The Future of Federal Preemption in Aviation
March 20, 2016
By: Vincent C. Lesch
- Whether federal regulation of aviation safety preempts state common law claims in aviation accident cases is a hotly contested issue, yet the Supreme Court has not taken up the issue in regard to aviation torts.
- The Supreme Court has, however, ruled on cases involving other industries with varied conclusions but has often showed a reluctance to make broad field preemption decisions for the sake of simplicity.
- A few Circuit Court cases have addressed preemption in regard to air safety and products liability.
- Given the obvious interrelationship of all the different aspects of aviation transport and technology, a good deal of additional litigation is likely to follow.
As most practitioners in the tort field know, preemption defenses can be a key issue in determining the ultimate outcome of a claim. This is particularly true with respect to aviation claims.
Whether federal regulation of aviation safety preempts state common law claims in aviation accident cases has become a hotly contested issue in both the federal district courts and courts of appeal. Although most circuit courts have recognized and accepted the applicability of this defense in the context of operational and piloting issues, the U.S. Supreme Court has yet to rule.
The Third Circuit, which was the first circuit to recognize the preemption defense in the operational and piloting context, is once again taking the lead and considering whether the defense applies to products liability design claims.1 Given the importance of these matters to any aviation practitioner and the possibility that this preemption issue could soon be ripe for Supreme Court review, it is important to understand the fundamental concepts of federal preemption, how the Supreme Court has applied these concepts in other fields, and how this concept may be applied to emerging technologies such as unmanned aircraft systems.
An Overview of Federal Preemption
Any summary of the concept of federal preemption starts with the supremacy clause of the United States Constitution: “[T]he Laws of the United States … shall be the supreme Law of the Land … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”2 The supremacy clause empowers Congress to invalidate, i.e., preempt, any state law, regulation or action through federal legislation.3 Thus, the touchstone for any preemption analysis must always be congressional intent.4
Congressional intent to preempt state law can be expressed either explicitly in the language of the statute, or implicitly.5 Importantly, these two categories are not mutually exclusive and Congress’s inclusion of express preemption language as to certain portions of state law does not mean implicit preemption arguments cannot also be made.6 Implicit preemption frequently arises when there is conflict preemption and can even result in preemption of an entire “field.”
Conflict preemption comes in two different subforms. The first is when “compliance with both state and federal law is impossible.”7 The second form of conflict preemption occurs when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”8 For the sake of simplicity, these two types of conflict preemption can be referred to as impossibility conflict preemption and obstacle conflict preemption, respectively.
Most relevant to the discussion here, field preemption occurs when Congress intended to foreclose any state regulation in an entire area or field, regardless of whether state law in that area was consistent or inconsistent with federal law.9 This intent can be inferred from a federal regulatory framework “so pervasive . . . that Congress left no room for the States to supplement it” or where there is a “federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”10 As noted earlier, it has long been recognized that the touchstone of any field preemption analysis is the intent of Congress. In preemption cases, and particularly those involving fields that the states have traditionally occupied, the Supreme Court will assume that Congress did not intend to supersede the states’ historic police powers, unless that was the clear and manifest intent of Congress.11
Summary of Supreme Court Preemption Case Law
The Supreme Court has not yet taken up the issue of preemption in regard to aviation torts, and only rarely addressed the idea of field preemption in the aviation context.12 The Court, however, has otherwise been very busy with preemption in other fields and contexts. These rulings are important to understand and will inform how the Supreme Court might rule if and/ or when it further considers the preemption defense in aviation cases.
The auto industry and obstacle conflict preemption.
The automotive industry and federal regulation of its safety posed a preemption question meriting the Supreme Court’s review in Geier v. American Honda Motor Co.13 The question presented to the Court was whether the plaintiff’s state common law tort action, premised on Honda’s failure to include airbags, was preempted by the National Traffic and Motor Vehicle Safety Act of 1966 and the Department of Transportation’s (DOT’s) implementing regulations requiring airbags in some, but not all, vehicles.14
After rejecting both express preemption and savings clause arguments,15 the Court determined that state “no airbag” suits were conflict preempted because they were an obstacle to Congress’s and the DOT’s objectives.16 In so holding, the Court clarified that, despite previous dicta that seemed to indicate to the contrary, the presence of an express preemption clause, even in tandem with a savings clause, does not bar the ordinary workings of implied preemption.17 The relevant regulatory history showed that the DOT had carefully considered which kinds of passive restraints should be installed in vehicles and ultimately decided to require any of a variety of restraints to achieve an optimal level of safety. The Court held that this decision by the DOT preempted any state court judgment requiring specifically airbags, because any such state requirement would be contrary to the DOT’s, and thus Congress’s, objective of achieving a mix of restraints for optimal safety.
