[Inside Litigation, October
1988, Volume 12, Number 105, page 1. Reproduced with permission granted by Aspen
Law & Business/Panel Publishers (www.aspenpub.com).]
Federal Preemption: Two
Renditions of a Fundamental Theme
It's a point of law of
obviously crucial strategic importance: To what extent does federal jurisdiction
override decisions in state courts in product liability cases? For defense
counsel, preemption is a potent weapon. Not just conflicting laws, but the very
absence of a federal statute can, in specific instances, support a contention
that a defendant is in full compliance with existing regulation.
The debate takes on a rather ironic twist
when considered in the larger context of what is and what is not the proper
balance, legally and politically, between branches of the government. "Liberals"
with an abiding faith in federal activism suddenly find themselves zealously
guarding the prerogatives of decentralized decision-making. "Conservatives" with
their dread of Big Brother suddenly look Beltway-ward the moment states' rights
threaten disaster for corporate clients.
Below are two views of the subject from the
opposing sides. First is an address given by Arthur H. Bryant, executive
director of Trial Lawyers for Public Justice in Washington, D.C., to the Section
on Toxic, Environmental and Pharmaceutical Torts of the Association of Trial
Lawyers of America at ATLA's annual conference, on July 13,
Inside Litigation has invited Kenneth Geller and John Sullivan to respond. They are members
of the Supreme Court and Appellate Practice Group in the Washington office of
Mayer, Brown & Platt. Geller is former Deputy Solicitor General of the
United States and Sullivan is a former law clerk to Justice David H.
Mayer, Brown represented the defendant in
Lewis v. Brunswick Corp. The Trial Lawyer for Public Justice filed
an amicus urging the Supreme Court to find no preemption in that case.
The case was settled by the parties, however, before a decision was
First, Arthur H. Bryant . .
It is black letter law in virtually every
state that a defendant's compliance with applicable government regulations is
evidence of, but does not irrefutably establish, lack of negligence. If a
reasonable person in the defendant's shoes would have done more than the bare
minimum required by applicable regulations, then the defendant can be held
liable. Thus, for example, the manufacturer of a harm-inducing drug can be found
liable for the harm caused by the drug even though the manufacturer and the drug
complied with all applicable regulations.
Bryant: 'Under the law, federal
preemption turns . . . exclusively on what Congress intended when it enacted the
legislation . . . at issue.'
Despite this sound and well-established
principle of state law, numerous manufacturers and other defendants are now
arguing in toxic tort, environmental, pharmaceutical, and other cases that they
cannot be found negligent — indeed, that they cannot be sued — because they
complied with government regulations. The regulations that they point to are
federal and the doctrine that they cite is federal preemption. Far too
frequently, the courts are ruling in their favor. To reverse this unjust trend,
plaintiffs' lawyers need to pay more attention to federal preemption issues and
the constitutional implications they raise.
While numerous factors come into play when
arguing about federal preemption, there are two key factors that plaintiffs'
lawyers frequently overlook. First, federal preemption is fundamentally an issue
of the relative power of the federal and state governments. The question in a
federal preemption case is whether the federal government has, by its actions,
eliminated the power of the states to provide for compensation of their
citizens. The central values of our federal system — a system of United States —
are at stake. Second, in arguing these issues, the substantive views of the
courts on the propriety of tort litigation are not supposed to matter. Under the
law, federal preemption turns (or at least is supposed to turn) exclusively on
what Congress intended when it enacted the legislation (or authorized the
regulatory agency to adopt the regulation) at issue. The central question is:
what did Congress intend?
With these thoughts in mind, this paper
will provide a brief overview of the law of federal preemption, highlight some
important recent developments, and provide suggestions about what lawyers faced
with preemption arguments should and should not do. Let me say at the outset,
however, that, if your opponent files a motion arguing federal preemption,
please do not hesitate to contact me or the other staff at Trial Lawyers for
Public Justice. We have been briefing and arguing these issues all over the
country for over a decade. We are committed to preserving injured victims'
rights to their day in court.
Preemption Doctrine: A Brief
In determining whether common law claims
are preempted by federal law, the courts' "sole task is to ascertain the intent
of Congress." California Federal Savings & Loan Assn. v.
