KRAUSE, Circuit Judge.
This case presents the question whether Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir.1999), in which we held that federal law preempts the field of aviation safety, extends to state law products liability claims. We hold it does not. In light of principles of federalism and the presumption against preemption, Congress must express its clear and manifest intent to preempt an entire field of state law. Here, none of the relevant statutes or regulations signals such an intent. To the contrary, the Federal Aviation Act, the General Aviation Revitalization Act of 1994, and the regulations promulgated by the Federal Aviation Administration reflect that Congress did not intend to preempt aircraft products liability claims in a categorical way. The District Court faithfully sought to apply our precedent, and while it concluded that state products liability claims are preempted by Abdullah, it also recognized the question was sufficiently unclear and important to certify its order for interlocutory review. Today, we clarify the scope of Abdullah and hold that neither the 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. For these reasons, we will reverse the District Court's entry of summary judgment in favor of Appellees and remand for further proceedings.
A. Overview of Federal Aviation Regulation
Almost immediately after the airplane became a viable means of transportation, it
As the scope of federal involvement in regulating aviation expanded, so too did the number of governmental bodies regulating aviation, and by the 1950s, there had, at one point, been seventy-five different interagency groups with some responsibility in the field. S.Rep. No. 85-1811, at 6 (1958). To resolve this problem, Congress enacted the 1958 Federal Aviation Act, Pub.L. No. 85-726, 72 Stat. 731, to consolidate regulatory authority in a single entity: the Federal Aviation Administration ("FAA"). The Federal Aviation Act adopted verbatim from the Civil Aeronautics Act the statutory framework for the promulgation of minimum standards for design safety and the process for the issuance of certificates that indicated compliance with those regulations.
Pursuant to the statutory framework established in the Civil Aeronautics Act and adopted by the Federal Aviation Act, aircraft engine manufacturers must obtain from the FAA (1) a type certificate, which certifies that a new design for an aircraft or aircraft part performs properly and meets the safety standards defined in the aviation regulations, 49 U.S.C. § 44704(a); 14 C.F.R. § 21.31; and (2) a production certificate, which certifies that a duplicate part produced for a particular plane will conform to the design in the type certificate, 49 U.S.C. § 44704(c); 14 C.F.R. § 21.137. Before a new aircraft may legally fly, it must also receive (3) an airworthiness certificate, which certifies that the plane and its component parts conform to its type certificate and are in condition for safe operation. 49 U.S.C. §§ 44704(d), 44711(a)(1).
The FAA issues a type certificate when it has determined that a product "is properly designed and manufactured, performs properly, and meets the regulations and minimum standards prescribed under [49 U.S.C. § 44701(a)." 49 U.S.C. § 44704(a)(1); see also 14 C.F.R. § 21.21. A type certificate includes the type design, which outlines the detailed specifications, dimensions, and materials used for a given product; the product's operating limitations; a "certificate data sheet," which denotes the conditions and limitations necessary to meet airworthiness requirements; and any other conditions or limitations prescribed under FAA regulations. See 14 C.F.R. §§ 21.31, 21.41; FAA, Order 8110.4C, change 5, Type Certification, ch. 3-3(a) (2011). This certification process can be intensive and painstaking; for example, a commercial aircraft manufacturer seeking a new type certificate for a wide-body
B. Factual History
This case involves alleged manufacturing and design defects in a Textron Lycoming O-320-D2C engine ("the engine") manufactured in 1969 and installed "factory new" on a Cessna 172N aircraft ("the aircraft") in 1998. Lycoming holds both a type certificate and production certificate for the engine. The engine in the aircraft was overhauled in 2004 and installed with a MA-4SPA carburetor in accordance with Lycoming's type-certificated design.
David Sikkelee was piloting the aircraft when it crashed shortly after taking off from Transylvania County Airport in Brevard, North Carolina in July 2005. Sikkelee was killed as a result of serious injuries and burns he suffered in the crash. His wife, Jill Sikkelee, the Plaintiff-Appellant in this case, alleges that the aircraft lost power and crashed as a result of a malfunction or defect in the engine's carburetor. Specifically, she contends that, "due to the faulty design of the lock tab washers as well as gasket set," vibrations from the engine loosened screws holding the carburetor's throttle body to its float bowl. J.A. 643. When properly functioning, a carburetor regulates the mixture of fuel and air that enters the engine's cylinders. According to Sikkelee, however, the manner by which the throttle body was attached to the float bowl in the Textron Lycoming O-320-D2C engine allowed raw fuel to leak out of the carburetor into the engine and thereby caused the aircraft to crash.
C. Procedural History
Sikkelee initially filed a wrongful death and survival action in the Middle District of Pennsylvania in 2007 against seventeen defendants, asserting state law claims of strict liability, breach of warranty, negligence, misrepresentation, and concert of action. 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. Sikkelee v. Precision Airmotive Corp., 45 F.Supp.3d 431, 435 (M.D.Pa. 2014) (quoting Abdullah, 181 F.3d at 367). 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 FAA regulations.
As the trial date approached, the District Court expressed concern that Sikkelee's proposed jury instructions using federal standards of care were "all but completely unable to assist the Court in... formulating an intelligible statement of applicable law." Sikkelee, 45 F.Supp.3d at 437 (internal quotation marks omitted) (recounting its position on this point as first expressed in its Memorandum of November 20, 2013). On the one hand, the District Court asserted that, under Abdullah, it was bound to apply some federal standard of care and that compliance with the applicable design and construction regulations was the only identifiable, let alone articulable, federal standard. On the other hand, because it determined that the "FAA regulations relating to the design and manufacture of airplanes and airplane component parts were never intended to create federal standards of care," id. at 437 n. 4 (quoting Pease v. Lycoming Engines, No. 4:10-cv-00843, 2011 WL 6339833, at *22 (M.D.Pa. Dec. 19, 2011) (Conner, J.)) (internal quotation marks omitted), the District Court found it to be "arduous and impractical" to fashion the regulations themselves into such standards, id. (quoting Pease, 2011 WL 6339833, at *23) (internal quotation marks omitted). Faced with this conundrum, the District Court ordered Sikkelee to submit additional briefing on the question of the appropriate standard of care and, after review of that briefing, invited Lycoming to file a motion for summary judgment. Id. at 438.
