally in this proceeding.

IV. The Noerr-Pennington Doctrine Was Properly Applied

In This Action, And There Is No Uncertainty Regard-

ing Its Application Which Would Justify The Granting

Of The Writ.

Macario does not contend that the WNoerr-

Pennington doctrine should be limited solely to antitrust

cases. Rather, Macario contends that if the Noerr-

Pennington doctrine applies in non-antitrust cases, the

Court should grant certiorari to affirmatively “answer

this question” and to determine the scope of the sham

exception. This Court has already done so.

In N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.

886 (1982), this Court considered the applicability of the

Noerr-Pennington doctrine outside the context of an

antitrust action. There, white merchants who had alleg-

edly been damaged as a result of a civil rights boycott

brought actions against the participants in the boycott

and the N.A.A.C.P. The Mississippi state court granted

injunctive relief and awarded damages. The participants

in the boycott appealed. This Court held that boycott

activity which was not in and of itself violent was

constitutionally protected under the First Amendment

because it involved the rights of speech, assembly,

association and petition. This Court specifically stated

that, “*** it is not disputed that a major purpose of the

boycott in this case was to influence government

action.” 458 U.S. at 914. The Court went on to hold that

individuals who participated in the boycott, but who did

not participate in violent activity, or did not ratify such

violent activity, could not be held liable in damages.

Significantly, too, in Professional Real Estate Inves-

tors v. Columbia Pictures Industries, Inc., US.

——, 113 S. Ct. 1920 (1993), this Court stated:

es

16

Whether applying Noerr as an antitrust doctrine or

invoking it in other contexts we have repeatedly

reaffirmed that evidence of anti-competitive intent

or purpose alone cannot transform otherwise legiti-

mate activity into a sham. [Emphasis supplied]

Id. at 1927.

Moreover, the Court, in deciding cases under the

Noerr-Pennington doctrine, has never held that the First

Amendment right to petition the government only ap-

plies in antitrust cases. On the other hand, courts of

appeals have consistently applied the Noerr-Pennington

doctrine in non antitrust cases. See, ¢.g., Brownsville

Golden Age Nursing Home v. Wells, 839 F.2d 155, 160

(3d Cir. 1988) (civil conspiracy and tortious interference

with business relations); Gorman Towers, Inc. v. Bogos-

lavisky, 626 F.2d 607, 614-15 (8th Cir. 1980) (civil

conspiracy).

Contrary to Macario’s assertion, there is no need for

this Court to grant the Writ to determine the scope of the

sham exception to Noerr-Pennington. That issue, too,

was adequately addressed by the Court in recent deci-

sions. Professional Real Estate Investors v. Columbia

Pictures Industries, Inc., is Se }) See 2%

1920, 1928 (1993); Columbia v. Omni Outdoor Adver-

tising, Inc., 499 U.S. 365 (1991).

In Real Estate Investors, supra, this Court adopted

a two-part definition of the sham exception to the

Noerr-Pennington doctrine. First, a court must deter-

mine whether the lawsuit (the challenged activity in the

case) was “objectively baseless” in the sense that no

reasonable litigant could realistically expect success on

the merits. If the challenged activity was objectively

baseless, then the court must examine the litigar.i’s

subjective motivation. In a footnote, the Court clarified

its definition with the following: “A winning lawsuit is

by definition a reasonable effort at petitioning for redress

and therefore not a sham.” 113 S. Ct. at 1928, fn. 4.

Neen ee

17

This Court has consistently stated that communica-

tions that are successfu! in influencing the government

are not a sham. Eastern Railroad Presidents Conference

v. Noerr Motor Freight Inc., 365 U.S. 127, 144 (1961)

(taking the facts alleged in the complaint as true,

defendants’ “effort was not only genuine but also highly

successful”); Allied Tube & Conduit Corp. v. Indian

Head, Inc., 486 U.S. 492, 502 (1988) (“a successful

effort to influence government action .. . certainly

cannot be characterized as a sham.”). Here, Beech was,

in fact, successful in petitioning the FAA, as evidenced

by the issuance of the Airworthiness Directive. Accord-

ingly, neither the district court nor the court of appeals

could have found that Beech’s activity in petitioning the

FAA was a sham.

