ACI-NA Weekly Legal Briefing--Issue 5


ACI-NA’s Weekly Legal Briefing

Volume 2012, Issue 5

Week of March 19– 23, 2012

Legal Affairs Committee Members:

The following matters are highlighted for your review and information.

Litigation Worth Noting:

  • California Court of Appeal, Second District, Division 6, finds that nonmandatory FAA Advisory Circular does NOT preempt state tort law on the standard of care.

In a decision issued on March 20, 2012, in Sierra Pacific Holding, Inc. v. County of Ventura, a California Court of Appeal ruling held that the Federal Aviation Administration’s safety standard reflected in an Advisory Circular does not preempt state tort law on the standard of care applicable to an airport’s runway protection zone since the advisory circular contained nonmandatory standards.  

The case involves an aircraft owner’s suit against the Camarillo Airport (“Airport”) and the County of Ventura (“County”)  negligently creating a dangerous condition at the airport which led to damage to the owner’s aircraft.  The Airport and County argued that federal law (an FAA Advisory Circular) preempted state tort law on the standard of care with respect to the runway conditions at the time of the incident.  The County filed a motion in limine to preclude the aircraft owner from introducing evidence of safety standards relating to airport design and construction, other than the standards established by the federal government.  The trial court granted the County’s motion and the aircraft owner stated that it could not proceed with its negligence action based on that ruling.  The parties stipulated to entry of the judgment in the County’s favor and an appeal of the trial court’s ruling was filed by the aircraft owner.

The California Court of Appeal noted that the issue of federal preemption is a question of law and reviewed the trial court’s determination.  The court noted that in this case, since the Federal Aviation Act of 1958 did not include an express preemption provision for FAA safety standards, a determination was necessary on whether federal preemption of state law was applied with respect to airport safety standards.  Applying reasoning from a ruling by the U. S. Court of Appeals for the Ninth Circuit in Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc. (9th Cir. 2009) 555 F.3d 306, the California Court of Appeal analyzed FAA preemption by looking to the pervasiveness of federal regulations with respect to the specific advisory circular at issue.  In evaluating that FAA Advisory Circular, Circular No. 150/5300-13, which contains standards and recommendations for airport design, the court observed that the standards set forth were not incorporated in a mandatory regulation.  Citing the introduction to the circular, which states, in part:  the FAA “recommends the guidelines and standards in this Advisory Circular for use in the design of civil airports.  In general, use of this AC [Advisory Circular] is not mandatory.  However, use of this AC is mandatory for all projects funded with federal grant monies through the Airport Improvement Program (AIP) and with revenue from the Passenger Facility charges (PFC) Program.”  Since the record on appeal did not contain any evidence that the standards for the RPZ area of the airport, where the incident occurred, was federally funded, the court decided that the Advisory circular’s standards as to the RPZ were not mandatory.

The Court of Appeal decision also noted that other cases on federal preemption involved mandatory FAA regulations and that it had not found any case holding that state law was preempted by nonmandatory standards in an FAA advisory circular.  Thus, the court stated that such nonmandatory standards are not “law” and thus are not subject to the principle of federal preemption.  Notwithstanding that determination, the state appeal court opinion recognized that the FAA’s advisory standards for the RPZ could still play an important role in litigation, citing a decision by the U. S. Circuit Court of Appeals for the Fifth Circuit in Muncie Aviation Corp. v. Party Doll Fleet, Inc. (5th Cir. 1975) 519 F.2d 1178.  In that case, recommendations contained in a FAA Advisory Circular were admissible to provide the jury with guidelines for determining what procedures were followed by pilots in the ordinary course of certain landings and to assist the just in measuring ordinary negligence. 

Thus, while the court reversed the judgment, and directed the trial court to vacate its order granting the County’s motion in limine, there has not been a final determination as to what role, if any, the FAA’s Advisory Circular may play in a determination on the merits in this case. 

Weblink to decision:

Upcoming Conferences and Events

  • The Federal Bar Association’s Transportation and Transportation Security Law Section’s March Lawyers’ Luncheon will take place on Tuesday, March 27, 2012.

The topic is:   “Regulatory Issues and Legal Perspectives on Airline Bankruptcies”


The panel participants will include:

  • Andrea Handel, Trial Attorney with the Department of Justice Civil Division, specializing in complex trial litigation, including airline bankruptcies (represents federal agencies, including DOT, FAA, and TSA in bankruptcy court proceedings)
  • Frank J. San Martin, Manager of the FAA Airports Financial Assistance Division in the Office of Airports
  • Lauralyn Remo, Chief of the Air Carrier Fitness Division in the Office of Aviation Analysis within the USDOT Office of the Secretary of Transportation.
  • Eric Smith, co-chair of the Aviation Group and member of both the Litigation Services and Business Services Departments at Schnader Harrison Segal & Lewis LLP (represents a large number of airports in airline bankruptcy proceedings)

The program will take place from 12:15 pm – 1:30 pm

Conference Room 8-9-10 DOT Conference Center

1200 New Jersey Ave., SE

Washington, DC 20590

Bring your brown bag lunch—beverages and cookies are provided.

To register, please email Jenny Bosak at

Limited seating – Please register early

ACI-NA Legal Affairs Committee members interested in participating by conference call, please send a note requesting the dial-in number and passcode to   by 5 p.m. on Monday, March 26, 2012.


  • REGISTRATION FOR THE  2012 ACI-NA SPRING LEGAL AFFAIRS CONFERENCE IS NOW OPEN-----“The ABCs of RFPs and Airport Procurement---Lessons from those who’ve been there and back.” The Conference will take place from April 25-28, 2012 at the Double Tree Hotel, Charleston, SC.   See the Preliminary Conference Agenda.                                   Early Bird Registration Deadline is April 2.


Joseph R. Heerens, General Counsel of the Indianapolis Airport Authority, who has been elected as chairman of the State Employees’ Appeals Commission (SEAC).   Appointed as a commissioner by Indiana Governor Daniels last July, Heerens assumed the chairmanship in late February of this year following a unanimous vote by his fellow SEAC commissioners, who make up the bi-partisan group.  The SEAC holds hearings and investigates appeals from state employees with respect to workplace employment and disciplinary matters, and renders decisions as to the validity of appeals or lack thereof. The SEAC also identifies and recommends beneficial changes or improvements to the state’s personnel policies.


If you have information of interest to share, forward it to me by COB on Thursday of each week.

  Send it to:

Have a great weekend!


Monica R. Hargrove
General Counsel

Direct: (202) 861-8088