In its ruling on that motion, the District Court concluded that the federal standard of care was established in the type certificate itself. Reasoning that the FAA issues a type certificate based on its determination that the manufacturer has complied with the pertinent regulations, the District Court held that the FAA's issuance of a type certificate for the Textron Lycoming O-320-D2C engine meant that the federal standard of care had been satisfied as a matter of law. Id. at 451-43, 456. The District Court therefore granted Lycoming's summary judgment motion, in part, on that basis. Id. at 456. The District Court denied summary judgment, however, on Sikkelee's failure to warn claims, which were premised on Lycoming's alleged violation of 14 C.F.R. § 21.3 for failure to "`report any failure, malfunction, or defect in any product, part, process, or article'" that Lycoming manufactured.
Jurisdiction and Standard of Review
The District Court had diversity jurisdiction under 28 U.S.C. § 1332(a), and we have jurisdiction under 28 U.S.C. § 1292(b) to review the order certified by the District Court for interlocutory appeal. We review the District Court's order granting summary judgment de novo. Azur v. Chase Bank, USA, Nat'l Ass'n, 601 F.3d 212, 216 (3d Cir.2010). We also review questions of preemption de novo. Farina v. Nokia Inc., 625 F.3d 97, 115 n. 20 (3d Cir.2010).
The doctrine of preemption is a necessary but precarious component of our system of federalism under which the states 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. Consistent with this principle, Congress has the power to enact legislation that preempts state law. See Arizona v. United States, ___ U.S. ___, 132 S.Ct. 2492, 2500-01, 183 L.Ed.2d 351 (2012). At the same time, with due respect to our constitutional scheme built upon a "compound republic," with power allocated between "two distinct governments," The Federalist No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961); see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (Kennedy, J., concurring), there is a strong presumption against preemption in areas of the law that States have traditionally occupied, see Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (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." Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (quoting Medtronic, 518 U.S. at 485, 116 S.Ct. 2240) (internal quotation marks omitted). Congressional intent is the "ultimate touchstone" of a preemption analysis. Id. Thus, when confronted with the question of whether state claims are preempted, as we are here, we look to the language, structure, and purpose of the relevant statutory and regulatory scheme to develop a "reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law." Medtronic, 518 U.S. at 486, 116 S.Ct. 2240; see also Bruesewitz, 561 F.3d at 243-44 (recognizing that divining congressional intent regarding preemption requires considering a law's "structure and purpose," underlying "object and policy," and, where relevant, legislative history (internal quotation marks omitted)).
Congress may exert its supremacy by expressly preempting state law, but it may also do so implicitly, which we have recognized in limited circumstances in the doctrine of "field" preemption. See Oneok, Inc. v. Learjet, Inc., ___ U.S. ___, 135 S.Ct. 1591, 1595, 191 L.Ed.2d 511 (2015). For that doctrine to apply, "we must find
In addition to field preemption, federal law may supersede state law through conflict preemption. This occurs when a state law conflicts with federal law such that compliance with both state and federal regulations is impossible, PLIVA, Inc. v. Mensing, 564 U.S. 604, 131 S.Ct. 2567, 2577, 180 L.Ed.2d 580 (2011), or when a challenged state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of a federal law," Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323, 330, 131 S.Ct. 1131, 179 L.Ed.2d 75 (2011) (internal quotation marks omitted).
In this case, we are asked to analyze the extent to which federal aviation law preempts state tort law, specifically, products liability claims for defective design. We do not write on a blank slate, but rather, against the backdrop of our decision in Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir.1999).
In Abdullah, we considered the preemptive effect of federal in-flight seatbelt regulations on state law negligence claims for a flight crew's failure to warn passengers that their flight would encounter severe turbulence. Id. at 365. One of the plane's crew members had illuminated the fasten seatbelt sign in accordance with the federal regulations, but none of the crew had given the passengers an additional verbal warning of expected turbulence. Id. at 365, 371 & n. 11. When the turbulence hit, the plaintiffs suffered serious injuries. Id. at 365. After the jury found American Airlines liable and awarded the plaintiffs damages, the district court ordered a new trial, holding that the Federal Aviation Act preempted the territorial standards for aviation safety, and thus, that the jury should not have been instructed on a territorial standard of care. Id. at 365-66. We affirmed, explaining that the Federal Aviation Act and federal regulations "establish complete and thorough safety standards for interstate and international air transportation and that these standards are not subject to supplementation by, or variation among, jurisdictions." Id. at 365. Although we held that federal law preempts state law standards of care in the field of air safety, we also held that it preserves state law remedies. Id. at 364. As such, within the field of air safety, Abdullah instructs that plaintiffs may bring state law causes of action that incorporate federal standards of care. Id. at 365.
Our analysis in reaching this conclusion focused on the text and legislative history of the Federal Aviation Act, which was adopted primarily to promote safety in aviation and gave the FAA broad authority to issue safety regulations. Id. at 368-69. We observed that the FAA, in exercising this authority, "has implemented a comprehensive system of rules and regulations, which promotes flight safety by regulating pilot certification, pilot pre-flight duties, pilot flight responsibilities, and flight rules." Id. at 369 (footnotes omitted). We then reviewed several cases from the Supreme Court and our sister Circuits that had found federal preemption with regard to discrete matters of in-flight operations, including aircraft noise, City of
Importantly for our purposes, although we stated in broad terms that the Federal Aviation Act preempted the "field of aviation safety," id., the regulations and decisions we discussed in Abdullah all related to in-air operations, see 14 C.F.R. § 1.1 ("Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose ... of air navigation including the piloting of aircraft...."), and the catch-all standard of care that we held a court "must refer to" applied only to operating, not designing or manufacturing, an aircraft. See 14 C.F.R. §§ 1.1, 91.13.