In Columbia v. Omni International Advertising,

Inc., 499 U.S. 365 (1991) also cited by Macario (Petition,

at p. 17), this Court considered the sham exception to

the Noerr-Pennington doctrine. There, this Court held

that the sham exception to the Noerr-Pennington doc-

trine did not apply to the defendant’s successful effort to

induce the local government co-defendant to enact an

ordinance restricting the size, location and spacing of

billboards which severely limited the plaintiffs ability to

compete in the market. Specifically, this Court held that

Noerr protects a party’s effort to influence public offi-

cials regardless of intent or purpose.

Macario’s assertion (Petition, at p. 17) that he pro-

duced evidence “from which the jury could infer that

the use of the process itself rather than the outcome,

which was the liability-producing conduct,” is devoid of

any factual support in the record.

Macario’s broad, superficial and conclusory state-

ment that he “established” that Beech provided false

information to the FAA (Petition, at p. 17) is net suffi-

cient to overcome Beech’s First Amendment rights.1¢

16. In Noerr, supra, this Court held that even though the

defendants, and to some degree the plaintiffs themselves, in their

18

Moreover, the FAA carefully considered the numeious

submissions by Macario’s counsel and his experts and

determined that the Airworthiness Directive should be

issued. Macario never challenged the FAA’s decision.

Purely and simply, the FAA’s favorable response to

Beech’s expressions of concern establishes as a matter of

law that Beech’s concerns were bona fide and not a

sham. Macario seeks to impose liability on Beech be-

cause Beech expressed flight safety concerns to the

FAA, which the FAA has determined to be valid. A

clearer attempt to limit a party’s constitutional right to

“petition the government” is difficult to imagine.

advertising campaigns had “deliberately deceived the public and

public officials . . . that deception, reprehensible as it is, can be of no

consequence as far as the Sherman Act is concerned.” 365 U.S. at

145.

19

CONCLUSION

The essence of Macario’s complaint is that he has

not been able to force PWC to reissue original SB 1330.

The FAA is the agency charged by Congress with

deciding what modifications may safely be made to

existing airplanes and given primary jurisdiction over

such issues. The FAA has found that the installation of

P3 filters creates a substantial flight safety risk and

determined that SB 1330 should not be issued. Macario

never appealed the FAA’s decision and cannot attack it

here. The district court and the court of appeals have

already decided that Macario is not entitled to any relief.

This case does not present any significant question of

federal law and does not deserve the attention of this

Court.

For all of these reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

Tom P. Monteverde*

William M. Shields

Monteverde & Hemphill

One Penn Center at Suburban Station

Suite 1500, 1617 JFK Boulevard

Philadelphia, PA 19103-1815

(215) 557-2900

Attorneys for Respondent,

Beech Aircraft Corporation

*Counsel of Record

APPENDIX A

RULES AND REGULATIONS

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

(Docket No. 91-ANE-06;

Amendment 39-8305, AD 92-15-11)

Airworthiness Directives: PRATT & WHITNEY

Canada PT6A Series

Turboprop Engines

Friday, July 17, 1992

AGENCY: Federal Aviation Administration, DOT.

ACTION: Final rule.

SUMMARY: This amendment adopts a new airworthi-

ness directive (AD), applicable to certain Pratt & Whit-

ney Canada (PWC) PT6A series turboprop engines, that

requires removal of the compressor delivery air line (P3)

filter assembly. This amendment is prompted by aircraft

flight test results that have revealed an engine configu-

ration and a set of operating conditions where engine

acceleration is insufficient to provide for required air-

craft balked landing performance. The actions specified

by this AD are intended to prevent excessive engine

acceleration time that could result in an aircraft’s inabil-

ity to safety perform the required balked landing

maneuver.

EFFECTIVE DATE: August 17, 1992.

ADDRESSES: The service information referenced in

this AD may be obtained from Pratt & Whitney Canada,

Technical Publications Department, 1000 Marie Victo-

rin, Longueuil, Quebec J4G 1A1. This information may

be examined at the Federai Aviation Administration

(FAA), New England Region, Office of the Assistant

Chief Counsel, room 311, 12 New England Executive

Park, Burlington, Massachusetts.

A-1

A-2

FOR FURTHER INFORMATION CONTACT: Robert

E. Guyotte, Manager, Engine Certification Branch,

ANE-142, Engine and Propeller Directorate, Aircraft

Certification Service, FAA, New England Region, 12

New England Executive Park, Burlington, Massachu-

setts 01803-5299; telephone (617) 273-7080; fax (617)

270-2412.

