# Opposition Brief — Florida Department of Highway Safety & Motor Vehicles v. Sims

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 815

## Text

‘ Supreme Court, U.S.
n) FILED
JUL 31 1983
No. 88-1950
F, SPANIOL, JR.
CLERK
==

In The

Supreme Court of the United States
October Term, 1989

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STATE OF FLORIDA, DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES, and CHARLES J.

BRANTLEY, DIRECTOR, DIVISION OF MOTOR
VEHICLES,

Petitioners,

MYRA HOLLADAY SIMS and
FLORIDA IMPORT AND COMPLIANCE ASSOCIATION,

Respondents.

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Ad

On Petition For Writ Of Certiorari To The United
States Court Of Appeals For The Eleventh Circuit

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_—

BRIEF OF RESPONDENTS SIMS AND FICA
IN OPPOSITION

Lp.
vv

Rosert P. SmItu, JR.
Counsel of Record

Ceceuia C. SMITH

123 S. Calhoun Street
Post Office Box 6526
Tallahassee, Florida 32314
(904) 222-7500

for Respondents

COCKLE LAW BRIEF PRINTING CO, my 225-6964
OR CALL COLLECT (402) 342

QUESTIONS PRESENTED:

I. The Eleventh Amendment question, on which this
brief does not oppose review, is better stated in Respondents’
Cross-Petition in No. 89-19, Question I, or it may be divided
thus:

A. Does the Eleventh Amendment immunize a
State from suit by its own citizens in Federal Court seeking
only declaratory and injunctive relief against a statute violat-
ing on its face an express prohibition by Congress, “No state
shall... ”?

B. If a State’s defense as “sovereign” is avoidable
by suing a party surrogate, shall the State be deemed to have
waived that defense, asserted for the first time on appeal, by
objecting below to the joinder of a party surrogate, its Attor-
ney General, and securing his dismissal from the case?

C. May a Court of Appeals, having induced the
Attorney General as counsel for a State agency to assert that
defense for the first time on its own appeal, remedy same by
joining as party surrogate an officer of that agency?

II.. When Congress has expressly preempted State reg-
ulation, is that preemption vitiated by the State’s claimed
purpose to be enforcing what it considers to be federal law?

Ill. When claimants are injured in fact by preempted
State regulation, do they lack standing to sue if similar injury
might have occurred under authentic Federal regulation?

IV. Must a preempted State statute be divided and
some part saved when it does not appear the State would
have enacted it, and preempting the whole avoids other
constitutional issues?

li

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ....
TABLE OF CONTENTS..... ee ii
TABLE OF AUTHORITIES..... . iii
SIALTUIBS INVERN 659550 d cha nee neees eee
STATEMENT OF THE CASE............ a
ARGUMENT OPPOSING THE WRIT..... | ester oe.

II. Opposing the Writ on Question II, “The Clean
Air Act does not preempt the State’s tradi-
tional regulation of the highways.”.......... 10

III. Opposing the Writ on Question III, Asserted
EPA restrictions as dissolving Respondents’
sn errr eer 13

IV. Opposing the Writ on Question IV, Whether
Florida’s role as Safety Act enforcer must be
ene Tr Or 16

ili

TABLE OF AUTHORITIES

Page

CASEs:
Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855,

Os 6.5 6o6 cava VUNeeuesasoeae ane 16
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23

eI cae Sheek RRMA Fes 6b0 Ey Oe wR ew 10, 11
Motor and Equip. Mfrs. Ass‘n, Inc. v. Envtl. Protec-

tion Agency, 627 F.2d 1095 (D.C. Cir. 1979), cert.

denied, 446 U.S. 952, 100 S.Ct. 2917, 64 L.Ed.2d

Cube che T AE xe SR ao dd 5s Keene ek a 5
Sims v. Dept. of Highway Safety & Motor Vehicles,