We confirmed the limits of our holding in Abdullah a decade later in Elassaad, 613 F.3d at 121, where we clarified that a flight crew's oversight of the disembarkation of passengers after an airplane came to a complete stop at its destination was not within the preempted field of aviation safety. By drawing a line between what happens during flight and what happens upon disembarking, we made clear that the field of aviation safety described in Abdullah was limited to in-air operations. Id. at 127-31 ("[T]he [Federal Aviation Act's] safety provisions appear to be principally concerned with safety in connection with operations associated with flight." (emphasis added)). Abdullah thus does not govern products liability claims like those at issue here.
This conclusion is consistent with other courts that have interpreted Abdullah. For example, the Ninth Circuit, which had previously adopted Abdullah's conclusion that the Federal Aviation Act preempts state law standards of care in the field of aviation safety, has held that products liability does not fall within that preempted field. Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806, 809-11
Having concluded that Abdullah does not control here, we must now determine whether Congress intended the Federal Aviation Act to preempt products liability claims.
B. Whether the Presumption Against Preemption Applies
Typically, our preemption analysis begins with the presumption that Congress does not preempt areas of law traditionally occupied by the states unless that is its clear and manifest intent. Wyeth, 555 U.S. at 565, 129 S.Ct. 1187. In this case, Appellees argue that the presumption against preemption should not apply in the aviation context given the history of federal involvement in the field. That argument turns, however, on a selective view of history.
In general, products liability claims are exemplars of traditional state law causes of action. See Medtronic, 518 U.S. at 491, 116 S.Ct. 2240. Indeed, state law governed the earliest products liability claims in this country. See, e.g., Curtain v. Somerset, 140 Pa. 70, 21 A. 244, 244-45 (1891) (applying Pennsylvania law); Thomas v. Winchester, 6 N.Y. 397, 407-11 (N.Y.1852) (applying New York law); see also Karl N. Llewellyn, On Warranty of Quality, and Society, 36 Colum. L.Rev. 699, 732-44 (1936) (discussing distinctions between the early products liability law of the various States).
More specifically, even aviation torts have been consistently governed by state law. In The Crawford Bros. No. 2, 215 F. 269 (W.D.Wash.1914), which appears to be the earliest tort case involving an aircraft, the court considered the effect of the "legal code of the air" that had been proposed by the International Juridic Committee on Aviation on a salvage claim related to an airplane crash in Puget Sound. Id. at 269-70. The court posited that, if the code had become law, "it would be important to consider its provisions in determining what was reasonable and proper in a cause involving air craft in a common-law action," much like with rules governing water craft. Id. at 270. The court ultimately dismissed the suit for lack of jurisdiction, as neither the proposed legal code of the air nor maritime law provided for jurisdiction, and instructed that such questions "must be relegated to the common-law courts." Id. at 271. The decision in Crawford Bros. thus recognized that, absent specific legislation, the common law governed aviation tort claims.
Years later, after Congress passed the 1926 Air Commerce Act but before the current type certification regime was imposed, Judge Buffington authored what appears to be this Court's first decision involving an aviation-related tort claim, Curtiss-Wright Flying Service v. Glose, 66 F.2d 710 (3d Cir.), cert. denied, 290 U.S. 696, 54 S.Ct. 132, 78 L.Ed. 599 (1933). There, a widow brought suit against the Curtiss-Wright Flying Service, an early airline, after her husband was killed in a plane crash as a result of negligent operation.
Since then, in the absence of applicable statutory or regulatory provisions, we have consistently applied state law to tort claims arising from airplane crashes. Only a month before the Federal Aviation Act was enacted, we were faced with a case involving three claims of defective design against an aircraft manufacturer after its plane broke apart in midair. Prashker v. Beech Aircraft Corp., 258 F.2d 602, 603-04 (3d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 236, 3 L.Ed.2d 230 (1958). In concluding that the aircraft manufacturer did not negligently design the plane, we did not exclusively rely on the Civil Aeronautics Board's certification of the relevant design, but rather methodically considered each design defect claim under a common law negligence standard, using the type certificate as but a part of that overall analysis. Id. at 605-07; see also Nw. Airlines v. Glenn L. Martin Co., 224 F.2d 120, 124 (6th Cir.1955), cert. denied, 350 U.S. 937, 76 S.Ct. 308, 100 L.Ed. 818 (1956) (confirming the district court's decision to leave the question of a manufacturer's negligent design to the jury for determination of whether the pertinent state standard of ordinary care was met).
We have done the same in the years since the Federal Aviation Act replaced the Civil Aeronautics Act, see, e.g., Paoletto v. Beech Aircraft Corp., 464 F.2d 976, 978-82 (3d Cir.1972) (applying a state standard of care to claims for strict liability, negligence, and breach of warranty arising from an airplane crash caused by the collapse of the plane's right wing); Noel v. United Aircraft Corp., 342 F.2d 232, 236-37 (3d Cir.1964) (rejecting defendant's argument that approval by the Civil Aeronautics Administration of an airplane's propeller system was conclusive of compliance with the standard of care), as have other Courts of Appeals, see, e.g., Martin, 555 F.3d at 808; Bennett v. Sw. Airlines Co., 484 F.3d 907, 908 (7th Cir. 2007); McLennan v. Am. Eurocopter Corp., 245 F.3d 403, 426 (5th Cir.2001); In re Air Crash Disaster, 86 F.3d 498, 522-23 (6th Cir.1996); Pub. Health Trust v. Lake Aircraft, Inc., 992 F.2d 291, 293-95 (11th Cir.1993); Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1441-47 (10th Cir. 1993); In re N-500L Cases, 691 F.2d 15, 27-28 (1st Cir.1982); Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451, 452-53 (2d Cir.1969); Banko v. Cont'l Motors Corp., 373 F.2d 314, 315-16 (4th Cir. 1966).
Consistent with the uniform treatment of aviation products liability cases as state law torts, we expressly held in Elassaad that the presumption against preemption applies in the aviation context.
