Petition for Writ of Certiorari — Piper Aircraft Corp. v. Cleveland, by and Through the Conservator of His Estate, Cleveland

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No. 93-

du the Supreme Court of the Uutited States |

OCTOBER TERM, 1993 |---~

PIPER AIRCRAFT CORPORATION

Petitioner,

EDWARD CHARLES CLEVELAND,

by and through the Conservator

of his Estate, Kathleen Cleveland,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID K. WATKISS

Counsel of Record

DAVID B. WATKISS

Watkiss Dunning & Watkiss

111 E. Broadway, Suite 800

Salt Lake City, Utah 84111

(801) 530-1500

Of Counsel

JOSEPH J. ASSELTA LouIS R. COHEN

Mendes & Mount Wilmer, Cutler & Pickering

750 Seventh Avenue 2445 M Street, N.W.

New York, New York 10019 Washington, D.C. 20037

E. GLENN PARR W.R. LOGAN

Piper Aircraft Corporation Civerolo, Hansen & Wolf

2926 Piper Drive 500 Marquette, N.W., #1400

Vero Beach, Florida 32960 Albuquerque, NM 87103

June 30, 1993

QUESTION PRESENTED

Whether the Federal Aviation Act of 1958 and Federal

Aviation Administration ("FAA") regulations thereunder, which

prescribe safety standards for aircraft design, preempt state

common-law tort claims that seek to impose liability on aircraft

manufacturers for utilizing aircraft designs determined by the

FAA to be safe and in full compliance with all applicable federal

aircraft standards.

PARTIES TO THE PROCEEDINGS BELOW

Petitioner and defendant below is Piper Aircraft

Corporation, a Pennsylvania corporation, currently a debtor-in-

possession under Chapter 11 of the United States Bankruptcy

Code in Case 91-31884-BKC-RAM in the United States

Bankruptcy Court for the Southern District of Florida.'

Appearing as amici curiae in support of Piper below were (1) the

United States of America; (2) the Aircraft Owners and Pilots

Association; and (3) the General Aviation Manufacturers

Association.

Respondent and plaintiff below is Edward Charles

Cleveland, by and through the Conservator of his Estate,

Kathleen Cleveland. Appearing as amicus curiae in support of

Cleveland below was the Association of Trial Lawyers of

America.

' Pursuant to Sup. CT. R. 29.1, petitioner Piper Aircraft

Corporation states that its parent company is Romeo Charlie, Inc., and

that it has no non-wholly owned subsidiaries.

TABLE OF CONTENTS

Page

CPAP Ue PRIU ETE cw en cee uecan i

PARTIES TO THE PROCEEDINGS BELOW .......... ii

pee oy. vi

OPINIONS AND ORDERS BELOW............... 1

oe Pe ee ee ae 2

CONSTITUTIONAL PROVISION AND STATUTE ..... 2

eI 6 tee ON ee ane Soe ee ae Oe 2

We I be ok ke ke ee es 2

Federal Regulation of Aircraft Design ......... 3

The Piper Super Cub and Its Design .......... 9

a ee eee eee ee 12

REASONS FOR GRANTING THE PETITION ........ 15

I. THE DECISION BELOW SERIOUSLY

UNDERMINES THE FEDERAL

REGULATION OF AIRCRAFT DESIGN ...... 15

II. THE DECISION BELOW MISCONSTRUES

AND CONFLICTS WITH’ APPLICABLE

DECISIONS OF THIS COURT ............. 17

ili

TABLE OF CONTENTS CONTINUED

Page

Il. THIS FEDERAL PREEMPTION ISSUE IS OF

PARTICULAR IMPORTANCE TO GENERAL

AVIATION CONSUMERS AND

MANUFACTURERS, AS WELL AS TO THE

FEDERAL AVIATION ADMINISTRATION .... 25

SEED 5.5 5.'>.a's ave we OO Ok eee 28

APPENDIX

1. Opinion of the Court of Appeals, Cleveland v.

Piper Aircraft Corp., 985 F.2d 1438 (Feb. 16,

Pee Perera eara rr me a 8 es mn 92 ae er 2a

2. Order of the Court of Appeals, Cleveland v.

Piper Aircraft Corp., No. 91-2065 (April 5,

We koe kh Oa be ee ee eee 27a

2. Memorandum Opinion and Order of the United

States District Court for the District of New

Mexico, Cleveland v. Piper Aircraft Corp.,

No. 85-0062-M (Feb. 12, 1991) ............. 30a

4. Order of the Court of Appeals, Piper Aircraft

Corp. v. Cleveland, No. 91-543 (Mar. 14, 1991) .. 42a

5. Opinion of the Court of Appeals, Cleveland v.

Piper Aircraft Corp., 890 F.2d 1540 (Nov. 15,

BE 6 06 4s OE ee eee 45a

6. Order of the Court of Appeals, Cleveland v.

Piper Aircraft Corp., 898 F.2d 778 (Mar. 16,

SR. a ene le ek bce ce ae eee 8la

10.

as.

id.

TABLE OF CONTENTS CONTINUED

Federal Aviation Act, § 601(a), 49 U.S.C. App.

2 Peres en a aa a a eg

Affidavit of Fred E. Weick, dated Nov. 26,

NE re ie ee So oe eee eee Ne te A

ee ere Per i a ura eae a eres

ae Es pace ke cack ee Rae ee ee ee ee ee

Photograph of the Piper Cub ..........-.--.-.-

Photograph of the Piper Super Cub ...........

TABLE OF AUTHORITIES

Page

CASES

Airline Pilots Ass’n Int’l v. Quesada, 276 F.2d 892

eg ea nn a ee 17

Bieneman v. City of Chicago, 864 F.2d 463

(7th Cir. 1988), cert. denied, 490 U.S. 1080 (1989) ... 20

Boyle v. United Technologies Corp., 487 U.S.

I NO Tahara wreak ha a oe a gle 18

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

EN a a es tee ed ee ee ee 16,18,24

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co.,

ae UE ED xo es wc fae es ee ek Ae 21

Cipollone v. Liggett Group, Inc., 112 S.Ct.

NR a ease es es ee 13,17,18,23

CSX Transportation, Inc. v. Easterwood, 113 S. Ct.

ROU EE Socal 6 Ck ae sek eal ve A at ea ee 17

French v. Pan Am Express, Inc., 869 F.2d 1

SOs IPE 4. 0-6 st-0- 0 eo eae bene es erate eke 17,19

Gade v. National Solid Waste Man. Ass’n, 112 S.Ct.

Been EE p80 6s a ee bok ye eas 24

International Paper v. Ouellette, 479 U.S.

NG ROE a aca sh ok ae we a a ee 20,24,25

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

(7th Cir. 1974), cert. denied, 421 U.S. 978 (1975) ... 17

TABLE OF AUTHORITIES CONTINUED

Page

Morales v. Trans World Airlines, Inc., 112 S.Ct.

Se 86 8 eS Re eee a ee ee 20

Northwest Airlines, Inc. v. Gomez-Bethke, 34 Fair

Empl. Prac. Cas. (BNA) 837 (D.Minn. 1984) ....... 19

Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292

Se Ae ear eee aw i ee ee 16

Public Health Trust v. Lake Aircraft, Inc.,

OOP F268 et CLI Gat. TORS) «cc we eee 18

Ray v. Atlantic Richfield Co., 435 U.S. 151

(ee eee ee eee ara ea pA ee

Rosenhan v. United States, 131 F.2d 932 (10th Cir. 1942),

cert. denied, 318 U.S. 790 (1943) ............---- 6

San Diego Building Trades Council v. Garmon,

ee I aaa a ek ae 6 ak hig de we ko Fe

Schneidewind v. ANR Pipeline Co., 485 U.S.

EN gras oe eee eh ew eae ene 15,17

Security Mut. Cas. Co. v. O’Brien, 662 P.2d 639

ES oes Sco whe wo we ke 8 8G oe we 5

Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co.,

ye 7 ee a a 21

United States v. Varig Airlines, 467 U.S. 797 (1984) . . 8,22

Wood v. General Motors Corp., 865 F.2d 395 (ist Cir.

1988), cert. denied, 494 U.S. 1064 (1990) ....... 19,21

Vii

TABLE OF AUTHORITIES CONTINUED

Page

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES

Federal

ens PERE 4 pk caer Shak ee ew 2

/ git fom Br Ti er area 1,13

BE Toe & 0 ), rerare 2

RT a Se | ar 14,18

PUA, ee. © BREE Ce nn kw we cee 2,8,21,22

ees Oe A 6c wwe esas ee as 8,9

49 U.S.C. App. § 1430(a)(1) (1988) .............. 9

9 U.S. Rae. & UFR CID no 5 ce eases 14,19

Air Commerce Act of 1926, ch. 344, 44 Stat. 568

(ROE) Compete BEBED og nc cee sees 3,4

Airline Deregulation Act of 1978, Pub. L. 95-504,

8 Ere ee Se eee a 13,18

Civil Aeronautics Act of 1938, ch. 601, 52 Stat.

