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Carter O. Bise, Esq.
Logan & Bise
2211 24th Avenue
P.O. Drawer 4207
Gulfport, MS 39502-4207
(228) 864-3666
(228) 864-3672 - fax
Leslie A. Brueckner, Esq.
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Avenue, N.W.
Suite 800
Washington, DC 20036
(202) 797-8600
(202) 232-7203 - fax
I. This Case Is Governed By A Strong Presumption Against Preemption
II. Appellant's Claims Are Not Expressly Preempted
A. The Act's Preemption Clause Does Not Encompass Common Law Claims
B. The Act's Savings Clause Expressly Preserves Common Law Claims
C. A Finding That The Act Preserves Common Law Claims Would Not Produce "Absurd Results"III. Appellant's Claims Are Not Impliedly Preempted
A. The Coast Guard Never Found That Propeller Guards Are Inherently Unsafe
B. Appellant's Common Law Claims Do Not Undermine The Purposes Of The Act
C. The United States' Position In Lewis Is Entitled To Substantial Weight
American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995)
Askew v. American Waterways Operators, 411 U.S. 325 (1972)
Auer v. Robbins, 519 U.S. 452 (1997)
Boyle v. United Technologies Corp., 487 U.S. 500 (1988)
Brown v. Hotel Employees, 468 U.S. 491 (1984)
CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993)
Chevron U.S.A., Inc. v. Hammond, 762 F.2d 483 (9th Cir. 1984), cert. denied, 417 U.S. 1140 (1985)
Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)passim
Citizens to Preserve Overton Park, Inc., v. Volpe, 401 U.S. 402 (1971)
English v. General Electric Co., 496 U.S. 72 (1990)
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995)passim
Freytag v. C.I.R., 501 U.S. 868 (1991)
Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988)
Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707 (1985)
Lawrence v. Chater, 516 U.S. 163 (1996)
Marks v. U.S., 430 U.S. 188 (1977)
Medtronic v. Lohr, 518 U.S. 470 (1996)passim
Missouri Pacific R.R. v. Railroad Comm'n of Texas, 850 F.2d 264 (5th Cir. 1988)
Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)
Pennington v. Vistron Corp., 876 F.2d 414 (5th Cir. 1989)
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987)
Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)
San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)
Silkwood v. Kerr-McGee, 464 U.S. 238 (1984)
Comprehensive Smokeless Tobacco Health Education Act, 14 U.S.C. § 4406
21 U.S.C. § 360k(a)
46 U.S.C. § 4306passim
46 U.S.C. § 4311(g)passim
Paul Deuffert, The Role of Regulatory Compliance in Tort Actions, 26 Harv. J. on Legis. 175 (1989)
Restatement (Second) of Torts § 288C (1964)
Introduction
The main thrust of OMC's opposition is that, in enacting the Federal Boat Safety Act, Congress intended to preempt the entire field of state law in order to establish national uniformity of boating standards and regulations. Based on this "field preemption" theory, OMC argues that permitting damage claims against boat manufacturers "would stand [the Act] on its head by 'allow[ing] a jury to perform a function from which the fifty states' legislative bodies are precluded.'" OMC Brief at 30 (citation omitted). Such a result, in OMC's view, is "absurd" on its face and therefore must be rejected.
OMC's conclusion is wrong. As set forth in Mr. Lady's opening brief at 25-29, there is ample evidence that Congress did not intend to preempt the entire field of state power with respect to boat safety. Even if it did, Congress' decision simultaneously to permit common law claims would hardly be "absurd," as that is precisely the approach Congress adopted with respect to the regulation of nuclear power. See, e.g., Silkwood v. Kerr-McGee, 464 U.S. 238, 256 (1984). This Court need not decide the field preemption question, however, because even assuming the Act does preempt the entire field of state positive-law enactments (i.e., legislation and administrative regulations) in areas where the Coast Guard has not regulated (such as propeller guards), common law claims such as Mr. Lady's are expressly preserved.(1)
I. This Case Is Governed By A Strong Presumption Against Preemption.
As explained in appellant's opening brief at 17-19, OMC bears a heavy burden of overcoming the long-standing "presum[ption] that Congress does not cavalierly pre-empt state-law causes of action." Medtronic v. Lohr, 518 U.S. 470, 485 (1996). In response, OMC argues that "no presumption against preemption operates in this case" because "matters of maritime safety are the province of the federal government." OMC Brief at 42-43. This assertion is definitively rebutted by Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978), which OMC repeatedly cites in its brief as dispositive authority here. See, e.g., OMC Brief at 44-46, 51.