U.S. D.C.N.D. Fla. (Final Judgment rendered

Dec. 30, 1985) (unreported, but contained in

Petitioners’ App D1, A219-35) ............... 7, 8, 16
Sims v. Dept. of Highway Safety & Motor Vehicles,

832 F.2d 1558 (11th Cir. 1987), reh’g granted, 840

F.2d 778 (1988) (panel decision)......... 9, 14, 15, 16
Sims v. Dept. of Highway Safety & Motor Vehicles,

862 F.2d. 1449 (11th Cir. 1989) (in banc decision)

PERCE ee GUabphed ees tec tus ee cscict asses an 3, 15, 16
Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45

Ge ge | Serre rere Terrier rrr rr errr T 15
STATUTES:
Fla. Stat. § 320.02(9) (1985), (1987) recodified as

Pe eLeG) GAOO OUDD.) ..... 2... ccs cce sence passim
ra 1, 5, 10
i UD sips ahaa vinnstecesecsenesveseeseas 5

ee SO BOD scree bsbvtserseseneussanss 10

iv

TABLE OF AUTHORITIES —- Continued
Page

FEDERAL REGULATIONS AND OFFICIAL AGENCY STATEMENTS:

19 C.F.R. § 12.73(b)(5)(x) (1985) .. 0. eee 2
19 CER. § 12. GOQDMI MGM) (1965) .... 22... cc cee. 2
40 C.F.R. § 85.1507 (1985) (1987) (EPA rules

Se MDs 5 4b eek ak va eck ee eee ee 4,5, 16
40 C.FR. § 85.1501-.1515 (1988) (EPA rules eff.

Pk sare ere ee ne re hee eg 6
48 Fed. Reg. 16,486 (Apr. 18, 1983) EPA statement

ek. er ere errr ener 2

52 Fed. Reg. 36,136 (Sept. 25, 1987) EPA statement
of new rules codified 40 C.FR..................... 2

STATUTES INVOLVED
The Clean Air Act, 42 USC § 7543(a), provides:

No state . . . shali adopt or attempt to enforce any
standard relating to the control of emissions from
new motor vehicles . . . subject to [the Clean Air Act].
No state shall require certification, inspection, or any
other approval relating to the control of emissions
from any new motor vehicle . . . as condition prece-
dent to the initial retail sale, titling (if any), or regis-
tration of such motor vehicle . .

Florida Statute § 320.02(9), Fla. Stat. (1985), (1987),
recodified as § 320.02(10) (1988 Supp.), provides:

320.02 Registration required; application for reg-
istration; forms. —

(9) Before a motor vehicle which has not been
manufactured in accordance with the federal Clean
Air Act and the federal Motor Vehicle Safety Act can
be sold to a consumer and titled and registered in
this state, the motor vehicle must be certified by the
United States Customs Service or the United States
Department of Transportation and the United States
Environmental Protection Agency to be in compli-
ance with these federal standards... .

4.
vw

STATEMENT OF THE CASE

This Statement is made necessary by the inaccurate
characterizations throughout the Petition of federal laws
and regulations that Florida by its statute would arrogate
to its own superintendence.

During the year 1985 when Sims and FICA sought
and won relief in the U.S. district court, some 68,000

vehicles like Sims’s old Mercedes-Benz, built to German
standards and initially marketed abroad, were granted
entry to the United States under joint regulation by Cus-
toms, the Environmental Protection Agency (EPA) and
the National Highway Traffic Safety Administration
(NHTSA).! Customs released those cars to importers
under the usual form of bond, with added undertakings
to conform the engine to EPA emission standards by
adding a catalytic converter, burning only unleaded gas-
oline; and to install U.S.-approved headlights, seatbelt
anchors, door beams, etc., as required by NHTSA in the
Federal Motor Vehicle Safety Standards (FMVSS). 19
C.FR. § 12.73(0)(5)(x); § 12.80(b)(1)(iii) (1985).

