Anita Porte Robb*
Consistent with “principles of ‘interstate federalism’” and recognition that “[s]tates have significant interests at stake – providing [their] residents with a convenient forum for redressing injuries inflicted…,” as expressed last month in the landmark Supreme Court case of Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 592 U.S. ___ , ___ (slip op. at 15)(2021), these same principles have governed the rejection of federal preemption in the aviation field. As discussed in detail below, both the courts and Congress have supported the police powers of the states to protect their citizens from negligent aircraft design and manufacture. The ultimate objective of improving aviation safety has compelled this resounding retreat from federal preemption in favor of deference to state court tort liability.
1. The Historical Background
A. The Supremacy Clause and the Common Law disfavor preemption
Relying on a legal doctrine known as “federal preemption,” aircraft manufacturers have attempted to seek immunity from state law tort claims. These efforts take form as claims of either “express preemption” or “implied preemption (conflict or field).” But the doctrine of preemption is a precarious and limited component of our system of federalism. The Supremacy Clause of the Constitution establishes that the state governments and the federal government possess concurrent sovereignty, subject to the limitation that federal law is “the supreme Law of the Land … any thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. The United States Supreme Court has long recognized that if in doubt, the doctrine of concurrent sovereignty disfavors federal preemption. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005) (when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily accept the reading that disfavors preemption).
For over a century, aviation torts have been consistently governed by state law. The Crawford Bros. No. 2, 215 F. 269 (W.D. Wash. 1914) appears to be the earliest tort case involving an aircraft. There, the court considered the effect of the “legal code of the air,” and instructed that such questions “must be relegated to the common-law courts.” Id. at 271. The decision in Crawford Bros. was the first in a long line of case law recognizing that, absent specific legislation, the common law governed aviation tort claims.
There is a strong presumption against preemption in areas of the law – like aviation -that States have traditionally occupied. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996); Bruesewitz v. Wyeth, Inc., 561 F.3d 233, 240 (3d Cir. 2009) (explaining that, “[w]hen faced with two equally plausible readings of statutory text, [courts] have a duty to accept the reading that disfavors preemption” (internal quotation marks omitted)). For that reason, all preemption cases “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress, ” and “the States are independent sovereigns in our federal system,’ so courts presume “that Congress does not cavalierly preempt state law causes of action.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (internal quotation marks omitted).
B. The Federal Aviation Act, Federal Aviation Regulations, and GARA all fail to displace or supersede State standards of care in aviation litigation
There was little question when the Civil Aeronautics Act was adopted in 1938 that state common law standards governed tort claims arising from plane crashes. See, e.g., Curtiss–Wright Flying Service v. Glose, 66 F.2d 710, 711–13 (3rd Cir. 1933) (applying the state common law standard for negligence). It is therefore significant that the Federal Aviation Act of 1958, which succeeded the Civil Aeronautics Act and remains the foundation of federal aviation law today, contains no express preemption provision. In fact, it says only that the FAA may establish “minimum standards” for aviation safety, 49 U.S.C. § 44701. Further, the Federal Aviation Act contains a “savings clause,” which provides that “[a] remedy under this part is in addition to any other remedies provided by law.” 49 U.S.C. § 40120(c) (emphasis added).
The Federal Aviation Act and its implementing regulations do not indicate any clear or manifest congressional intent to preempt state law products liability claims. Congress has not created a federal standard of care for persons injured by defective airplanes, and the type certification process cannot as a categorical matter displace the need for compliance in this context with state standards of care.
The federal aviation design regulations are likewise devoid of evidence of congressional intent to preempt state law products liability claims. These regulations do not purport to govern the manufacture and design of aircraft per se or to establish a general standard of care, but rather establish procedures for manufacturers to obtain certain approvals and certificates from the FAA, see generally 14 C.F.R. § 21, and in the context of those procedures, to “prescribe[ ] airworthiness standards for the issue of type certificates.” See 14 C.F.R. § 33.1(a) (aircraft engines) (emphasis added); see also 14 C.F.R. §§ 23.1(a), 25.1(a), 27.1(a), 29.1(a), 31.1(a), 35.1(a). Under these regulations, the acquisition of a type certificate is merely a baseline requirement. In the manufacturing context, the statutory language indicates that these are “minimum standards,” 49 U.S.C. § 44701, which in no way preempt state court tort law remedies.