Ray involved a classic issue of maritime law: whether a Washington state law governing the design and movement of oil tankers in Puget Sound was preempted by a federal statute that empowered the Department of Transportation to "issue such rules as may be necessary with respect to the design, construction, and operation of oil tankers." Id. at 157. In introducing its analysis, the Supreme Court articulated the same presumption against preemption that applies in all other cases involving encroachment on the states' historic police powers: "when a State's exercise of its police power is challenged under the Supremacy Clause, 'we start with the assumption that the historic police powers of the states were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" Id. (citations omitted; emphasis added). Although Ray ultimately held that the Washington statute was preempted by federal law, the Supreme Court did not even hint (let alone hold) that this traditional presumption against preemption was altered by the maritime character of the case. See also Chevron U.S.A., Inc. v. Hammond, 762 F.2d 483, 488 (9th Cir. 1984), cert. denied, 417 U.S. 1140 (1985).
Meanwhile, the cases that OMC does rely on as support for its preemption theory are inapposite. For example, Boyle v. United Technologies Corp., 487 U.S. 500 (1988), which OMC cites for the proposition that the presumption against preemption does not apply where the federal government has a "strong federal interest" in exclusive occupation of the field (OMC Brief at 43-44), has nothing to do with maritime law. Rather, Boyle merely holds that the federal government's strong interest in the procurement of military equipment permits a finding of preemption even in the absence of a clear statutory directive. Indeed, one searches Boyle in vain for any suggestion that the presumption against preemption does not apply in maritime cases. This is not surprising, given that the Supreme Court has recognized the states' powerful and legitimate interest in "exercis[ing their] police power respecting maritime activities concurrently with the Federal Government." Askew v. American Waterways Operators, 411 U.S. 325 (1972).(2)
OMC also argues that, maritime interests aside, "no presumption against preemption impedes implied conflict preemption" because the relative importance of a state's own laws is immaterial where there is a direct conflict with federal law. OMC Brief at 49. This argument is baseless. To cite but one of myriad potential examples, in Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985), the Supreme Court rejected an implied preemption argument relying heavily on the presumption against preemption. This makes sense since, if the presumption against preemption is to be employed when interpreting Congress' express language, it follows logically that a court should be even more cautious in finding preemptive intent by implication from far less reliable indicators. Thus, the presumption against preemption governs the entire analysis in this case.
II. Appellant's Claims Are Not Expressly Preempted.
In addition to attempting to dismantle the presumption against preemption, OMC argues at length that the Act expressly preempts Mr. Lady's claims. The plain wording of the Act does not support this assertion; it only expressly preempts certain state "law[s]" and "regulation[s]," while also providing that "compliance with [the Act or its regulations] does not relieve a person from liability at common law or under State law." 46 U.S.C. §§ 4306, 4311(g). OMC nonetheless relies on cases interpreting statutes with substantially different preemption provisions to first urge that "common law" is always equivalent to "law[s]" and "regulation[s]," and then urge that the Act's savings clause merely saves common law claims that are not expressly preempted. Neither argument withstands scrutiny.
A. The Act's Preemption Clause Does Not Encompass Common Law Claims.
Section 4306 preempts any state "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 [federal regulation]." 46 U.S.C. § 4306 (emphasis added). OMC argues that this provision must encompass common law claims because it contains terms - "law," "regulation," "standard," and "requirement" - that the Supreme Court has held "easily encompass common law actions." OMC Brief at 22. The Supreme Court's teachings, however, do not support - and actually undercut - OMC's interpretation of the Act's preemption clause.
1. Contrary to OMC's claim, Section 4306 bears no resemblance to the preemption provision of the Public Health Cigarette Smoking Act of 1969 (the "1969 Act") at issue in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521 (1992), which broadly preempted any "requirement or prohibition . . . imposed under state law." OMC makes much of the fact that Section 4306 also contains the word "requirement." But the two statutes are very different. First, unlike the 1969 Act, Section 4306 does not preempt "requirements" at all; rather, it preempts a "law or regulation . . . imposing a requirement for associated equipment . . .." 46 U.S.C. § 4306 (emphasis added). Thus, the word "requirement" in the Boat Safety Act is merely used to describe the type of "law or regulation" that is preempted by federal law; it is not, as in Cipollone, intended to designate an entirely separate category of items that are subject to preemption.
Second, unlike the 1969 Act in Cipollone, Section 4306 contains no broad reference to preempting the entire body of "state law" - a term that the Court held could be read to encompass common law claims. See 505 U.S. at 515. In addition, Cipollone placed great weight on the fact that the 1969 Act amended an earlier cigarette labeling statute that contained a much narrower preemption clause. See id. at 514. The Court wrote that,
[a]lthough the presumption against pre-emption might give good reason to construe the phrase "state law" in a preemption provision more narrowly than an identical phrase in another context, in this case, such a construction is not appropriate. As explained above, the 1965 version of [the preemption clause] was precise and narrow on its face; the obviously broader language of the 1969 version extended that section's pre-emptive reach.