Thirty thousand imports in 1985, nearly half the total
that year, were exempted from EPA compliance by the
agency’s “Five Year Personal Use Provision” allowing a
“first-time individual importer,” among them Respondent
Sims, to import an older car for personal use without
modification.2 “A reduction in paperwork burden” was

1 EPA referred in 1987 to “the vastly increased volumes of
nonconforming vehicles imported annually (from 1500 in 1980
to about 68,000 in 1985).” So speaking while this case was
before the Eleventh Circuit, EPA promulgated an entirely new
set of rules effective July 1, 1988: “Air Pollution Control;
Importation of Nonconforming Motor Vehicles and Motor
Vehicle Engines,” 52 Fed. Reg. 36,136, 36,139 (Sept. 25, 1987),
codified at 40 C.FR. § 85.1501-.1515 (1988).

2 In 1983 EPA recorded in Federal Register its policy since
1981 “exercis[ing] its enforcement discretion by not taking
enforcement action . . . against an individual importing a
vehicle at least five model years old, who has not imported a
nonconforming vehicle since the effective date of the Clean Air
Act of 1970... .” “Notice of Revised Administrative Procedures
and Enforcement Policy,” 48 Fed. Reg. 16,486 (Apr. 18, 1983).

an EPA goal in that policy, 48 Fed. Reg. 16,486 (1983), and
EPA achieved it in 1985, the year when imports soared on
new highs of Dollar purchasing power abroad. EPA sim-
ply checked the importer’s name against a list of those
who had already imported such a car, and exempted
those who had not.? The compliance proofs sent to EPA
were thus limited to those of new cars entering commer-
cial markets. EPA was able to issue approvals even for
nonexempt cars within three to six weeks (R4-42-88).

In May 1985 Respondent Sims bought and imported
an older model Mercedes qualifying for her one-time EPA
exemption. Automatically, EPA issued its exemption let-
ter releasing EPA’s interest in her bond. Ct. App. in banc
op., 862 F.2d text at fn. 5, A15. Sims had her Safety Act
devices installed at once, and mailed the proofs to
NHTSA. Florida meanwhile refused Sims and others like
her a tag and title.

NHTSA had no exemption policy, so had to deal with
compliance proofs for ali 68,000 imports that year. By
mid-1985 NHTSA had a backlog of more than 14,000 sets
of photographs and papers from conversion shops
nationwide, proving safety devices newly installed in
individual cars. Dist. Ct. Op., A222. NHTSA required
three to four months, even up to a year, to examine all the
paperwork and issue a form letter releasing NHTSA’s
interest in the importer’s bond.

3 Id. at 16,487: “[A]ny individual who imports a vehicle
that would qualify must . . . post a bond with Customs at the
time of entry. .. . EPA will then determine if this policy applies
to that individual and, if so, will ask Customs to release the
EPA obligation on the bond.”

The delay by NHTSA for several months was unim-
portant in NHTSA’s regulatory scheme to any importer
who had no wish to sell his or her car. (Indeed EPA
already forbade its exempted importers from selling
within two years, Ct. App. in banc op., 862 F.2d at 1453
fn. 5, A15). Neither the Safety Act nor NHTSA placed any
restriction on tagging, titling and operating a car from the
moment of importation — not even before the safety
devices were installed, and the proofs sent to NHTSA. Ct.
App. panel op., 832 F.2d text at 1563, fn. 7 at 1564,
quoting D.O.T. statement to Congress (A122-23).

EPA’s rule on the other hand prohibited driving
before the car “has been granted final admission.” 40
C.F.R. § 85.1507 (1985), (1987):

A motor vehicle . . . conditionally admit-
ted . . . shall be stored and shall not be operated on

the public highways or sold until such vehicle . . . has
been granted final admission... .