Guerra, 479 U.S. 272, 107 S. Ct. 683, 689 (1978). Because the federal and
state governments share power under our system of law, moreover, the inquiry
"starts with the basic assumption that Congress did not intend to displace state
law." Maryland v. Louisiana, 451 U.S. at 746. "This assumption
provides assurance that the federal-state balance," United States v.
Bass, 404 U.S. 336, 349 (1971), will not be disturbed unintentionally by
Congress or unnecessarily by the courts." Jones v. Rath Packing
Co., 430 U.S. 519, 525 (1977). As the Ninth Circuit explained in Chevron
U.S.A., Inc. v. Hammond, 726 F.2d 483, 488 (9th Cir.
The justification for such caution is that
Congress certainly has the power to "act so unequivocally as to make it clear
that it intends no regulation but its own." Rice v. Santa Fe Elevator
Corp., 331 U.S. [218, 236 (1947)]. Furthermore, if we are left with a doubt
as to congressional purpose, we should be slow to find preemption," [f]or the
state is powerless to remove the ill effects of our decision, while the national
government, which has the ultimate power, remains free to remove the burden."
Penn Dairies v. Milk Control Comm'n.,318 U.S. 261, 275
The strength of the presumption against
preemption depends upon the subject matter being regulated. Chevron U.S.A.,
Inc., 726 F.2d at 487-488; Morseburg v. Balyon, 621 F.2d 972,
976 (9th Cir. 1980). The presumption is particularly strong in regard to subject
matters "traditionally regarded as properly within the scope of state
superintendence," Florida Lime & Avocado Growers Inc. v.
Pauli, 373 U.S. 132, 144 (1963), including "state or local regulation of
matters relating to health and safety," Hillsborough County, Florida, 471
U.S. 707 (1985), and "the provision of tort remedies to compensate for personal
injuries." Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1542
(D.C. Cir.), cert. denied, 469 U.S. 1062 (1984). When such "historical
police powers of the States" are at issue, preemption will not be found "unless
that was the clear and manifest purpose of Congress." Rice,
331 U.S. at 230 (emphasis added). "The presumption against preemption is even
stronger against preemption of state remedies, like tort recoveries, when no
federal remedies exist." Abbot by Abbot v. American Cyanimid Co.,
844 F.2d 1108, 1112 (4th Cir. 1988).
Congressional intent to preempt a state law
can be found in three separate ways. California Federal, 107 S.Ct. at
689. First, there is express preemption. Congress can explicitly state its
intent to preempt the state law at issue. Id. If Congress' intention is
clear from its express language, that is supposed to end the analysis and the
courts are not supposed to look further. Cipollone v. Liggett Group
Inc., 505 U.S. 504, 517 (1993); Freightliner Corp. v. Myrick,
115 S.Ct. 1483 (1995). Second, if Congress' intent is not clear from its express
language, an intention to preempt can be implied when the legislation passed is
so comprehensive that it leaves no room for the states to supplement federal
law. California Federal, supra. Third, if Congress' intent is not clear
from its express language, an intention to preempt a specific law can also be
implied if the state law "actually conflicts" with the federal law. Id.
Such "an actual conflict" will only be found where "compliance with both federal
and state [law] is a physical impossibility" or "the state law stands as an
obstacle to the accomplishment and execution of the full purposes of Congress."
Id. Throughout the preemption analysis, "the purpose of Congress is the
ultimate touchstone." Id.
Some Recent Preemption
Given the historic role of the States in
compensating injury victims, the courts have generally been hesitant to find
that Congress intended to preempt the States' power in this area. See, e.g.,
Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) Nevertheless, in
recent years, manufacturers have increasingly been arguing — and the federal
district and appeals courts, in particular, have increasingly been finding —
that federal preemption bars injury victims' claims.
If there is a saving grace in this battle,
it is that (at least, so far) the U.S. Supreme Court has been less likely
to find federal preemption of such claims than the lower federal courts. Thus,
for example, in Cipollone v. Liggett Group, Inc., 505 U.S. at 504,
the Supreme Court rejected the near-unanimous position of the federal appeals
courts and held (a) that a 1965 federal cigarette statute did not preempt any
claims and (b) that a 1969 federal cigarette statute preempted only some
warning-related claims, but not others. And, in Medtronic Inc. v.