Id. at 522-23. These considerations do not apply here, since Section 4306 was the original preemption clause of the Boat Safety Act. See Pub. L. No. 98-89, § 1, 97 Stat. 531 (Aug. 26, 1983). Thus, even if Section 4306 was worded as broadly as the 1969 Act in Cipollone, the presumption against preemption would "give good reason" to construe the former provision as not encompassing common law claims.
Third, unlike the Boat Safety Act, the 1969 Act in Cipollone did not contain any sort of savings provision at all, let alone one that expressly referred to common law claims. In fact, a plurality of the Court specifically relied on the absence of a savings provision as evidence that the 1969 Act preempts some damages actions. See id. at 523 n.22. Cipollone also held that the savings provision of the Comprehensive Smokeless Tobacco Health Education Act, 14 U.S.C. § 4406 - which is almost identical to the Act's savings clause - broadly preserves damages claims. Id. at
518; see also id. at 537 n.2 (separate opinion).(3) Thus, if the 1969 Act in Cipollone had contained a savings clause like 46 U.S.C. § 4311(g), then the Supreme Court likely would have found that the reference to "requirement or prohibition" does not encompass damage claims. In short, Cipollone's analysis of the meaning of "requirement" in a preemption clause has no bearing here, and other aspects of the decision actually support appellant's interpretation of Section 4306.
2. OMC's reliance on CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993), is similarly misplaced. There, the Supreme Court held that the phrase "law, rule, regulation, order, or standard relating to railroad safety" in a preemption provision encompassed common law claims. Id. at 664. Not only is this language far broader than Section 4306, but - as with the 1969 Act at issue in Cipollone - the CSX statute did not contain a savings clause that included a specific reference to "common law claims." The absence of such a reference in Section 4306 combined with the express reference to "common law" in the Act's savings clause defeats any notion that Congress intended the Act's preemption provision to encompass common law claims. See Appellant's Opening Brief at 30-31.
3. Medtronic v. Lohr, 518 U.S. 470, 485 (1996), also does not support OMC's broad reading of Section 4306. First, OMC mischaracterizes Medtronic as "holding" that the term "requirements" in the Medical Device Amendments of 1976 (the "MDA") encompasses common law claims. OMC Brief at 25. In reality, the majority portions of the decision (i.e., Parts I, II, III, and V) do not even discuss whether the word "requirement" encompasses common law claims; rather, the Court narrowly held that the petitioners' claims were not preempted because, among other things, the regulatory agency had not issued any requirements "with respect to medical devices," as the statute required. See id. at 492-503 (Part V).(4)
More fundamentally, OMC's argument ignores that, unlike the MDA, which preempts "any requirement" that differs from a federal regulation, 21 U.S.C. § 360k(a), the Act's preemption clause merely encompasses "law[s] or regulation[s]" that impose certain standards or requirements. And, once again, unlike the Boat Safety Act, the MDA does not contain any savings clause at all - a fact that, as noted above, makes a critical difference in determining the scope of an express preemption clause. See Cipollone, 505 U.S. at 518, 537 n.2.
At the same time, Medtronic reaffirmed prior Supreme Court teachings that the absence of any private cause of action for injured victims in a federal statute is powerful evidence that Congress did not intend to preempt state damages claims. To use the words of the plurality, "[OMC's] construction of [the statute] would . . . have the perverse effect of granting complete immunity from design defect liability to an entire industry that, in the judgment of Congress, needed more stringent regulation . . . It is, to say the least, 'difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct,' and it would take language much plainer than the text of [Section 4306] to convince us that Congress intended that result." 518 U.S. at 487 (plurality) (quoting Silkwood, 464 U.S. at 251). The same reasoning is applicable here, as the Boat Safety Act does not contain any mechanism to compensate injured people like Mr. Lady.
B. The Act's Savings Clause Expressly Preserves Common Law Claims.
Recognizing that the savings clause fatally undermines its reading of Section 4306, OMC pretends that Section 4311(g) has nothing to do with preemption at all. Thus, it argues that the clause "simply clarifies that compliance with federal regulations is not a complete defense to forms of liability that the states retain the power to impose in light of the [Act's] express preemption clause." OMC Brief at 37. This argument does not hold water.
1. First, under OMC's "field preemption" theory, the states "retain" almost no power to impose any liability on boat manufacturers, since all state law that is "not identical" to a preexisting federal standard would be wiped out by direct operation of Section 4306. Thus, OMC's reading of the savings clause would render it largely meaningless - an approach the Supreme Court has repeatedly disavowed. See Freytag v. C.I.R., 501 U.S. 868, 877 (1991) (our decisions "consistently have expressed a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment") (citations and internal quotation marks omitted).