With this presumption in mind, we must determine whether Congress expressed its clear and manifest intent to preempt aviation products liability claims. We do so by reviewing the text and structure of the Federal Aviation Act, and, to the extent necessary and relevant to this statute, examining subsequent congressional action that sheds light on its intent. See Medtronic, 518 U.S. at 485-86, 116 S.Ct. 2240. We also consider relevant regulations that have been issued pursuant to the valid exercise of the FAA's delegated authority, which can have the same preemptive effect as federal statutes. See Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 243 (3d Cir.2008).
C. Indicia of Congressional Intent
1. The Federal Aviation Act
As we have explained, although the federal government has overseen certain aspects of aviation, such as air traffic control and pilot certification, since the early days of flight, see Air Commerce Act of 1926, ch. 344, 44 Stat. 568, there was little question when the Civil Aeronautics Act was adopted in 1938 that common law standards governed tort claims arising from plane crashes, see, e.g., Curtiss-Wright Flying Serv., 66 F.2d at 711-13 (applying the common law standard for negligence). It is therefore significant that the Federal Aviation Act, 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 — statutory language the Supreme Court has held in other contexts to be insufficient on its own to support a finding of clear and manifest congressional intent of preemption, see Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 145, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); see also Ray v. Atl. Richfield Co., 435 U.S. 151, 168 n. 19, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); Abdullah, 181 F.3d at 373-74; Cleveland, 985 F.2d at 1445.
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."
Whereas Appellees must show a clear and manifest congressional intent to overcome the presumption against preemption, they instead have mustered scant evidence and, at best, have demonstrated ambiguity. For example, they discuss § 601 of the Federal Aviation Act, which empowers the FAA to promulgate regulations "to promote safety of flight of civil aircraft in air commerce by prescribing ... minimum standards governing the design, materials, workmanship, construction, and performance of aircraft, aircraft engines, and propellers as may be required in the interest of safety." Federal Aviation Act of 1958, Pub.L. No. 85-726, § 601(a)(1), 72 Stat. 731, 775. Yet, that provision, along with § 603, which provides the statutory framework for the issuance of type certificates, was adopted verbatim from the 1938 Civil Aeronautics Act, id. § 603; see H.R.Rep. No. 85-2360, at 16 (1958), which clearly did not preempt state law products liability claims, see supra, Part III.B. Neither the Federal Aviation Act nor subsequent amendments substantially changed this statutory framework. See Revision of Title 49, United States Code Annotated, "Transportation," Pub.L. No. 103-272, 108 Stat. 745 (1994); see also H.R.Rep. No. 103-180, at 343-44 (1993) (discussing changes to the statutory provisions governing the issuance of type certificates as words "added for clarity" and "omitted as surplus").
Appellees thus present no evidence from the Federal Aviation Act's text or extensive legislative history that plausibly suggests Congress intended these same provisions to have a different meaning in the 1958 Act than they had in the 1938 Act. Simply put, if Congress had wanted to change the preemptive effect of the type certification process, it would have done so — or at least given some indication of that intention. It did not. The Federal Aviation Act itself therefore does not signal an intent to preempt state law products liability claims.
2. Federal Aviation Regulations
The federal aviation design regulations are likewise devoid of evidence of congressional intent to preempt state law products liability claims. The FAA, in the letter brief it submitted as amicus curiae in this case, takes the position that the Act and these regulations so pervasively occupy the field of design safety that, consistent with Abdullah, they require state tort suits that survive a conflict preemption analysis to proceed under "federal standards of care found in the Federal Aviation Act and its implementing regulations." Letter Br. of Amicus Curiae Fed. Aviation Admin. 11 ("FAA Ltr. Br.").
We do not defer to an agency's view that its regulations preempt state law, but we do recognize that agencies are well equipped to understand the technical and complex nature of the subject matter over which they regulate and thus have a "unique understanding of the statutes they administer and an attendant ability to make informed determinations about how state requirements may pose an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Wyeth, 555 U.S. at 576-77, 129 S.Ct. 1187 (quoting Hines v. Davidowitz,
Here, three fundamental differences between the regulations at issue in Abdullah and those concerning aircraft design, along with the agency's inability to specifically identify or articulate the proposed federal standard of care, lead us to disagree with this aspect of the FAA's submission. First, the regulations governing in-flight operations on their face "prescribe rules governing the operation of aircraft ... within the United States." 14 C.F.R. § 91.1(a); see also 14 C.F.R. § 121.1(e) (prescribing rules governing "[e]ach person who is on board an aircraft being operated under this part"). In contrast, the manufacturing and design regulations prescribe "[p]rocedural requirements for issuing and changing — (i) Design approvals; (ii) Production approvals; (iii) Airworthiness certificates; and (iv) Airworthiness approvals" and "[r]ules governing applicants for, and holders of" such approvals and certificates. 14 C.F.R. § 21.1(a). That is, 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," 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). Of course, the issuance of a type certificate is a threshold requirement for the lawful manufacture and production of component parts and, at least to that extent, arguably reflects nationwide standards for the manufacture and design of such parts. But the fact that the regulations are framed in terms of standards to acquire FAA approvals and certificates — and not as standards governing manufacture generally — supports the notions that the acquisition of a type certificate is merely a baseline requirement and that, in the manufacturing context, the statutory language indicating that these are "minimum standards," 49 U.S.C. § 44701, means what it says.