This conclusion is further validated and confirmed by the General Aviation Revitalization Act of 1994 (“GARA”), codified at 49 U.S.C. section 40101. By barring products liability suits against manufacturers of aircraft parts more than 18 years old, GARA necessarily implies that such suits were and are otherwise permitted. GARA reinforces what is now apparent; federal law does not preempt state court design defect claims. Rather, Congress left state law remedies in place when it enacted GARA in 1994, just as it did when it enacted the Civil Aeronautics Act in 1938 and the Federal Aviation Act in 1958.
2. Aircraft Manufacturers’ Failed Attempts to Use Federal Officer Removal to Avoid State Court Liability – The Lessons of Riggs v. Airbus Helicopters
One way to remove a case to federal court has been to seek Federal Officer Removal. However, recent federal appellate decisions culminating in a case handled by the author – the Ninth Circuit’s decision Riggs v. Airbus Helicopters, Inc., 939 F.3d 981 (9th Cir. 2019) – and the Supreme Court’s unanimous denial of Airbus’s petition for certiorari – have virtually extinguished the manufacturers’ case for federal-officer removal. This case outcome relating to the FAA’s aircraft certification process, in particular the delegation of certification, demonstrates that the Agency’s decisions on design certification should not receive any preemptive effect.
In order to fulfill the “acting under” requirement of § 1442(a)(1), a manufacturer must demonstrate that it was “involved in an effort to assist, or to help carry out, the duties or tasks of the federal superior.” To help ameliorate the FAA’s limited resources, Congress authorized the FAA to create the Organization Designation Authorization (“ODA”) Program, which “allows an organization to perform specified functions on behalf of the [FAA] related to engineering, manufacturing, operations, airworthiness, or maintenance.” The ODA Program, commonly referred to as “self-certification,” has received international attention in the wake of the Boeing 737 Max crashes in 2018 and 2019. (See section #4 below).
In just the last fifteen years, a number of major aircraft manufacturers – including Boeing, Teledyne Continental Motors, and Airbus Helicopters – have sought to remove products liability cases to federal court by citing the “federal officer” prong § 1442(a). However, the Ninth Circuit’s rejection of Airbus Helicopters’ attempt at federal-officer removal in Riggs, amplified by the Supreme Court’s denial of Airbus’s petition for certiorari, have eviscerated this stale argument for federal removal.
A. The trouble with aircraft manufacturers’ argument for federal-officer removal
Riggs was not the first federal appellate case to address an aircraft manufacturer’s argument for federal-officer removal. In Lu Junhong v. Boeing Co., 792 F.3d 805, 813 (7th Cir. 2015), Boeing argued that it was entitled to removal under § 1442(a)(1) because it was “acting under” the authority of the federal government after the FAA authorized it “to use FAA-approved procedures to conduct analysis and testing required for the issuance of type, production, and airworthiness certifications for aircraft under Federal Aviation Regulations.” Id. The Seventh Circuit rejected Boeing’s argument, finding that even where when a federal agency directs, supervises, or monitors a company’s activities “in considerable detail,” that company is not “acting under” a federal agency. Id. at 809. When the Ninth Circuit confronted the identical argument from Airbus in Riggs, the Court “agree[d] generally with the holding of Lu Junhong” and rejected Airbus’s claim for federal removal. See Riggs, 939 F.3d at 989.
In reviewing both Lu Junhong and Riggs, several consistent themes emerge that expose the weakness of an aircraft manufacturer’s case for removal. First, both the Seventh and Ninth Circuits found that the aircraft manufacturer’s argument conflicted with the Supreme Court’s seminal case on federal-officer removal, Watson v. Philip Morris Cos., Inc., 551 U.S. 142 (2007). In Watson, the Supreme Court addressed federal-officer removal in the context of tobacco company Philip Morris’s contention that its close working relationship with a federal agency satisfied the “acting under” requirement. The Court held that Philip Morris did not satisfy the “acting under” requirement of § 1442(a)(1) because mere compliance with federal regulations did not constitute “a statutory basis for removal.” Id. at 153. When applying Watson to the FAA regulatory regime, both the Ninth and Seventh Circuits found that the authority the FAA delegates to aircraft manufacturers “is still a power to certify compliance, not a power to design the rules for airworthiness.” 939 F.3d 988 (citing Lu Junhong, 792 F.3d at 810 (emphasis in original). In other words, both circuit courts cited Watson for the proposition that “delegated compliance” is still compliance, and compliance alone does amount to “acting under” a federal agency. Id.