S73 CADSR) Goapaeies UGGS) . . ww ees 6,19

ee I es wk kb cae eee es eas 13

Federal Aviation Act of 1958, 49 U.S.C. App.

§ 1301-1557 (1988 & 1991 Supp.) ............ passim

Vill

TABLE OF AUTHORITIES CONTINUED

Page

Ports and Waterways Safety Act of 1972,

Pub. L. 92-340, 86 Stat. 424 (1972) ............. 21

Gee Oe aa ke sa 8 oe bn ca a 2

ee. Ge Bs ce we tk eo ee ee il

if aie. ce So. Swe ee ee ee 2,17

State

74 Pa. CONS. STAT. ANN. § 5301(d) (Supp. 1992) ..... 6

Anz. COMR S G-B-7o CIPS R) nie oi oo 6 hk eae 5

ALASKA STAT. § 02.10.010 (1988) ............... 5

ALASKA STAT. § 02.15.030 (1988) .............. 5

ALASKA STAT. § G2.35.01G CISGE) www cece 5

ARIZ. REV. STAT. ANN. § 28-1741 (1989) .......... 5

ARK. CODE ANN. § 27-115-108 (1987) ............ 5

ARK. CODE. ANN. § 27-116-202 (1987) ........... 5

CAL. PuB. UTIL. CODE § 21241

‘2. - } re ae ear 5

CAL. PuB. UTIL. CODE § 21411

ED as wk boa we a SS Bate eek oe ee 5

COLO. REV. STAT. § 41-1-103 (1984) ............. 5

TABLE OF AUTHORITIES CONTINUED

Page

CONN. GEN. STAT. § 15-54 (1993) ............... 5

DEL. CODE ANN. tit. 2, § 101 (1985) ............. 5

DEL. CODE ANN. tit. 2, § 134(c) (1985) ........... 5

DEL. CODE ANN. tit. 2 § 161(3) (1985) ........... 5

FLA. STAT. ANN. § 329.10 (1) (West 1991) ......... 5

GA. CODE ANN. § 6-2-1 (1982) ................. 5

Oe Ne | 5

HAWAII REV. STAT. § 261-12(d) (1992 Supp.) ........ 5

HAWAII REV. STAT. § 261-15(a) (1992) ............ 5

IDAHO CODE § 21-111(6) (1977) ............2.2..

Pamo Come § Z1-11Ste) (1977) ww es 5

ILL. ANN. STAT. ch. 15 1/2 para. 22.25 (Smith-Hurd

kk Ae Bie hee ee eee oS eae A et AS 5

ILL. ANN. STAT. ch. 15 1/2 para. 22.29 (Smith-Hurd

SO detache a etn ba Be er NS wa ae 5

ILL. ANN. STAT. ch. 15 1/2 para. 22.42 (Smith-Hurd

G8 Pere er ee ee ere a ae ee ee re >

IND. CODE ANN. § 8-21-1-2 (Burns 1991) .......... 5

IND. CODE ANN. § 8-21-1-8(c) (Burms 1991) ........ 5

TABLE OF AUTHORITIES CONTINUED

Page

IND. CODE ANN. § 8-21-2-2 (Burns 1991) .......... 5

IOWA CODE ANN. § 328.34 (West 1985) ........... 5

OE ae eS | 5

KAN. STAT. ANN. § 3-203 (1991) ............... 5

Ky. REV. STAT. ANN. § 183.050 (Michie/Bobbs-

ect. oo oc Gly pe ae w a pee ee 5

LA. REV. STAT. ANN. § 2:2.9(A) (West 1987) ........ 6

LA. REV. STAT. ANN. § 2:3 (West 1987) .......... 6

La. REV. STAT. ANN. § 2:6(B)(2) (West 1987) ....... 6

ME. REV. STAT. ANN. tit. 6, § 2(3) (1989) .......... 5

ME. REV. STAT. ANN. tit. 6, § 12 (1989) .......... 5

ME. REV. STAT. ANN. tit. 6, § 202(2) (1989) ........ 5

MD. CODE ANN., TRANSP. § 5-102(a)(2) (1993) ....... 6

MD. CODE ANN., TRANSP. § 5-208(b)(2) (1993) ...... 6

Mass. ANN. LAWS ch. 90, § 39 (Law. Co-op 1985) .... 5

Mass. ANN. LAWS ch. 90, § 48 (Law. Co-op 1985) .... 5

MICH. STAT. ANN. § 10.101 (Law. Co-op. 1991) ...... 5

MICH. STAT. ANN. § 10.176(1) (Law. Co-op. 1991)... 5

TABLE OF AUTHORITIES CONTINUED

MICH. STAT. ANN. § 10.180 (Law. Co-op. 1991)

MINN. STAT. ANN. § 360.011 (West 1991) .....

MINN. STAT. ANN. § 360.015(4) (West 1991)...

MINN. STAT ANN. § 360.018 (West 1991) .....

MISs. CODE ANN. § 61-1-1 (1989) ..........

Miss. CODE ANN. § 61-1-13(8) (1992 Supp.) .. .

MISS. CODE ANN. § 61-1-15(2) (1989) .......

Mo. ANN. STAT. § 305.070 (Vernon 1972)... ..

Mo. ANN. STAT. § 305.130 (Vernon 1972) ....

MONT. CODE ANN. § 67-1-102 (1991) ........

MONT. CODE ANN. § 67-3-201(1) (1991) .....

NEB. REV. STAT. § 3-102 (1991) ...........

NEB. REV. STAT. § 3-110 (1991) ...........

NEB. REV. STAT. § 3-129 (1991) ...........

NEV. REV. STAT. ANN. § 493.120 (Michie 1986) .

NEV. REV. STAT. ANN. § 493.150 (Michie 1986)

N.H. REV. STAT. ANN. § 422:2 (1991) .......

N.H. REV. STAT. ANN. § 422:34 (1991) ......

xil

ee oe

’ 7.4 & 6

i so ee

TABLE OF AUTHORITIES CONTINUED

N.J. STAT. ANN. § 6:1-29 (West 1988) ............

N.J. STAT. ANN. § 6:1-35 (West 1988) ............

N.M. STAT. ANN. § 64-1-2 (Michie 1987) ..........

N.Y. GEN. Bus. LAW § 243 (McKinney 1988) .......

ee ae 2. ar

OH. REV. CODE ANN. § 4561.05 (Anderson 1990) .....

OH. REV. CODE ANN. § 4561.06 (Anderson 1990)

OH. REV. CODE ANN. § 4561.14 (Anderson 1990)

OKL. STAT. ANN. tit. 3, § 258 (West ee re

mE. Cot, GA SG BOS Tee) nos ees ee es

S.C. CODE ANN. § 55-5-70 (Law. Co-op 1992) .......

S.C. CODE ANN. § 55-5-90 (Law. Co-op 1992) ......

S.D. CODIFIED LAWS ANN. § 50-2-13 (1992 Supp.)

S.D. CODIFIED LAWS ANN. § 50-11-1 (1993 Int. Supp.)

TENN. CODE ANN. § 42-2-102 (1987) .............

TENN. CODE ANN. § 42-2-104 (1987) .............