Second, the standards that must be met for the issuance of type certificates cannot be said to provide the type of "comprehensive system of rules and regulations" we determined existed in Abdullah to promote in-flight safety "by regulating pilot certification, pilot pre-flight duties, pilot flight responsibilities, and flight rules." Abdullah, 181 F.3d at 369 (footnotes omitted). Rather, many are in the nature of discrete, technical specifications that range from simply requiring that a given component part work properly, e.g., 14 C.F.R. § 33.71(a) (providing that a lubrication system "must function properly in the flight altitudes and atmospheric conditions in which an aircraft is expected to operate"), to prescribing particular specifications for certain aspects (and not even all aspects) of that component part, e.g., 14
Third, the regulations governing in-flight operations "suppl[y] a comprehensive standard of care," Abdullah, 181 F.3d at 371, that could be used to evaluate conduct not specifically prescribed by the regulations, i.e., that a person must not "operate an aircraft in a careless or reckless manner so as to endanger the life or property of another," 14 C.F.R. § 91.13(a). We recognized in Abdullah, that § 91.13(a) sounds in common law tort, making it appropriate and practical to incorporate as a federal standard of care in state law claims concerning in-flight operations and rendering existing state law standards of care duplicative (if not conflicting with them outright). Abdullah, 181 F.3d at 371, 374. Neither the FAA nor Appellees have pointed us to any analogous provision for aircraft manufacture and design, nor have we identified one.
We therefore agree with the District Court that neither the Federal Aviation Act nor the associated FAA regulations "were [ever] intended to create federal standards of care" for manufacturing and design defect claims. Sikkelee, 45 F.Supp.3d at 437 n. 4 (internal quotation marks omitted) (describing the District Court's reasoning in its earlier memorandum responding to proposed jury instructions and citing Pease, 2011 WL 6339833, at *22-23). However, the District Court proceeded from that accurate premise to a faulty conclusion (the one urged by Appellees), i.e., that because there is no federal standard of care for these claims in the statute or regulations, the issuance of a type certificate must both establish and satisfy that standard. Not so. In light of the presumption against preemption, absent clear evidence that Congress intended the mere issuance of a type certificate to foreclose all design defect claims, state tort suits using state standards of care may proceed subject only to traditional conflict preemption principles.
Besides preserving principles of federalism, this conclusion avoids interpreting the Federal Aviation Act in a way that would have "the perverse effect of granting complete immunity from design defect liability to an entire industry that, in the judgment of Congress, needed more stringent regulation." Medtronic, 518 U.S. at 487, 116 S.Ct. 2240.
In short, like the manufacturer in Medtronic, Appellees would have us adopt the position that "because there is no explicit private cause of action against manufacturers contained in the [Act], and no suggestion that the Act created an implied private right of action, Congress would have barred most, if not all, relief for persons injured by defective [aircraft parts]." Medtronic, 518 U.S. at 487, 116 S.Ct. 2240. Like the Supreme Court in Medtronic, however, we find it "to say the least, `difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.'" Id. (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984)).
These observations lead us to conclude that the Federal Aviation Act and its implementing regulations do not indicate a clear and 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.
Our conclusion is solidified by the General Aviation Revitalization Act of 1994 ("GARA"), Pub L. No. 103-298, 108 Stat. 1552 (codified at 49 U.S.C. § 40101 note). In that statute, Congress created a statute of repose that, with certain exceptions, bars suit against an aircraft manufacturer arising from a general aviation accident brought more than eighteen years after the aircraft was delivered or a new part was installed.
By barring products liability suits against manufacturers of these older aircraft parts, GARA necessarily implies that such suits were and are otherwise permitted. Indeed, GARA's eighteen-year statute of repose would be superfluous if all aviation products liability claims are preempted from day one. Because we must "interpret a statute so as to `give effect to every word of a statute wherever possible,'" Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec., 783 F.3d 156, 165 (3d Cir.2015) (quoting Leocal v. Ashcroft, 543 U.S. 1, 12, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)), GARA reinforces what is now apparent: Federal law does not preempt state design defect claims. Rather, Congress left state law
Appellees argue that GARA would not be entirely superfluous because general aviation manufacturers would "remain subject to state tort remedies for actual violations of federal aviation safety standards," Appellee's Br. 51, such as the failure to disclose defects discovered after a type certificate has been issued or the failure to comply with an airworthiness directive, Oral Arg. at 35:20, 37:00. Those kinds of claims, however, are already expressly exempted in § 2(b)(1) from GARA's statute of repose.
Our interpretation of the Federal Aviation Act is only bolstered by GARA's legislative history. We are mindful, of course, that "the authoritative statement is the statutory text, not the legislative history or any other extrinsic material," as legislative history can be "murky, ambiguous, and contradictory." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). Here, however, the legislative history is none of those things. GARA's legislative history states explicitly what is implied by the statutory text: Aviation products liability claims are governed by state law. See H.R.Rep. No. 103-525, pt. 2, at 3-7 (1994). The House Report begins by stating that "[t]he liability of general aviation aircraft manufacturers is governed by tort law" that "is ultimately grounded in the experiences of the legal system and values of the citizens of a particular State." Id. at 3-4. In enacting GARA, Congress "voted to permit, in this exceptional instance, a very limited Federal preemption of State law," that is, only where GARA's statute of repose has run are state law claims preempted. Id. at 4-7. "[I]n cases where the statute of repose has not expired, State law will continue to govern fully, unfettered by Federal interference."
More recently, in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., ___ U.S. ___, 135 S.Ct. 2507, 192 L.Ed.2d 514 (2015), the Supreme Court held that disparate impact claims were cognizable under the 1968 Fair Housing Act ("FHA"), relying in part on the "crucial[ly] importan[t]" fact that Congress had adopted amendments to the Act in 1988 that assumed the existence of such claims. Id. at 2519-20. Because the amendments would make sense only if disparate impact liability existed under the FHA, the Court reasoned that the most logical conclusion was that Congress presupposed the existence of disparate impact claims under the FHA as it had been enacted in 1968. Id. at 2520-21.