Lohr, 116 S. Ct. 2240 (1996), the Supreme Court found that the Medical
Device Amendments of 1976 did not preempt any of the plaintiff's claims —
even though most federal circuits had held otherwise.
In the past several years, the Supreme
Court has generally heard at least one case each year addressing federal
preemption of injury victims' claims. As I write this paper, we await the
Court's ruling in Lewis v. Brunswick Corp., 107 F.3d 1494 (11th
Cir. 1997), cert. granted, No. 97-288 (argued March 2, 1998). In that
case, a young woman fell out of a boat and died when she was repeatedly struck
by the boat engine's unguarded propeller. The woman's parents sued the engine's
manufacturer, charging that the engine was defectively designed because it
lacked a propeller guard. The case, however, never got to trial. Both the
district court and the Eleventh Circuit held (as did the Eighth Circuit before
them) that, because the Coast Guard considered whether to issue a
regulation requiring all manufacturers to install propeller guards on all boats
— and decided not to do so — no injury victim could sue any boat
manufacturer for failing to install a propeller guard on any
Trial Lawyers for Public Justice filed an
amicus brief in Lewis urging the Supreme Court to find no
preemption. We also met with the Solicitor General's Office and helped persuade
the U.S. government to file an amicus brief urging the same result. The
case . . . should provide more guidance on how to address preemption issues. . .
. In the meantime, plaintiffs' lawyers must be aware of the threat of federal
preemption— and work hard to avoid it.
To avoid federal preemption, there are
several things that you should and should not do:
- Take the threat of federal preemption into
account before you file your case. Whether a court finds preemption may turn
entirely on what claims you assert or on how you frame your case. The very best
way of dealing with federal preemption may literally be to avoid it, if you can
still successfully pursue your clients' claims.
- Do not underestimate the importance of the
issue. If the court finds federal preemption of your clients' claims, that may
not just end the case. It may also end your ability to file similar cases in the
- Do not underestimate the work to be done.
These motions require research and briefing of Congress' intent in enacting a
particular statute and the interplay of federal and state law. Law students and
inexperienced briefing attorneys are unlikely to do an adequate
- Call for help. Contact Trial Lawyers for
Public Justice for assistance and for information about other lawyers faced with
similar motions. We and they may be able to save you a lot of work. At a
minimum, we can guide and assist your research efforts. In an important enough
case or appeal, we may be willing to brief and argue the issue
- Throughout your papers and argument,
recognize and articulate the important constitutional issues at stake. The
federal preemption issue is not simply about whether a particular set of victims
will be able to obtain compensation— as important as that question is. Rather,
it is about whether Congress has taken away from the States the power to
compensate victims whom the States deem worthy of compensation. In preemption
cases, the defendant is arguing that, no matter how outrageously it acted, the
States have no power to require it to pay compensation to its victims. The
constitutional implications of that argument are important.
- Recognize and take appropriate advantage
of the fact that, because preemption involves the usurpation of state power by
the federal government, certain judges and others that might not normally be
receptive to your clients' interests may be extremely receptive to your
arguments. "States' rights" advocates, State Attorneys General, and local
government lawyers are your natural allies.
- Keep your eye on the ball. The question is
what Congress intended. The strong presumption is that Congress did not intend
to preempt state law.
Bryant: '[B]ecause preemption involves
the usurpation of state power by the federal government, certain judges . . .
that might not normally be receptive to your clients' interests may be extremely
receptive to your arguments.'
- With your eye on the ball, carefully
research and fully brief the issues. Make sure you review all of the sources
usually examined to determine what Congress intended. Focus first on the
specific language in question. What does it mean in light of the purpose for
which it was passed? Then turn to the legislative history. Did Congress or the
bill's sponsors say they intended to preempt tort law claims? If not, what basis
is there for saying they intended to do so? Review the position, if any, the
federal agency involved has taken on the issue. In many cases, the agency has
said there is no preemption. Then turn to the case law interpreting the statute—
not simply in your specific factual context, but in all relevant cases. Don't
forget to look at law reviews and other commentaries, too.