In so holding, the Court was also careful to note that the DOT’s submission that obstacle preemption should be found was entitled to “some weight.”18 A formal agency statement of preemptive intent, however, was not a prerequisite to finding a conflict, as it might be for a finding of field preemption.19
Ship design field preempted.
The maritime shipping industry is another heavily federally regulated and preempted field that the Supreme Court addressed in United States v. Locke.20 After the Exxon Valdez oil spill in Alaska, the state of Washington enacted numerous laws and regulations governing oil tankers, despite the Supreme Court’s previous holdings that oil tanker design and construction was impliedly field preempted by federal law.21 The relevant federal statute, the Ports and Waterways Safety Act of 1972 (PWSA), had been amended by the Oil Pollution Act of 1990 since the Court’s previous ruling, but a unanimous Court held that the PWSA still preempted the entire field of tanker vessel “design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning.”22 The presumption against preemption was “not triggered when the State regulates in an area where there has been a history of significant federal presence,” and Congress has legislated in the field of international shipping “from the earliest days of the Republic, creating an extensive federal statutory and regulatory scheme.”23 While a savings clause in the PWSA allowed certain regulations to be subject only to conflict preemption principles, much of Washington’s regulatory scheme was field preempted by the Court’s broad finding.24
Recreational boating safety not field preempted.
One of the leading implied field preemption holdings of recent times is the Court’s searching analysis of the recreational boating safety field in Sprietsma v. Mercury Marine.25 After ruling out both express and implied conflict preemption of the plaintiff’s state products liability complaint, the Court addressed the question of whether the entire field of recreational boating safety was preempted by the Federal Boat Safety Act of 1971 (FBSA) and subsequent Coast Guard regulatory action.26 Unlike previous situations where the Court found field preemption, like in Locke, the FBSA did not command the Coast Guard to issue regulations on any aspect of boating safety, but merely left the issuance of regulations up to the Coast Guard’s discretion. This discretion indicated to the Court that Congress did not have the necessary “clear and manifest” intent to preempt the entire field of judge-made common law as it relates to boating safety.27 In so holding, the Court also noted that finding state judge-made common-law claims preempted required a more searching analysis than did the preemption of state positive laws and regulations.28 Overall, the Sprietsma decision seemed to reinforce the Court’s reluctance to find field preemption.
Medical devices and conflict preemption of state common-law tort duties.
The medical field has generated numerous Supreme Court preemption decisions, but the express preemption question in Riegel v. Medtronic, Inc. is of particular interest.29 In Riegel, the question was whether the plaintiff’s numerous state common law claims challenging the safety and effectiveness of a device were expressly preempted by the Medical Device Amendments of 1976 (MDA) and the Food and Drug Administration’s (FDA’s) premarket approval of that device.30 The Court found these state law tort claims expressly preempted, and refused to allow state juries to substitute their judgment for the FDA’s rigorous and device-specific premarket approval. Instead, the Court held that state law claims for damages could only be premised on a violation of FDA regulations, i.e., “parallel claims.”31
This broad immunization of premarket approved medical devices against state common law tort claims holds important parallels for many field preemption cases, despite the fact that its holding stemmed from a finding of express preemption. The defendants in Sikkelee v. Precision Airmotive Corp., for example, seek a similar outcome in their arguments to the Third Circuit — namely, to have federal regulations replace state common law tort duties in the analysis of a products liability claim.32
The pharmaceutical industry, labeling claims, and an agency’s preemption opinion.
