READ THIS: it raises some important questions, keep reading

USDC JUDGE MATTHEW J. BRANN
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Type Certificate Quiz

This is a quiz—read the below 4 quotes, written by the gentleman in the above picture and then please answer the questions which follow:

Quotes:

֎ Obtaining A Type Certificate Is An Onerous Process Requiring Numerous Submissions That Precisely Detail The Specifications Of The Proposed Aircraft, Its Engine, And Related Component p.8

֎ A Type Certificate Holder May Not Independently Change A Type Certificate’s Type Design Details Without First Obtaining FAA Approval. p.14

֍ Designated Engineering Representatives (DERs) Pose No Issue As To Conflict Preemption Because At All Times, DERs Act Within The Scope Of Their FAA Delegation And Ensure That FAA Regulations Are Followed. p.23

֍ Parts Manufacturer Approval (PMA) Holders Who Submit Their Own Tests And Computations To The FAA Are Not Legally Bound By The Type Certificate Holder’s Design Decisions. Instead, Market Forces Incentivize Them To Produce Replacement Parts Sufficiently Close To Those Approved In The Type Certificate. p.31

Question:

These are quotes from?

a) a DER examination
b) a Page from an Embry-Riddle advanced course book on certification
c) random quotes from FAA-H-8083-32, Aviation Maintenance Technician Handbook-Powerplant
d) none of the above

Your answer:   _____

Quotes:

To help you answer #2 question, here is something else, the man in the picture wrote in the same document:

— A weightless innocence so often attends our daydreams of flight. As the American aviator John Gillespie Magee, Jr., loftily described it, pilots “dance[ ] the skies on laughter-silvered wings,” soaring “high in the sunlit silence.” Sadly, it would seem that Magee’s “high untrespassed sanctity of space” must belong to a universe far away from the dark origins and convoluted history of this…[1]

— … I have come to suspect that its complexity, like that of a shimmering oasis in the eyes of a weary wanderer, may be nothing more than a clever mirage flowing from strained interpretations of the law and academic daydreams divorced from fact.

Question:

The author of all six of these quotes is:

a) an FAA instructor at the Academy
b) a professor at Embry-Riddle
c) a staffer at FAA headquarters
d) none of the above

Your answer:   _____

The answers— [1.d, 2.d]



KEEP READING



The author of all of this language is USDC Judge Matthew J. Brann and the document is his opinion in SIKKELEE v. AVCO CORPORATION, USDC M.D. Pa, August 3, 2017. Though it is 115 pages long, the Judge writes in plain English[i] about a highly technical case on both the law and the facts.

faa far federal aviation regulationThe first set of quotes are the Judge’s headings for a detailed and very comprehensive review of the statute, the FARs, handbooks and other relevant statements about certification from TC/PC to STC to PMA with careful delineation of what a DER is required to do.

The facts are well summarized by Mark McKinnon of Dentons in his review entitled FAA – Federal Pre-emption and Aircraft Certification: You Have to Read This Opinion!!; here’s his short paragraph reciting many pages of the Judge’s opinion:

In this case, the engine in question was manufactured by Lycoming in 1969 and shipped to a user, who never actually installed it in an aircraft.  Instead, the engine sat in long term storage for 29 years.  In 1998, the engine was installed in a Cessna 172N, which did not even exist when the original engine received its type certificate.  In 2004, after the aircraft was struck by lightning, the carburetor was overhauled by a third party, resulting in what was described as a “Frankenstein’s monster” carburetor comprised of two different after market halves manufactured decades apart, and joined together with a third set of parts from a different after market parts manufacturer.  The plane crashed in 2005, killing the pilot and seriously injuring a passenger.

After the opinion’s textbook on the FAA’s certification processes, it discusses one of the law’s most complex doctrine—federal preemption.

Suffice it to say, Judge holds that Pennsylvania’s statutory standard for tort law involving the manufacture of the Cessna 172N, under these facts, is preempted by the FAA’s exercise of jurisdiction over the plane’s TC/PC, the STC and the PMA involved in these facts. Here is one of his statements of the finding:

An apt illustration of this concept is the comparison between a state tort law that requires a given change to make a product safer and a corresponding federal regulation that requires exactly the same change, a hypothetical discussed at oral argument. If the federal regulatory regime also requires agency approval before that change could be made, the state tort law must be impliedly preempted if an enterprising litigant seeks to hold a manufacturer liable under such a theory.

Judge Brann’s opinion is subject, potentially to appeals to the US Circuit Court of Appeals and Supreme Court. At either level, the federal preemption holding can be reversed, modified of affirmed.

Sikkelee v. Precision Airmotive court of appeals

NOTE: The Court of Appeals remanded this case to Judge Brann, to consider whether Plaintiff’s state law claims might nevertheless be conflict preempted. Sikkelee v. Precision Airmotive Corp., 822 F.3d 680 (3d Cir. 2016).

The precedential value will be tested by the very active aircraft liability bar. If Sikkellee is affirmed and its holding expanded beyond Pennsylvania and the facts, an FAA certificate will have even greater value. Once issued, a TC could be a shield against plaintiff’s neglegent design claims. By preempting state tort actions on there lawsuits, increased emphasis will be placed on the FAA in its regulation of the airworthiness of designs and production.

It is far too early to presume that Sikkelee will be upheld and a premature forecast that its well-reasoned holding will be expanded. If a TC insulates the manufacturers from design lawsuits, this status potentially raises some fascinating  questions of law and policy:

  • Under the new Part 23, a regulation which was specifically authorized by Congress, the increased participation of outside parties may/may alter this decision?
  • Might a creative plaintiff argue that the Sikkelee rational shifts liability to the federal government?
  • If a TC confers immunity from liability for the OEMs, might libertarians insist that private industry pay for this valuable insulation?

If Sikkelee is affirmed, the manufacture of aircraft will be changed and the FAA’s role may be reconsidered.

 


[1] quoted from John Gillespie Magee, Jr., “High Flight” (1941)

[i] The second set of quotes are examples of the Judges use of language to establish the complex nature of the case. There’s more!!!


 

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3 Comments on "READ THIS: it raises some important questions, keep reading"

  1. Michael Maloney | August 17, 2017 at 4:17 pm | Reply

    If indeed this ruling provides that adherence to a type certificate is an umbrella against action arising against the product, how does this impact PMA manufacturers holding approval, but not in full compliance with the type certificate holder’s design? Does this mean variances are still protected under the guise of FAA approval of the PMA? Where does that shift attention to a DER, or approvals enacted under the DER, for changes to a type certificate, or field modifications via 337 and “field approvals?”

    In each case, does this ruling imply a protective umbrella formed by the overlying authority (FAA)? For the DER, culpability becomes absorbed by the FAA as the authorizing agency? What of the IA who installs a STC or the STC holder? There is more than one way to skin a cat, or to install the STC in many cases, and not all are equal. Many STC’s reference existing data, leaving a great deal in the lap of the A&P or IA or repair station determine “industry standard” or compliance with generic references (AC 43.13, etc). It would seem, at a minimum, that any variance from a manufacturers direction or standard would remove an inspector, installer, or mechanic from any implied umbrella. It would seem a concern when variables are left to the man in the field, or where a variance exists between TC and PMA or STC.

  2. Sandy Murdock | August 18, 2017 at 5:46 pm | Reply

    Mike Maloney– excellent points

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