TEX. REV. CIv. STAT. ANN. art. 46f-2, Sec. 2

oo 6 8 ee ee ee eee ee

Xili

TABLE OF AUTHORITIES CONTINUED

Page

UTAH CODE ANN. § 2-1-7.5 (1992 Supp.) .......... 6

Wr, Senn, AO, Oe. 3, Be Cee on nk eS eR es 6

Vt. STAT. ANN. Gt. 3, } AP) (ISR) oe es 6

VA. CODE ANN. § 5.1-14 (Michie 1988) ........... 6

VA. CODE ANN. § 5.12.15 (Michie 1988) .......... 6

WASH. REV. CODE ANN. § 47.68.010 (1986) ........ 6

WASH. REV. CODE ANN. § 47.68.230 (1993 Supp.) .... 6

W.: VA. GOB § BGA- E46 CE) we PSs Oui eee 6

WIS. STAT. ANN. § 114.18 (West 1988) ............ 6

Wyo. STAT. ANN. § 10-4-201 (1978) ............. 6

REGULATIONS

MCFR o. 1:00) .. oe 9

MCPR. mw. 31D .. sei eee 8

4 CPR. § ah. B53 (ese «oe oe eee eee 23

MCPR. 8321S .. 6. See 9

6 CPR. § 21.21 (1000) 06554. eee 8

ee ee AE err rere Sr 9

XiV

TABLE OF AUTHORITIES CONTINUED

Page

len) Oe Rk 0. )) y

14 C.F.R. § 21.143 (1992) 2... ee ee ees )

38 Fed. Reg. 2985 (1973) .....-- +--+ eee eres 11

42 Fed. Reg. 30,601 (1977) ......---+--555> 11,12

LEGISLATIVE MATERIALS

H.R. Rep. No. 2360, 85th Cong., 2d Sess. (1958),

reprinted in 1958 2S cot i Ty” | 7,8,16,24

S. Rep. No. 2, 69th Cong., Ist Sess.

(1925), reprinted in CIVIL AERONAUTICS:

LEGISLATIVE HISTORY OF THE AIR COMMERCE ACT OF

1926 (Rev. ed 1943) ... 2... eee eee eee ees 4

S. Rep. No. 1811, 85th Cong., 2d Sess. |) eee 7

OTHER AUTHORITIES

BUREAU OF AIR COMMERCE, U.S. DEP’T OF COMMERCE,

AERONAUTICAL BULLETIN NO. 18, STATE AERONAUTICAL

LEGISLATION DIGEST AND UNIFORM STATE LAWS (1936) . 5

FEDERAL AVIATION ADMINISTRATION, U.S. DEP’T OF

TRANSP., CENSUS OF U.S. CIVIL AIRCRAFT

ES ee 3

FEDERAL AVIATION AGENCY, POLICY STATEMENT OF THE

FEDERAL AVIATION AGENCY (1965) ...-..----+-: 24

TABLE OF AUTHORITIES CONTINUED

Page

NICK A. KOMONS, U.S. DEP’T OF

TRANSP., BONFIRES TO BEACONS:

FEDERAL CIVIL AVIATION POLICY UNDER THE

AIR COMMERCE ACT 1926-1938 (1978) ............ 6

XVi

In the Supreme Court of the United States

OCTOBER TERM, 1993

PIPER AIRCRAFT CORPORATION

Petitioner,

EDWARD CHARLES CLEVELAND,

by and through the Conservator

of his Estate, Kathleen Cleveland,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS AND ORDERS BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit, dated February 16, 1993, is reported at 985

F.2d 1438, and reprinted in petitioner’s Appendix ("App.") at

2a. The unpublished order of the court of appeals, dated

April 5, 1993, denying petitioner’s timely petition for rehearing

is reprinted at App. 27a. The unpublished memorandum opinion

of the United States District Court for the District of New

Mexico, dated February 12, 1991, is reprinted at App. 30a.

The unpublished order of the court of appeals, dated March 14, |

1991, granting petitioner permission to appeal from the district

court’s denial of its motion for summary judgment pursuant to

28 U.S.C. § 1292(b) (1988), is reprinted at App. 42a. Earlier

opinions of the court of appeals in this case are reported at 890

F.2d 1540 (10th Cir. 1989), reh’g denied, 898 F.2d 778 (10th

Cir. 1990), and reprinted at App. 45a and 81a, respectively.

JURISDICTION

This Court has jurisdiction to review the judgment below

by a writ of certiorari pursuant to 28 U.S.C. § 1254 (1988).

The judgment of the court of appeals was entered on

February 16, 1993. App. 2a. The order of the court of appeals

denying petitioner’s timely petition for rehearing was entered on

April 5, 1993. App. 27a. This Petition is timely pursuant to 28

U.S.C. § 2101(c) (1988), and Sup. CT. R. 13.4.

CONSTITUTIONAL PROVISION AND STATUTE

The Supremacy Clause, Article VI, Clause 2 of the

United States Constitution, and section 601l(a) of the Federal

Aviation Act of 1958, 49 U.S.C. App. § 1421(a) (1988), are

reprinted at App. 87a and 89a, respectively.

STATEMENT

The Accident

This case arises from a bizarre collision in 1983 between

a Piper Super Cub, manufactured by petitioner Piper Aircraft

Corporation ("Piper"), and a GMC van on the runway of a

residential airpark in Los Lunas, New Mexico. The airpark

owner had parked the van on the runway to prevent the Super

Cub’s take-off. The Super Cub, piloted from the rear seat by

respondent Edward Cleveland ("Cleveland"), was towing a

sailplane and accelerating for take-off when it ran into the

parked van. Cleveland had intended to tow the sailplane into

flight and, when both planes were airborne, to film the sailplane

for a television commercial. He had removed the Super Cub’s

front seat, installed a large movie camera in its place, and seated

the cameraman on two-by-fours facing rearward with his back

against the instrument panel and front window. When the Super

Cub struck the van, Cleveland hit his head on the camera mount

and was seriously injured.

The Super Cub model received its Type Certificate from

the Civil Aeronautics Administration ("CAA") in 1949; the Type

Certificate was reissued by the Federal Aviation Administration

("FAA") in 1974. The 1970 Super Cub involved in this case

received its FAA Airworthiness Certificate in March, 1970.

These certificates evidence this Super Cub’s compliance with all

applicable federal design safety standards including those relating

to pilot visibility and seat restraint systems. In this action

against Piper, Cleveland claims that the Super Cub was

negligently designed because (1) its tailwheel, tandem seat (fore

and aft) design limited forward visibility from the rear seat

during the beginning of takeoff;? and (2) the rear seat was

equipped with a seat belt but not a shoulder harness.

Federal Regulation of Aircraft Design

Air commerce is inherently national and the design

safety of a specific airplane is inherently a matter appropriate for

regulation by a single expert agency: safe design involves

interrelated aerodynamic and structural considerations that need

to be evaluated in the context of the entire design. This is why,

for more than 60 years, the Federal Government has occupied

the field of aircraft design safety and state legislatures have

acknowledged this exclusive federal role.

The Air Commerce Act of 1926, ch. 344, 44 Stat. 568

(1926) (repealed 1938) ("the 1926 Act"), gave the Secretary of

Commerce broad authority to promote and regulate civil

aviation. It delegated to the Secretary the power to regulate the

full particulars of the design [of aircraft] and of

the calculations upon which the design is based

? All general aviation aircraft use either a nosewheel or tailwheel

design. Tailwheel aircraft, while on the ground, rest on forward main

landing gear and on a small wheel under the tail. In that position, the

fuselage slants upward, restricting the pilot’s forward field of vision,

particularly in single engine aircraft with the engine in the nose. There

are over 54,000 single engine, tailwheel aircraft in service in the

United States general aviation fleet. See FEDERAL AVIATION

ADMINISTRATION, U.S. DEP’T OF TRANSP., CENSUS OF U.S. CIVIL

AIRCRAFT A-3 through A-71 (1991).

and of the materials and methods used in the

construction{[.]

44 Stat. 569. Pursuant to the 1926 Act, the Commerce

Department promulgated the first federal airworthiness standards

for aircraft.

Because of then prevailing views of the scope of the

Commerce power, the 1926 Act regulated only aircraft operating

in "interstate and foreign commerce” and left intrastate flying to

the States. See S. Rep. No. 2, 69th Cong., Ist Sess., 8 (1925),

reprinted in CIVIL AERONAUTICS: LEGISLATIVE HISTORY OF

THE AIR COMMERCE ACT OF 1926 at 29 (Rev. ed 1943).

Congress, however, recognizing the need for uniform national

standards, urged the States to adopt "uniform laws and

regulations corresponding with the provisions of [the 1926 Act]

and the rules and regulations that will be promulgated under it .

. .." Id. The States, also recognizing the need for uniform

national aircraft regulation, enacted legislation adopting the

governing federal standards.

For example, in New Mexico where the accident

involved in this case occurred, the state legislature in 1929

enacted a law that specifically cites the need for "uniform" air

Safety standards and makes it unlawful to operate an aircraft

within the State unless it is licensed and registered by the United

States in accordance with the federal standards governing design,

construction and airworthiness. N.M. STAT. ANN. § 64-1-2

(Michie 1987).2 This New Mexico statute was based on the

, Section 64-1-2 provides:

The public safety requiring and the advantages of uniform

regulation making it desirable in the interest of aeronautical

progress that aircraft operating within this state should

conform with respect to design, construction and airworthiness

to the standards prescribed by the United States government

with respect to navigation of aircraft subject to its jurisdiction,

it shall be unlawful for any person to navigate an aircraft

within the state unless it is licensed and registered by the

department of commerce of the United States in the manner

pli a i d. w oeve

Uniform State Air Licensing Act, one of several model uniform

acts proposed during the 1920s and early 1930s to assure

uniform aviation laws throughout the nation. See generally

BUREAU OF AIR COMMERCE, U.S. DEP’T OF COMMERCE,

AERONAUTICAL BULLETIN NO. 18, STATE AERONAUTICAL

LEGISLATION DIGEST AND UNIFORM STATE LAWS (1936). The

impetus for these model uniform acts was the accepted view

that: "{iJnasmuch as there can be but one standard of

airworthiness, only a limited range of piloting ability, and no

variation in rules, then it would seem obvious that State laws

dealing with regulation should provide requirements identical

with those of the Federal law." /d. at 2. Forty-seven other

States have identical or substantially similar statutes.‘ In this

prescribed by the lawful rules and regulations of the United

States government then in force.