The Supreme Court returned to the issue of preemption in the medical field when it took up Wyeth v. Levine in 2009.33 While the litigants abandoned their field preemption arguments before the Supreme Court, the rulings this case generated on implied preemption and statutory interpretation are valuable to any preemption analysis. At issue in Wyeth was whether the FDA’s drug labeling judgments and regulations preempted state law products liability and failure to warn claims.34 Wyeth argued both conflict preemption theories: either complying with both federal and state requirements on labeling was impossible or the state requirements were an obstacle to the federal requirements’ purpose.35 The Court ultimately rejected both arguments and found that the plaintiff’s claims remained viable.36
In regard to the implied conflict obstacle arguments, the Court carefully examined the purpose of Congress in enacting the Federal Food, Drug, and Cosmetic Act (FDCA) and disregarded the FDA’s position on the preemption of the claims in question. In particular, the Court found that Congress’s failure to add an express preemption clause despite its awareness of state law failure to warn claims meant that Congress did not see such claims as an obstacle.37 Despite its previous holdings that an agency’s views were entitled to “some weight,” the Court also disregarded the FDA’s 2006 opinion that claims like the plaintiff’s were preempted.38 The FDA had changed its longstanding position that state law claims complemented its efforts, and the Court’s own analysis of the FDA’s statutory mandate led the Court to disregard the FDA’s new pro-preemption position.39 The Court went on to clarify that, absent special authority to preempt delegated by Congress, an agency’s explanation of state law’s impact on the federal scheme is only entitled to weight in accordance with “its thoroughness, consistency, and persuasiveness.”40
Railroad products liability and field preemption.
The Supreme Court also recently revisited a previously preempted field in Kurns v. Railroad Friction Products Corp. and demonstrated the power that a broad statement of field preemption can have even 85 years later.41 The plaintiff in Kurns brought state law defective design and failure to warn claims against manufacturers of locomotive parts that included asbestos. The Court, in a majority opinion authored by Justice Thomas, found that these claims fell within the preempted field that was previously defined as “the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.”42 Justice Thomas’s opinion rejected the plaintiffs’ efforts to distinguish their claims from the preempted field and declined to find that statutory amendments since the original 1915 statute changed the analysis. The broad preemptive scope of locomotive field preemption covered all state regulations, common law duties, and standards of care related to locomotive equipment, regardless of their purpose or aim.43 Kurns is instructive of how influential a broadly worded field preemption finding can be in cutting off all types of claims.
State laws and immigration field preemption.
Federal preemption of state statutes in the immigration field was addressed by the Court using field preemption principles in Arizona v. United States.44 The Court declared three of four challenged immigration enforcement statutes preempted: two based on implied conflict preemption and one on implied field preemption. The finding of field preemption was based on previous Supreme Court precedent from the 1940s finding the entire field of “alien registration” preempted by federal statutory directives designed to act as a “harmonious whole.”45 Even complementary or parallel state regulations were held foreclosed by Congress’s preemption of the entire immigration field.46
Interestingly, the more pointed comments on field preemption arose in a dissent by Justice Scalia addressing field preemption’s interplay with conflict preemption. According to Justice Scalia, the majority’s conflict preemption analysis heavily borrowed from field preemption rationales, and in reality was a field preemption finding in disguise.47 Therefore, while the majority holdings for field preemption in Arizona v. United States appear as fairly straightforward extensions of stare decisis, examination of the dissents demonstrates a tension about when field or conflict preemption are best utilized and what rationales should be held exclusively applicable to each.
The boundaries of field preemption and natural gas pricing.
Lastly, the Court recently addressed how broadly previous findings of field preemption could stretch in relation to the natural gas industry. In Oneok, Inc. v. Learjet, Inc., a group of large retail purchasers of natural gas sued their interstate pipeline suppliers, alleging a violation of state antitrust laws.48 The defendant pipelines argued that such claims were preempted by the Court’s previous finding that “Congress occupied the field of matters relating to wholesale sales and transportation of natural gas in interstate commerce.”49
After a detailed recitation of federal legislation and Supreme Court involvement with natural gas regulation, Justice Breyer, writing for the majority, refused to read the Court’s previous holding broadly enough to include the plaintiffs’ antitrust claims in the preempted field.50 Instead, the only state laws or state law claims preempted would be those “aimed directly at” interstate purchasers and the prices of wholesales for resale.51 Laws of general application, like antitrust statutes or blue sky laws, survived field preemption because they protect state citizens from the unscrupulous collusion or securities practices of any business, not just those of pipelines that happen to also do business in the preempted interstate/wholesale field.52 The Court stressed that limiting its precedent in this way preserved state law when possible, and prevented states from losing the ability to legislate in any area that in any way affected interstate natural gas producers, purchasers, or the price of natural gas.53 The Court also carefully rejected arguments relying on two past natural gas preemption cases that were centered on implied conflict, not field, preemption as inapplicable to the case at hand.54 In general, the opinion comes across as attempting to limit the scope of implied field preemption and to avoid making broad field preemption just for the sake of simplicity.55
Preemption of Aviation
Congressional intent to preempt state laws governing aviation can be traced to the very first aviation legislation that it enacted less than a generation after the Wright brothers’ first flight. The congressional hearings that led to the passage of the 1926 Air Commerce Act clearly demonstrate an intent for aviation safety to be exclusively and uniformly regulated at the federal level.