Consistent with the Supreme Court's approach and our recent guidance in Board of Trustees of IBT Local 863 Pension Fund, we may pay heed to the significance of subsequent legislation when it is apparent from the facts and context that it bears directly on Congress's own understanding and intent. Here, the Federal Aviation Act itself neither states nor implies an intent to preempt state law products liability claims, and GARA confirms that Congress understood and intended that Act to preserve such claims. Thus, despite Appellees' exhortations, we cannot infer a clear and manifest congressional purpose to preempt these claims where the indicia of congressional intent, including in this case the assumptions underlying subsequent
D. Relevant Preemption Precedent
We turn next to Appellees' contention that the Supreme Court's preemption jurisprudence compels us to find 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. Appellees argue that: (1) the Court has accorded broad field preemption to analogous statutory regimes governing oil tankers and locomotives; (2) the Court has given broad preemptive effect to analogous premarket approval processes in the medical device context; and (3) other Courts of Appeals have recognized preemption of the field of aviation safety. For its part, the FAA argues that the mere issuance of a type certificate does not preempt all design defect claims concerning the certificated part but that specifications expressly embodied in a type certificate may, in a given case, preempt such claims under traditional conflict preemption principles. We address Appellees' arguments below and conclude that the case law of the Supreme Court and our sister Circuits supports the application of traditional conflict preemption principles but not preemption of the entire field of aviation design and manufacture.
1. Field Preemption in Analogous Statutory Regimes
Although they acknowledge that the Supreme Court has not addressed whether the Federal Aviation Act preempts the field of aviation design and manufacture, Appellees argue on the basis of other Supreme Court precedent that we should affirm the reasoning of the District Court. First, Appellees point to the Supreme Court's observation in City of Burbank, 411 U.S. at 639, 93 S.Ct. 1854, that the Federal Aviation Act "requires a uniform and exclusive system of federal regulation if the congressional objectives underlying [it] are to be fulfilled" as evidence that the Supreme Court has concluded the FAA occupies the entire field of aviation safety. That begs the question, however, of the scope of the field in question. In City of Burbank, the Court held only that Congress had preempted the field of aircraft noise regulation. Id. at 633, 638-40, 93 S.Ct. 1854. Even in interpreting the express preemption clause of the Airline Deregulation Act,
Appellees next compare aircraft to oil tankers and locomotives, urging that the broad scope of field preemption recognized
We do not find either of these analogies apt. As to tankers, the Supreme Court subsequently distinguished Ray and Locke on the grounds that both cases invalidated state regulations that created positive obligations, and neither of those cases "purported to pre-empt possible common law claims," Sprietsma v. Mercury Marine, 537 U.S. 51, 69, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002), such as the aviation tort claims at issue here. As to locomotives, the Supreme Court and our own Court were bound to find such design defect claims preempted by the Supreme Court's ninety-year-old precedent in Napier v. Atlantic Coast Line Railway Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926), which held that the Locomotive Inspection Act preempts "the field of regulating locomotive equipment used on a highway of interstate commerce," including "the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances." Id. at 607, 611, 47 S.Ct. 207.
Far more apropos in the transportation industry is the Supreme Court's conflict preemption approach in the context of automobiles and boats, for 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).
In assessing implied preemption under these statutory schemes, the Supreme Court has found that the statutory language and applicable regulations support not field preemption, but rather a traditional conflict preemption analysis. In the automobile context, for example, the Court held that a federal regulation governing air bag usage implicated a significant federal regulatory objective — maintaining
Similarly, in Sprietsma, the Court held that the Federal Boat Safety Act did not preempt the field of "state common law relating to boat manufacture," but nonetheless applied a conflict preemption analysis to determine whether petitioner's tort law claims were preempted by the Federal Boat Safety Act ("FBSA") or the Coast Guard's decision not to promulgate a regulation requiring propeller guards on motorboats. 537 U.S. at 60-70, 123 S.Ct. 518. The Court held that the Coast Guard's decision not to regulate did not preclude "a tort verdict premised on a jury's finding that some type of propeller guard should have been installed on this particular kind of boat equipped with respondent's particular type of motor" because the Coast Guard's decision "does not convey an `authoritative' message of a federal policy against propeller guards." Id. at 67, 123 S.Ct. 518.
In sum, the Supreme Court's preemption cases in the transportation context support that aircraft design and manufacture claims are not field preempted, but remain subject to principles of conflict preemption.
2. Type Certification As Support for Field Preemption
Appellees also assert that because type certificates represent the FAA's determination that a design meets federal safety standards, allowing juries to impose tort liability notwithstanding the presence of a type certificate would infringe upon the field of aviation safety as defined in Abdullah and would fatally undermine uniformity in the federal regulatory regime. Appellees' Br. 44-45 (quoting City of Burbank, 411 U.S. at 639, 93 S.Ct. 1854). In support of this argument, Appellees rely on Riegel v. Medtronic, Inc., 552 U.S. 312, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008), in which state tort claims were deemed preempted by an express preemption clause where the plaintiff challenged the safety of a medical device that had received preapproval from the Food and Drug Administration. Id. at 330, 128 S.Ct. 999. Although there is no express preemption clause here, Appellees posit that the FAA's type certification process should be accorded a similar field preemptive effect.
The FAA, on the other hand, argues that type certification is relevant only to an analysis under "ordinary conflict preemption principles."
Id. at 10-11. On the other hand, "to the extent that the FAA has not made an affirmative determination with respect to the challenged design aspect, and the agency has left that design aspect to the manufacturer's discretion, the claim would not be preempted." Id. at 11.
We have no need here to demarcate the boundaries of those tort suits that will be preempted as a result of a conflict between state law and a given type certificate, nor which FAA documents incorporated by reference in a type certificate might give rise to such a conflict. While the parties responded to the FAA's submission by arguing for the first time in supplemental submissions whether the alleged design defect at issue in this case is a design aspect that was expressly incorporated into the type certificate for the Textron Lycoming O-320-D2C engine and what significance that might have for conflict preemption, we will leave those issues for the District Court to consider on remand. See, e.g., Miller v. Mitchell, 598 F.3d 139, 148 (3d Cir.2010) (remanding consideration of an issue discussed in supplemental briefing on appeal but not addressed by the district court in the first instance). For today, we hold only 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 576-77, 129 S.Ct. 1187 (according "some weight" to an agency's "unique understanding" of "state law's impact on [a] federal scheme" insofar as its views are "thorough[ ], consisten[t], and persuasive[ ]"); accord Farina, 625 F.3d at 126-27.