Additionally, both the Seventh and Ninth Circuits recognized that accepting the aircraft manufacturer’s argument would have far-reaching implications for other regulated industries. The Riggs Court held: “[A]s the Seventh Circuit cogently observed, several other industries, including the energy and health sectors, certify compliance without ‘acting under’ the regulating agencies.” See Riggs, 939 F.3d at 985 n.6. Lu Junhong went even further, finding that “[e]very regulated firm must use its own staff to learn whether it has satisfied federal regulations,” and the Court listed numerous examples of industries that could be affected by the aircraft manufacturer’s argument that self-certification is sufficient to warrant federal-officer removal. See Lu Junhong, 792 F.3d at 809. Since both circuits cited other industries that arguably employ a “self-certification” process, it seems they appreciated the undesirable and sweeping effect that the aircraft manufacturers’ position would have across other regulated industries.
B. Airbus’s unsuccessful Petition for Writ of Certiorari in Riggs
Following the Ninth Circuit’s decision in Riggs, Airbus sought a writ of certiorari from the Supreme Court. In addition to arguing that the federal regulatory regime meant that Airbus was “acting under” a federal agency, Airbus’s petition pursued two recurring non-statutory arguments that manufacturers have made in favor of federal removal: 1) there is a circuit split on the issue, and 2) the Solicitor General has previously argued that aircraft manufacturers are “acting under” a federal officer when delegated authority to issue certificates of airworthiness.
Seeking to entice the Justices with circuit split, Airbus argued that the Ninth and Seventh Circuits’ decisions – both issued post-Watson—conflicted with a pre-Watson decision from the Eleventh Circuit in Magnin v. Teledyne Continental Motors, 91 F.3d 1424 (11th Cir. 1996). However, setting aside the merits of the Eleventh Circuit’s decision, Mangin was decided over ten years before Watson, the Supreme Court’s seminal decision on federal-officer removal.
Airbus also invited the Justices to call for the views of the Solicitor General (or, issue a “CVSG”) before deciding whether to grant its certiorari petition. AHI pointed to the Solicitor General’s brief in Watson, where it argued that “a private citizen delegated authority to inspect aircraft by the [FAA] acts under a federal officer in conducting such an inspection and issuing a certificate of airworthiness.” See Riggs, 939 F.3d at 993 (O’Scannlain, J., dissenting). Of course, the Supreme Court in Watson did not adopt the Solicitor General’s position, and the views of the Solicitor General are owed no deference before the Court.
On June 29, 2020, the Court denied Airbus’s writ of certiorari, and it did not issue a CVSG (a call for the view of the Solicitor General). The Supreme Court’s denial of certiorari is not an outright stamp of approval on the Ninth Circuit’s decision in Riggs; petitions for certiorari are rarely granted, and the Court can deny a petition for a number of reasons. See generally “A Reporter’s Guide to Applications Pending Before the Supreme Court of the United States,” available at www.supremecourt.gov/publicinfo/reportersguide.pdf.
Caveats aside, after the denial of certiorari in Riggs, barring a meaningful change to the judicial landscape – e.g., a conflicting circuit court decision or a modification to the statutory regime – an aircraft manufacturer will not, and should not, be able to successfully remove a state-court action under the “federal officer” prong of § 1442(a).
3. The Sikkelee Decisions and the related state court case of Repsher v. Airbus – Aviation Product Manufacture and Design Are Governed By State Tort Law
The two leading appellate decisions on the question of federal preemption in aviation product liability claims arise out of Sikkelee v AVCO Corporation. Twice, the Third Circuit Court of Appeals has determined that federal preemption does not apply and does not give immunity to aircraft manufacturers, and in both of these cases the United States Supreme Court has denied the defendant’s writ of certiorari.