SUPPLEMENTARY INFORMATION: A proposal to

amend part 39 of the Federal Aviation Regulations to

include an airworthiness directive (AD) that is applica-

ble to certain Pratt & Whitney Canada (PWC) PT6A

series turboprop engines was published in the Federal

Register on March 1, 1991 (56 FR 8733). That action

proposed to require inspection for and removal of the

compressor delivery air line (P3) filter assembly.

iterested persons have been afforded an opportu-

nity to participate in the making of this amendment.

Due consideration has been given to the comments

contained in 23 comment letters received. All of the

comments received are addressed in the following para-

graphs.

Three comments reference the content of the Notice

of proposed rulemaking (NPRM). One commenter

states that too little technical information was provided

to evaluate the merit of the proposed AD. The FAA

disagrees. The detail of technical content in the Notice

of proposed rulemaking (NPRM) is in accordance with

prescribed FAA practices. Several comments contain

detailed technical discussions relative to information

contained in the NPRM. Therefore the FAA believes the

NPRM adequately described the proposed action.

Two commenters state that the comment period was

too short, and object to the FAA’s denial of a request for

an extension. The FAA disagrees. The NPRM 45 day

comment period is in accordance with established FAA

practices. Also, none of the comments provided justifi-

cation to support the request. A number of comments

A-3

were received after the comment period closing, and

were considered in the decision making process.

One comenter also states that the NPRM was inad-

equately advertised. The FAA disagrees. Publication in

the Federal Register is the official method by which

proposed AD’s are made known to the public.

Several comments address the service history of

affected PWC PT6A engines, and question whether the

data demonstrates a need for installation of P3 filters to

prevent fuel control unit (FCU) pneumatic contamina-

tion. The FAA has reviewed available sources of infor-

mation, and can find no pattern of engine failures or

power losses in service due to FCU pneumatic contam-

ination. In addition, Transport Canada, the responsible

airworthiness authority, has reviewed their own service

difficulty data base, and that of PWC, and cannot

identify a service problem pattern relating to FCU

pneumatic contamination. Lastly, the FAA has no infor-

mation relative to any National Transportation Safety

Board (NTSB) probable cause findings related to engine

failures or power losses associated with FCU pneumatic

contamination. The P3 filter option offered by PWC is

intended for operations in harsh environments as a

method for extending useful FCU installed life. How-

ever, FCU failure modes and effects due to pneumatic

contamination are identical with or without P3 filter

installation. One commenter describes one such harsh

environment, noting FCU problems when operating in

an area where pollutant particles from paper processing

mills were discharged into the atmosphere. While the

FAA concurs that a P3 filter could be useful when

operating in such an environment, another commenter

points out that service difficulty reports describe slow or

no accelerations with clogged P3 filters.

Two commenters state that certain tests have shown

a definitive need to install P3 filters. The FAA has no

information of any of these tests, and none were submit-

ted. As discussed above, existing service difficulty data

A-4

does not support the conclusions stated in the com-

ments. One commenter states that a “roll-back” or

power loss event can result in a high propeller drag

condition, leading to an accident. The FAA disagrees. An

engine power loss due to FCU pneumatic contamination

is nO more severe than any single engine power loss for

any other reason. The affected airplanes are all twin-

engine airplanes, and must meet all applicable Civil

Aviation Regulations (CAR) or Federal Aviation Regula-

tions (FAR) requirements for single engine operation.

Two comments address the U.S. Navy’s use of

Beech Aircraft Company (BAC) T-34C (PWC PT6A

powered) airplanes. The two comments state that the

Navy had engine power loss problems related solely to

the lack of P3 filters in BAC T-34C airplanes, and

therefore P3 filters must be necessary. The FAA dis-

agrees. The FAA does not have direct access to the

Navy’s service difficulty database, however, the FAA has

identified nine BAC and PWC field service documents

that pertain to a BAC T-34C power loss problem. Of this

group, one action to address this problem was to install

a P3 filter. Further research has shown that the most .

dramatic improvement to the BAC T-34C engine power

loss problem was made by adjusting the torque control-

ler setting, not installation of a P3 filter. The incorpora-

tion of these nine service documents, together, coincides

with the apparent reduction in the BAC T-34C engine

power loss problems.

Also, it is significant that the BAC T-34C idle is 62%

to 65% core speed (Mg), while the idle of the affected

airplanes is only in the 51% Ng range. Therefore, no

engine acceleration problems associated with P3 filter

installation would be expected on these higher idle

installations. Lastly, there is little comparison of mission

or operating environment between a single engine mil-

itary trainer (T-34C), and a twin engine business type

airplane. Therefore, the FAA has determined that the

noted BAC T-34C service history is not relevant to this

issue.