Even if OMC's field preemption theory is wrong, however, and the Act only preempts state law in areas where the Coast Guard has actually regulated, OMC's reading of the savings clause still makes no sense. Under this interpretation of the Act, Section 4306 would still expressly preempt common law claims that differ from an existing federal regulation. In such cases, however, there would be no need for Congress to negate the affirmative state law defense of compliance with a federal regulation, because the claims would already be extinguished by virtue of preemption.
It follows, then, that the savings clause could only relate, under OMC's theory, to claims that survive the preemption provision because they concern an aspect of boat safety that is not subject to a federal safety standard. But here OMC's argument breaks down completely, because there could be no affirmative defense of compliance with a federal standard that does not exist. In other words, according to OMC, the savings clause could only apply in cases where it would necessarily have no legal effect. Plainly, this will not do. Freytag, 501 U.S. at 877.
2. OMC attempts to inject some meaning into the savings clause by asserting that, even under its field preemption theory, Section 4306 does not expressly preempt common law claims "which are identical to those in the Act and do not conflict with its objectives." OMC Brief at 38 (emphasis in original; citation omitted). Here, OMC appears to be relying on the fact that Section 4306 specifically exempts state laws that are "identical to a regulation prescribed under section 4302 of this title." Thus, for example, a common law claim asserting that a manufacturer was negligent for violating a federal regulation would be effectively "identical" to federal law and thus not subject to preemption under Section 4306. Such claims, in OMC's view, would be "saved" by Section 4311(g). But this theory again renders the savings clause superfluous, because there would have been no reason for Congress expressly to "save" a claim that is expressly excluded from the preemptive reach of Section 4306.
That being so, OMC is left with its assertion that the savings clause applies to claims regarding "safe boat operation and use," which it argues are not the subject of federal regulatory power and thus not expressly preempted by Section 4306. See OMC Brief at 38-39. Under this novel theory (which was never presented to the court below), the savings clause would only apply to suits against boat operators, even though the conduct of boat manufacturers is the Act's overriding regulatory concern. Not only does this reading render the savings clause a largely irrelevant curiosity, but it flies in the face of the text of the clause itself, which broadly provides that compliance with the Act "does not relieve a person from liability at common law . . .." 46 U.S.C. § 4311(g). OMC would limit this sweeping language to suits involving whether John Smith was drunk when he ran his boat into a dock - an approach that only underscores the overall weakness of its position here.
In addition, OMC's theory that Section 4311(g) merely saves claims relating to "safe boat operation and use" conflicts with OMC's own interpretation of the savings clause as "simply clarif[ying] that compliance with federal regulations is not a complete defense to . . . liability." As a logical matter, no defendant would rely exclusively on its compliance with minimum federal regulatory standards governing boat design and performance as a defense in a lawsuit alleging negligent boat operation and use. If Section 4311(g) has no more meaning than to clarify that such a defense is not "complete" under the law, then Congress should not have bothered enacting a savings clause at all.
3. Even putting aside these insurmountable flaws in OMC's reasoning, it would have made no sense for Congress to include a provision in the Act negating the state law defense of compliance with federal safety standards. At the time the Act was passed (and still today), it was already the law in every state that compliance with a federal regulation is not an absolute defense in an action for negligent failure to do more. See Restatement (Second) of Torts § 288C (1964). See also Paul Deuffert, The Role of Regulatory Compliance in Tort Actions, 26 Harv. J. on Legis. 175 (1989). Since the law was already clear on this point at the time Congress enacted the Boat Safety Act, OMC's interpretation would render the savings clause a nullity in more ways than one.
4. OMC also claims that, because Section 4311(g) refers to "State law" as well as "common law," it would render Section 4306 a nullity if it were given the preemptive effect Mr. Lady places on it. See OMC Brief at 40. But the Act's savings clause is not a reference to the entire body of state law. Rather, Section 4311(g) speaks of the circumstances under which "a person" would be "relieve[d]" of "liability at common law or under State law," which clearly refers to the consequences of a damages action. Thus, by its express terms, Section 4311(g) only relates to forms of damages liability, whether pursuant to common law or statute (e.g., state product liability statutes or wrongful death statutes). These acts are not directly related to boat engines but rather are general in nature, and thus their preservation is not inconsistent with the preemption of state legislation specifically directed towards boat engine manufacturing.
In short, the reference to "state law" in Section 4311(g) neither "drains" Section 4306 of "all meaning" nor produces "absurd consequences" (OMC Brief at 40); rather, it recognizes that some forms of damages liability in some states are imposed via statute rather than common law, and saves those claims as well. See Cipollone, 505 U.S. at 518, 537 n.2 (savings clause providing that "[n]othing in this Act shall relieve any person from liability at common law or under State statutory law to any other person" preserves damage claims from preemption) (emphasis added).