This “final admission” event became the focus of
Florida’s pose as enforcer of federal law and EPA policy.
So far as EPA was concerned, its exemption of such cars
as Sims’s, or its approval of compliance by nonexempted
cars, ended EPA’s inquiry. That was its “final admission”
ending EPA’s § 85.1507 prohibition of driving. Both the
agency’s exemption letter and its modification-approval
letter assume the car will then be registered anywhere but
California, the only state not preempted by § 7543(a).4

4 PX 8B EPA’s modification approval letter adds a “NOTE
TO IMPORTER: This is an important document. Please keep a
copy with the vehicle registration at all times” (e.a.). PX 8A

(Continued on following page)

But Florida, acting as if it were a territorial surrogate,
interpreter and enforcer of federal law, denied these
import cars tags and titles (refused only those, and
granted any domestic smoking wreck a tag, title, and
welcome to the highway, R4-42-18) saying EPA’s “final
admission” dcesn’t happen until NHTSA too, months
later, writes a bond release letter. [The Department
migrated far from its statutory text, confusing its own
minions and the public, in search for some federal paper
approximating “must be certified . . . to be in compliance
with these federal standards,” Fla. Stat. § 320.02(9).]

Florida declared as EPA policy, in other words, that
after EPA exempted some 30,000 imports from emission
standard compliance in 1985, and approved compliance
by 38,000 more, EPA yet insisted that all 68,000 remair
“stored” and not operated, 40 C.FR. § 85.1507 (1985),
until another agency that never prohibited driving at all
took some distant action in its own regulatory realm.

Florida produced no evidence of this at trial, only
hand-wringing lawyers who spoke ominously of federal
violations as does their Petition, passim. Florida had no
evidence that EPA enforced or intended to enforce any

(Continued from previous page)

EPA’s exemption letter advises, “We have been informed by
the California Air Resources Board that a used vehicle . . . may
not be registered in California unless it is first brought into
conformity with California or Federal emission requirements”
(e.a.). California alone, whose regulation predates the 1966
Clean Air Act, is excused by 42 USC § 7543(b) from preemption
by § 7543(a). Motor and Equip. Mfrs. Ass’n, Inc. v. Envtl. Protec-
tion Agency, 627 F.2d 1095, 1101 fn. 1 (D.C. Cir. 1979).

such absurdity, and could not suggest why, if that were
EPA policy, tens of thousands of owners like Sims across
the Nation, their cars locked in garages awaiting inconse-
quential NHTSA paper, remained quiet and servile
throughout the year, unknown to Congress, EPA and the
public world.

The expert and anecdotal testimony in the district
court trial was uncontradicted: EPA’s § 85.1507 reference
to “final admission” referred to its own act of approving
catalytic converter proofs or declaring an equivalent
exemption. EPA later gave further evidence of this in
1987 rulemaking, repeatedly using the term “final admis-
sion” in reference to EPA’s own actions, none other.°

The U.S. district court wisely found it unnecessary to
declare what was consistent and inconsistent with federal
law in Florida’s unauthorized pose as EPA’s interpreter-
enforcer. Rather the court held the Florida statute was
expressly preempted by the Clean Air Act, preempted as
well by the Safety Act’s bestowal of enforcement powers

> References in the 1987 rule to “final admission” include
§ 85.1502(8) defining a nonconforming car as one not “finally
admitted into the United States under the provisions of” EPA’s
own rules; § 85.1503 granting or denying “final admission”
solely in terms of conformity with EPA’s own standards;
§ 85.1504(a) which conditions “final admission” exclusively on
adequate report to “the [EPA] Administrator”; § 85.1505(a)
which provides a car “may be finally admitted into the United
States upon approval of the certificate holder’s application to
the [EPA] Administrator” (e.a.); § 85.1505(b) and (c) stating
when “EPA approval for final admission . . . shall be presumed
not to have been granted” and when “EPA approval for final
admission . . . shall be presumed to have been granted”; and so

on.