One of the witnesses who testified at these early hearings was William MacCracken Jr., the chairman of the American Bar Association Committee on the Law of Aeronautics. It was noted that his committee had assisted Congress in drafting the bill and “solving the legal problems that have been presented.”56 In explaining the legal framework of the proposed legislation, MacCracken stated: “There were two things that were of controlling importance. One was that there should be exclusive regulatory power in the Commissioner to the end that there might be uniformity throughout the States.”57
MacCracken also emphasized the absolute necessity of exclusive federal regulation when he was questioned by members of the congressional committee reviewing the issue:
Mr. Burtness: Mr. MacCracken, the men responsible for the drafting of this bill, then, do feel that there would be objections to concurrent jurisdiction on the part of the State Government?
Mr. MacCracken: Absolutely. There is no question about that.58
In 1944, the Supreme Court considered the preemption of a state’s personal property tax law as applied to commercial aircraft.59 Justice Jackson authored a concurring opinion in that case which has been frequently cited to describe the federal role regarding aviation regulation:
Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxies onto a runway it is caught up in an elaborate and detailed system of controls.60
In 1948, the Supreme Court majority echoed Justice Jackson’s statements in Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp.:
Congress has set up a comprehensive scheme for regulation of common carriers by air.… We find no indication that the Congress either entertained or fostered the narrow concept that air-borne commerce is a mere outgrowth or overgrowth of surface-bound transport. …[A]ir commerce, whether at home or abroad, soared into a different realm than any that had gone before. Ancient doctrines of private ownership of the air as appurtenant to land titles had to be revised to make aviation practically serviceable to our society. A way of travel which quickly escapes the bounds of local regulative competence called for a more penetrating, uniform and exclusive regulation by the nation than had been thought appropriate for the more easily controlled commerce of the past.61
As aviation rapidly continued to develop, Congress determined that its prior aviation legislation needed to be amended so as to centralize control over aviation in the Federal Aviation Administration (FAA). In so doing, it continued to express its intent and understanding that federal law should exclusively govern. As was the case with respect to earlier federal aviation legislation, the legislative history of the 1958 Federal Aviation Act62 clearly evidences congressional intent to exclusively regulate matters of aviation safety at the federal level.
According to its legislative history, the purpose of the 1958 Act was to create one uniform system of air space management so as to “eliminate divided [federal] responsibility and conflicts of interest” and “avoid duplication of effort and a division of [federal] authority that could result in further confusion.”63 In a report accompanying the 1958 Act, Stuart Tipton, president of the Air Transport Association, explained, “aviation is unique among transportation industries in 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 the States or local authorities.”64
The foregoing Senate report further sets forth that transferring all safety and rulemaking to a single federal agency (i.e., the FAA) was necessary because “aviation safety is essentially indivisible” and “experience indicates that the preparation, issuance, and revision of regulations governing matters of safety can best be carried on by the agency charged with the day to day control of traffic, the inspection of aircraft and service facilities, and certification of pilots and related duties.”65 Congress concluded that the only means to effectuate such a uniform and exclusive system of regulation was to vest “full safety rule making authority” in one federal agency headed by an administrator with “plenary” (complete) authority to make and enforce safety regulations governing, among other things, the design and operation of civil aircraft.66
The Supreme Court considered the scope of preemption intended by the 1958 Act in City of Burbank v. Lockheed Air Terminal, Inc.67 The specific issue before the Supreme Court was whether the 1958 Act, as amended by the Noise Control Act of 1972, implicitly preempted a local ordinance that sought to control aircraft noise by regulating the time periods in which jet aircraft could take off from the Hollywood-Burbank Airport. The Supreme Court concluded that the local ordinance was preempted by federal law.68
Justice Douglas, writing for the majority, reasoned that although the control of noise is within the police power of the states, the “pervasive control” of aviation safety and flight operations at the federal level left “no room for local curfews or other local controls.”69 In other words, the holding in Burbank is that state or local law that purports to regulate aircraft noise is preempted because it falls within the scope of an area of law that is exclusively regulated at the federal level, i.e., aviation safety and flight operations.