See Security Mut. Cas. Co. v. O’Brien, 662 P.2d 639, 642 (N.M.

1983) (in § 64-1-2, New Mexico has declared the Federal Aviation

Regulations "to be part of the law of the state”).

* See ALA. CODE § 4-2-72 (1981); ALASKA STAT. §§ 02.10.010,

02.15.030, 02.35.010 (1988); ARIZ. REV. STAT. ANN. § 28-1741

(1989); ARK. CODE ANN. §§ 27-115-108, 27-116-202 (1987); CAL.

PUB. UTIL. CODE §§ 21241, 21411 (West 1965 & 1993 Supp.); CoLo.

REV. STAT. § 41-1-103 (1984); CONN. GEN. STAT. §15-54 (1993);

DEL. CODE ANN. tit. 2, §§ 101, 134(c), 161(3) (1985); FLA. STAT.

ANN. § 329.10 (1) (West 1991); GA. CODE ANN. §§ 6-2-1, 6-2-9

(1982); HAWAN REV. STAT. §§ 261-12(d), 261-15(a) (1992 & 1992

Supp.); IDAHO CODE §§ 21-111(b), 21-113(a) (1977); ILL. ANN. STAT.

ch. 15 1/2 para. 22.25, 22.29, 22.42 (Smith-Hurd 1963 & 1992

Supp.); IND. CODE ANN. §§ 8-21-1-2, 8-21-1-8(c), 8-21-2-2 (Burns

1991); IOwA CODE ANN. § 328.34 (West 1985); KAN. STAT. ANN. §§

3-202, 3-203 (1991); Ky. REV. STAT. ANN. § 183.050 (Michie/Bobbs-

Merrill 1989); ME. REV. STAT. ANN. tit. 6, §§ 2(3), 12, 202(2)

(1989); MASs. ANN. Laws ch. 90, §§ 39, 48 (Law. Co-op 1985);

MICH. STAT. ANN. §§ 10.101, 10.176(1), 10.180 (Law. Co-op. 1991);

MINN. STAT. ANN. §§ 360.011, 360.015(4), 360.018 (West 1991);

MIss. CODE ANN. §§ 61-1-1, 61-1-13(8), 61-1-15(2) (1989 & 1992

Supp.); Mo. ANN. STAT. §§ 305.070, 305.130 (Vernon 1972); MONT.

CODE ANN. §§ 67-1-102, 67-3-201(1) (1991); NEB. REV. STAT. §§ 3-

102, 3-110, 3-129 (1991); Nev. REV. STAT. ANN. §§ 493.120,

manner, since the early 1930s, the federal design standards have

effectively governed the designs of all U.S. aircraft, whether

used in interstate or exclusively intrastate commerce. See NICK

A KOoMons, U.S. DEP’T OF TRANSP., BONFIRES TO BEACONS:

FEDERAL CIVIL AVIATION POLICY UNDER THE AIR COMMERCE

ACT 1926-1938 at 122 (1978).

Thus, since the early days of aviation, aircraft design

standards have not been an area of traditional state police power

regulation. Rather, both Congress and the States have

recognized and accepted the need for uniform federal standards.

The 1926 Act was followed by the Civil Aeronautics Act

of 1938, ch. 601, 52 Stat. 973 (1938) (repealed 1958) ("the

1938 Act"), which effectively extended federal jurisdiction over

intrastate flying. The need for uniform federal aviation safety

standards was by then so well accepted that there was no

suggestion of any state role in aircraft design standards, see

KOMONS, supra, at 369-70, and Congress extended the scope of

federal regulation to all aircraft in “air commerce," § 1(3) of the

1938 Act, 52 Stat. 977, a phrase understood to subsume

interstate and intrastate flight. See Rosenhan v. United States,

493.150 (Michie 1986); N. H. REV. STAT. ANN. §§ 422:2, 422:34

(1991); N. J. STAT. ANN. §§ 6:1-29, 6:1-35 (West 1988); N.Y. GEN.

Bus. LAw § 243 (McKinney 1988); N. C. GEN. STAT. § 63-22 (1985);

OH. REV. CODE ANN. § 4561.05, 4561.06, 4561.14 (Anderson 1990);

OKL. STAT. ANN. tit. 3, § 258 (West 1993); R. I. GEN. Laws § 14-4

(1987); S. C. CODE ANN. §§ 55-5-70, 55-5-90 (Law. Co-op 1992); S.

D. CODIFIED LAWS ANN. §§ 50-2-13, 50-11-1 (1992 Supp. & 1993

Int. Supp.); TENN. CODE ANN. §§ 42-2-102, 42-2-104 (1987); TEx.

REV. Civ. STAT. ANN. art. 46f-2, Sec. 2 (West 1993 Supp.); VT.

STAT. ANN. tit. 5, §§ 203, 207(b) (1988); VA. CODE ANN. §§ 5.1-14,

5.12.15 (Michie 1988); WASH. REV. CODE ANN. §§ 47.68.010,

47.68.230 (1986 & 1993 Supp.); W. VA. CODE § 29-2A-14 (1992);

Wis. STAT. ANN. § 14.18 (West 1988); Wyo. STAT. ANN. § 10-4-201

(1978); see also LA. REV. STAT. ANN. §§ 2:2.9(A), 2:3, 2:6(B)(2)

(West 1987); MD. CODE ANN., TRANSP. §§ 5-102(a)(2), 5-208(b)(2)

(1993); 74 PA. CONS. STAT. ANN. § 5301(d) (Supp. 1992); UTAH

CODE ANN. § 2-1-7.5 (1992 Supp.).

—

131 F.2d 932, 934-35 (10th Cir. 1942), cert. denied, 318 U.S.

790 (1943).

The current federal statute, the Federal Aviation Act of

1958, 49 U.S.C. App. §§ 1301-1557 (1988 & 1991 Supp.) ("the

1958 Act"), created the Federal Aviation Agency’ and dealt

with the two distinct subjects: flight safety, which was made the

responsibility of the newly created FAA; and economic

regulation of commercial airlines, which was the responsibility

of the Civil Aeronautics Board ("CAB"). The FAA’s

responsibility for flight safety includes certification of aircraft,

pilots and mechanics, aircraft maintenance requirements and

establishment of a national airways system governing civil and

military flight operations.

The Senate Report on the 1958 Act emphasized the

Federal Government’s virtually complete responsibility for

aviation:

[A]viation is unique among transportation industries in

its relation to the Federal Government -- it is the only

one whose operations are conducted almost wholly

within the Federal jurisdiction, and are subject to little

or no regulation by States or local authorities. Thus, the

Federal Government bears. virtually complete

responsibility for the promotion and supervision of this

industry in the public interest.

S. Rep. No. 1811, 85th Cong., 2d Sess., 5 (1958). The House

Report made clear that Congress intended to give the FAA "full

responsibility and authority for the advancement and promotion

of civil aeronautics generally, including the promulgation and

enforcement of safety regulations," and "plenary authority

to... [mJake and enforce safety regulations governing the

design and operation of civil aircraft." H.R. Rep. No. 2360,

85th Cong., 2d Sess., 1-2 (1958), reprinted in 1958

’ In 1966, the Federal Aviation Agency was renamed the

Federal Aviation Administration and made part of the Department of

Transportation. Both are referred to as the "FAA."

U.S.C.C.A.N. 3741, 3741-42. The FAA was given such

"plenary authority" because Congress deemed it “essential that

one agency of government, and one agency alone, be responsible

for issuing safety regulations . . .." 1958 U.S.C.C.A.N. at

3761.

Accordingly, section 601 of the 1958 Act, as amended,

provides:

The Secretary of Transportation is

empowered and it shall be his duty to promote safety of

flight of civil aircraft in air commerce by prescribing and

revising from time to time

(1) Such minimum standards governing the

design, materials, workmanship, construction and

performance of aircraft, aircraft engines, and propellers as

may be required in the interest of safety[.]

