Recent Developments in Federal Preemption in the Aviation Context Raise Questions about the Future of the Doctrine

by Paul Stinson

Introduction

Attorneys litigating in the aviation field are certain, at one time or another in their careers, to run up against one or more species of federal preemption – whether express, conflict or implied. Of these three types of preemption, implied field preemption perhaps raises the most difficult challenges for litigators and courts.

This article will provide a brief overview of the scope of implied field preemption in the aviation context, as well as a discussion of two significant recent decisions that have come to very different conclusions about how the doctrine should be applied.

Express, Conflict and Field Preemption

In general, federal law will displace state law in a given area under three circumstances: (1) where Congress has expressly preempted state law; (2) where state law conflicts with federal law or interferes with the achievement of federal objectives (i.e., “conflict” preemption); or (3) where federal law “so thoroughly occupies a legislative field” as to make it reasonable to assume that Congress intended to preempt state law in that field.1 This article focuses on the third type, “implied field” preemption. Since it was decided in 1999, the Third Circuit’s opinion in Abdullah v. American Airlines, Inc.2 has often been cited as the seminal implied preemption precedent in aviation cases. The Third Circuit held that “federal law establishes the applicable standards of care in the field of air safety, generally, thus preempting the entire field from state and territorial regulation.”3 In other words, under Abdullah, unless a claimant could establish a violation of an applicable federal standard of care (e.g., a federal aviation regulation (FAR)), then any allegations in the area of “air safety” were subject to potential dismissal.

The original Federal Aviation Act of 19584 included no express preemption clause, and in fact stated that “[a] remedy under this part is in addition to any other remedies provided by law.” Although two subsequent amendments – the Airline Deregulation Act5 (“ADA”) and the General Aviation Revitalization Act6 – added express preemption provisions, those Acts do not apply to the vast majority of liability claims against aircraft pilots, operators, manufacturers and the like. Accordingly, most aviation preemption decisions outside of the ADA’s “rates, routes and services” context have focused on the second two concepts – “conflict” preemption and “implied field” preemption. As noted above, the Third Circuit’s decision in Abdullah had previously been a benchmark case for implied preemption of the “entire field” of aviation. However, that court’s recent decision in Sikkelee v. Precision Airmotive Corp.7 has now placed some significant restraints on the applicability of implied preemption in the products liability context within the Third Circuit.

The Sikkelee Case

The Sikkelee case had been pending in the district courts in the Third Circuit since 2007, and spawned a number of lower court preemption decisions prior to its latest arrival at the Court of Appeals. The case stems from the crash of a Cessna 172N aircraft in Brevard County, North Carolina in 2005. David Sikkelee, the pilot, was killed in the crash and his wife brought suit against 17 different defendants in the U.S. District Court for the Middle District of Pennsylvania. Her primary allegation was that the aircraft lost power and crashed as a result of a malfunction or defect in the engine’s carburetor. In 2010, the district court granted defendants’ motion for judgment on the pleadings, holding that Sikkelee’s state law claims, which were premised on state law standards of care, fell within the preempted “field of air safety” described in Abdullah.8 Sikkelee subsequently filed an amended complaint, continuing to assert state law claims, but this time incorporating federal standards of care by alleging violations of numerous FARs. As the trial date approached, the district court granted defendants’ motion for summary judgment on the ground that the Federal Aviation Administration’s (FAA) granting of a Type Certificate for manufacture of the subject Textron Lycoming engine established that the engine met the relevant federal standards of care as a matter of law.9 However, questioning its own ruling and the meaning and scope of Abdullah, the district court certified the order for immediate appeal, and the Third Circuit granted interlocutory review.

The Third Circuit framed the question before it as whether Abdullah “extends to state law products liability claims.”10 The Court answered that question in the negative, holding that neither the Federal Aviation Act “nor the issuance of a type certificate per se preempts all aircraft design and manufacturing claims. Rather, subject to traditional principles of conflict preemption, including in connection with the specifications expressly set forth in a given type certificate, aircraft products liability cases like Appellant’s may proceed using a state standard of care.”11 The Court’s primary rationale for departing from Abdullah’s holding that federal law preempts the “field of aviation safety” was that Abdullah, and the Court’s later decision in Elassaad v. Independence Air, Inc.12, both involved regulations “related to in-air operations,” and that the “catch-all” standard of care that the Court had invoked in those cases, 14 C.F.R. § 91.13, “applied only to operating, not designing or manufacturing, an aircraft.”13