The Supreme Court explained in Burbank that the 1958 Act “requires a delicate balance between safety and efficiency” and that the “interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the [1958 Act] are to be fulfilled.”70 Although the four-justice dissent believed that this local ordinance fell outside the scope of federal preemption, they nonetheless agreed with the majority that the scope of the 1958 Act’s implied preemption of state law extended to “all aspects of air safety.”71
Aviation preemption and tort claims.
The application of aforesaid preemption principles to aviation tort claims has not yet been the subject of a Supreme Court ruling. However, the issue has been addressed by numerous federal courts of appeal. In this regard, the two most significant decisions to date are generally considered to be the Tenth Circuit’s 1993 decision in Cleveland v. Piper Aircraft Corp.72 and the Third Circuit’s 1999 decision in Abdullah v. American Airlines, Inc.73
In Cleveland, the Tenth Circuit addressed a tort claim involving an alleged design defect in a Piper Super Cub whose design had been certified by the FAA. The defendant argued that the FAA’s certification precluded a jury from using state common law to hold the product defective. The Tenth Circuit rejected that implied preemption argument because it found that the “plain language” of the 1958 Act “suggests” that Congress did not intend the Act to have a “general preemptive” intent.74 While the court recognized that Congress did intend for some uniformity in the aviation field, it concluded that this objective did not extend to common law tort suits because the 1958 Act contained a “remedies” savings clause, a reference to federal standards being “minimums,” and an express preemption provision that did not pertain to safety standards.
Abdullah was decided six years after Cleveland but did not involve a product defect claim. Instead, it addressed the preemption issue in the context of a claim involving negligent piloting. Specifically, the Third Circuit considered an interlocutory appeal presenting the following certified question: “Does federal law preempt the standards for air safety, but preserve State and Territorial damage remedies?”75
The Third Circuit answered both questions in the affirmative and held that a state or territory cannot use common law liability standards to impose liability on an airline.76 Instead, in order to establish liability, a plaintiff must establish a violation of a federal safety standard. If, however, a violation of the federal scheme can be established, the Airline Deregulation Act of 1978 (ADA) does not preempt a plaintiff’s “right” to recover using a state or territorial damage remedy.77
The Third Circuit’s decision in Abdullah explained that courts (like the Tenth Circuit in Cleveland) that have focused on Congress’s use of the enigmatic phrase “minimum standards” in the 1958 Act are wrong to do so because that ambiguous term does not establish that Congress actually intended to empower the states to promulgate their own individual “higher” standards. The Third Circuit cited to many of the same legislative history sections and Supreme Court decisions cited herein and stated that there is nothing in the 1958 Act, 1978 ADA, or their respective legislative histories that either mentions or implies that the individual states were to be given any power whatsoever to regulate aviation safety.78
The Third Circuit also explained in Abdullah that the 1978 ADA was intended only to eliminate federal economic regulation of the airlines. The legislative history of the 1978 ADA contains no basis to conclude that Congress intended to change the preexisting scheme of safety regulation of flight operations, which had long been recognized by both Congress and the Supreme Court to vest exclusive control of aviation safety in the federal government.
More than 10 years after Abdullah was decided, the Tenth Circuit recognized that its prior preemption analysis in Cleveland was erroneous.79 It cited to Abdullah when it revisited its decision in Cleveland and held that its finding of no preemption was incorrect. In so holding, the Tenth Circuit also cited to the Supreme Court’s decision in Burbank and stated:
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. The FAA was enacted to create a “uniform and exclusive system of federal regulation” in the field of air safety.80
Not surprisingly, there is still vigorous debate over precisely where the boundary lines for federal preemption should be drawn. In this regard, there is now pending another interlocutory appeal in the Third Circuit that addresses how its prior holding in Abdullah should be applied to a design defect claim similar to what the Tenth Circuit addressed in Cleveland. That appeal, Sikkelee v. Precision Airmotive Corp., is from a decision issued by a federal district court in the Third Circuit which seems to have reluctantly concluded that the Third Circuit’s prior holding in Abdullah required dismissal of a design defect claim when the design is certified by the FAA.81 Whether this decision finally triggers Supreme Court review remains to be seen, but it is carefully monitored by all those whose practice involves aviation torts.