- Recognize and stress the distinction
between state regulations and state tort law. Congress often preempts the former
and leaves the latter intact, particularly in the field of consumer protection.
The reason is the different purposes of the two bodies of law. Regulatory law is
forward-looking. It is primarily intended to change future conduct. Tort law
looks back in time. It is primarily intended to compensate victims. Note that,
in many areas, if tort law is preempted, criminal law may be preempted, too. Its
purpose is punishing wrongful conduct, but it also affects future conduct. See
if there are any cases examining the preemptive effect of the federal law in
question on state criminal law and argue that, too.
- Keep fighting. Justice is on our side. The
manufacturers are generally relying on federal legislation intended to
increase consumer protection. Congress did not intend this legislature to
immunize manufacturers from liability and leave injured consumers with no remedy
Geller and Sullivan Respond .
In response to the flood of
product liability claims against a broad range of manufacturers in recent
decades, defendants have often successfully interposed the affirmative defense
of federal preemption of state tort law. The gist of the defense is that, where
the government — either Congress or a federal agency — has adopted a policy or
regulatory program that addresses the safety issue implicated by a product
liability suit, the Supremacy Clause of the U.S. Constitution prohibits state
tort law from imposing duties that are inconsistent with or frustrate the
purpose of the federal safety program.
Federal preemption of state law
is as old as the Constitution. The Supremacy Clause resolves any conflict
between federal law and state law in favor of federal law. U.S. Const. art. VI,
cl. 2; Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 362
(1986); Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458
U.S. 141, 153 (1982).
Plaintiffs in product liability
suits have, not surprisingly, resisted federal preemption vigorously, raising
numerous legal objections. In Lewis v. Brunswick Corp., 107 F.3d
1494 (11th Cir. 1997), cert. dismissed, 118 S. Ct. 878 (1998), the
Supreme Court was presented with many of the legal issues on federal preemption
now raised by plaintiff's counsel in state and federal courts across the
country. We represented Brunswick Corporation before the Supreme Court in
Lewis. Although no decision was rendered in the case because the parties
settled, Lewis is a useful vehicle for reviewing some of the common
arguments for and against federal preemption.
In response to petition's
assertion in Lewis that a boat manufactured by Brunswick was defective
under Georgia tort law because it did not have a propeller guard, Brunswick
interposed a federal preemption defense. This defense relied on the Boat Safety
Act of 1971, 46 U.S.C. §§ 4301-4311, which established a comprehensive federal
boat safety program to be administered by the Coast Guard and implemented, in
large measure, by the states. Over one aspect of boat safety, Congress reserved
exclusive regulatory authority to the Coast Guard: "the establishment of
national construction and performance standards for boats and associated
equipment." Senate Report on the Boat Safety Act of 1971 at 15. Congress sought
to promote uniform national standards so that "interstate commerce" would not be
"impeded" by equipment and design requirements that varied from state to state.
Id. at 14.
Exercising its authority under
this federal regulatory scheme, the Coast Guard conducted an 18-month
investigation that culminated in a decision that propeller guards should not be
required on recreational boats. The lengthy administrative proceedings revealed
that propeller guards often make boats less safe and are not economically
Bryant: 'Recognize and stress
the distinction between state regulations and state tort law. Congress often
preempts the former and leaves the latter intact . . .'
Relying on this legislative and
administrative record, Brunswick argued that the petitioners in Lewis
sought to undermine the Coast Guard's decision, as well as the congressional
goal of uniform national design standards and requirements, by bringing suit to
enforce a requirement under Georgia common law that recreational boats be
equipped with propeller guards. The petitioners responded that neither the text
of the Boat Safety Act, nor any federal safety policy, precluded their
The focus in any product liability action
is on express and implied preemption.
First, express preemption. The preemption
analysis of any state law claim must begin with the text of the federal statute
at issue. See Medtronic, Inc. v. Lohr, 116 S. Ct. 2240, 2251
(1996). In the Lewis case, Section 4306 of the Boat Safety Act, stated
that (emphases added):
[A] State may not establish, continue in
effect, or enforce a law or regulation establishing a recreational vessel or
associated equipment performance or other safety standard or imposing a
requirement for associated equipment...that is not identical to a regulation
prescribed under section 4302 of this title.