5. Finally, OMC argues that "[e]ven if section 4311(g) were viewed as a 'savings' clause," the Supreme Court held in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 375 (1992), that "a general 'remedies' savings clause cannot be allowed to supersede [a] specific substantive pre-emption provision.'" OMC Brief at 39. This holding is irrelevant because, in the Boat Safety Act, the narrower provision is the savings clause, Section 4311(g), which specifically addresses the interaction of compliance with federal safety standards and liability at common law. By Morales' own reasoning, that clause controls the more general preemption provision, Section 4306 - even if one assumes, arguendo, that Section 4311(g) otherwise would, in itself, preempt a state common law cause of action. See id. at 384 ("it is a commonplace of statutory construction that the specific governs the general . . ..") (citation omitted).
In addition, Morales emphasized that the general savings clause at issue there was enacted long before the relevant preemption provision and thus could not be deemed to override the later, more specific preemption clause. Id. at 385. This reasoning has no bearing here, since the Boat Safety Act's preemption and savings clauses were enacted simultaneously, as part of the same piece of legislation, with the latter specifically "saving" common law claims from the scope of preemption defined by Section 4306.(5)
C. A Finding That The Act Preserves Common Law Claims Would Not Produce "Absurd Results."
Shorn of textual support, OMC is left with the argument that a finding that the Boat Safety Act does not preempt common law claims would produce "absurd results" because Congress could not logically have intended to preserve common law claims, while simultaneously preempting state positive law as to the same matter. See, e.g., OMC Brief at 30. As explained in appellant's opening brief at 40-41, however, Congress has repeatedly preserved common law claims, despite their arguably regulatory effect, while preempting direct state regulation. And the Supreme Court has repeatedly explained that this approach is reasonable, given that "[t]he effects of direct regulation . . . are significantly more intrusive than the incidental regulatory effects of [common law liability]." Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185-86 (1988); accord Silkwood, 464 U.S. at 256. OMC argues that Goodyear and Silkwood have no application here, because those cases did not involve express preemption provisions like Section 4306. OMC Brief at 31. This is a meaningless distinction, since the Supreme Court's teachings regarding the difference between the regulatory effect of monetary penalties and positive law are fully applicable here. In any event, OMC conveniently neglects to mention Cipollone, which did involve the express preemption of common law claims and explicitly held that, although a 1965 cigarette labeling act expressly preempted state regulatory law, it did not preempt state common law, noting that "there is no general, inherent conflict between [express] federal pre-emption of state [regulatory] warning requirements and the continued vitality of state common law [damages] actions." 505 U.S. at 518; id. at 533-34 (Blackmun, J., concurring).
Cipollone's holding on this point make good sense, given that imposition of common law liability does not force a manufacturer to change its conduct. Thus, for example, unlike a state statute mandating propeller guards on recreational boats, a jury verdict in Mr. Lady's favor would not force OMC to redesign its boats at all; it could simply choose to compensate him and any future victims for their propeller-guard-related injuries. As the United States argued in Lewis,
[a]ny decision by manufacturers to respond to state tort liability for propeller-related injuries by placing a propeller guard on a boat will depend on a cost-benefit analysis of the risks associated with incurring liability in a personal injury case versus the costs and risks of putting propeller guards on boats . . . Thus, a decision by a manufacturer to respond to a lawsuit charging negligence in the design of particular boats for particular uses stands in stark contrast to state prescriptive regulations that attempt to create uniformity in the manufacturer of all propeller-driven vessels . . ..
R.E. 46-47 (footnotes omitted). OMC's accusation of "absurdity" rings hollow given the United States' recognition that tort liability in cases exactly like this one can peacefully coexist with the preemption of state positive law governing propeller guards.
To be sure, common law claims can have an incidental regulatory effect on a defendant's conduct. But the principal function of the tort system is compensatory. Only in certain special contexts, like labor law, has the Supreme Court held that incidental regulatory effects are sufficient to justify displacement of tort law. In San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), for example, the Court held that a common-law damages award was preempted by the National Labor Relations Act on the ground that neither federal nor state courts possess jurisdiction over claims based on activity that is "arguably" subject to the NLRA. Id. at 245. Although OMC argues that Garmon controls here (see OMC Brief at 23), Garmon involved a special "presumption of federal pre-emption" relating to the primary jurisdiction of the National Labor Relations Board. See Brown v. Hotel Employees, 468 U.S. 491, 502 (1984); English v. General Electric Co., 496 U.S. 72, 86-87 n.8 (1990). No such special labor-law rule is applicable here. Instead, in this case, there is a strong presumption against federal preemption, and a decision by Congress to permit federal regulation does not overcome that presumption and preempt state tort law.
