Metropolitan News-Enterprise


Tuesday, April 18, 2023


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Ninth Circuit Judge: High Court Utterance Is Confusing

O’Scannlain Questions Whether Supreme Court Really Intended to Bar Use of ‘Presumption Against Preemption’

Where There Is an Express Preemption in a Federal Statute; Refers to Thomas’s ‘Drive-by Ruling’


By a MetNews Staff Writer


 Ninth U.S. Circuit Court of Appeals Senior Judge Diarmuid F. O’Scannlain said yesterday, in a concurring opinion, that the U.S. Supreme Court, in a 2016 opinion by Justice Clarence Thomas, has created confusion by declaring that it would not apply the “presumption against preclusion” where a federal statute expressly barred contrary state or local legislation.

In the past, he pointed out, the presumption was applied where there was express preclusion, the function being to dictate a narrow interpretation of the prelusion.

The case generating his concern is Puerto Rico v. Franklin California Tax-Free Trust. There, Thomas wrote:

 “And because the statute ‘contains an express pre-emption clause,’ we do not invoke any presumption against pre-emption but instead ‘focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.’ ”

O’Scannlain said:

“With respect, Franklin leaves much unanswered—and I wonder if its ‘drive-by ruling,’ which appears to ‘contradict[] the many cases before’…, really goes so far as to abrogate the decades of case law applying the presumption to express-preemption provisions in so many different statutes.”

Cases Not Overruled

He lamented:

“The Court did not mention—much less expressly overrule—the decades of cases where the presumption had indeed been applied in like circumstances. And the Court did not, respectfully, provide much discussion of its decision not to apply the presumption.”

The senior judge continued:

“What to make of Franklin’s ‘drive-by ruling’ is challenging….We do not assume that the Court has overruled its older precedents ‘by implication.’…And we do not easily assume that the Court has abrogated our circuit precedents unless the decisions are ‘clearly irreconcilable,’ particularly where the Supreme Court decisions we relied on remain on the books….Nevertheless, our circuit—without hesitating to consider Franklin’s limits or the possibility of reconciling Franklin with existing precedent—has broadly read Franklin categorically to prohibit applying the presumption to express-preemption provisions in future cases.”

Expresses ‘Doubts’

Under these post-Franklin Ninth Circuit cases, O’Scannlain said, the presumption no longer applies where there is an express exclusion but, he remarked:

“Respectfully, I have my doubts.”

He remarked:

“Perhaps our court has correctly interpreted the Supreme Court’s instructions, but the lack of any meaningful engagement with the question does not inspire confidence.”

O’Scannlain commented:

“There is much confusion over how broadly to read Franklin’s passing remark—and what to do with the many cases, unmentioned by Franklin, where the presumption had applied. Some circuits (including ours) have read Franklin broadly to prohibit applying the presumption to express-preemption provisions in future cases….Other courts, however, are not so sure—and the Third Circuit, at least, has read Franklin to permit applying the presumption where an express-preemption provision implicates an area of traditional state concern.”

He called for future guidance from the Supreme Court as to the intended breadth of Franklin.

Bumatay’s Opinion

O’Scannlain concurred in the lead opinion by Ninth Circuit Judge Patrick J. Bumatay, who declared that a Berkeley ordinance that prohibits natural gas piping into newly constructed buildings contravenes the Energy Policy and Conservation Act (“EPCA”). That act expressly bars state and local regulations pertaining to specified natural gas appliances.

Bumatay wrote:

“By its plain text and structure, EPCA’s preemption provision encompasses building codes that regulate natural gas use by covered products. And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that.”

Applying a post-Franklin Ninth Circuit case, he said his analysis of the EPCA is “ ‘without any presumptive thumb on the scale’ for or against preemption.”

A concurring opinion was also authored by M. Miller Baker, a judge of the United States Court of International Trade, sitting by designation. He expressed his “reservations” as to the standing of the plaintiff, the California Restaurant Association, concluding that standing does exist, and used diagrams of a natural gas installation and of a meter to illustrate his discussion of the preemption issue.

The case is California Restaurant Association v. City of Berkeley, 21-16278.


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