Brunswick argued that the petitioners'
state law claims in Lewis were expressly preempted by this language in
the Boat Safety Act. It was undisputed that the petitioners sought to
"establish, continue in effect, or enforce" a rule of state law requiring
propeller guards (which constitute "associated equipment") on a "recreational
vessel" and that this state law rule was "not identical to" a Coast Guard
In fact, the Coast Guard made a conscious
decision not to issue a regulation requiring that boats be equipped with
propeller guards. There can be no doubt that a Georgia statute or
regulation requiring that recreational boats be equipped with proper
guards would be preempted by the Boat Safety Act.
Express Preemption of Common Law
The petitioners in Lewis nonetheless
sought to distinguish an identical state common law requirement by
arguing that the preemption provision of the Boat Safety Act does not provide
that "common law" actions are preempted. Their position was ultimately premised
on the notion that Congress intended the States to supplement the Coast Guard's
regulatory scheme, not through their legislatures or expert administrative
agencies, but rather through lay juries acting on a case-by-case
Geller and Sullivan: 'If Congress
were intent on creating uniform national standards and requirements, why would
it preempt a state administrative regulation but not a common law rule on the
This argument, which is commonly advanced
in opposition to federal preemption, is belied by the text of Section 4306 of
the Boat Safety Act. That text preempts a "State or political subdivision of a
State" from adopting or enforcing a "law or regulation establishing a
recreational vessel or associated equipment performance or other safety standard
or imposing a requirement for associated equipment . . . that is not identical
to a [Coast Guard] regulation." There is no basis for reading the broad phrases
"state law or regulation," "safety standard," and "requirement" to exclude
mandatory duties or requirements imposed by state common law.
The contrary argument was explicitly
rejected by the Supreme Court in Cipollone v. Liggett Group, Inc.,
505 U.S. 504 (1992). The Cipollone Court held that the express preemption
provision at issue in that case included common law duties even though it spoke
only in terms of " 'requirement[s] or prohibition[s] ... imposed under State
law.' " 505 U.S. at 519-524 (plurality opinion) (citation omitted); id.
at 548-549 (Scalia, J., concurring). The Court stated that it made no difference
that the preemption clause "fail[ed] to include a specific" reference to common
law claims (id. at 521): The phrase "[n]o requirement or prohibition"
sweeps broadly and suggests no distinction between positive enactment and common
law. To the contrary, those words easily encompass obligations that take the
form of common-law rules. See id. at 548-549 (" 'requirement[s] or
prohibition[s]' " and " 'State law' "...embrace state common law") (Scalia,
The Court applied the same analysis in
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) to the
express preemption clause in the Federal Railroad Safety Act, under which
"applicable federal regulations may preempt any state 'law, rule, regulation,
order, or standard relating to railroad safety.' " Relying on Cipollone.
the court held that "[l]egal duties imposed . . by the common law fall within
the scope of these broad phrases." Ibid. This holding was entirely
consistent with the 's prior interpretation and usage o the same "broad phrases"
in other contexts. See, e.g., Norfolk & W.R. Co. v. American Train
Dispatchers Ass'n, 499 U.S. 117, 128 (1991) (preemption of all " 'all other
law, including State and municipal law' is clear, broad and unqualified. It does
not admit of the distinction . . . between positive enactments and common law
rules of liability"); Illinois v. City of Milwaukee, 406 U.S. 91,
100 (1972) (giving the word "laws," as used in 28 U.S.C. § 1331, its "natural
meaning" to include common law claims).
The holdings in Cipollone and
Easterwood were recently reaffirmed in Medtronic, where a majority of
the Court endorsed the proposition that the word "requirement" encompasses state
law tort claims for purposes of federal preemption. 116 S. Ct. at 2259-2260
(Breyer, J., concurring in part and concurring in the judgment); id. at
2262-264 (O'Connor, J., Rehnquist, C.J., and Scalia and Thomas, JJ., concurring
in part and dissenting in part). As Justice O'Connor observed, "[w]hether
relating to the labeling of cigarettes [Cipollone] or the manufacture of
medical devices [Medtronic], state common-law damages actions operate to
require manufacturers to comply with common law duties," and are therefore
expressly preempted by a federal statute that bars state "requirements."