A-5

One commenter states that PWC issuance of a

service bulletin offering the P3 filter as an option is

sufficient evidence of the necessity of installing the

filter. The FAA disagrees. As discussed previously, the

FAA has determined that the service history data base

does not indicate the need to require P3 filter installa-

tion. Also, PWC’s publication of an optional service

bulletin does not mean that operation of a PT6A engine

without a P3 filter is unsafe.

Two comments address the airplane applicability of

this AD. The comments question why other airplane

types powered by affected PWC PT6A engines were not

included in the AD action. The FAA agrees that other

model airplanes are potentially affected, and has re-

viewed with appropriate airplane manufacturers the

possible effects of P3 filter installation. At this time, the

FAA has identified one additional model series (Cessna

406) that is directly affected. Flight tests similar to the

final phase BAC tests have been completed on this

modei, yielding similar results of slow engine accelera-

tion, and concurrent airplane handling difficulty during

balked landing maneuvers. Corrective action for this

model series airplane is being evaluated and additional

rulemaking may follow.

Several comments address the controlling test pa-

rameters used during the final phase of the Beech test

program, specifically idle Ng values and generator load

factor. In particular, several comments question the use

of 51% idle Ng inflight as not being an approved value.

The AA disagrees. The FAA has reviewed BAC and

PWC service documents (i.e., the Airplane Flight Man-

ual (AFM) and Engine Installation Manual), and has

determined that a ground or inflight idle Ng of 51% is

approved in accordance with both manufacturers’ limi-

tations. Comments also state that the BAC King Air

Model C90 AFM, Limitations Section, prohibits the use

of generator load factor greater than 50% with an idle

Ng below 57%. The FAA disagrees. The FAA has

A-6

reviewed the AFM, and has determined that the Emer-

gency Procedures Section instructions can allow, under

certain circumstances, a maximum generator load factor

while the engine is operated at low idle (51% Ng) during

approach and landing. It has also been determined that

the Ng/generator load limits address a generator cooling

requirement as opposed to an engine operating concern,

and that such a limit is actually not required on C90

aircraft. Also, the use of maximum generator load at

51% Ng is allowed by PWC limitations. Also, several

comments state that the BAC fuel control adjustments

were improper, exceeded approved limits, and were

inappropriate for field service. The FAA disagrees. The

FAA has reviewed the final phase BAC test FCU cali-

brations, and compared them to approved type design

limits. All values (i.e., Ng, acceleration fuel flow, etc.)

have been found to be within approved type data limits.

As to the appropriateness of the calibrations, the FAA

believes that test calibrations represent a worst case

approved configuration relative to engine acceleration.

The fact that the FCU calibrations are not typical of

in-service units does not affect the appropriateness of

the worst case test configuration.

One commenter states that the BAC C90 AFM

Limits Section “Minimum Ng vs. Generator Load” table

is not related to starter-generator cooling requirements,

but more closely related to engine operational consider-

ations. The FAA disagrees. The noted limit table has

been confirmed by BAC to be related to hot day (125

degrees F) starter-generator cooling. Increased engine

speeds increase the cooling air flow in order to keep the

Starter-generator within its component temperature

limit. It must also be noted that the final phase BAC C90

tests were conducted within the horsepower and bleed

extraction limits noted in the applicable PWC PT6A

Installation Manual.

Several comments address inflight idle Ng, and

whether a particular Ng value on the ground can be

maintained during the subject flight conditions, and

A-7

whether this value can change from flight-to-flight. The

FAA has reviewed the PWC PT6A control system de-

sign, and has determined that the idle Ng value on the

ground will be maintained -1% inflight, up to the

altitude (barometric pressure) where decreasing idle

fuel flow equals the FCU mechanical stop minimum

fuel flow. This is due to the FCU scheduling to maintain

a specific Ng value within the range of its authority over

low end fuel flow. Above that altitude, the previously

constant (— 1%) idle Ng becomes a variable, increasing

with altitude. It is possible to reduce this idle Ng value

with horsepower or bleed extraction, if the demand is

beyond the range of FCU authority. In support of this

review, the FAA has conducted several independent

flight tests that verified the expected idle Ng profile with

altitude. The FAA flight tests also verified that there

were no significant flight-to-flight variations in the idle

Ng values. It should also be noted that during the final

phase BAC tests, idle Ng was never artificially adjusted

to a lower value, either on the ground or inflight. One

commenter also suggests that a typical in-service air-

plane (nominal FCU calibration) would be more repre-

sentative for engine acceleration testing. The FAA dis-

agrees, and believes the configuration tested in the last

phase of the Beech program is a proper worst case

configuration relative to approved type design daia.