Pending issue: the Sikkelee question.
In the Sikkelee appeal, the parties framed their arguments to address the question of Abdullah’s preemptive scope and whether aviation design defect cases are preempted. The plaintiff-appellant wishes to distinguish general aviation, specifically general aviation design defect cases, from Abdullah’s preemption holding in the commercial aviation safety field. In addition, the plaintiff submits that the FAA’s design approval in the form of a type certificate should not immunize a manufacturer from future design defect liability. The defendant-appellee, on the other hand, contends Abdullah’s reasoning mandates that federal design standards preempt state standards of care in design defect cases, and that a type certificate from the FAA is conclusive proof that a manufacturer complied with those standards. The Third Circuit heard extensive and lively oral argument on these issues in June 201582 and then requested that the FAA submit a statement to the court setting forth its opinion.
The FAA advised the Third Circuit that it believes the Federal Aviation Act of 1958 “impliedly preempts the field of aviation safety with respect to substantive standards of safety.”83 It explained that the Act “requires the Department of Transportation, through the FAA Administrator, to impose uniform national standards for every facet of aviation safety, including the design of aircraft and aircraft parts.”84 The FAA then stated:
[F]or every new aircraft, aircraft engine, or propeller, the FAA makes a determination that it meets federal standards at the time of the product’s design by issuing a type certificate. Thus, while the Act, by virtue of the clause saving common law remedies, does not preempt state tort suits, it is federal standards that govern state tort suits based on design defects in aviation manufacturing.85
The FAA then opined that its determination that an aircraft, aircraft engine, or propeller design complies with federal standards plays an important role in determining whether the manufacturer in fact breached a duty owed to the plaintiff but does not create a per se bar to suit. It summarized its view as follows:
Where the FAA has expressly approved the specific design aspect that a plaintiff challenges, any claim that the design should have been different would conflict with the FAA’s application of the federal standard and therefore be preempted. On the other hand, where the FAA has left a particular design choice to a manufacturer’s discretion, and no other conflict exists, the type certificate does not preempt a design defect claim applying federal standards.86
The FAA also expressed the view that its position on preemption was entitled to significant weight from the court because it was consistent with the agency’s position 20 years prior in Cleveland and because the agency possesses specialized expertise in the area of aviation safety.87
The FAA’s view was challenged by the plaintiff-appellant in Sikkelee and largely agreed with by the defendant-appellee. The plaintiff distinguished this case from the preempted field of commercial aviation in cases like Abdullah, and argued that this general aviation products liability case was more like the situation in Wyeth. She also argued that the government’s position that type certificates led to conflict preemption was without precedent in either the courts or previous FAA opinions. The defendant reiterated that the FAA’s consistent position on preemption is correct and in line with the holding in Abdullah and the position that the FAA espoused in Cleveland.
How the Third Circuit will rule remains to be seen, but it is expected that irrespective of the result, this issue will continue to be litigated in other circuits and that litigation most likely will be influenced by the arguments and result reached in Sikkelee.
As the preemption issue is developed further in the aviation transport field, it will be interesting to see how these decisions influence or determine how preemption will be applied to emerging technologies like unmanned aircraft systems (UAS), otherwise known as “drones.” Various state government entities have begun to enact ordinances regulating the use of UAS, and this has prompted the FAA to issue a “UAS Fact Sheet” intended to serve as a guide for state and local governments seeking to regulate this new technology.88
The FAA fact sheet summarizes well-established legal principles as to the federal responsibility for regulating the operation or flight of aircraft, which includes, as a matter of law, UAS. The FAA also states that it is responsible for “ensur[ing] safety of flight, and safety of people and property on the ground” as a result of the operation of aircraft, and that “[s]ubstantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft” including UAS in the national airspace.89 The fact sheet provides examples of state and local laws affecting UAS for which consultation with the FAA is recommended and those that are likely to fall within state and local government authority.