Id. at 2262-2263; see id. at 2259 ("One can reasonably read the
word 'requirement' as including the legal requirements that grow out of the
application, in particular circumstances, of a State's tort law") (Breyer,
The Court's approach in Cipollone,
Easterwood, and Medtronic is ultimately premised on its longstanding
recognition that "[state] regulation can be as effectively exerted through an
award of damages as through some form of preventive relief." San Diego Bldg.
Trades Council v. Garmon, 359 U.S. 236, 247 (1959); see New York
Times Co. v. Sullivan, 376 U.S. 254, 277-278 (1964) (holding that
common law claims are " 'a form of regulation.' " Where — as here — Congress has
expressed a strong interest in creating uniform national standards and in
preempting inconsistent state duties, it would be irrational to read broad and
generic phrases such as "law," "regulation," "standard," or "requirement" in a
grudging and artificial way so as to exclude requirements imposed by a State's
common law. See Chicago & N.W. Transp. Co. v. Kalo Brick &
Tile Co., 450 U.S. 311, 326 (1981) (a "system under which each State could,
through its courts, impose . . . its own . . . requirements could hardly be more
at odds with the uniformity contemplated by Congress"); see also
International Paper Co. v. Ouellette, 479 U.S. 481, 498-499 n. 19
(1987) (rejecting the contention that compensatory damages only require the
[defendant] to pay . . . and thus do not 'regulate' ").
Indeed, as Justice Breyer noted in
Medtronic, "a contrary holding would have anomalous consequences." 116 S.
Ct. at 2259. If Congress were intent on creating uniform national standards and
requirements, why would it preempt a state administrative regulation concerning
a piece of equipment, such as a ventilation system, but not a common law rule on
the same subject? "The effects of the state agency regulation and the state tort
suit are identical," and it makes no sense "[t]o distinguish between them for
pre-emption purposes." Ibid. To do so would be to "grant greater power .
. . to a single jury than to state officials acting through state administrative
or legislative lawmaking processes." Ibid.
To blunt the force of the foregoing
precedents, the petitioners in Lewis also relied on Section 4311(g) of
the Boat Safety Act, the statute's "Savings Provision," which is a common
feature in federal health and safety statutes. That section provides that
"[c]ompliance with this chapter or standards, regulations, or orders prescribed
under this chapter does not relieve a person from liability at common law or
under State law." The petitioners focused heavily on the reference to "common
law," but completely ignored the inclusion of the phrase "State law." Congress'
explicit reference to "State law," however, undermined the petitioners' reliance
on this provision to limit federal preemption.
If, as the petitioners argued, Section
4311(g) must be construed to limit the scope of express preemption in Section
4306, then the Savings Provision would completely nullify the preemption
provision. The text of Section 4311(g) draws no distinction between state
common law claims and other state law claims. Under the petitioners'
reading of Section 4311(g), a manufacturer could be held liable under a "state
law" — including a state statute or administrative regulation — that imposed
boat design or equipment requirements that are not identical to (or even flatly
inconsistent with) a federal regulation issued under the Act. That result is, of
course, plainly contrary to the preemptive provision in Section 4306. Indeed, it
robs that carefully crafted section of the Act of any purpose.
Moreover, contrary to the petitioners'
arguments, the text, structure, and legislative history of Section 4311(g)
demonstrates that the Savings Provision was not designed to limit the scope of
federal preemption under Section 4306 at all. The provision was added as a
"technical" amendment to the end of the statute in a section wholly apart from —
and without any reference in the legislative history to — the preemption
Section 4311(g) merely clarifies that
Congress, in enacting the Boat Safety Act, did not intend to provide an
affirmative defense of compliance with government standards in areas where
Section 4306 allows suit to be brought under state law. That is what the
provision quite literally says: "Compliance with [a federal standard or
regulation] does not relieve a person from liability at common law or under
State law." The explanation in the Senate Report (at 32 [emphasis added]) is
fully in accord with this language: The "purpose of the section is to assure
that in a product liability suit mere compliance by a manufacturer with
the minimum standards promulgated under the Act will not be a complete
defense to liability."