exclusively on NHTSA, and a plain violation of the dor-
mant Commerce Clause as well, a rare unambiguous
attempt by a State to regulate a sector of Foreign Com-
merce, Foreign Commerce as such, flowing through its
ports. Dist.Ct. Op. App.D1, A227-28, as to the Clean Air
Act (emphasis by the court):

The state argues . . . that the challenged statute
simply “insures that new cars coming on to Florida’s
highways comply with the Clean Air Act.” ... The
state fails to recognize, however, that it is not its role
to enforce such standards at the stage it seeks to do
so. It does not matter if the state has enacted stan-
dards that are different or identical to those enacted
by the federal government at this point. The intent of
Congress is very clear and specific: Prior to the first
sale [after importation], the states are preempted
from enacting any regulatory or enforcement scheme
either of their own or to complement the federal scheme,
with specific regard to titling and registration.
Enforcement of the Clean Air Act before first sale is
the sole and exclusive prerogative of the federal
government... .

As to the Safety Act, Id. at A229, 235:

The state argues again that it . . . is in fact merely
requiring that the federal standards be met before a
vehicle is allowed onto the state’s highways.

This court is not swayed by such concern for the
enfcrcement of federal law in this area. If one thing
has become clear during the resolution of this case, it
is that there is nothing in federal law to prohibit
states from enacting enforcement schemes of their
own to enforce the provisions of the Clean Air Act
and the Motor Vehicle Safety Act following the first
sale of the vehicle. . . . Indeed, Florida formerly had an
automobile inspection program to do just that... .

|

As to the Commerce Clause, Id. at A236, A237-38:

Even were the challenged Florida statute not pre-
empted by federal law, it would have to fail as it is a
burden on foreign commerce as prohibited by the
Constitution under Article I, section 8, clause 3.

The statute prevents the titling and registration
of vehicles which in turn limits the marketability of
the cars. To force an importer to use a different port
of entry, for example Savannah, Georgia, or Mobile,
Alabama, in order to receive registration and titles
from the relevant state authorities without having to
endure the trials and tribulations that Florida has
erected in their path destroys the common market of
commerce for the entire United States as established
by the Constitution. It is precisely this type of state
action that the Commerce Clause was designed to
prevent; thus the statute is constitutionally infirm. As
the state has presented no evidence that this law is
necessary to serve some special local consideration, it
cannot survive scrutiny under this section of the
Constitution.

The Court of Appeals deliberating the Department’s
appeal raised new questions of mootness, standing and
Eleventh Amendment - inciting the Eleventh Amend-
ment plea by the Department which is the subject of
Question I in this Petition, and Question I in Respon-
dents’ Cross-Petition, No. 89-19. The panel held on the
merits, one judge dissenting, that Florida Statute
§ 320.02(9) was expressly preempted by the Clean Air
Act, though not by the Safety Act,® but in any event was

¢ The panel Safety Act holding was that Florida “imposes
[no] additional requirements or burdens” not imposed by the

(Continued on following page)

entirely invalid for violation of the dormant Commerce
Clause. Sims v. Dept. of Highway Safety & Motor Vehicles,
832 F.2d 1558 (11th Cir. 1987).

The Court of Appeals in banc held Florida was
expressly preempted by the Clean Air Act but not by the
Safety Act, and found it unnecessary to rule on the dor-
mant Commerce Clause question.