49 U.S.C. App. § 1421(a)(1988).

Pursuant to this congressional mandate, the Secretary,

through the FAA, has established a "comprehensive set" of

Federal Aviation Regulations ("FARs"), see United States v.

Varig Airlines, 467 U.S. 797, 804-05 (1984), governing, inter

alia, aircraft design, including in-flight performance and

handling characteristics, structural and power plant requirements,

and required safety equipment. 14 C.F.R. pt. 23 (1992) (§§

23.1 to 23.1589).

The 1958 Act, like the 1938 Act, provides for a three-

level federal certification process. To introduce a new aircraft, a

manufacturer first must obtain a "Type Certificate” reflecting the

FAA’s determination, after investigation and testing, that the

proposed aircraft is of proper design for safe operation and that

the design meets applicable federal airworthiness standards. 49

U.S.C. App. § 1423(a) (1988); 14 C.F.R. § 21.21 (1992). To

mass produce an aircraft that has received a Type Certificate, a

manufacturer next must obtain a "Production Certificate"

evidencing the FAA’s determination that the manufacturing

process has sufficient quality control that it will produce

airplanes conforming to the approved design. 49 U.S.C. App. §

1423(b) (1988); 14 C.F.R. §§ 21.139, 21.143 (1992). Finally,

before any particular airplane may be placed in service, an

“Airworthiness Certificate" must be obtained from the FAA

indicating that the specific airplane conforms to the Type

Certificate and is in a condition for safe operation. 49 U.S.C.

App. § 1423(c) (1988); 14 C.F.R. § 21.183 (1992). It is

unlawful to operate an _ aircraft without an_ effective

Airworthiness Certificate. 49 U.S.C. App. § 1430(a)(1) (1988).

FAA rules provide for a detailed monitoring of the

subsequent service history of an aircraft. In light of the service

history, the FAA may issue an "Airworthiness Directive"

("AD") requiring a change in an aircraft design and suspend or

revoke a Type Certificate or an_ individual aircraft’s

Airworthiness Certificate until the corrective measures required

by the AD are taken. 14 C.F.R. § 39.1 (1992). Manufacturers

are required to incorporate the design change mandated by an

AD into all new aircraft produced after the effective date of the

AD. Operators of existing aircraft are required to have their

aircraft modified to comply with the design change mandated by

the AD.® The objective of these regulations is to provide a safe

airplane from its certification through its operational life.’

The Piper Super Cub and Its Design

The Piper Cub is a venerable airplane. The original

Cub, the model J-3, first manufactured in 1937, is a small,

single engine, high wing, tailwheel, tandem seat aircraft with

flight controls at both seats. From 1937 through 1947, over

14,000 J-3 Cubs were made and sold. A 1938 Cub has been

displayed at the National Air and Space Museum, a testament to

. Federal regulations also provide that any interested party

(including airplane owners, operators or passemgers) may petition the

FAA for changes in federal design and safety standards. See 14

C.F.R. pt. 11 (1992).

7 The FAA must approve significant modifications to in-service

aircraft. The modifications made by Cleveland to the Super Cub in

this case did not have FAA approval, violated several applicable FARs

and resulted in the FAA’s suspension of Clevelamd’s pilot license.

the aircraft’s popularity and impact on the development of

aviation. In 1940, Piper began making a military version of the

Cub, the model L-4, and nearly 6,000 were used extensively

during World War I! as trainers, spotters, transports,

ambulances and reconnaissance aircraft. In the J-3 and the L4

models, pilots had to solo from the rear seat because these

aircraft were too "nose heavy" to permit soloing from the front

seat. Thousands of pilots received their dual instruction and

made their first solo flights from the rear seats of these two "tail

dragger" models.®

Most aircraft utilized before and during World War II,

including Allied and Axis fighter planes, used the tailwheel

design despite the restricted forward visibility typical of all

single-engine tailwheel aircraft while the tailwheel is on the

ground. A tailwheel design is advantageous for take-offs from

short airfields because these airplanes are able to take off at

lower speeds and in less distance, and for operation on rough or

soft terrain because with the nose up, propeller ground strikes

are minimized. The Cub design is particularly suitable for slow

flight, short take-offs and landings, flight instruction, traffic

control, glider towing, and power line, pipeline and forest fire

patrol. Cubs can be equipped with wheels, skis or floats.

The Super Cub is a post-World War II version of the

Piper Cub.’ Piper introduced the Super Cub in 1949 and since

has sold some 10,000. The Super Cub has the same classic

single engine, high wing, tailwheel, tandem seat design as the J-

3 and L-4 Cubs. However, while a solo pilot in the J-3 and L4

models had to sit in the rear seat, the Super Cub has a center of

gravity that permits it to be soloed from either the front or rear

seat. The Super Cub’s Type Certificate and this particular Super

Cub’s Airworthiness Certificate evidenced this aircraft’s

compliance with all applicable federal safety requirements

® See Affidavit of Fred E. Weick, dated November 26, 1990,

submitted by Piper in support of its motion for summary judgment and

reprinted at App. 91a.

, Photographs of the Cub and Super Cub are found behind App.

103a and 104a, respectively.

Wii acieseeanaiiaemenenaaieitiiitiaa i iaieianiaiiniti iia I

including those relating to pilot visibility and seat restraint

systems. Federal regulations specifically authorize tailwheel,

tandem seat aircraft with their inherent preflight forward

visibility limitations, and the CAA and FAA have never

restricted rear seat operation of these aircraft.'°

The 1970 Super Cub had seat belts as required by, and

in full compliance with, federal safety regulations dealing with

seat restraint systems.'' In 1973, the FAA proposed a rule that

would make shoulder harnesses mandatory in new aircraft and in

in-service aircraft that had structural provisions for harnesses as

did the Super Cub."* 38 Fed. Reg. 2985-86 (1973). There

was strong opposition from small aircraft pilots to the proposed

rule. After extensive study, the FAA issued a final rule in 1977

requiring shoulder harnesses only in front seats of aircraft

manufactured after July 18, 1978. 42 Fed. Reg. 30,601 (1977).

The FAA expressly determined that shoulder harnesses should

not be required for the rear seat and that the decision whether to

install shoulder harnesses in aircraft then in service and in seats

other than the front seat in new aircraft should be left to the

owner. !?

‘0 See Affidavit of Herbert M. Toomey, dated November 27,

1990, submitted by Piper in support of its motion for summary

judgment and reprinted at App. 95a. The CAA and then the FAA also

have been responsible for pilot training and certification, including the

instruction given to tailwheel aircraft pilots in how to insure that the

runway is clear for take-off and the side-to-side weaving ground

maneuvers used to overcome preflight forward visibility limitations. Jd.

at 96a-97a.

'! See Affidavit of Richard F. Chandler, dated November 27,

1990, submitted by Piper in support of its motion for summary

judgment and reprinted at App. 99a. -

2 All Piper Super Cubs have attach points so that shoulder

harnesses easily can be installed in both the front and rear seats. The

owner of this Super Cub had installed a shoulder harness in the front

seat but not the rear seat.

b The FAA concluded: \

Proceedings Below

Cleveland first sued and settled with the airpark owner

who had parked the van on the runway. He then brought this

diversity action against Piper alleging two design negligence

claims under New Mexico common law. Cleveland did not

contend that the Super Cub was not properly certificated or that

it failed to meet any federal design safety standard applicable

when it was manufactured in 1970, when the accident occurred

in 1983, or today. He claimed that the Super Cub was

negligently designed because the tandem seat, tailwheel design

limits preflight forward visibility, that a nosewheel design and

side-by-side seating should have been utilized, and that a rear

seat shoulder harness should have been installed. Based on these

contentions, the jury returned a verdict that resulted in a

$1,042,500 judgment against Piper.

On an initial appeal, the Tenth Circuit vacated on state

law grounds and remanded for a new trial. App. 45a. On

[A] number of comments received in response to

Notice 73-1 indicated strong opposition to a rule

requiring the installation of shoulder harnesses in

small airplanes currently in service. In light of these

comments, a cost analysis was conducted by the FAA

which indicated that a substantial financial burden

would be imposed upon many consumers over a short

period of time if the proposals were to be adopted.

Based on this cost analysis and a review of the

benefits expected from the proposal, the FAA has

determined that the decision of whether to install

shoulder harnesses in small airplanes now in service

or to install shoulder harnesses at seats other than

front seats should be left to the owner. Therefore, the

proposal has been revised to require the installation of

shoulder harnesses only on the front seats of airplanes

that are manufactured after one year after the

effective date of the amendment.

