The Ninth Circuit’s 'Nuanced' Approach To FAA Preemption Leads To Greater Uncertainty And Invites Artful Pleading

Announcing a "nuanced" approach to Federal Aviation Act of 1958 preemption, the Ninth Circuit has further narrowed the scope of federal preemption in the aviation field. In this client alert, we summarize the new framework articulated in Gilstrap v. United Air Lines and discuss its implications on the litigation horizon. We conclude that the new standard promotes more uncertainty than it resolves, vests plaintiffs with the strategic advantage of deciding when to invoke or avoid federal preemption of the standard of care, and invites gamesmanship through artful pleading.


For context, let's begin with the "black letter law" on federal preemption. The Supremacy Clause of the U.S. Constitution establishes the power of Congress to preempt state law. U.S. Const., art. VI, cl. 2. Federal preemption can take three forms. First, preemption may arise from a federal statute's express language. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516-17 (1992). Second, conflict preemption may be implied "where it is impossible for a private party to comply with both state and federal requirements." English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990). Third, field preemption may be implied when Congress creates a regulatory scheme so pervasive in a particular subject area that the scheme evidences an intent for "federal law to occupy the field." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 (2000) (internal quotations omitted). The clear and manifest purpose of Congress is the ultimate touchstone in any preemption case. Cipollone, 505 U.S. at 516.


The Ninth Circuit previously held that federal law impliedly preempts state law aviation safety standards and establishes the standard of care in areas in which the Federal Aviation Administration ("FAA") issues "pervasive regulations." Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806, 811(9th Cir. 2009); Montalvo v. Spirit Airlines, 508 F.3d 464, 473 (9th Cir. 2007). The court's earlier decisions in Montalvo and Martin offer some guidance on the meaning of "pervasive regulations."

In Montalvo, plaintiffs alleged that various airlines failed to warn passengers about the risks of developing deep vein thrombosis ("DVT"). Montalvo, 508 F.3d at 469. Considering the language and legislative history of the Federal Aviation Act of 1958 ("FAAct"), as well as the pervasive regulations promulgated by the...

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