Four commenters state that the BAC test results

were erroneous and invalid due to not meeting type

design requirements. The FAA disagrees. The FAA has

closely reviewed the airplane configuration tested in the

final phase of BAC testing, and closely reviewed the

demonstrated test conditions. The FAA has determined

that the airplane configuration and test parameters meet

type design data. The test configuration and test param-

eters represent a worst case relative to engine accelera-

tion performance, and airplane balked landing perfor-

mance.

Several comments address the final phase of BAC

tests, specifically the flight test on August 17, 1990. One

A-8

commenter states that the FAA observer log of engine

acceleration time data did not agree with the BAC log.

The FAA disagrees. The FAA has reviewed the logs for

the last flight test on August 17, 1990, and finds that the

two logs contain equivalent data. Also, the commenter

identifies the August 17, 1990, test as BAC Flight No.

18, which is incorrect. The August 17, 1990, test is

identified as BAC Flight No. 19. The BAC test report

contains log sheets for both tests. BAC Flight No. 18 was

flown on August 16, 1990. The noted test points were

timed engine accelerations. BAC Flight No. 19 on Au-

gust 17, 1990, also included several touch-and-go land-

ings, which evaluated airplane handling. Another com-

menter states that there is a discrepancy in the target Ng

engine speeds between various Flight No. 19 test con-

ditions. In particular, the commenter questions the

variation in Ng values encountered in a series of touch-

and-go landings, and those reported by BAC during

Conditions 3 and 4, which were conducted in stabilized

level flight conditions. The FAA has reviewed the test

procedures and test results related to this comment.

Flight No. 19 Conditions 3 and 4 allowed Ng to stabilize

at the idle value of 51% Ng. The touch-and-go tests were

conducted as a variation to the BAC Configuration 6 test

procedures. Configuration 6 required a go-around pro-

cedure, initiated from 50 feet above the runway. Initial

tests showed this to be an unacceptably dangerous

procedure. Consequently, the FAA concurred with the

BAC recommendation to alter the procedure to a touch-

and-go test. For these tests, the airplane was landed in a

normal manner with the condition levers at the low idle

positions. After touchdown, the power control levers

were moved to the idle positions, the flaps were retracted

and the airplane retrimmed for takeoff. At that time,

both power control levers were rapidly advanced to full

power positions. The test site runway length precluded

permitting the engines to decelerate fully to the idle 51%

Ng speeds. Three tests were conducted, and the mini-

mum recorded Ng values were 60%, 57%, and 54%,

A-9

during the engine deceleration on the ground, and prior

to throttle burst to full power and takeoff. The Condition

3 and 4 tests were conducted in an entirely different

manner and for the purpose of collecting entirely differ-

ent data than the modified Configuration 6 tests. An-

other commenter states that the final phase BAC tests

were conducted without known FCU calibrations. The

FAA disagrees. The FCU calibrations for the final phase

BAC tests were forwarded to the FAA. The FAA has

reviewed the FCU calibration reports and has deter-

mined that the FCU’s were calibrated prior to the final

phase BAC tests and that the FCU calibrations were

within approved limits.

Another commenter states that BAC Flight No. 19

was invalid due to only one engine having a P3 filter

installed. The FAA disagrees. There are no airplane or

engine manual restrictions requiring that both engines

be configurated the same relative to P3 filter installation.

Since individual engine change-outs do occur on BAC

models affected by this AD, it is reasonable to expect

that some airplanes may be configured with only one

engine having a P3 filter installed. The FAA is aware of

at least one airplane affected by this AD that had

incorporated the PWC P3 filter on only one engine. The

commenter also states that no baseline testing exists for

either engine, and surmises that the long acceleration

times for the P3 filter equipped engine could only be due

to an engine problem. The FAA disagrees. BAC Flight

No. 19 was conducted using the same airplane and

engines as was used for all of the BAC final phase tests.

Therefore, baseline test data with and without P3 filters

exists for both engines. Engine operation during BAC

Flight No. 19 was very similar to the previous test

flights, with the P3 filter configured engine demonstrat-

ing increased acceleration time consistent with those

encountered in the previous tests. The engine not

equipped with a P3 filter also performed very similarly to

A-10

previous baseline flight tests. No unusual engine anom-

alies were noted during BAC Flight No. 19, other than

the effect of having a P3 filter installed.