Federal Aviation Regulations, Amendment 23-19, 42 Fed. Reg.

30,601, 30,602 (1977) (emphasis added).

remand, Piper obtained leave of the district court, pursuant to

FED. R. CIv. P. 15(a), to raise the defense that Cleveland’s two

design negligence claims are preempted by federal law. Piper’s

subsequent motion for summary judgment on preemption

grounds was denied by the district court. App. 29a. The

district court certified and the court of appeals permitted Piper’s

interlocutory appeal on the preemption issue pursuant to 28

U.S.C. § 1292(b) (1988). App. 42a.

In the Tenth Circuit, the United States, the Department

of Transportation ("DOT") and the FAA filed a brief amicus

curiae supporting Piper’s contention that Cleveland’s claims are

preempted. Brief for the United States as Amicus Curiae,

Cleveland v. Piper Aircraft Corp., No. 91-2065 (10th Cir.)

(hereinafter "U.S. Brief"). |The Government argued that

Cleveland’s design negligence claims are preempted for two

reasons. First, the 1958 Act and regulations thereunder

constitute "an all-encompassing federal regulatory framework"

over an area of "predominantly federal concern" which

"indicates an affirmative congressional intent to occupy the field

of air safety." U.S. Brief at 7. Second, state law standards of

care would frustrate Congress’ intent to advance "the twin goals

of ensuring safety and promoting air commerce" through

uniform national regulation. Jd. at 16. The Government noted

"[t]he predominant federal interest in air commerce, the need for

uniform federal regulation and the lack of state history of

exercising significant police power over the channels of air

commerce," and the explicit recognition of the States,

themselves, of the need for uniform federal regulation of aircraft

design. Jd. at 10. Thus, the Government concluded: "state law

is preempted here because there is a dominant federal interest in

the regulation of air commerce - one that demands uniform

regulation, that has remained beyond the ambit of the states’

traditional police powers, and that is reflected in a pervasive,

federal regulatory scheme.” /d. at 11.

The court of appeals nevertheless affirmed. The court

relied heavily on Cipollone v. Liggett Group, Inc., 112 S.Ct.

2608 (1992): pointing to the express preemption provision

enacted by Congress in section 105 of the Airline Deregulation

Act of 1978 -- a provision covering the area of commercial

airline "rates, routes and services," 49 U.S.C. App. § 1305

(1988) -- the court held that section 105 negates implied

preemption in the area of aircraft design standards. App. 10a-

lla. The court also relied on the "savings clause” in section

1106 of the 1958 Act, 49 U.S.C. App. § 1506 (1988), which

preserves "remedies now existing at common law or by statute”

as evidence that Congress did not intend to occupy the field of

airplane safety to the exclusion of state regulation. App. 7a.

The court also noted that the 1958 Act refers to "minimum

standards," inferring that FAA safety regulation is therefore only

a "minimum check on safety” and that Congress did not intend

to bar the States from adopting "additional or more stringent

standards." Jd. at 13a-15a. Finally, the court purported to find

no conflict between federal law and respondent’s claims,

incorrectly stating that Cleveland presented evidence that Piper

could have improved visibility without altering the tailwheel

design simply by raising the rear seat and could have installed a

rear seat shoulder harness without conflicting with federal

regulations. Jd. at 13a."

«The court of appeals erroneously stated that "Cleveland has

presented evidence that Piper could have improved visibility without

altering the tailwheel design simply by raising the pilot seat." App.

13a. Cleveland presented no such evidence. What the district court’s

opinion actually noted (App. 38a) was simply the off-hand speculation

of one of Cleveland’s experts during his pretrial deposition (which was

not presented at trial) who said that it might be “possible” to raise the

rear seat "to see almost level,” but then admitted "I don’t know. I

haven’t measured that."

Even this claim, however, challenges the considered design

judgment of the expert federal agency. Moreover, there is no evidence

that the Super Cub’s rear seat could be raised without significantly

altering the design and shape of the aircraft or that the FAA would

approve such a modification.

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW SERIOUSLY

UNDERMINES THE FEDERAL REGULATION OF

AIRCRAFT DESIGN

Federal law forecloses state law claims that an aircraft

design expressly approved by the FAA is nevertheless negligent.

Federal law leaves a role for state law remedies against an

aircraft manufacturer, for example, where the manufacturer fails

to comply with FAA certification and safety requirements or is

negligent in manufacturing the airplane. But it does not permit a

jury to apply common law to hold an aircraft manufacturer to

the jury’s own standards of safe design. The contrary holding

below seriously undermines Congress’ effort in the 1958 Act and

predecessor statutes to establish uniform national standards for

aircraft design.

Federal preemption, of course, is a matter of

congressional intent and that intent may be implied:

Congress implicitly may indicate an intent to occupy a

given field to the exclusion of state law. Such a purpose

properly may be inferred where the pervasiveness of the

federal regulation precludes supplementation by the

States, where the federal interest in the field is

sufficiently dominant, or where "the object sought to be

obtained by the federal law and the character of

obligations imposed by it . . . reveal the same

purpose." . . . [E]ven where Congress has not entirely

displaced state regulation in a particular field, state law

is pre-empted when it actually conflicts with federal law.

Such a conflict will be found "‘when it is impossible to

comply with both state and federal law, or where the

State law stands as an obstacle to the accomplishment of

the full purposes and objectives of Congress... .’"

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988)

(first alteration in original) (citations omitted). The regulation of

aircraft design is a field Congress intended to occupy, where a

State substantive role only can frustrate the congressional

purpose.

The utility of an airplane lies in its ability to travel

quickly over long distances. Air commerce would be inhibited

if aircraft faced a patchwork of differing and conflicting design

requirements throughout the various States. The fundamentally

national characteristics of airplanes and air travel led to the early

and continuing recognition of the dominant federal interest in

aviation:

Congress has recognized the national

responsibility for regulating air commerce. Federal

control is extensive 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

under an intricate system of federal commands.

Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303 (1944)

(Jackson, J., concurring), quoted in Burbank v. Lockheed Air

Terminal, 411 U.S. 624, 633-34 (1973). In particular, the

federal courts have recognized Congress’ intent to establish

uniform federal air safety regulation. As the First Circuit

recently observed:

The legislative history of the [1958] Act

stressed the importance of a single uniform system of

regulation, especially with regard to air safety. The

House Report explained, in a section entitled "Purpose

of Legislation," that "[t]he administration of the new

Federal Aviation Agency (1) would be given full

responsibility and authority for the . . . promulgation

and enforcement of safety regulations .. .. " H.R. Rep.

No. 2360, 85th Cong., 2d Sess., 22, reprinted in 1958

U.S.Code Cong. & Admin.News 3741, 3741 (emphasis

supplied). In a letter to the House Committee on

Interstate and Foreign Commerce, included as part of

the House Report, a representative for the Executive

Branch characterized the impetus behind the proposed

legislation as follows:

It is essential that one agency of government,

and one agency alone, be responsible for issuing

safety regulations if we are to have timely and

effective guidelines for safety in aviation.

Id. at 3761.

In sum, establishment of a single uniform system of

regulation in the area of air safety was one of the

primary "object[s] sought to be obtained” by the passage

of the Act. Schneidewind, 108 S.Ct. at 1150.

French v. Pan Am Express, Inc., 869 F.2d 1, 5 (1st Cir. 1989)

(alterations in original).'*

The decision below, permitting state-by-state or, indeed.

jury-by-jury ejection of considered aircraft design

determinations of the expert federal agency, is wholly contrary

to Congress’ clear objective.

II. THE DECISION BELOW MISCONSTRUES AND

CONFLICTS WITH APPLICABLE DECISIONS OF

THIS COURT

A. The Court Below Misconstrued Cipollone

The error below resulted largely from the court of appeals’

misuse and misconstructicn of this Court’s Cipollone decision.

First, the court erroneously relied on Cipollone’s admonition that

"[c]onsideration of issues arising under the Supremacy Clause

‘start[s] with the assumption that the historic police powers of

_ the States [are] not to be superseded by . . . Federal Act unless

that [is] the clear and manifest purpose of Congress.’” 112 S.Ct.

at 2617 (alterations in original). This case involves no historic

State police power. Aircraft design is not "a subject traditionally

governed by state law . . ..". CSX Transportation, Inc. v.

'8 See Kohr v. Allegheny Airlines, Inc., 504 F.2d 400, 404 (7th

Cir. 1974), cert. denied, 421 U.S. 978 (1975); Airline Pilots Ass’n Int’l

v. Quesada, 276 F.2d 892, 894 (2d Cir. 1960).