As for the FAA’s issuance of a type certificate for the engine in question, the court agreed with the FAA’s position, submitted in a Letter Brief, “that type certification is relevant only to an analysis under ‘ordinary conflict preemption principles,’” that is, that preemption would apply only “where compliance with both the type certificate and the claims made in the state tort suit is a physical impossibility; or where the claim stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”14 The Third Circuit therefore reversed the district court’s grant of summary judgment and remanded for further proceedings consistent with its opinion. Defendants Avco Corp.’s and Textron Lycoming’s petition for rehearing en banc was supported by amicus briefs filed by The Boeing Company and Airbus Americas, Inc., and the General Aviation Manufacturers Association, all of which pointed out a number of significant flaws in the court’s reasoning, in particular its curious holding that the design and manufacture of an aircraft did not relate to “in-air safety.” The court denied the petition on June 7, 2016, and defendants in that case may petition the U.S. Supreme Court for review.

Other Courts Have Reached a Different Outcome

It also remains to be seen whether and how Sikkelee may affect aviation preemption cases outside the Third Circuit. At least four other U.S. circuits, including the Second, the Sixth, the Ninth and the Tenth, have also adopted the broad “entire field” approach to field preemption in the aviation context (although sometimes with caveats).15 Federal district courts and state courts have also found preemption in the aviation product liability context.16 Perhaps most significantly highlighting the conflict, the Tenth Circuit’s decision in U.S. Airways, Inc. v. O’Donnell17 and a couple of Colorado state court decisions formed the basis for a recent holding directly contrary to Sikkelee – i.e., that state law product liability claims were preempted by federal law. In Bowe v. Air Methods Corp. and Repsher v. Air Methods Corp., opinions rendered prior to Sikkelee, a Colorado state court held that product design defect claims brought by plaintiffs related to a helicopter accident were preempted by federal law.18 The Plaintiffs in those cases asserted product liability claims (design defects and failure to warn) against the helicopter manufacturer based solely on violations of state law. Although not all state and federal courts have adopted implied preemption in the aviation context, the Colorado Supreme Court had done so twice. In Banner Advertising v. City of Boulder, the Court found that a City of Boulder ordinance prohibiting aerial banner towing was preempted by the Federal Aviation Act and FARs.19 Later, in Sky Fun 1 v. Schuttloffel, the Court held that the provisions of the federal Airline Pilot Hiring and Safety Act preempt and prevent lawsuits, such as state law tort defamation lawsuits, based on pilot records provided to a potential employer (although the Court found that the specific oral communication at issue in that case was not within the scope of the preemption).20 In US Airways, in which the Tenth Circuit invalidated a New Mexico law imposing a fine on US Airways related to on-board liquor service, the Court wrote: “Based on the FAA’s purpose to centralize aviation safety regulation and the comprehensive regulatory scheme promulgated pursuant to the FAA, we conclude that federal regulation occupies the field of aviation safety to the exclusion of state regulations.”21

In light of the Colorado Supreme Court and Tenth Circuit precedent that federal law impliedly preempts state law standards of care in the field of aviation safety, the helicopter manufacturer defendants moved the Colorado court in the Bowe and Repsher cases to dismiss plaintiffs’ complaints for failure to state a claim. The argument was not that the FARs precluded plaintiffs from seeking remedies under state law following an aviation accident. Rather, because the Federal Aviation Act and FARs are preemptive, they set federal standards of care for claims falling within their scope. The Colorado trial court agreed, holding that:

Plaintiffs’ claims in this case concerning the design, certification, flight and performance characteristics and operating instructions of the AS350B3e model helicopter involved in the accident are preempted by federal regulations. The FAA and FARs establish the standard of care for these claims. Since none of the counts in Plaintiffs’ Complaint against [the defendants] are based on a violation of a FAR[] or federal standard of care, each count could be dismissed for failure to state a claim upon which relief can be granted.22

Accordingly, the court sustained the motions to dismiss, giving plaintiffs an opportunity to amend their complaints to cure the deficiencies. However, after the Third Circuit issued its decision in Sikkelee, briefing on the preemption issue recommenced, with plaintiffs’ asking the Bowe/Repsher court to reconsider its prior decision that preemption should apply to their claims. The court has not yet ruled on these latest motions.

There has been a lot of water under the preemption bridge since Abdullah was decided in 1999. Although Abdullah had been viewed as a seminal preemption case, implied field preemption has now been adopted in at least four other federal courts of appeal and in various state courts, and changing opinions in the Third Circuit may not be as persuasive as they might have been in the past. The Bowe and Repsher cases underscore that implied field preemption may be found based on courts’ own precedent, irrespective of how the Third Circuit has interpreted the issue.