Thus, rather than limiting federal
preemption, the Savings Provision precludes manufacturers from relying on
compliance with federal standards as a defense to state law liability in areas
where state law still has a role to play, e.g., in areas unrelated to
design, construction, and performance standards or equipment requirements. A
manufacturer could not, for example, avoid liability for breach of warranty by
relying on its compliance with Coast Guard standards.
Whether or not there is an express
preemption provision in the federal statute at issue in a case, the question of
implied preemption inevitably arises. In Lewis, the implied preemption
defense was compelling. After an 18-month investigation of propeller guards and
propeller-strike incidents, which included nationwide public hearings, a review
of voluminous documentary and video evidence, and several physical
demonstrations, an expert federal advisory committee produced a lengthy Report
recommending that there should be "no regulatory action to require propeller
guards." The Coast Guard, after reviewing the Report and all of the underlying
evidence, independently concluded that "[a]vailable propeller guard accident
data do not support imposition of a regulation requiring propeller guards on
In light of this record, Brunswick argued
that the petitioners' common law claims were implicitly preempted under the Boat
Safety Act by operation of the Supremacy Clause. If allowed to proceed with
their tort claims, the petitioners proposed to hold Brunswick liable for
potentially massive compensatory and punitive damages for failing to do what the
Coast Guard had decided Brunswick should not be required to do: install
propeller guards on its boat engines. This state law requirement would conflict
and frustrate the purposes of the federal regulatory scheme both by
countermanding the Coast Guard's decision that there should not be a propeller
guard requirement for safety reasons, and by undermining the national uniformity
of standards and equipment requirements mandated by Congress.
The Supremacy Clause will not permit that
result. Congress and the Coast Guard have acted to eliminate any conflicting
state laws by adopting "national construction and performance standards for
boats and associated equipment." Senate Report at 15. Any state law that
conflicts with or frustrates the purposes of this comprehensive federal program
is preempted. See Hines v. Davidowitz, 312 U.S. 52, 67 (1941);
Freightliner, 514 U.S. at 287. Particularly where the Coast Guard has
focused on an item of equipment and decided that it should not be required, a
state may not impose a contrary requirement on manufacturers.
Geller and Sullivan: 'The Supreme
Court has disposed of the petitioners' argument that the mere presence of an
express preemption clause precluded implied preemption.'
Relying on the Supreme Court's preemption
analysis in Cipollone, 505 U.S. at 517-518, the petitioners responded
that the text of the Boat Safety Act provides a "reliable indicium of
Congressional intent" to preclude implied conflict preemption of all common law
claims. Thus, they asserted that the absence of a reference to common law duties
in Section 4306, and the language of the "Savings Provision" in Section 4311(g),
combine to show an intent of Congress not to imply further
Implied Preemption Analysis is Fully
The Supreme Court has already disposed of
the petitioner's argument that the mere presence of an express preemption clause
in the Boat Safety Act precluded implied preemption. In Freightliner Corp.
v. Myrick, 514 U.S. 280 (1995), the Court emphatically rejected the
proposition "that implied pre-emption cannot exist when Congress has chosen to
include an express preemption clause in a statute." Id. at 287. The Court
dismissed this contention as premised on a plain misreading of a single sentence
in Cipollone, in which the Court had observed that (505 U.S. at
When Congress has considered the issue of
preemption and has included in the enacted legislation a provision explicitly
addressing that issue, and when that provision provides a 'reliable
indicium of congressional intent with respect to state authority,'
Malone v. White Motor Corp., 435 U.S. at 505, 'there is no need to
infer congressional intent to pre-empt state laws from the substantive
provisions' of the legislation.
The Freightliner Court rejected as
entirely "without merit" any interpretation of this sentence that would preclude
an implied preemption inquiry in the face of an express preemption clause. 514
U.S. at 287. "The fact that an express definition of the pre-emptive reach of a
statute 'implies' — i.e., supports a reasonable inference — that Congress
did not intend to pre-empt other matters does not mean that the express clause
entirely forecloses any possibility of implied preemption." Id. at 288.