Easterwood, 113 S. Ct. 1732, 1737 (1993).'® To the contrary,

the States, through their legislatures, have expressly recognized

the need for "uniform" federal aircraft design regulation. See

pp. 4-6, above. Preemption of Cleveland’s common law

negligent design claims does not supersede historic state police

powers; rather it vindicates both federal and state policy.

The court below also misapplied the statement in Cipollone

that an explicit preemption provision generally negates, under

the maxim expressio unius est exclusio alterius, implied

preemption of matters not covered by the express provision. See

112 S.Ct. at 2618. When enacted, the 1958 Act contained no

express preemption provisions whatsoever, and it addressed two

broad and distinct areas of air regulation: (1) flight safety,

regulated by the FAA; and (2) commercial airline operations,

regulated by the CAB. Twenty years after the 1958 Act,

Congress enacted the Airline Deregulation Act of 1978. As its

title indicates, the 1978 Act amended the 1958 Act only with

respect to the second area of concern: commercial airline

operations. The express preemption provision of the 1978 Act

on which the court below relied, section 105, 49 U.S.C. App. §

1305(a), bars the States from enforcing laws "relating to rates,

routes or services of any air carrier." There is no reason

whatsoever to infer, from this preemption provision added

twenty years later and applicable only to an entirely different

body of law, that Congress did not intend to occupy the field of

aircraft design regulation.'’

(1988) (in an area of uniquely federal interest a conflict between

federal policy and state law “need not be as sharp as that which must

exist for ordinary pre-emption when Congress legislates ‘in a field

which the States have traditionally occupied.’") (citation omitted).

'7 Relying on the Tenth Circuit’s decision in this case, the Eleventh

Circuit in Public Health Trust v. Lake Aircraft, Inc., 992 F.2d 291,

294-95 (11th Cir. 1993), recently made precisely this same mistake.

Under the misreading of Cipollone by the court below and by the

Eleventh Circuit in Lake Aircraft, the 1958 Act would never have an

implied preemptive effect. But see Burbank, 411 U.S. at 633 (the

"pervasive nature of the scheme of federal regulation of aircraft noise”

B. The Lower Court’s Reliance on the "Savings Clause"

Ignores Several Decisions of this Court

The court below misread the "savings clause" in section

1106 of the 1958 Act'* and concluded that "Congress has

intended to allow state common law to stand side by side with

the system of federal regulation it has developed." App. 12a.

That holding is at odds with the text and purpose of the Act and

this Court’s precedents.

On its face, section 1106 preserves only "remedies now

existing" (emphasis added).'? Nothing in this provision suggests

that Congress intended to preserve a power of the States to

promulgate substantive standards of care for aircraft design -- a

power no State has tried to exercise since at least the early

1930s. As the United States argued below, this "holding would

allow common law duties of care to displace the elaborate and

exclusive federal scheme for regulating design safety." U.S.

Brief at 20. The United States thus concluded:

indicates intent to preempt); French v. Pan Am Express, Inc., 869 F.2d

1 (ist Cir. 1989) (implied preemption of state drug testing rules as

applied to pilots); Northwest Airlines, Inc. v. Gomez-Bethke, 34 Fair

Empl. Prac. Cas. (BNA) 837 (D.Minn. 1984) (implied preemption of

state law requiring airline to permit chemically-dependent pilot to

return to work).

'§ Section 1106 provides: “Nothing contained in this chapter shall

in any way abridge or alter remedies now existing at common law or

by statute, but the provisions of this chapter are in addition to such

remedies.” 49 U.S.C. App. § 1506 (1988).

va In 1958, section 1106 was reenacted without substantive

change from the 1938 Act. See 52 Stat. 1027. The court of appeals

was clearly wrong in its contention that common law design defect

claims, particularly such claims against aircraft manufacturers, were

known and "now existing" in 1958. App. 8a. Cf. Wood v. General

Motors Corp., 865 F.2d 395, 404-06 (1st Cir. 1988), cert. denied, 494

U.S. 1064 (1990) (design defect claims against automobile

manufacturers were “virtually non-existent” in 1966). It is even more

clearly wrong as of 1938.

The statute, when read as a whole, instead shows

that Congress intended to preempt state law standards of

care, but to preserve state damage remedies for any

injuries caused by violation of a federal design standard.

An injured party would thus retain, as the act’s savings

clause requires, the full panoply of compensatory

remedies for a manufacturer’s violation of an applicable

standard of design safety. Those remedies, however,

would be exercised in a manner that furthers compliance

with federal safety standards. The resulting narrow

preemption of state law would thus give full and

complete effect to the savings clause while vindicating

Congress’ intent to occupy the field of aircraft design

safety.

Id. (emphasis in original).”

The court’s reliance on the savings clause ignores this

Court’s instructions that a general savings clause is to be read

with care and does not overcome more specific evidence that

Congress intended certain claims to be preempted. See Morales

v. Trans World Airlines, Inc., 112 S.Ct. 2031, 2037 (1992);

International Paper v. Ouellette, 479 U.S. 481, 494 (1987);

20 “See Bieneman v. City of Chicago, 864 F.2d 463, 471-73 (7th

Cir. 1988), cert. denied, 490 U.S. 1080 (1989):

[Section 1106 will] save common law remedies even

when federal law exclusively determines the content

of substantive rules.

A state court could not award damages

against O’Hare or its users for conduct required by

[federal] regulations, or for not engaging in noise-

abatement procedures that the Federal Aviation

Administration considered but rejected as unsafe. . . .

These subjects are governed by federal law, and a

state may not use common law procedures to question

federal decisions or extract money from those who

abide by them.

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450

U.S. 311, 328-31 (1981); Texas & Pac. Ry. Co. v. Abilene

Cotton Oil Co., 204 U.S. 426, 446-47 (1907). See also Wood,

865 F.2d at 414-16.

bat The Decision Below Misread Section 601 and

Conflicts with Ray v. Atlantic Richfield

Under section 601 of the 1958 Act, the Secretary of

Transportation, through the FAA, has the duty to prescribe and

revise "[s]uch minimum standards governing the design,

materials, workmanship, construction, and performance of

aircraft, aircraft engines, and propellers as may be required in

the interest of safety[.])" 49 U.S.C. App. § 1421(a)(1) (1988)

(emphasis added). Erroneously reading this congressional

mandate to require only the “promulgation of ‘minimum

standards,’" App. 13a, and disparagingly suggesting that "FAA

certification is, by its very nature, a minimum check on safety,"

id. at 15a,”’ the court concluded that by "designating the

standards as minimum, Congress indicated that it did not want to

bar states from adopting additional or more stringent standards."

Id.

This holding ignores the statutory provision that federal

design standards shall be those "required in the interest of

safety," and the teachings of Ray v. Atlantic Richfield Co., 435

U.S. 151 (1978). Ray held that a state statute purporting to

establish state "standard safety features" for oil tankers was

impliedly preempted by provisions of the Ports and Waterways

Safety Act of 1972, Pub. L. 92-340, 86 Stat. 424 (1972), which

charged the Secretary of Transportation with promulgating

“comprehensive minimum standards of design, construction,

alteration and maintenance and operation" of tankers. 435 U.S.

¥ The court’s suggestion that FAA certification procedures are

defective because, in certain circumstances, the FAA delegates some

inspection responsibility to designated aircraft company employees

meeting FAA qualifications, is wholly unsupported. Moreover, in this

case it is wholly irrelevant. The agency itself made the decisions at

issue here.

at 161. Pursuant to the federal statute, the Secretary

promulgated regulations and inspected and certificated tankers.

See 435 U.S. at 160-63. From this statutory scheme, this Court

inferred

that Congress, insofar as design characteristics

are concerned, has entrusted to the Secretary the

duty of determining which oil tankers are

sufficiently safe to be allowed to proceed in the

navigable waters of the United States. This

indicates to us that Congress intended uniform

national standards for design and construction of

tankers that would foreclose the imposition of

different or more stringent state requirements.

Id. at 163. This Court then expressly rejected the argument that

the federal act’s reference to "minimum standards," was a

"recognition of state authority to impose higher standards than

the Secretary has prescribed." Jd. at 168 n. 19.

The decision below conflicts with Ray. The 1958 Act

charges the Secretary with promulgation of "such minimum

standards governing the design, materials, workmanship,

construction and performance of aircraft . . . as may be required

in the interest of safety." 49 U.S.C. App. § 1421(a). The FAA

has promulgated "comprehensive" regulations pursuant to this

charge. Varig Airlines, 467 U.S. at 805. The three-level

certification process is designed to ensure compliance. As in

Ray, this statutory scheme makes clear that Congress "intended

uniform national standards," set by one federal agency alone, for

the design and construction of safe aircraft that "foreclose the

imposition of different or more stringent state requirements."

