History of Preemption in Aviation
By: Kreindler Legal Staff
- Since 1926, four major acts have passed, each creating more federal regulations and oversight of the aviation industry.
- The history of preemption has shown that the courts are not unifying their approaches and plaintiff attorneys, like our experienced pilots and accident investigators, can help pave the way with unified, solid arguments.
(Aviation accident article reprinted from Aviation Law)
The judicial application of preemption has become increasingly broad and unpredictable. This article addresses the history of aviation regulation and preemption, and the importance of paving the way for (what otherwise will be) the unpredictable future.
The ACA, CAA, FAA, and ADA
The first federal aviation statute was the Air Commerce Act of 1926 (ACA).1 The ACA provided inter alia that the responsibility of regulating aviation commerce belonged to the Secretary of Commerce.2 The ACA, however, failed to regulate intrastate commerce, leaving such regulation to each state.3 Problems ensued and Congress took steps to unify aviation regulation throughout.
In 1938, Congress passed the Civil Aeronautics Act (CAA) in response to the inadequacies of the ACA.4 The CAA created the first federal agency responsible for aviation safety, certification of pilots and aircraft, regulation of aircraft owners, investigation of U.S. aviation accidents, and operation of air traffic control.5 Approximately 20 years after the CAA was vested with such authority, two serious aviation accidents prompted Congress and the president to reevaluate federal aviation regulation.6 The Federal Aviation Act (FAA) of 1958 resulted from the reevaluation.
The Federal Aviation Act replaced the CAA and created a newly developed Federal Aviation Administration, which was responsible for flight safety, and left the Civil Aeronautics Board (CAB), as created under the CAA, responsible for the economic regulation of the commercial aviation industry.7
Congress later created the Airline Deregulation Act of 1978 (ADA) to promote “an air transportation system which relies on competitive market forces to determine the quality, variety and price of air services.”8 The creation of the ADA essentially ended the CAB since the ADA provided federal preemption of aviation industry rate, routes and services.9 The specific section outlining the preemptive effect of 1305(a) of the ADA was repealed in 1994, which is significant in looking at Congressional intent when evaluating preemption, as will be discussed below.
Preemption Through the Ages/Cases
The Supremacy Clause of Article IV of the U.S. Constitution provides Congress with the power to preempt state law.
Generally, two types of preemption allow federal law to supersede state law: express or implied.
Express preemption is where Congress expressly states the federal law preempts state law. Implied preemption is either field preemption or conflict preemption. Field preemption is where federal law “creates a scheme of federal regulation so pervasive that the only reasonable inference is that it meant to displace the state” law.10 Conflict preemption is clearly where state and federal law conflict.
The case law addressing preemption is fascinating. Across the country, conflicting case law prevails, possibly as a result of the requirement that courts interpret true congressional intent, the gravamen in determining the preemptive effect of a statute.
In 1993, the Tenth Circuit held that the FAA does not expressly or impliedly preempt plaintiff’s state law products liability claim.11 A pilot was injured when his aircraft struck a vehicle on a runway. He claimed negligent design of the pilot seat.12 The court looked to the plain language of the FAA and the ADA, including its preemption clause. It found that Congress intended that the Act have no general preemptive effect and that the ADA’s preemption clause was inapplicable.13
However, in 1999, the Third Circuit concluded that the FAA implicitly preempts the entire field of air safety.14 Airline passengers sued an airline for injuries suffered when the aircraft encountered turbulence.15 The court found that federal law established the aviation industry’s standard of care, not state tort law, resulting in preemption of the state-based claims.16
In 2002, the California Court of Appeals thoroughly reviewed the history of preemption and held that no federal preemption of a state negligence claim existed against an airline where an item fell from an overhead bin causing injury to a passenger.17 Acknowledging authority to the contrary, the court found that the plaintiff’s claim was unrelated to rates, routes, or services, and thus, the ADA did not prevent plaintiff from proceeding under California Civil Code. The court looked to the language of the 1958 Act and found it “specifically provided that the federal law does not ‘in any way abridge or alter the remedies now existing at common law or by statute.’”18
In 2005, the Fifth Circuit found that an airline passenger’s cause of action for failure to warn against an airline, where a plaintiff/passenger suffered deep vein thrombosis that may not have occurred if the airline warned of sitting in cramped airline seats without moving for extended periods of time, was preempted by the ADA.19 The Fifth Circuit held that the failure to warn argument conflicted with the federal aviation regulations that outlined which warnings the airline must give to its passengers, and was thus preempted.20
2006 produced interesting and significant aviation preemption cases. The District Court of Minnesota found that even though Congress created an aviation regulatory scheme, Congress did not intend the creation of such to demonstrate a congressional intent to federally preempt all state law claims in the aviation industry.21 In the same case, the court found that the presumption of a federal preemption defense does not make a case removable to federal court.22
The District Court of South Dakota has recently thoroughly evaluated many aspects affecting aviation litigation matters, including a thorough discussion on preemption.23 The plaintiff claimed that the defendant was negligent for failing to include safety procedures for an exhaust failure in its curriculum and by using a training simulator that did not replicate the handling of the specific aircraft involved in the litigation, in part causing the air crash.