First, in Sikkelee v. Precision Airmotive Corp., 822 F.3d 680 (2016), cert. denied 137 S. Ct. 495 (2016), the Third Circuit held that Congress has not preempted the field of state-law design and manufacturing-defect claims concerning aircraft products. Id. at 683. The court rejected the Appellees’ contention that the Supreme Court’s preemption jurisprudence compelled a finding that federal law occupies the entire field of aircraft design and manufacture and that the issuance of a type certificate conclusively demonstrates compliance with the corresponding federal standard of care. The court explained that just as the Federal Aviation Act directs the FAA to “prescrib[e] minimum standards required in the interest of safety for appliances and for the design, material, construction, quality of work, and performance of aircraft, aircraft engines, and propellers,” 49 U.S.C. § 44701(a)(1), the National Traffic and Motor Safety Act of 1966 (“NTMSA”) empowers the National Highway Traffic Safety Administration to “prescribe motor vehicle safety standards for motor vehicles and motor vehicle equipment,” 49 U.S.C. § 30101(1), and the Federal Boat Safety Act of 1971 (“FBSA”) authorizes the Secretary of Transportation to issue regulations “establishing minimum safety standards for recreational vessels and associated equipment,” 46 U.S.C. §4302(a)(1). Moreover, like the Federal Aviation Act, the NTMSA and FBSA both contain savings clauses. 49 U.S.C.§ 30103(e); 46 U.S.C. § 4311(g).
The court concluded that, consistent with the FAA’s view, type certification does not itself establish or satisfy the relevant standard of care for tort actions, nor does it evince congressional intent to preempt the field of products liability. Rather, because the type certification process results in the FAA’s preapproval of particular specifications from which a manufacturer may not normally deviate without violating federal law, the type certificate bears on ordinary conflict preemption principles. See Wyeth, 555 U.S. at 576 – 577. The court concluded that this is an area at the heart of state police powers, and that there was no indication of congressional intent to preempt the entire field of aviation design and manufacture, which continues to be governed by state tort law.
More recently, in Sikkelee v. Precision Airmotive Corporation, 907 F. 3d 701 (2018), cert. denied,140 S. Ct. 860 (2020), the Third Circuit determined that conflict preemption did not bar Sikkelee’s claims. The Third Circuit considered the two types of conflict preemption: (1) impossibility preemption, where compliance with both federal and state duties is impossible; and (2) obstacle preemption, where compliance with both laws is possible, but state law poses an obstacle to the full achievement of federal purpose. The court concluded that allowing state-law claims to proceed in this context complements, rather than conflicts with, the federal scheme. Thus, “in the manufacturing context, the statutory language indicating that these are ‘minimum standards,’ means what it says.” Id. (internal citation omitted) (quoting 49 U.S.C. § 44701). In this manner, state- law claims such as Sikkelee’s supplement the federal scheme and further its central purpose – safe aircrafts. The court further noted that “immuniz[ing] aircraft and aviation component part manufacturers from liability for their defective product designs” is “inconsistent with the [Federal Aviation] Act and its goal of fostering aviation safety.” Amicus Am. Ass’n for Justice Br. at 4-5. A manufacturer would have little incentive to correct problems with its plane or parts if it could rely on a type certificate to avoid liability. This would undermine both the goal of the federal regulatory regime and the interests of states in ensuring the safety of their residents. For these reasons, the Third Circuit concluded that District Court had erred in holding that Sikkelee’s claims were conflict-preempted.
The effect of the Sikkelee cases has been felt in important state court cases as well. In a case the author was involved in pending in the District Court of Summit County, Colorado, the Court correctly reversed itself and held in August of 2016 (after the first Sikkelee) that the Plaintiff’s product liability claims were not preempted by federal aviation regulations. Citing Sikkelee and GARA, the Court held as follows:
The Court finds that FARs related to helicopter manufacturing and operations – and specifically the issuance of type certificates – are not intended to set the standard of care for state aviation safety products liability claims. For these reasons, the Court concludes that Plaintiffs properly pled their state products liability claims under Colorado law in their Original Complaint, and need not allege violation of a federal standard of care. Thus the case will proceed…using a state standard of care.
Repsher v. Air Methods Corp., Airbus Helicopters, S.A.S., and Airbus Helicopters Inc., No. 2015-cv-30146 (Colo. Dist. Ct. Aug 2, 2016). Subsequent to this Order, this case ultimately resulted in a $100 million cash settlement.