Ray, 435 U.S. at 163.

D. Cleveland’s Claims Conflict With Federal Law

The different or more stringent design requirements

Cleveland seeks to impose here through a jury verdict under

common law are preempted because they conflict with the

"evident congressional intention to establish a uniform federal

regime controlling the design" of aircraft. See Ray, 435 U.S. at

165.” The court below, however, purported to find no conflict

between Cleveland’s two negligent design claims and federal

tailwheel design and shoulder harness decisions because, it

believed, Piper could have simply raised the rear seat of the

Super Cub to improve preflight visibility and installed a rear seat

shoulder harness without conflicting with these federal decisions.

This is actually saying that the expert federal agency’s design

decisions were wrong and unsafe.

There is, in fact, a real conflict between Cleveland’s

design claims and federal law. The FAA is well aware of

Cleveland’s design proposals, but it does not accept them as

required for safety. If Piper, in the wake df an adverse jury

verdict in this case, wanted to make the design changes urged by

Cleveland in order to avoid future liability, it could not do so

without FAA action. Piper could not change the design of the

Super Cub without FAA’ approval, see 14 C.F.R. § 21.113

(1992), nor would it be permitted to recall the thousands of Cubs

and Super Cubs in service which hold valid Airworthiness

Certificates. When the FAA does think a retroactive design

change is required, it imposes that burden on the aircraft

owners. Only the FAA could require the owners of these in-

service aircraft to modify their aircraft or install rear seat

shoulder harnesses. Thus, a very real conflict exists here: Piper

itself could not respond to the "potent method of governing

conduct and controlling policy," Garmon, 359 U.S. at 247,

exerted by Cleveland’s common law negligent design claims.

Only the FAA could order the changes that Cleveland would

have a common law jury require of Piper.

” As the court of appeals acknowledged, a damage award

premised on a supposed design deficiency can have the same effect as

an explicit regulatory requirement. App. Sa-6a. See, e.g., Cipollone,

112 S.Ct. at 2620 ("‘[state] regulation can be as effectively exerted

through an award of damages as through some form of preventive

relief. The obligation to pay compensation can be, indeed is designed

to be, a potent method of governing conduct and controlling policy.’”

(quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236,

247 (1959))).

The court below made yet another error in concluding

that there is no conflict between federal "minimum standards"

and additional or more stringent state standards because the

purpose of both is promoting safety. App. 14a. Here, the court

ignored the holding in Ouellette:

In determining whether Vermont nuisance law

"stands as an obstacle" to the full implementation of the

[Clean Water Act], it is not enough to say that the

ultimate goal of both federal law and state law is to

eliminate water pollution. A state law also is preempted

if it interferes with the methods by which the federal

statute was designed to reach this goal.

479 U.S. at 494; accord Gade v. National Solid Waste Man.

Ass’n, 112 S.Ct. 2374, 2385-86 (1992).

In the 1958 Act, Congress charged the FAA with the

duty to provide for safety in civil aviation and the responsibility

to "foster" the growth and development of civil aviation. H.R.

Rep. No. 2360, 85th Cong., 2d Sess., 1 (1958), reprinted in

1958 U.S.C.C.A.N. 3741, 3741. Congress’ chosen method to

achieve these goals is to give "full responsibility and authority

for the advancement and promotion of civil aeronautics

generally, including the promulgation and enforcement of safety

regulations" to the FAA. Jd. Performance of its duties under

the 1958 Act requires the FAA to "delicate[ly] balance" complex

and competing considerations, including the advantages and

disadvantages of various aircraft designs and trade-offs between

additional safety features and utility, performance and increased

costs. See Burbank, 411 U.S. at 638-39; Ouellette, 479 U.S. at

495-97.% Permitting juries to impose differing design

standards on an ad hoc basis pursuant to a “variety of common-

3 See also FEDERAL AVIATION AGENCY, POLICY STATEMENT OF

THE FEDERAL AVIATION AGENCY 20 (1965) ("It is simply not possible

to pursue safety for safety’s sake in an effort to achieve the highest

level of safety without being seriously limited by the compromises

necessary in the interest of a reasonably costed, efficient and viable

system. ”)

law rules established by the different states," Ouellette, 479 U.S.

at 496, clearly would interfere with the method by which

Congress sought to achieve the twin goals of the 1958 Act, lead

to a “chaotic confrontation" among the various States and the

Federal Government, and "undermine [the] regulatory

structure.” Jd. at 496-97.

Ill. THIS FEDERAL PREEMPTION ISSUE IS OF

PARTICULAR IMPORTANCE TO GENERAL

AVIATION CONSUMERS AND

MANUFACTURERS, AS WELL AS TO THE

FEDERAL AVIATION ADMINISTRATION

The importance of this issue is demonstrated by the

support for Piper’s position from all segments of the general

aviation industry. General aviation manufacturers

understandably support Piper because of the deleterious impact

product liability lawsuits have had upon the industry. More

significant is the support of general aviation consumers with

their different perspective and divergent interests. As explained

by the Aircraft Owners and Pilots Association ("AOPA") in its

amicus brief below:

AOPA is the largest organization of general

aviation consumers in the world. It is a nationwide not-

for-profit membership association of some 300,000

individual aircraft owners and pilots. .. . Thousands of

AOPA’s members own and/or fly Piper Cub and similar

tail dragger aircraft.

It might appear on the surface that a general

aviation consumers organization like AOPA must favor

expansive treatment and interpretation of product

liability law and would tend to oppose any federal

preemption of common law product liability claims.

After all AOPA members are the victims of defective

aviation products and are entitled to just compensation

for injuries caused by such products. On the other

hand, as aviation users, AOPA’s members must have

access not only to safe but to reasonably priced aviation

products if they are to continue to fly.

Expansive and indiscriminate application of

product liability law threatens to destroy the general

aviation industry and to deprive AOPA’s members of

competitive product sources.

AOPA is concerned that [the district court’s

result], if allowed to stand, would permit juries

throughout the nation to require the ad hoc redesign of

aircraft (previously certified by the federal expert

agency) to meet whatever supplemental standards a jury

might from time to time decide to impose. It is difficult

to see how any aircraft manufacturer could long remain

in business under such restraints. We note that the basic

design of the Piper Cub is not new. The general safety

and airworthiness of the airplane has been established

(by AOPA members and others) over a period of some

50 years.

Brief of Aircraft Owners and Pilots Association, Amicus Curiae,

Cleveland v. Piper Aircraft Corp., No. 91-2065 (10th Cir.) at

3-4.

Finally, the views of the United States, DOT and FAA

make clear the importance of this issue and the necessity of

review by this Court:

This case concerns a state’s power to impose, through

the medium of a common law tort action, its own

substantive standards of care for aircraft design. As

such, it raises issues that directly affect an area that is

and has been one of paramount federal concern.

In our view, the federal government has

exclusive authority over air safety, and the common law

duty of care plaintiffs seek to impose on the defendant

aircraft manufacturer is therefore preempted by federal

law. Air commerce, by its very nature, transcends state

boundaries and is a matter of dominant federal interest.

It cannot remain safe and continue to grow if every

plane that rises into the airways is subjected to a

multitude of different -- and potentially conflicting --

State standards of care.

U.S. Brief at 1-2.

This case presents important and special reasons for

review by this Court. It is important because of the serious

adverse impact of the decision below on the congressional

scheme for the federal regulation of aircraft design and its goals

of aviation development and safety through uniform national

Standards. It is special because of the rare consensus for

preemption it produces from all of the principal representatives

of the general aviation community: the consumers, the

manufacturers and the FAA. It is important and special because

of the absence of federal-state conflict: the States, like

Congress, long ago recognized and agreed on the necessity of

uniform federal aircraft design regulation.

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue

to review the judgment below.

Respectfully submitted,

Of Counsel:

JOSEPH J. ASSELTA DAVID K. WATKISS

Mendes & Mount Counsel of Record

750 Seventh Avenue DAVID B. WATKISS

New York, New York 10019 Watkiss Dunning & Watkiss

111 E. Broadway, Suite 800

E. GLENN PARR Salt Lake City, Utah 84111

Piper Aircraft Corporation

2926 Piper Drive

Vero Beach, Florida 32960

LoulIs R. COHEN

Wilmer, Cutler & Pickering

2445 M. Street, N.W.

Washington, D.C. 20037-1420

W. R. LOGAN

Civerolo, Hansen & Wolf

500 Marquette, N.W., #1400

Albuquerque, New Mexico 87103

Attorneys for Petitioner

June 30, 1993

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.