III. Appellant's Claims Are Not Impliedly Preempted.
Given Congress' clearly expressed intention to preserve common law claims, this Court is prohibited from even considering whether appellant's claims are impliedly preempted by virtue of a conflict with federal law. See Appellant's Opening Brief at 42-44; Cipollone, 505 U.S. at 517. In response, OMC claims that the Supreme Court "rejected the same contention in Freightliner [Corp. v. Myrick, 514 U.S. 280 (1995)]," and that "the presence of an express preemption provision in the [Act] cannot . . . forestall consideration of whether Lady's common law action would conflict with the [Act]." OMC Brief at 56 (emphasis in original).
OMC's analysis is without merit, because Myrick did not reject Cipollone's holding that implied preemption analysis is improper where Congress has clearly expressed its intent in the plain language of the statute. Rather, Myrick merely clarified that the inclusion of an express preemption provision in a statute suggests, but does not automatically mean, that matters beyond the provision's reach are not impliedly preempted:
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 pre-emption . . . At best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule.
514 U.S. at 288-89.
This was the language that OMC cites as demonstrating that resort to implied preemption here is proper and that our interpretation of Cipollone is wrong. OMC Brief at 56. But appellant agrees with this language. Thus, if the Act only contained its express preemption clause, that provision alone would not necessarily prohibit a finding of implied preemption. "At best, Cipollone supports an inference. . . ; it does not establish a rule." Myrick, 514 U.S. at 289.
The Boat Safety Act, however, does not just contain an express preemption clause; it also contains an express and unequivocal anti-preemption clause. And that fact makes all of the difference. For when Congress has expressly said that the precise aspect of state law at issue is not preempted, the courts are not free to search further. The courts' sole task is to ascertain the intent of Congress and, if Congress has spoken clearly (as it did in the Act), the courts cannot imply something contrary to what Congress expressly said. That proposition is the core of this Court's holding in Cipollone: when Congress' express words provide "a reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to preempt state laws. . .." 505 U.S. at 517. And that proposition was in no way disavowed in Myrick.
In any event, it is not necessary to resolve this debate because even if implied conflict preemption could be considered in this case, appellant's claims are entirely consistent with the Coast Guard's decision not to regulate propeller guards.
A. The Coast Guard Never Found That Propeller Guards Are Inherently Unsafe.
Although OMC admits that there is no federal regulation either banning or requiring propeller guards - a fact that, standing alone, is dispositive under Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) (see Appellant's Opening Brief at 46-48) - it argues that Mr. Lady's suit would conflict with the Act's goal of improved boat safety "because propeller guards 'could actually increase risk of injury' . . .." OMC Brief at 48 (citation omitted). As the United States explained in Lewis, however, "[t]he Coast Guard has never formally determined that a requirement [of propeller guards] would be contrary to the interests of boat safety.'" R.E. 48-49 (Brief at 26 n.17). The United States further noted that,
[i]f it had reached that conclusion, the Coast Guard may well have prohibited propeller guards. The Coast Guard stated only that the "available propeller guard accident data do not support imposition of a regulation requiring propeller guards."
Id. As this language makes clear, the Coast Guard never found that propeller guards render boats unsafe. Rather, all it found was that there was insufficient evidence to support imposition of a regulation requiring propeller guards on all boats. This is not because propeller guards are inherently dangerous, but rather due to an absence of technology appropriate for a national, across-the-board regulation applicable to all types of boats. Thus, the Subcommittee concluded that "[n]o simple universal design suitable for all boats and motors in existence has been described or demonstrated to be technologically or economically feasible." R. 196.
OMC nonetheless points to the Advisory Council's statement that propeller guards might possibly cause injuries themselves, and attempts to parlay this into a purported conclusion that propeller guards are inherently dangerous. OMC Brief at 18. As the United States explained in Lewis, however, "the Coast Guard's acceptance of the Advisory Council's recommendation does not necessarily constitute an endorsement of all the information gathered by the Propeller Guard Subcommittee." R.E. 49. Indeed, there is no suggestion anywhere in the Coast Guard's letter setting forth the agency's final decision not to regulate propeller guards that the devices are dangerous in any respect. R. 217-19.