Several comments address the effect of a P3 filter on

engine acceleration. Five commenters state that the

installation of a P3 filter has no effect on engine accel-

eration. One commenter also states that generator load

and ambient temperature are the only significant factors

in the BAC engine acceleration tests. One commenter

states that P3 filter installation can have a negative

effect on engine acceleration, as shown by the final

phase BAC tests. The FAA has determined by test that

under certain combinations of ambient temperature,

bleed air, horsepower extraction, and power setting,

engine acceleration time can be negatively affected by

P3 filter installation. One commenter suggests that the

FAA should not rely on engine acceleration times alone

in evaluating the effect of P3 filter installation. The FAA

agrees. The primary criteria for acceptable engine accel-

eration is airplane handling during a balked landing

maneuver, not a timed engine acceleration. One com-

menter states that Piper Aircraft Corporation (PAC)

airplanes equipped with P3 filters have not experienced

engine acceleration service problems as identified by the

BAC tests. The FAA disagrees. The FAA does have

records of PAC PWC PT6A powered airplanes that have

had acceleration problems due to clogged P3 filters.

However, there are no service problems on record indi-

cating engine acceleration problems due to clean (un-

clogged) installed P3 filters.

Two commenters state that the P3 filter is effective

in collecting pneumatic contamination. The FAA agrees

that the P3 filter does perform its intended function of

collecting pneumatic particle contaminants. One com-

menter also states that a clogged filter will manifest itself

with slow accelerations or no-starts. The FAA agrees.

The FAA is aware of engine no-starts, minimum-flow on

Start-up, slow accelerations and no accelerations with

A-11

concurrent high inter-turbine temperature, and roll-

backs to minimum-flow occurring due to clogged P3

filters. However, as stated earlier, there are no service

difficulty records indicating a safety problem for PWC

PT6A engines not equipped with P3 filters. The FAA has

reviewed available sources of information, and can find

no pattern of engine failures or power losses in service

due to FCU pneumatic contamination for PWC PT6A:

engines not equipped with P3 filters. Lastly, the PWC

PT6A FCU failure modes and effects due to pneumatic

contamination are identical with or without a P3 filter.

One commenter states that additional BAC tests

(Model A100) showed a left to right engine acceleration

time difference of 2 seconds, with or without P3 filters

installed, and questions why a 2 second difference is

acceptable for A100 models. The FAA evaluation criteria

for both tests was airplane handling performance during

balked landing maneuvers, and not left to right engine

acceleration time differentials. The supplemental BAC

A100 tests were designed to fully evaluate airplane

balked landing performance on a high minimum idle

configuration (63% Ng range), with and without P3

filters installed. The FAA has determined that the effect

of P3 filter installation on these installations is signifi-

cantly less than on lower idle installations (51% Ng

range), and that A100 handling during the balked

landing maneuvers was acceptable. During the supple-

mental A100 tests, the maximum engine acceleration

time increase due to P3 filter installation was 1.98

seconds, while the left to right engine acceleration time

differential increased 0.84 seconds. During the final

phase BAC Model C90 tests, which are the basis for this

AD, the maximum engine acceleration time increase

due to P3 filter installation was 25.04 seconds, while the

maximum left to right engine acceleration time differ-

ential increased 14.99 seconds. The FAA evaluation

criteria for both tests was airplane handling performance

A-12

during balked landing maneuvers, as affected by in-

creased engine acceleration time due to P3 filter instal-

lation. The FAA did not evaluate either airplane by a

timed engine acceleration alone, nor solely by left to

right engine acceleration time differentials.

One commenter questions why results from the

initial phase of the BAC tests were not also considered in

the AD action. They were not considered because the

initial phase of BAC tests were conducted without

benefit of a type design P3 system configuration and

known FCU calibration. Post-test inspection found the

P3 system to be not in conformity with approved type

design, and the FCU calibration to be in error. No

definitive results were obtained from these tests for the

above reason. This AD action is based on the final phase

BAC tests that incorporated a worst case approved

engine configuration relative to engine acceleration. All

BAC final phase tests were fully coordinated with the

FAA, and the FAA was invited to participate in all tests.

