Courts Seen ‘Intractably Split’ on Preemption of State Law Cellphone Safety Claims

The 9th Circuit’s wrongful decision affirming the district court’s summary judgment for Apple, based on federal law preemption of state-law cellphone RF safety claims, embraces a version of preemption in which the preemptive effect of an agency’s order “turns not on Congress’s intent or the statutory or regulatory text, but instead on a freewheeling judicial hunt for purposes in informal agency commentary.” So said two dozen iPhone owners’ U.S. Supreme Court reply brief Monday (docket 22-698) in support of their Jan. 23 cert petition to set aside the 9th Circuit U.S. Court of Appeals decision (see 2301270065).

The 9th Circuit’s “radical approach” to federal preemption “flouts” SCOTUS precedent and “our constitutional structure,” said the reply brief. Left to stand, the decision is “a blueprint for implied purposes-and-objectives preemption run amok,” it said.

Apple acknowledges the lower courts “have long been divided” over the federal preemption question presented, said the reply brief. But it insists any split over the preemptive effect of the FCC’s 1996 order on cellphone RF safety is too shallow or stale “to justify review,” it said. Apple speculates, without explanation, “that a conflict that has now persisted for over a decade will dissipate on its own,” it said.

But just last month, the U.S. District Court for Western Louisiana in Lake Charles, in the 5th Circuit, “confronted the same issue” in Walker v. Motorola Mobility (see 2304230001), said the reply brief. “After rejecting one circuit’s view, and attempting to distinguish two others’, it concluded that some claims were impliedly preempted, and that others were not,” it said.

This “persistent and acknowledged split” reflects “a deeper doctrinal divide over whether and how the implied purposes and objectives of agency action may preempt state law,” said the reply brief. SCOTUS repeatedly has emphasized it’s congressional intent that’s the “touchstone of every preemption case,” it said. SCOTUS also issued warnings “about the dangers of too readily implying obstacle preemption,” it said.

Yet courts have taken an agency’s involvement “as license to embark on their own open-ended inquiries into what purposes an agency might have had in mind when it undertook some long-ago action,” said the reply brief. This “misguided” approach to preemption “has nothing to recommend it,” it said. SCOTUS “should step in now and correct it,” it said.

The courts are “intractably split” on the federal preemption question presented, and that split warrants SCOTUS review, said the reply brief. The lower courts’ “broader methodological divide” over implied agency preemption also warrants SCOTUS review, it said. The split over the preemptive effect of the FCC’s cellphone radiation guidelines “is also only the beginning,” it said.

Due partly to confusion about the "meaning" of SCOTUS decisions, the lower courts remain deeply divided “over the proper methodological approach for discerning the implied preemptive effect of agency action,” said the reply brief. This is an appropriate case “to clarify that persistent confusion,” it said.

The methodological divide “is evident in the very decisions that comprise this split,” said the reply brief. The 4th Circuit trained its attention on Congress, while the D.C. Circuit “all but ignored it,” it said. The 3rd and 9th circuits “likewise embarked on their own freewheeling inquiries into legislative and regulatory history, plucking out the pieces they found relevant and discarding inconvenient statutory text,” it said.

Nothing about this split is “academic,” said the reply brief. Implied purposes-and-objectives preemption “already encourages courts to prioritize their own policy preferences over statutory text,” it said. But when extended to the agency context, “all bets are off,” it said. Without “guardrails,” courts can and do “trawl through the endless detail of an administrative record, stretching back years before or after a regulatory enactment, to unearth evidence of their preferred agency purpose,” it said.