If the Coast Guard had found all propeller guards to be dangerous, as OMC would have this Court believe, it would have been the Coast Guard's duty to ban such products. It also would have presumably warned the users of propeller guards that they were using inherently dangerous products.(6) Not only did the Coast Guard not issue any such warning, but it declared (in the same letter adopting the recommendation to take no regulatory action) that "[a] series of articles in our Boating Safety Circular will be developed aimed at avoiding boat/propeller strike accidents. Topics could include, for example, . . . available propeller guards . . .." R. 218 (emphasis added). Thus, the Coast Guard was aware that propeller guards were "available" and in use, yet it did not say a word to warn about their supposed dangers. And the agency continues formally to request and gather data concerning the possible need for a rule requiring propeller guards on certain boats. See Appellant's Opening Brief at 12-13; United States' Brief in Lewis at 7-8, R.E. 30-31. Under these circumstances, the Advisory Council's isolated statements that some propeller guards might be dangerous on some boats is hardly a basis for finding implied conflict preemption of Mr. Lady's claims. See Pennington v. Vistron Corp., 876 F.2d 414, 417 (5th Cir. 1989) ("we are concerned only with an actual conflict between federal and state law; '[t]he existence of a hypothetical or potential conflict is insufficient to warrant preemption'") (quoting Rice v. Norman Williams Co., 458 U.S. 654, 659 (1982)).
In this respect, this case is readily distinguishable from Missouri Pacific R.R. v. Railroad Comm'n of Texas, 850 F.2d 264 (5th Cir. 1988), which OMC cites to support its claim that the Coast Guard's regulatory inaction constitutes an affirmative decision to prevent any state action with respect to propeller guards. See OMC Brief at 52. In Missouri, this Court held that a state regulation requiring cabooses on trains operating in Texas was impliedly preempted by a federal agency's decision not to require cabooses on trains. Id. at 268. The Court emphasized, however, that the federal agency had affirmatively determined that "the lack of a caboose [is not] a safety issue per se," id. at 267, and that "the use of a caboose is a matter for collective bargaining, not for federal or state regulation." Id. at 268. The Coast Guard, in contrast, never found that propeller guards are unrelated to safety, much less that the devices are not properly the subject of any regulation, state or federal. Missouri accordingly has no bearing here.(7)
B. Appellant's Common Law Claims Do Not Undermine The Purposes Of The Act.
Nor is there any basis for OMC's claim that appellant's suit "would conflict with the regulatory uniformity purposes of the [Act]." Id. at 48 (citations omitted). OMC argues that courts should not allow a hodgepodge of requirements on boat manufacturers that would thereby somehow frustrate the Congressional purpose behind the Act. Yet OMC does not deny (or even challenge) that the Coast Guard's decision to neither require nor prohibit propeller guards allows manufacturers to provide a myriad of guard designs, or no guards at all, in any hodgepodge manner they elect. Thus, OMC could sell its engines in some states with "shroud" guards, in some states with "nozzle" guards, and in some states with no guards whatsoever. It may build these guards to any size, shape, design, or performance level it desires. Other manufacturers may do the same. Or they may do differently. There is no regulation or monitoring of manufacturers' decisions whatsoever. OMC's uniformity argument is thus a red herring; so long as the Coast Guard chooses not to regulate propeller guards, there is no uniformity at all with respect to these devices.
C. The United States' Position In Lewis Is Entitled To Substantial Weight.
In Lewis, the United States agreed wholeheartedly with appellant here: There is no preemption of common law claims that a boat is defective because it lacks a propeller guard. With regard to the supposed conflict with federal law posed by such claims, the United States wrote that "[t]he Coast Guard's conclusion in 1990 that the available data did not justify the issuance of regulations concerning propeller guards is not a basis for implied conflict preemption . . .." R.E. 49 (emphasis added). The United States' position on this point is entitled to "substantial weight," since the brief encompasses and reflects the Coast Guard's position that it lacks authority under the Boat Safety Act to preempt common law claims. Cf. Medtronic, 518 U.S. at 496 (majority opinion) (deferring to agency's interpretation of preemptive effect of its own regulations); id. at 505-07 (Breyer, J., concurring).
OMC argues that the United States' position in Lewis is not entitled to any weight because it was not "signed" by the Coast Guard. This assertion is silly, as it requires a Court to infer from the absence of a signature that an agency (which is, after all, a part of the United States) actually means something other than what the United States says it means. OMC cites no authority to support this novel theory of agency deference.(8)
Deference to the Lewis brief is particularly appropriate given that the Coast Guard is ceding authority to the states, not trying to claim power for itself. In Auer v. Robbins, 519 U.S. 452 (1997), the Supreme Court deferred to an agency's interpretation of its own regulations set forth in an amicus brief filed at the request of the Court. The fact that "the [agency's] interpretation comes to us in the form of a legal brief" did not, in the Court's view, "make it unworthy of deference," because the agency's position was "in no sense a 'post hoc rationalizatio[n]' advanced by an agency seeking to defend past agency action under attack." Id. at 462 (emphasis added). The same is true here in spades, since not only is the Coast Guard's position not a "defense of past action under attack," but it actually concedes that the federal government lacks the power to preempt common law claims. Thus, although deference might not be due where the federal government is attempting to limit state power by preempting common law claims, the contrary is true where, as here, the United States is conceding limits on its own authority. Under these circumstances, as in Auer, "[t]here is simply no reason to suspect that the [Solicitor General's] interpretation does not reflect the agency's fair and considered judgment on the matter in question." Id. Thus, this Court should accord the United States' position in Lewis the deference it deserves.