The fact sheet notes that the FAA requires federal registration of UAS in order to operate a UAS and that the federal registration requirement is “exclusive” — i.e., “no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval.”90 The FAA surmises that a “‘patchwork quilt’ of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow.”91 As support for its argument, the FAA cites to field preemption case law:
A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system. See Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), and French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989); see also Arizona v. U.S., 567 U.S. ___, 132 S. Ct. 2492, 2502 (2012) (“Where Congress occupies an entire field…even complimentary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.”), and Morales v. Trans World Airlines, Inc., 504 U.S. 374, 386–87 (1992).92
However, the FAA has not yet expressed any final opinion as to what the specific limits of the preempted field actually are. The boundaries of where federal law preempts state regulation regarding UAS are yet to be clearly defined, and further litigation will obviously need to address these issues.
As the case law develops in all these interrelated areas, it can be expected that the courts will define the boundaries of preemption in a way that considers and/or addresses all the issues set forth herein.
Given the obvious interrelationship of all these different aspects of aviation transport and technology, the practitioner would be well served to monitor development in all these areas of the law and expect that a good deal of additional litigation is likely to follow.
Vincent C. LeschVincent Lesch works on a variety of state and federal personal injury, wrongful death, and complex products liability matters with a focus on seeking justice for those injured or killed in major aviation accidents. Vince has played an active role in numerous commercial airline, military, and general aviation cases, including the disappearance of Malaysia Airlines Flight 370, the fatal 2018 Helicopter Crash in New York’s East River, and Southwest Airlines Flight 1380. He is currently working on the Boeing 737 MAX 8 Ethiopian Airlines Flight 302 litigation.
1. Sikkelee v. Precision Airmotive Corp., No. 14-4193 (3d Cir. argued June 24, 2015).
2. U.S. Const. art. VI, cl. 2.
3. See Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015).
4. Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (citing Malone v. White Motor Corp., 435 U.S. 497, 504 (1978)).
5. Oneok, 135 S. Ct. at 1595 (citing Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002)).
6. See Sprietsma, 537 U.S. at 65 (citing Geier v. Am. Honda Motor Co., 529 U.S. 861, 869 (2000)).
7. California v. ARC Am. Corp., 490 U.S. 93, 100 (1989).
8. Id. at 101 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
9. Oneok, 135 S. Ct. at 1595 (citing Arizona v. United States, 132 S. Ct. 2492, 2502 (2012)).
10. Arizona, 132 S. Ct. at 2501 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
11. See Wyeth v. Levine, 555 U.S. 555, 565 (2009) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).
12. See Wardair Can., Inc. v. Fla. Dep’t of Revenue, 477 U.S. 1 (1986); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973); see also infra text accompanying notes 67–73.
13. 529 U.S. 861 (2000).
14. Id. at 864–65.
15. Id. at 867–74.
16. Id. at 876, 886.
17. Id. at 869–74.
18. Id. at 884.
19. Id. at 884–85.
20. 529 U.S. 89 (2000).
21. Id. at 94 (citing Ray v. Atl. Richfield Co., 435 U.S. 151 (1978)).
22. Id. at 111.
23. Id. at 108.
24. Id. at 111–12.
25. 537 U.S. 51 (2002).
26. Id. at 68.
27. Id. at 69.
28. See id. at 69–70 (citing Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 517 (1992); English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990)).
29. 552 U.S. 312 (2008).
30. Id. at 315.
31. Id. at 330.
32. Brief of Appellee at 45–46, 48, Sikkelee v. Precision Airmotive Corp., No. 14-4193 (3d Cir. argued June 24, 2015).
33. 555 U.S. 555 (2009).
34. Id. at 563.
35. Id. at 564.
36. Id. at 581.
37. Id. at 574–75.
38. Id. at 575–76 (citing Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. 3922, 3934–35 (Jan. 24, 2006)).
39. Id. at 579–81.
40. Id. at 577.
41. 132 S. Ct. 1261 (2012).
42. Id. at 1266 (quoting Napier v. Atl. Coast Line R., 272 U.S. 605, 611 (1926)).
43. Id. at 1269–70 (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959)) (noting that states can effect regulation and govern conduct by the award of damages). The Court also justified its broad reading of its own precedent by referencing express preemption cases, where states’ “requirements” are often interpreted to include their common-law duties. Id. (citing Riegel v. Medtronic, Inc., 552 U.S. 312, 324 (2008)).