4. Looking to the Future – the effect of Boeing 737 Max crashes on the FAA aircraft certification process and aviation safety, and the latest cases on aviation preemption
In direct response to the fatal crashes involving the Boeing 737 Max aircraft, multiple reviews and investigations concluded that legislative reform was needed to strengthen the FAA’s aircraft certification process. In December of 2020, passage of the Consolidated Appropriations Act of 2021 included the Aircraft Certification, Safety, and Accountability Act (ACSAA). Primary goals of this legislation are to restore the integrity of the FAA aircraft certification process and improve aviation safety culture. Among other things, it authorizes more than $75 million over three years for the FAA to recruit and retain engineers, safety inspectors, human factors specialists, software and cybersecurity experts, and other qualified technical experts.
The new provisions of this Act also provide that the FAA must convene an expert panel to review and make findings with respect to each current holder of an ODA for design and production of transport category aircraft, including an assessment of the effectiveness of the ODA holder’s SMS, its commitment to safety, and its ability to reasonable and appropriate decisions. The panel will include a broad range of government and industry stakeholders, including representatives from NASA, the FAA, relevant labor unions, air carrier and ODA employees, and independent legal and technical experts. The panel will submit a final report to Congress and to the FAA Administrator, and, upon reviewing the findings, the FAA may limit, suspend, or terminate a specific ODA that was under review. Furthermore, the ACSAA provides that the FAA may not delegate any finding of compliance with applicable airworthiness standards or the review of any safety assessment required for the issuance of a certificate (including a Type Certificate) until the FAA has reviewed and validated the underlying assumptions related to human factors. The FAA must approve appointments of ODA unit members made on or after January 2, 2022.
The provisions of this Act shine a strong spotlight in favor of safety and accountability relating to the design and manufacture of aircraft and aviation component parts. This development reinforces the resounding retreat from federal preemption in the aviation field. The necessity of reliance on state-based product liability law to enable the states to protect their citizens is seen as all the more necessary and compelling when federal regulatory requirements have been demonstrated to serve only as the floor of minimal conduct, and ultimately an inadequate and unsafe floor at that.
An outlier District Court opinion in Connecticut last year misapplied Second Circuit law concerning airport and airline operations in favor of complete preemption. Jones v. Goodrich Corp., Civil No. 3:12cv1297 (JBA) (D. Conn. Aug. 7, 2020). It is widely expected that the currently pending appeal in the Second Circuit will cure this error.
The most recent known case on preemption in aviation cases has continued the trend rejecting federal preemption in favor of states imposing tort liability. In Davis v. Tamarack Aerospace Group, Inc., 2021 WL 139981 (E.D. Wash. Jan. 14, 2021), the District Court rejected the defendant’s argument that plaintiff’s design defect claims should be federally preempted. The court concluded that “the Federal Aviation Act establishes only ‘minimum standards’ for the design, material, construction, quality of work, and performance of aircraft, aircraft engines, and propellers.” Id. at p.6.
Taken together, these recent trends and developments point to a future in which federal preemption in the aviation field is, for good reason, disfavored and rejected in favor of deference to state court tort liability. This resounding retreat from federal preemption in the aviation field will best enable states to protect their citizens against negligent and defective aircraft design and manufacture. The Supreme Court and Congress have long supported this dual recognition of minimal federal standards not superseding the states’ police powers, with a commitment “to stand by both” – state tort litigation and federal regulation – “and to tolerate whatever tension there [is] between them.” Wyeth, 555 U.S. at 575 (quoting Bonito Boats Inc. v. Thunder Craft Boats, Inc., 489 U.S.141,166-167(1989). The advancement of aviation safety requires nothing less.
*Anita Porte Robb is a Partner with the Plaintiffs’ Aviation Law Firm of Robb & Robb LLC in Kansas City, Missouri. In 2018, she prevailed against a preemption defense in Colorado state court to ultimately obtain a $100 Million cash settlement in Repsher v. Airbus Helicopters, et al. In 2019, in the case of Riggs v, Airbus Helicopters et al., she obtained a ruling from the Ninth Circuit denying the aircraft manufacturer’s case for federal officer removal, which was followed in 2020 by the U.S. Supreme Court’s unanimous denial of Airbus’s petition for writ of certiorari. Ms. Robb is currently representing Vanessa Bryant in the helicopter crash that killed her husband Kobe Bryant and her daughter Gianna.