Several comments discuss the possibility of explor-

ing methods by which a P3 filter may remain as a

installed option. In particular, the commenters suggest

either a redesign of the filter, or modification of certain

engine operating limits so as to yield acceptable en-

gine/airplane performance. As discussed earlier, no

safety issues have been identified that would require

that an AD be issued to require P3 filter installation,

therefore the FAA cannot mandate that the manufactur-

ers change either the filter design or associated operat-

ing limits. However, the AD process does provide a

method by which an alternate means of compliance to

AD requirements can be approved by the FAA. This

method is available to any affected person. One com-

ment suggests that an installed engine acceleration

check would be sufficient to establish acceptable air-

plane performance. The FAA disagrees. FAA type design

requirements are such that acceptable engine/airplane

performance is required for the worse case certified

A-13

configuration. Also, allowing an individual installed en-

gine acceleration check does not account for engine or

FCU deterioration or change out. One commenter states

that BAC did not investigate engine acceleration perfor-

mance at the maximum certified minimum idle value of

53% Ng. The comment is accurate. However, the tested

configuration of the final phase BAC tests represents the

worst case relative to engine acceleration. The BAC final

phase tests were not intended to develop alternatives,

but to investigate a potentially unsafe condition. One

commenter questions what consideration has been

given to the original intent to the PWC P3 filter option.

The FAA has considered the original intent of the P3

filter option. The P3 filter is a method of dealing with

atmospheric contamination, which can cause wear

within the FCU. The P3 filter can, under certain condi-

tions, reduce the expense of maintaining the FCU in an

airworthy condition. It must also be noted that engine

failure modes and operational effects are identical with

or without a P3 filter installed. Also, as previously

discussed, no safety issues have been identified which

would require that P3 filters be mandated. However,

relative to the original intent of the PWC P3 filter option,

the FAA has coordinated with PWC to define a test

program that may identify an engine configuration al-

lowing P3 filters to remain as an option. This AD will be

amended to include a P3 filter installation option if it is

developed.

One commenter states that use of the engine inlet

inertial separator can have a significant affect on engine

acceleration characteristics. The FAA disagrees. The

inertial separator is a device which promotes the bypass

of airborne debris (ice, rain, hail, etc.) away from the

engine inlet. The inertial separator does not significantly

affect engine inlet airflow parameters. The type design

approval by Transport Canada requires that PWC PT6A

engines demonstrate fully acceptable operating charac-

teristics with and without the inertial separator ex-

tended. Design requirements for the airframe portion of

A-14

the engine inlet system are found in the applicable

Installation Manual. The final phase BAC tests were

conducted with the inerital separator retracted. The FAA

does not concur that use of the inertial separator has a

significant effect on engine acceleration characteristics.

One commenter questions whether the FAA has

considered the increased maintenance cost associated

with P3 filter removal. The FAA has determined that the

fleet potential for increased FCU maintenance cost is

believed to be minimal, primarily due to the low rate of

installation of P3 filters in service, which is estimated to

be less than 5% of the fleet.

One commenter states that if the BAC tests are

valid, then the airplane is improperly certificated if it is

unable to perform the balked landing maneuver, and

should be grounded by emergency AD. The FAA dis-

agrees. The FAA has determined that the affected

aircraft were probably certificated with the P3 filter

available as an engine option. The BAC tests are valid in

that they establish that an unsafe condition under

special operating conditions has developed due to the

installation of the P3 filter. To date the only actual

service problems identified with P3 filters on PWC PT6A

engines are no-starts, minimum-flow on start-up, slow

accelerations and no accelerations with concurrent high

interturbine temperature, and rollbacks to minimum

flow, all due to clogged P3 filters. Therefore, the FAA

has determined that the proposed action is appropriate.

Two comments address pending class action litiga-

tion concerning P3 filter installation on certain PWC

PT6A powered airplanes. The commenters suggest that

the FAA should consider this pending civil action rela-

tive to this AD. The FAA is taking this action in response

to the findings of an unsafe conditions. Further action

may be taken if circumstances warrant.

After careful review of the available data, including

the comments noted above, the FAA has determined

A-15

that air safety and the public interest require the adop-

tion of the rule as proposed, with the following change to

the economic evaluation.