Indeed, when confronting an analogous preapproval scheme for pharmaceutical labeling, the Supreme Court has held
The same considerations apply to the case before us. The FAA's preapproval process for specifications embodied or incorporated into a type certificate, which precludes a manufacturer from making at least "major changes"
As for Appellees' reliance on Riegel, we agree that the FAA's type certification process resembles the "`rigorous'" preapproval process for certain medical devices under the Federal Food, Drug, and Cosmetic Act (FDCA), Pub.L. No. 75-717, 52 Stat. 1040 (1939) (amended 1976). Riegel, 552 U.S. at 317, 128 S.Ct. 999 (quoting Lohr, 518 U.S. at 477, 116 S.Ct. 2240). Not unlike type certification, this approval process involves copious submissions and exhaustive review, and the FDA grants approval only if a device is deemed both safe and effective. Id. at 317-19, 128 S.Ct. 999. In addition, just as aircraft manufacturers may not make major changes to or deviate from their type certificates without the FAA's sign-off, certain medical device manufacturers may not deviate from a federally sanctioned design without first obtaining supplemental approval from the FDA. See 21 U.S.C. § 360e(d)(6)(A)(i); Riegel, 552 U.S. at 319, 128 S.Ct. 999. However, unlike the Federal Aviation Act, the statute governing medical devices includes an express preemption clause that forbids states from imposing "requirements" that are "different from, or in addition to" federal requirements placed on medical devices. 21 U.S.C. § 360k(a)(1); Riegel, 552 U.S. at 316, 128 S.Ct. 999. Because the Supreme Court's preemption analysis in Riegel hinged on its interpretation of this express preemption clause, the case provides no support for the general proposition that states may not regulate devices governed by a federal statutory scheme.
Moreover, in an important respect, Riegel cuts against a finding of field preemption in this case, particularly when read in conjunction with the Court's prior medical device decision in Lohr. Together these cases reflect a narrow, rather than sweeping, approach to analyzing the preemptive contours of a federal premarket approval scheme. In Lohr, finding that the "overarching concern" of the federal statutory and regulatory scheme was ensuring "that pre-emption occur only where a particular state requirement threatens to interfere with a specific federal interest," the Court preserved state common law requirements "equal to, or substantially identical to, requirements imposed under federal law." 518 U.S. at 497, 500-01, 116 S.Ct. 2240 (internal quotation marks omitted). Subsequently, in Riegel, although the Court held that state design defect claims were preempted where they imposed additional safety requirements on medical device manufacturers in violation of the express preemption clause, the Court left Lohr intact and took care to note that state duties that "`parallel,' rather than add to, federal requirements" are not preempted by the statute. 552 U.S. at 330, 128 S.Ct. 999. Here, confronted with a similarly exhaustive preapproval process governing aircraft manufacture and design and no express preemption clause, we see no justification for going further than the Supreme
3. Aviation Preemption Precedent in the Courts of Appeals
With a dearth of support for the proposition that the field of aircraft design and manufacture is preempted, Appellees attempt to muster support from select language in the opinions of other Courts of Appeals. Their efforts are unavailing.
Appellees observe that various Courts of Appeals have described the entire field of aviation safety as preempted, but, on inspection, even those courts have carefully circumscribed the scope of those rulings. The Second, Ninth, and Tenth Circuits all assess the scope of the field of aviation safety by examining the pervasiveness of the regulations in a particular area rather than simply determining whether the area implicated by the lawsuit concerns an aspect of air safety. See Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1006 (9th Cir.2013) (inquiring as to "whether the particular area of aviation commerce and safety implicated by the lawsuit is governed by pervasive federal regulations" (quoting Martin, 555 F.3d at 811) (alteration and internal quotation marks omitted)); Goodspeed Airport L.L.C. v. E. Haddam Inland Wetlands & Watercourses Comm'n, 634 F.3d 206, 210-11 (2d Cir.2011) ("[C]oncluding that Congress intended to occupy the field of air safety does not end our task.... [T]he inquiry is twofold; we must determine not only Congressional intent to preempt, but also the scope of that preemption. `The key question is thus at what point the state regulation sufficiently interferes with federal regulation that it should be deemed pre-empted[.]'" (second alteration in original) (quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 107, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992))); U.S. Airways, Inc. v. O'Donnell, 627 F.3d 1318, 1329 (10th Cir. 2010) ("Based on the pervasive federal regulations concerning flight attendant and crew member training and the aviation safety concerns involved when regulating an airline's alcoholic beverage service, we conclude that NMLCA's application to an airline implicates the field of airline safety that Congress intended federal law to regulate exclusively.").
The Tenth and Eleventh Circuits, in addressing products liability claims, have held that not only are those claims governed by state law, but also that the entire field of aviation safety is not preempted. See Pub. Health Trust, 992 F.2d at 295; Cleveland, 985 F.2d at 1447. While the basis for their broader holdings is now in doubt,
In sum, no federal appellate court has held an aviation products liability claim to be subject to a federal standard of care or otherwise field preempted, and Appellees have been unable to identify a single decision from any court, other than the District Court here, that has held the mere issuance of a type certificate conclusively establishes a defendant's compliance with the relevant standard of care.
E. The Parties' Policy Arguments
In addition to their legal arguments, the parties present various policy arguments in support of their respective positions. While we are not unsympathetic to those arguments, they carry no sway in face of clear evidence of congressional intent and the guidance we draw from the Supreme Court's preemption jurisprudence. Nonetheless, for the sake of completeness, we address those arguments briefly here.
First, in support of field preemption and a federal standard of care, Appellees and their amici warn that allowing state tort law to govern design defect claims will open up aviation manufacturers to tremendous potential liability and the unpredictability of non-uniform standards applied by juries throughout the states. See, e.g., Br. of Amicus Curiae Gen. Aviation Mfrs. Ass'n 18-24. Even if we accepted the premise that members of the aviation manufacturing industry would suffer more harm from exposure to tort liability than any other manufacturer that sells its products in all fifty states, this policy argument could not lead us to find field preemption without the requisite congressional intent. And as even the FAA acknowledges, "[a]lthough allowing a defendant to be held liable for a design defect in an engine that has received a type certificate from the FAA is in some tension with Congress's interest in national uniformity in safety standards with oversight by a single federal agency, Congress struck a balance between protecting these interests in uniformity and permitting States to compensate accident victims." FAA Ltr. Br. 12.
