Keeping An Eye On 'Pervasive Regulation' In Aviation And Its Effect On Implied Federal Preemption

Earlier this month, the Ninth Circuit issued another opinion regarding the scope of federal preemption in the context of federal aviation regulations. In National Federation of the Blind v. United Airlines Inc. (No. 11-16240), the Court held that a class action alleging claims for violation of California's antidiscrimination laws was preempted by the Air Carrier Access Act (ACAA) and its implementing regulations.

The Ninth Circuit previously held that federal law impliedly preempts state laws that regulate aviation safety standards, and that federal law establishes the standard of care in areas in which the Federal Aviation Administration (FAA) issues pervasive regulations. In Montalvo, the plaintiffs alleged the airline failed to warn about the risk of deep vein thrombosis.1 The Ninth Circuit held the Federal Aviation Act of 1958 (FAAct) and its implementing regulations preempted the field of preflight warnings because the regulations regarding passenger warnings were pervasive, complete, and comprehensive. The plaintiffs' negligence claim failed because there was no federal requirement to warn of deep vein thrombosis. In Martin, the Ninth Circuit rejected a broad reading of Montalvo, and limited the scope of implied field preemption under the FAAct.2 The plaintiff in Martin alleged that an airplane's stairs were defectively designed because they had only one hand rail. The Court held that a state law claim would be preempted by the FAAct only if the specific area covered by the claim was the subject of "pervasive" federal regulations. Under that standard, the plaintiff's claims were not preempted because the only federal regulation regarding stairs provides only that they may not block the emergency exits, and says nothing about hand rails or design features.

The Ninth Circuit later considered whether the ACAA - an amendment to the FAAct that protects disabled travelers from discrimination by air carriers - preempts state law tort claims.3 Gilstrap involved claims that the defendant airline failed to provide adequate wheelchair assistance. The Court held that the ACAA could preempt state law standards of care if "pervasive federal regulations" had been issued in the specific area covered by the state law tort claim. Gilstrap further clarified that, in evaluating field preemption, the "pervasive regulation" analysis must be undertaken in connection with each theory of liability. The Court held that ACAA regulations regarding wheelchair...