44. 132 S. Ct. 2492 (2012).
45. Id. at 2502 (quoting Hines v. Davidowitz, 312 U.S. 52, 72 (1941)).
46. Id. The FAA recently relied on this language to advise state and local authorities considering regulating drones that they are almost certainly preempted from doing so, especially without FAA consultation. See infra text accompanying notes 88–92.
47. Arizona, 132 S. Ct. at 2519– 20 (Scalia, J., concurring in part and dissenting in part).
48. 135 S. Ct. 1591 (2015).
49. Id. at 1594 (quoting Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 305 (1988)).
50. Id. at 1599 (“Petitioners’ arguments [for preemption of state law antitrust claims] are forceful, but we cannot accept their conclusion.”).
51. Id. at 1599–1600.
53. Id. at 1600–01.
54. Id. at 1601–02 (citing Miss. Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354 (1988); FPC v. La. Power & Light Co., 406 U.S. 621 (1972)).
55. See id. at 1601 (“Petitioners and the dissent argue that there is, or should be, a clear division between areas of federal and state authority . . . . [b]ut that Platonic ideal does not describe the natural gas regulatory world.”).
56. Bureau of Civil Air Navigation in the Department of Commerce: Hearings on H.R. 10522 Before the H. Comm. on Interstate and Foreign Commerce, 68th Cong., 2d Sess. 54–55 (1924) (statement of William MacCracken Jr., Chairman, ABA Commission on the Law of Aeronautics) [hereinafter Hearings on H.R. 10522]; see also Civil Aeronautics: Legislative History of the Air Commerce Act of 1926, at 30 (1928).
57. Hearings on H.R. 10522, supra note 56, at 55 (emphasis added).
58. Id. at 63–64 (emphasis added).
59. See Nw. Airlines, Inc. v. Minnesota, 322 U.S. 292 (1944).
60. Id. at 303 (Jackson, J., concurring) (emphasis added).
61. 333 U.S. 103, 105, 107 (1948) (emphasis added).
62. See 49 U.S.C. §§ 40101 et seq.
63. H.R. Rep. No. 85-2360 (1958), reprinted in 1958 U.S.C.C.A.N. 3741, 3744, 3747.
64. S. Rep. No. 85-1811, at 5 (1958) (accompanying S. 3880, 85th Cong., 2d Sess.) (emphasis added).
65. Id. at 11, 27.
66. H.R. Rep. No. 85-2360.
67. 411 U.S. 624 (1973).
68. Id. at 625–26.
69. Id. at 638.
70. Id. at 638–39.
71. Id. at 644.
72. 985 F.2d 1438 (10th Cir. 1993).
73. 181 F.3d 363 (3d Cir. 1999).
74. Cleveland, 985 F.2d at 1442.
75. Abdullah, 181 F.3d at 364.
76. Id. at 364–65.
77. Id. at 364–65, 375–76.
78. Id. This analysis is consistent with prior Supreme Court precedent holding that the use of the words “minimum standards” does not furnish a “litmus-paper test” for resolving issues of preemption. Instead, the Supreme Court has held that where “it is sufficiently clear that Congress directed the promulgation of standards on the national level,” the States cannot regulate the same subject. See Ray v. Atl. Richfield Co., 435 U.S. 151, 168 n.19 (1978).
79. See US Airways, Inc. v. O’Donnell, 627 F.3d 1318 (10th Cir. 2010).
80. Id. at 1326 (emphasis added).
81. Sikkelee v. Precision Airmotive Corp., 45 F. Supp. 3d 431 (M.D. Pa. 2014), appeal filed, No. 14-4193 (3d Cir. Oct. 21, 2014).
82. The audio recording of this argument can be accessed at www2. ca3.uscourts.gov/oralargument/ audio/14-4193JillSilleleev.Precision AirmotiveCorp.mp3.
83. FAA Letter Brief at 2, Sikkelee, No. 14-4193 (3d Cir. argued June 24, 2015).
86. Id. at 3.
87. Id. at 9.
88. FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet (Dec. 17, 2015), available at www.faa.gov/uas/ regulations_policies/media/UAS_Fact_ Sheet_Final.pdf.
89. Id. at 1–2.
90. Id. at 2.
92. Id. at 2–3.