Nor are we moved by Appellees' predictions of the dire consequences to aircraft and component manufacturers of permitting products liability claims to proceed under state tort law, for our holding does not effect a sea change. On the contrary, it simply maintains the status quo that has existed since the inception of the aviation industry, preserving state tort remedies for people injured or killed in plane crashes caused by manufacturing and design defects. That status quo leaves intact the traditional deterrence mechanism of a state standard of care, with attendant remedies for its breach. Thus, while perhaps contrary to certain policies identified by Appellees and their amici, our holding furthers an overriding public policy and one we conclude is consistent with the Federal Aviation Act, FAA regulations, GARA, and decisions of the Supreme Court and our
On the other side of this debate, in arguing that type certificates should have no significance for conflict preemption, much less field preemption, Appellant contends that FAA preapproval of particular specifications provides no assurance of safety because the FAA delegates ninety percent of its certification activities to private individuals and organizations, known as designees, which can include the manufacturers themselves. U.S. Gov't Accountability Office, GAO-05-40, Aviation Safety: FAA Needs to Strengthen the Management of Its Designee Programs 3 (2004); see also Junhong v. Boeing Co., 792 F.3d 805, 808 (7th Cir.2015) ("Instead of sending a cadre of inspectors to check whether every aircraft design meets every particular of every federal rule and policy, the FAA allows [manufacturers] to do some of the checking [themselves]."). We too have recognized that designees receive inconsistent monitoring and oversight from the FAA, and many have some association with the applicant, so that in essence "[s]ome manufacturers are able to grant themselves a type certificate." Robinson v. Hartzell Propeller, Inc., 454 F.3d 163, 166 (3d Cir.2006); see also Varig Airlines, 467 U.S. at 818 n. 14, 104 S.Ct. 2755 (expressing concern that the staff of the FAA "performs only a cursory review of the substance of the overwhelming volume of documents submitted for its approval" (alteration, internal quotation marks, and citation omitted)). Even the FAA acknowledges that, "[i]n light of its limited resources," the agency designates outside organizations to perform some of the FAA's work in preparing a type certificate. FAA Ltr. Br. 14. From these alleged "flaws" in the review process, Appellant argues that the agency preapproval of specifications in the type certificate amounts to an unreliable self-policing regime that should play no role in even conflict preemption.
This very same argument, however, was raised in Bartlett and failed to carry the day. While the dissenters decried that granting "manufacturers of products that require preapproval ... de facto immunity from design-defect liability" would force the public "to rely exclusively on imperfect federal agencies with limited resources," Bartlett, 133 S.Ct. at 2495 (Sotomayor, J., dissenting), the majority held that because generic drug manufacturers are required to directly mirror the preapproved labels of their brand-name counterparts and are thus "prohibited from making any unilateral changes" to their labels, state law design defect claims were foreclosed by "a straightforward application of pre-emption law," id. at 2471, 2480. Although the resource limitations and extent of outsourcing of parts of the review process highlight the need for the FAA's vigilant oversight, the FAA still makes the ultimate decision to approve the particular design specifications sought in a type certificate. 49 U.S.C. § 44704(a); 14 C.F.R. § 21.21. Thus, the reasoning of the Bartlett majority, 133 S.Ct. at 2473, 2480, and the consideration we must give to the FAA's views under separation of powers principles, see Wyeth, 555 U.S. at 576-77, 129 S.Ct. 1187, lead us to conclude that the FAA's preapproval process for aircraft component part designs must be accorded due weight under a conflict preemption analysis.
In sum, the parties' policy arguments notwithstanding, the case law of the Supreme Court and our sister Circuits confirm our conclusion: We are dealing with an area at the heart of state police powers, and we have no indication of congressional intent to preempt the entire field of aviation design and manufacture. We therefore decline the invitation to create a circuit split and to broaden the scope of
We conclude that the District Court erred in granting summary judgment on Sikkelee's design defect claims on the basis of field preemption. The field of aviation safety we identified as preempted in Abdullah does not include product manufacture and design, which continues to be governed by state tort law, subject to traditional conflict preemption principles. Accordingly, we will vacate and remand for further proceedings consistent with this opinion.
49 U.S.C. § 40101 note § 2(b)(1). This provision would exempt from the statute of repose claims that are based on a manufacturer's misrepresentations and omissions with regard to a type certificate or the continuing airworthiness of a plane or its component part, such as a manufacturer's failure to comply with a type certificate or failure to report required information to the FAA.
Notably, several district courts have also rejected field preemption in the aviation context and thereafter considered whether conflict preemption applies. See, e.g., Sheesley v. Cessna Aircraft Co., Nos. Civ. 02-4185, 03-5011, 03-5063, 2006 WL 1084103, at *23 (D.S.D.2006); Monroe v. Cessna Aircraft Co., 417 F.Supp.2d 824, 836 (E.D.Tex.2006); Holliday v. Bell Helicopters Textron, Inc., 747 F.Supp. 1396, 1400 (D.Haw.1990).
The fate of Cleveland is less certain. In O'Donnell, the Tenth Circuit reversed course and held that the field of aviation safety is preempted. O'Donnell, 627 F.3d at 1322. Several district courts, including the District Court here, have stated without explanation that Cleveland has been abrogated by O'Donnell. See, e.g., Sikkelee, 45 F.Supp.3d at 448 n. 16. While O'Donnell narrowed Cleveland's holding, it did not purport to overturn Cleveland's application to products liability claims, but rather concluded that it "does not dictate the outcome in this case." 627 F.3d at 1326. Thus, Cleveland's holding that products liability claims are not preempted still appears to be the law of the Tenth Circuit.