A.
vy

ARGUMENT OPPOSING THE WRIT

Respondents do not oppose the Writ on Question I,
the Eleventh Amendment. Their Cross-Petition in No.
89-19 urges the Court to take and decide that Question
(more accurately stated in terms of the case), and to
decide as well whether Sims and FICA will then have
finally prevailed on a claim of right, privilege or immu-
nity secured to them by the Clean Air Act, requiring a fee

(Continued from previous page)

Safety Act, 832 F.2d at 1566, 1567. This unfortunate misconcep-
tion is traceable within the panel opinions to the dissenter’s
extensive reliance upon an incompetent private document -
“Automobile Importers Compliance Ass’n, Handbook of Vehicle
Importation” — which lay in the record after the Department
marked it for identification at trial but was unable to authenti-
cate it as evidence. The district court excluded the monograph
as unauthenticated hearsay after the identifying witness said
the document was wrong in precisely the respects relied on by
the dissenting judge, 832 F.2d at 1576 It. col., saying the “final
admission” referenced by EPA’s rule “occurs after Customs
receives bond release letters from the EPA and NHTSA and the
duty is liquidated.” After we called the error to the Court’s
attention, the illegitimate theory was for the most part excised
from the in banc opinions.

10

award under the Civil Rights Act, 42 U.S.C. §§ 1983 and
1988. Uniquely, the Clean Air Act not only preempts state
motor emissions regulation to a certain point (“No state
shall... ”) but also grants a particular right or privilege
to importers, or perhaps an immunity, which flows in
consequence of that preemption: Congressionally-secured
tags and titles notwithstanding any state’s law, or views
on federal law, relating to the control of emissions. 42
U.S.C. § 7543(a):

No state shall require certification, inspection, or any

other approval relating to the control of emissions

from any new motor vehicle as condition precedent

to the... . titling . . . or registration of such motor
vehicle. ...

The right, privilege or immunity thereby secured in the
importer, as Chief Justice Marshall once said, “convey[ed]
the right to which the privilege [of importation] is
attached, and in the exercise of which its whole value
consists.” Gibbons v. Ogden, infra.

II. Opposing the Writ on Question II, “The Clean Air
Act does not preempt the State’s traditional regula-
tion of the highways.”

Considering how Florida discriminates by § 320.02(9)
discretely against a small sector of Foreign Commerce, as
such, and freely tags, titles and opens its highways to any
other car regardless of condition, this question is hardly
pertinent.

The Petition asserts (p. 35) that Florida’s statute
“does not create or enforce air emission standards,” nor,
presumably, safety standards. Florida proposes rather
that “traditional regulation of the highways” includes its

11

authoritative interpretation and enforcement of laws
enacted by Congress regulating Commerce with Foreign
Nations. “Any vehicle not in compliance and inside the
customs territory of the United States is here illegally,”
Florida says Petition p. 38, also pp. 31, 37, 39, 42. Florida
therefore is not preempted by the express language of the
Clean Air Act: “No state shall... ”

Florida confuses its power as a state with regard to
safety and emissions in cars on its highways — a power
Florida chooses not to exercise — with the power Congress
has as regards some of those cars because to a point
specified by Congress they are instruments of Foreign
Commerce that Congress has chosen to protect under its
own exclusive regulation.

The only possible reason to grant the Writ on such a
Question as the State poses would be to seize a rare
opportunity to reaffirm the federalist principles that
enlivened Chief Justice Marshall’s opinion for the Court
in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824).

With clarity rarely achieved (or needed) since, Mar-
shall distinguished in “terms and nature” Florida’s power
from that of Congress and its agents such as EPA. 22 U.S.
at 197:

The power of Congress, then, comprehends navi-
gation within the limits of every state in the Union;
so far as that navigation may be, in any manner,
connected with “commerce with foreign nations, or
among the several states, or with the Indian tribes.”
It may, of consequence, pass the jurisdictional line of
New York, and act upon the very waters to which the
prohibition [by New York] now under consideration
applies...

At 199, 200:

.. . In imposing taxes for state purposes, they
[the states] are not doing what Congress is
empowered to do. .. . When, then, each government
exercises the power of taxation, neither is exercising
the power of the other. But, when a state proceeds to
regulate commerce with foreign nations . . . it is
exercising the very power that is granted to Con-
gress, and is doing the very thing which Congress is
authorized to do....