The defendant argued that both field preemption and conflict preemption applied to the claim. The defendant claimed field preemption applied because the “expansive regulatory scheme” preempts all state law affecting aviation safety, including the above-mentioned scenario.
The court evaluated the preemption case law and found that Congress did not intend to preempt the field of aviation safety entirely by the Act, denying defendant’s field preemption argument.24 However, the court agreed with the defendants that conflict preemption was appropriate, in part, because federal regulations addressed emergency procedures in flight training curriculum.25
Time Will Tell
Preemption is a hot topic and one to take seriously. As wisely noted on the AAJ aviation list server, the preemption issue from the plaintiff’s perspective must be centralized.26 The centralization can occur but only through our efforts as interested plaintiff attorneys.
Also, AAJ has a newly formed Preemption Law Litigation Group and document library. Share your preemption briefs and those you receive from defense counsel. One thing we can learn from the history of preemption is that the courts are not unifying their approaches. Plaintiff attorneys can help pave the way through our unified, solid arguments. Remember to share your documents and ideas through the list server or document libraries available through AAJ.
- Valetti, Mark, Preemption of State Law Tort Claims in the Context of Aircraft Manufacturers, 60 J. Air L. & Com. 699 (Dec-Jan 1994-95), citing The Air Commerce Act of 1926, ch. 344, 44 Stat. 568 (1926) (repealed in 1938).
- Civil Aeronautics Act of 1938, Pub. L. No. 706, 52 Stat. 973 (codified as amended at 49 U.S.C.C.A.N. app. §§ 1301-1542 (1988 & Supp. V 1993)).
- Pub. L. No. 706, s 601(a), 52 Stat. 973, 1007 (1938).
- Letter to Congress from President Dwight D. Eisenhower (June 13, 1958)(as published in Hearing Before a Subcommittee of the Committee on Interstate and Foreign Commerce (report of June 24, 1958)), LEGISLATIVE HISTORY OF THE FEDERAL AVIATION ACT of 1958, 145-48(1958).
- Supra, note 1.
- Airline Deregulation Act of 1978, Pub. L. No. 95- 504, 92 Stat. 1705 (codified primarily at 49 U.S.C. app. §§1301-1389 (1988 & Supp. IV 1992).
- 49 U.S.C. app. § 1305(a)(1988) repealed by Pub. L. 103-272, s. 7(b), 108 State. 1379 (1994).
- Sheessley v. Cessna, 2006 WL 1084103, *18 (SD 2006), citing Wuebker v. Wilbur-Ellis, Co., 418 F.3d 883, 886 (8th Cir.2005); Davenport v. Farmers Ins. Group, 378 F.3d 839, 842 (8th Cir.2004).
- Cleveland v. Piper Aircraft Corp., 985 F.2d 1438 (10th Cir. 1993).
- Abdullah v. American Airlines, Inc., 181 F.3d 363, 365 (3rd Cir. 1999).
- See Id.
- Vinnick v. Delta Airlines, 93 Cal.App.4th 859 (2002).
- Vinnick, at 872.
- Witty v. Delta Air Lines, Inc., 366 F.2d 380 (5th Cir.2004).
- Glorvigen v. Cirrus Design Corp., 2006 WL 399419 (D.Minn.2006), citing, Chapman v. Lab One, 390 F.3d 620, 630; Agre v. Rain & Hail LLC, 196 F.Supp.2d 905, 910-11 (D.Minn.2002); Smith v. GTE Corp, 236 F.3d 1292, 1313 (11th Cir. 2001); Virgil v. Reorganized MW Co. Inc., 156 F.Supp.2d 624, 631 (S.D.Miss.2001).
- Glorvigen at *5. “To have the requisite preemptive force to provide removal jurisdiction, a federal statute must provide both substantive and remedial provision that supersede state law”. Id. at *6 citation omitted. “..[F]or the complete preemption doctrine to apply, the federal statute must also provide a remedial provision and clearly indicate that the provision is the exclusive remedy for the alleged harm.” Id.
- Sheessley v. Cessna, 2006 WL 1084103, *19 (SD 2006).
- Id. at 23.
- Id. at 25.
- See Aviation Law Section List Server entry August 9, 2006 by Mike Slack.