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Paul Stinson is an associate with Nixon Peabody LLP in New York. He may be contacted at pstinson@nixonpeabody.com.

Conclusion

As can be seen from a comparison of these two recent, seemingly diametrically opposed cases from the Third Circuit and a Colorado state court, the somewhat esoteric doctrine of implied field preemption still generates lively, and sometimes heated, debate, and has the potential to seriously change the course of litigation of aviation related claims. Aviation attorneys on both sides of the aisle will undoubtedly be closely watching further developments in both Sikkelee and Bowe/ Repsher, and in any similar cases across the country in which state law claims or standards of care are being asserted against federally regulated aviation defendants.

Endnotes

1 Hillsborough County v. Automated Med. Lab., Inc., 471 U.S. 707, 713 (1985); Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988); Cipollone v. Liggett Group, 505 U.S. 504, 516 (1992).
2 181 F.3d 363 (3d Cir. 1999).
3 Id. at 367 (emphasis added).
4 Pub. L. No. 85-726, 72 Stat. 731 (codified as amended at 49 U.S.C. §§ 40101 et seq.).
5 Pub. L. No. 95-504, 92 Stat. 1705 (1978) (codified at 49 U.S.C. § 41713).
6 Pub. L. No. 103-298, 2(d), 108 Stat. 1552 (1994), amended, Pub. L. No. 105-102, 3(e), 111 Stat. 2215 (1997) (codified at 49 U.S.C. 40101 note).
7 2016 U.S. App. LEXIS 7015, 2016 WL 1567236 (3d Cir. Pa. Apr. 19, 2016).
8 Sikkelee v. Precision Airmotive Corp., 731 F. Supp. 2d 429, 439 (M.D. Pa., 2010) (Judge Jones).
9 Sikkelee v. Precision Airmotive Corp., 45 F. Supp. 3d 431, 451-53, 456 (M.D. Pa. 2014) (Judge Brann). Judge Matthew W. Brann joined the bench in 2013, and Sikkelee was one of the cases reassigned to him. Judge Matthew W. Brann | Middle District of Pennsylvania | United States District Court
10 Sikkelee, 2016 U.S. App. LEXIS 7015 at *2.
11 Id. at *2-3.
12 613 F.3d 119 (3d Cir. 2010).
13 Sikkelee, 2016 U.S. App. LEXIS 7015 at *18-19.
14 Id. at *51-52 (quotations omitted).
15 U.S. Airways, Inc. v. O’Donnell, 627 F.3d 1318 (10th Cir. 2010); Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Comm’n, 634 F.3d 206 (2d Cir. 2011); Greene v. B.F. Goodrich Avionics Sys., 409 F.3d 784, 795 (6th Cir. 2005); Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir. 2007).
16 See, e.g., McIntosh v. Cub Crafters, Inc., 2014 U.S. Dist. LEXIS 21491, *14 (E.D. Wash. Feb. 19, 2014) (holding that “based upon field preemption, federal law exclusively establishes the standard of care as to the design, test, and approval of the [aircraft] stall/spin characteristics, preempting any state standards”); Estate of Becker v. Forward Tech. Indus., Inc., 365 P.3d 1273 (Wash. Ct. App. 2015) (federal regulations preempted the standard of care for state law manufacturing defect claims related to an aircraft carburetor); Agape Flights, Inc. v. Covington Aircraft Engines, Inc., 2012 U.S. Dist. LEXIS 94053, *19-22 (E.D. Okla. July 9, 2012) (FARs preempted and set the standard of care for negligent aircraft maintenance claims).
17 627 F.3d 1318 (10th Cir. 2010).
18 January 5, 2016 Orders Granting Defendant Airbus Helicopters, Inc.’s and Airbus Helicopters, S.A.S.’s Rule 12(b)(5) Motions to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted Unless Complaint is Amended, Bowe v. Air Methods Corp., District Court Summit County, Colorado, Case No. 2015CV30147, and Repsher v. Air Methods Corp., District Court Summit County, Colorado, Case No. 2015CV30146. *Note that the author’s law firm, Nixon Peabody LLP, represented the prevailing defendants in those cases.
19 868 P.2d, 1077, 1081-82 (Colo. 1994).
20 27 P.3d 361, 368 (Colo. 2001) (citing Abdullah, 181 F.3d at 368-69).
21 US Airways, 627 F.3d at 1326.
22 Bowe and Repsher Orders at 9 (citation omitted).