The matter in issue was (every law student learns)
New York’s asserted power upon its waterways to super-
vise, to permit or deter, boats employed by Gibbons “in
carrying on the coasting trade, under the act of Con-
gress.” 22 U.S. at 2. The analogy to the present case could
not be more clearly stated than by Chief Justice Marshall,
22 U.S. at 212-13:

It will at once occur, that, when a legislature
[Congress] attaches certain privileges and exemp-
tions to the exercise of a right over which its control
is absolute, the right must imply a power to exercise
the right. The privileges are gone, if the right itself be
annihilated. It would be contrary to all reason, and to
the course of human affairs, to say . . . that the state
of New York cannot prevent an enrolled and licensed
vessel, proceeding from Elizabethtown, in New Jer-
sey [or, Sims and FICA would add, from Germany],
to New York, from enjoying, in her course, and on
her entrance into port, all the privileges conferred by
the act of Congress; but can shut her up in her own port,
and prohibit altogether her entering the waters and ports
of another state... .

This section [of the Act of Congress] seems to the
court to contain a positive enactment, that the vessels
it describes shall be entitled to the privileges of ships
or vessels employed in the coasting trade. Those
privileges cannot be separated from the trade, and

13

cannot be enjoyed, unless the trade may be pros-
ecuted. The grant of the privilege is an idle, empty form,
conveying nothing, unless it convey the right to which the
privilege is attached, and in the exercise of which the
whole value consists. (Emph. added.)

The only significant differences between New York
there and Florida, here, are that Florida claims not to
deter this Commerce on its own authority, but on the very
authority of the United States; and whereas New York
offended only the dormant Commerce Clause, Florida in
order to “shut her up in her own port” refuses importers
the very license that Congress prohibits the states to
refuse. In every proper sense, then, “the privilege” of
importing goods in Foreign Commerce, granted Sims and
others by the United States, “is an idle, empty form,
conveying nothing,” for want of “the right to which the
privilege is attached, and in the exercise of which the
whole value consists.”

III. Opposing the Writ on Question III, Asserted EPA
restrictions as dissolving Respondents’ Standing.

This Question is the same as Question II, garbed in
other doctrine:

Very well, the argument goes, the Constitution for-
bids Florida to deny tags and titles to cars imported
under auspices of a preemptive Act of Congress and the
supervision of federal regulators; but the complaint of
Sims and FICA does not describe an Article III “case or

controversy” because, until EPA’s prohibition of driving
is lifted by NHTSA’s bond release letter, the real cause of
plaintiffs’ problem is not Florida’s meddling but EPA’s
prohibition.

14

4 44

Respondents’ “standing” was questioned in these
terms for the first time by the Court of Appeals panel
four months after ora! argument. The Clerk’s letter dated
February 18, 1987 (raising “mootness” and Eleventh
Amendment, as well) stated in relevant part:

The court requests supplemental briefing on the
following issues: (1) what are appellees’ obligations
under the Clean Air Act and... Safety Act... ; (2)
do either, or both, of these statutes or the regulations
preclude an importer of a gray market automobile
from titling, registering, or driving that automobile in
Florida prior to receipt of notice of compliance with
such laws from the United States Environmental Pro-
tection Agency, the United States Department of
Transportation, and the United States Customs Ser-
vice; (3) if the answer to (2) is yes, what injury, in an
article III standing sense, could appellees have sus-
tained as a result of Florida’s refusal to title and
register gray market automobiles prior to the issu-
ance of the above notices of compliance... ?

Though the panel majority eventually found Respon-
dents had standing, its—disposition of the issue was
affected by a most unfortunate disregard for the uncon-
tradicted evidence at trial. (Perhaps the court felt it was
not bound by the evidence and the usual presumptions,
since the “standing” issue it raised on appeal wasn’t
called that below.) More unfortunate still, the panel’s
“standing” discussion was dominated by reliance on an
incompetent third-party hearsay document someone
found in the record but not in evidence. The district judge
excluded it from evidence after the State’s identifying
witness said the document was in error on the only point
that mattered: EPA’s “final admission” did not, as the
paper said, depend on NHTSA’s bond release letter
(R4-42-128, 133). Details supra p. 8 fn. 6.