Indeed, the Court in Freightliner then proceeded to engage in a
traditional implied preemption analysis of the common law claims at issue.
Id. at 289-290.
It is, in the final analysis, bizarre in
the extreme to attribute to Congress any intent to permit state law to destroy a
comprehensive federal safety program merely because it includes an express
preemption provision in a federal statute. Why would Congress, by precluding one
area of state action, thereby want to implicitly authorize other areas of state
action that would make the federal scheme ineffective? If that were the law,
"only the most sporting of Congresses would dare say anything about preemption."
Cipollone, 505 U.S. at 548 (Scalia, J., concurring in
The 'Savings Provision' Does Not Alter
the Implied Preemption Analysis
The petitioners in Lewis also relied
on the Boat Safety Act's Savings Provision to try to defeat implied preemptive.
Even if Section 4311(g) were viewed as a limitation on preemption (which, as we
discussed above, it is not), it indicates, at most, Congress' intent not to
occupy the entire field of boat safety, so that state law claims could proceed
in areas unrelated to "construction and performance standards for boats and
associated equipment." Senate Report at 15. In the absence of the Savings
Provision, defendants in such suits might have argued that the comprehensiveness
of the federal scheme ousted the states from the field of boat safety
Faced with "savings clauses" in other
statutes, the Supreme Court has consistently interpreted them in like fashion.
In Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co.,
450 U.S. 311 (1981), for example, which held that a broadly worded savings
clause was inapplicable where the plaintiff sought to impose common law
liability for acts expressly permitted by a federal agency, the Court explained
that general savings clauses do not allow states to enforce state law claims
that conflict with or frustrate federal law. Id. at 328. Rather, such
provisions are included in federal statutes because, without them.
it might have been claimed that, Congress
having entered the field, the whole subject of liability . . . had been
withdrawn from the jurisdiction of the state courts, so [the savings clause] was
added to make plain that the Act was not intended to deprive the state courts of
their general and concurrent jurisdiction.
Ibid. Similarly, in Pennsylvania
R.R. v. Puritan Coal Mining Co., 237 U.S. 121, 129 (1915), the Court
found that a savings clause "was added at the end of the statute, not to nullify
other parts of the Act, or to defeat rights or remedies given by preceding
sections, but to preserve all existing rights which were not inconsistent with
those created by the statute." And, in Texas & Pac. Ry. v. Abilene
Cotton Oil Co., 204 U.S. 426, 446 (1907), the Court held that a broad
savings clause ("[n]othing in this act contained shall in any way abridge or
alter [common law] remedies" [internal quotations omitted]) could not be read to
save common law rights "the continued existence of which would be absolutely
inconsistent with the provisions of the act." Such a reading, the Court
instructed, would cause the federal statute to "destroy itself."
Geller and Sullivan: 'Section
4311(g) was added to the Boat Safety Act not to defeat the goal of uniform
national standards and requirements, but to evidence Congress' intent not to
preempt the remainder of the field of boat safety.'
As these precedents indicate, Section
4311(g) was added to the Boat Safety Act not to defeat the statutory goal of
creating uniform national boat construction and performance standards and
equipment requirements, but rather to evidence Congress' intent not to preempt
the remainder of the field of boat safety. The Savings Provision did not,
however, save petitioners' common law claims from implied preemption, because
they would have frustrated the Coast 's clear determination that propeller
guards should not be required on recreational boats.
At the end of the day, the petitioners in
Lewis, like the plaintiffs in many product liability cases, failed to
provide any answer to the dispositive question of congressional intent: Why
would Congress have given the Coast Guard plenary authority to craft a program
of uniform national boat construction standards and equipment requirements, and
have expressly precluded the Georgia legislature and administrative agencies
from playing any role in that process, yet at the same time allowed Georgia
courts and lay juries to reject the federal standards and to create a regime of
non-uniform state law equipment requirements?
The incoherence of such a scheme is a
convincing rebuttal to the arguments against federal
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