CONCLUSION
The district court's order finding that appellant's claims are preempted by federal law should be reversed.
ENDNOTES
1. This was the position taken by the United States in its amicus brief in Lewis v. Brunswick, which argued that claims like Mr. Lady's are not preempted by federal law. See Appellant's Record Excerpts ("R.E." at Tab 5). The United States explained that there are at least two potential interpretations of the Act's preemption provision, 46 U.S.C. § 4306. R.E. 37-40. One is that Section 4306 only preempts state laws and regulations where the federal government has affirmatively regulated in a particular area. Under this view, there can be no preemption of any state law or regulation relating to propeller guards (or of any common law claims, for that matter), since the Coast Guard has not promulgated any safety standard in this area. The second interpretation is that Congress intended to preempt the entire field of state positive law even in areas where the federal government has not regulated at all. R.E. 37-38. The United States declined to take a position on which view of the Act is correct because, under either interpretation of the Act, common law damages claims are never preempted since the Act expressly saves such claims from preemption. R.E. 40-53.
2. The other cases cited by OMC are also unavailing (see OMC Brief at 42-43), since none of these decisions holds that the presumption against preemption does not apply in maritime cases and, in any event, any such holding would run afoul of Ray.
3. 15 U.S.C. § 4406's savings clause provides that "[n]othing in this Act shall relieve any person from liability at common law or under State statutory law to any other person."
4. Although five Justices separately agreed that "requirements" in the MDA encompassed common law claims (see id. at 504 (Breyer, J., concurring); 510-11 (O'Connor, J., concurring in part and dissenting in part)), this was not the "holding" of the case, since five Justices decided the case on narrower grounds. OMC cites Marks v. U.S., 430 U.S. 188, 193 (1977), for the contrary proposition (OMC Brief at 25), but Marks merely held that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . .'.") (citation omitted). With respect to Medtronic, not only did a solid majority join "a single rationale explaining the result," but the majority's decision constitutes the "narrowest grounds" for holding that the petitioners' common law claims were not preempted.
5. American Airlines, Inc. v. Wolens, 513 U.S. 219, 222 (1995) (cited in OMC Brief at 39), involves the same statute as Morales, and thus is inapplicable here for the reasons stated above. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987), also does not further OMC's cause, because it involves a savings clause that does not even refer to common law claims (id. at 45) and a statutory scheme (ERISA) revealing a clear Congressional intent that "the [federal] civil enforcement provisions . . . be the exclusive vehicle for actions by plan participants . . .." Id. at 52.
6. Users referred to in the Subcommittee Report include the United States Navy and Marines; rescue teams in California, New Zealand, and Australia; and over 2,000 users of "Chadwell" ring guards. R. 192-93.
7. Missouri is also inapplicable because, unlike the Act, the federal statute at issue there preempted the entire field of safety regulations. This Court need not decide the field preemption question, however, because Missouri is also inapplicable for the reasons stated above. The same is true with respect to Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978), which is distinguishable both on field preemption grounds (see United States Brief in Lewis at 29 ( R.E. 52)) and because the rule at issue in Ray was a state prescriptive rule rather than a common law cause of action. As the United States wrote in Lewis, "[t]hat distinction is equally important here, because the [Boat Safety Act] contains a savings clause, but the [statute] at issue in Ray did not." R.E. 52 (citation omitted).
8. Lawrence v. Chater, 516 U.S. 163 (1996), is not to the contrary, as it held that a court need not defer to a governmental "confession of error" made at the certiorari stage of a case to urge the Supreme Court to vacate and remand for further proceedings. Citizens to Preserve Overton Park, Inc., v. Volpe, 401 U.S. 402 (1971), is similarly inapposite, because it merely rejected an agency's attempt to utilize post-hoc "litigating affidavits" to bolster its inadequate decision-making record. Both cases are a far cry from Lewis, where the Coast Guard was neither defending an inadequate record nor contradicting any prior governmental position (indeed, the Lewis brief was the United States' first word on the matter).
Respectfully submitted,
______________________________
Leslie A. Brueckner
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Avenue, NW
Suite 800
Washington, DC 20036
(202) 797-8600
(202) 232-7203 - fax
Carter O. Bise
Logan & Bise
2211 24th Avenue
P.O. Box 4207
Gulfport, MS 39502-4207
(228) 864-3666
(228) 864-3672 - fax
Dated: November 8, 1999