15

The panel’s discredited “standing” analysis was
abandoned by the court in banc, as Petitioner acknowl-
edges, Petition p. 49 fn. 11, and placed on another ground
entirely. The “standing” issue posed by Petitioners as
Question III was not, therefore, addressed by the Court of
Appeals in banc.

Its factual flaws aside, “standing” as conceived by
Petitioners would nullify the right of United States citi-
zens to insist that the United States government, rather
than a hostile State, exercise the powers of the United
States. The theory suggested is that it does not matter if
Florida arrogates EPA’s power to itself, EPA would have
exercised that power the same way (if, EPA being absent,
Florida can so persuade some federal judges). Therefore
no injury was caused plaintiffs by Florida, and there is no
“case or controversy.”

That reasoning would disown the federal judiciary of
jurisdiction in any case where a state’s persuasiveness
was equal to its effrontery posing as local arbiter of
federal law and policy. “In effect,” Justice Brennan said in
circumstances far less threatening to federalism, plaintiffs
“will not be permitted to prove what they have alleged
... because they have not succeeded in breaching, before
the suit was filed, the very barriers which are the subject
of the suit.” Warth v. Seldin, 422 U.S. 490, 523, 95 S.Ct.
2197, 45 L.Ed.2d 343 (1975) (dissenting op.).

Question III is unworthy of review because its factual
premise is false, because it was not addressed by the in
banc Eleventh Circuit, and because it is neither colorable
nor important as a matter of law.

16

IV. Opposing the Writ on Question IV, Whether Flor-
ida’s role as Safety Act enforcer must be saved.

While we cannot conceive how this Florida statute
can survive Foreign Commerce Clause scrutiny, and both
the district court (A236-38) and the Eleventh Circuit
panel (832 F.2d at 1568-69, A143-48) agreed it does not,
the in banc court avoided that decision, 862 F.2d at 1458,
fn. 13, by declaring § 320.02(9) entirely invalidated by the
Clean Air Act.

There is a certain propriety in this. There is no reason
to think the Florida Legislature would have enacted the
statute had it not thought EPA’s prohibition of driving
pending “final admission”, 40 C.F.R. § 85.1507 (1985), an
opportunity for State enforcement. NHTSA and the
Safety Act didn’t offer that inducement, indeed didn’t
restrict driving at all. What then remains of Florida Stat-
ute § 320.02(9) for Florida to enforce, with its reliance on
purported EPA restrictions now preempted?

The Eleventh Circuit majority plainly felt it prudent
to declare the whole statute invalid and remit the ques-
tion to the Florida Legislature, rather than to assume
unnecessarily that that body would wish its statute to
stand, shorn of pretense of enforcing an EPA prohibition.
Carter v. Carter Coal Co., 298 U.S. 238, 312, 56 S.Ct. 855, 80
L.Ed 1160 (1936). The Court also avoided a direct con-
struction of the dormant Foreign Commerce Clause by
placing its decision on grounds of the express preemption
by Congress.

Question IV is not worthy of review.

Ly.
wr

17

CONCLUSION

The Writ should be denied on Questions II, III and IV.
They are distracting, not substantial. Should the Court
grant review on Question I, and on Questions I and II of
the Cross-Petition, the Court will have every opportunity
to speak as necessary to the principles of federalism that
control Questions II, III and IV as presented by
Petitioners.

Respectfully submitted

Rosert P. Smoitn, Jr.
Counsel of Record

Crecetia C. SMITH

123 South Calhoun Street
Post Office Box 6526
Tallahassee, Florida 32314
(904) 222-7500

For Respondents

July 31, 1989

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1449%3A2. Public record. Not legal advice.