It hasn’t happened yet, but just as the Supreme Court originally did with Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), the Court issued an order on June 24, asking for the Solicitor General’s views in Avco Corp. v. Sikkelee, No. 18-1140. The Order is on SCOTUSBlog, here.
Sikkelee is an aviation preemption case, but as we have discussed before, the Third Circuit addressed the Mensing/Bartlett implied preemption rationale in twice reversing pro-preemption decisions of the relevant federal district court.
The question presented by the defendant’s certiorari petition is very simple: “Whether the Federal Aviation Act preempts state-law design-defect claims.” Whether the Court will ultimately decide any Mensing/Bartlett preemption issue is uncertain, because the defendant has also raised a field preemption argument unique to aviation, but we note that the defendant’s lead preemption argument is Mensing/Bartlett.
However, given that a request for the SG’s views indicates the Court’s interest in Sikkelee, and greatly increases the likelihood of an ultimate grant of appeal, preemption-interested blog readers will want to keep this case on their radar. The SG’s position will help determine the salience of the Mensing/Bartlett aspect of any potential appeal.
The Court set no deadline for the SG to respond, which is usual.