The FAA estimates that there are approximately

4,330 PWC PT6A series engines installed on aircraft of

U.S. registry, and that approximately 225 engines have

a P3 filter installed. The FAA estimates that for those

225 engines with a P3 filter installed it will take approx-

imately 4 work hours to remove the filter at $55 per work

hour. The FAA estimates also that there will be no part

cost associated with this AD. Based on these figures, it is

estimated that the total cost impact of this AD will be

$49,500. Pratt & Whitney Canada has advised the FAA

that they may assume any parts and labor costs to

remove the subject filter assemblies from affected en-

gines. Consequently, there should be minimal cost im-

pact on U.S. operators for parts or labor.

The regulations adopted herein will not have sub-

stantial direct effects on the States, on the relationship

between the national government and the States, or on

the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance

with Executive Order 12612, it is determined that this

final rule does not have sufficient federalism implica-

tions to warrant the preparation of a Federalism Assess-

ment.

For the reasons discussed above, I certify that this

action (1) is not a “major rule” under Executive Order

12291; (2) is not a “significant rule” under DOT Regu-

latory Policies and Procedures (44 FR 11034, February

26, 1979); and (3) will not have a significant economic

impact, positive or negative, on a substantial number of

small entities under the criteria of the Regulatory Flex-

ibility Act. A final evaluation has been prepared for this

action and is contained in the Rules Docket. A copy of it

may be obtained from the Rules Docket at the location

provided under the caption “ADDRESSES.”

A-16

List of Subjects in 14 CFR Part 39

Air transportation Aircraft, Aviation safety, Safety.

Adoption of the Amendment

Accordingly, pursuant to the authority delegated to

me by the Administrator, the Federal Aviation Adminis-

tration amends 14 CFR part 39 of the Federal Aviation

Regulations as follows:

PART 39—AIRWORTHINESS DIRECTIVES

1. The authority citation for part 39 continues to

read as follows:

Authority: 49 U.S.C. App. 1354(a), 1421 and 1423;

49 U.S.C. 106(g); and 14 CFR 11.89.

§39.13 [Amended]

2. Section 39.13 is amended by adding the follow-

ing new airworthiness directive:

92-15-11 Pratt & Whitney Canada: Amendment

39-8305; Docket No. 91-ANE-06.

Applicability: Pratt & Whitney Canada (PWC)

PT6A-6, PT6A-6/C20. PT6A-20, PT6A-20A, PT6A-21,

PT6A-27, PT6A-28, PT6A-34, PT6A-348 and PT6A-36

turboprop engines installed on Beech Aircraft Corpora-

tion Models 65-A90, 65-A90, 65-A90-1, 65-A90-2, 65-

A90-3, 65-90-A4, 99, 100, 99A, B90, C90, C9O0A, E90,

H90, A99, A99A, B99, and C99 aircraft.

Compliance: Required within the next 180 days

after the effective date of this AD, unless accomplished

previously.

To prevent excessive engine acceleration time that

could result in an aircraft’s inability to safely perform the

balked landing maneuver required by Federal Aviation

Regulations (FAR) part 23, paragraphs 23.75(d), 23.77

and 23.143(a)(5), accomplish the following:

A-17

(a) Perform a visual inspection to determine if a

compressor delivery air line (P3) filter assembly has

been installed on the engine.

Note: The compressor delivery air line assembly

may have been installed on the engine as original

equipment, or may have been installed per any of

the following PWC Service Bulletins: 1205, 1253,

1290, 1294, 1330, 1343, or 1378.

(b) Remove from service, if installed, the P3

filter assembly.

Note: The engine compressor delivery air line

assembly can be returned to an approved configu-

ration without a P3 filter. For information, refer to

the applicable PWC Maintenance Manual and Parts

Catalog.

(c) An alternative method of compliance or

adjustment of the compliance time that provides an

acceptable level of safety may be used if approved by

the Manager, Engine Certification Office, FAA, En-

gine and Propeller Directorate. The request should

be forwarded through an FAA Principal Mainte-

nance Inspector, who may add comments and then

send it to the Manager, Engine Certification Office.

Note; Information concerning the existence of

approved alternative methods of compliance with

this airworthiness directive, if any, may be obtained

for the Engine Certification Office.

(d) Special flight permits may be issued in

accordance with FAR 21.197 and 21.199 to operate

the airplane to a location where the requirements of

this AD can be accomplished.

(e) This amendment becomes effective on Au-

gust 17, 1992. Issued in Burlington, Massachusetts,

on June 29, 1992.

A-18

Jay J. Pardee,

Acting Manager, Engine and

Propeller Directorate, Aircraft

Certification Service.

(FR Doc. 92-16880 Filed 7-16-92; 8:45 am)

BILLING CODE 4910-13-M