Opposition Brief — Connor v. Aerovox Inc.

Supreme Court, U.S.

PELE D

~ OCT 19 1984

No. 84-444

ALEXANDER Cc. STEVAS

CLERK

in the he =

Supreme Court of the United States

OcToBER TERM, 1984

CHARLES J. CONNOR; THOMAS VITAL:

FREDERICK STOWELL, JR.; PAUL DUBOIS:

STEPHEN BOZA; ROBERT SAKW A;

ANTONE FARIAS, JR.; RICHARD J. PERZENTZ;

SCOTT FRYER; and MASSACHUSETTS

LOBSTERMEN’S ASSOCIATION, INC.,

PETITIONERS,

v.

AEROVOX INCORPORATED and

CORNELL-DUBILIER ELECTRIC CORPORATION,

RESPONDENTS.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit

RESPONDENTS’ BRIEF

IN OPPOSITION TO CERTIORARI

Pau B. GALvANI" JOHN M. STEVENs*

Rosert B. ALLENSWORTH WILLIAM J. CHEESEMAN

Ropes & Gray Fo.ey, Hoac & ELiot

225 Franklin Street One Post Office Square

Boston, MA 02109 Boston, MA 02109

(617) 423-6100 (617) 482-1390

Attorneys for Attorneys for

Aerovox, Inc. Cornell-Dubilier

Electronics Corp.

* Counsel of Record

Blanchard Press, Inc., Boston. Mass. — Law Printers 227) 426-6690

"BEST AVAILABLE COPY "aimed

lO — ——————

I

QUESTION PRESENTED

1. Did the United States Court of Appeals for the First

Circuit correctly decide that a statute, held by this Court to

have entirely preempted the federal common law of nuisance

in the area of water pollution, preemptec judicially-created

nuisance claims arising under maritime law?

PARTIES

Cornell-Dublier Electronics Corp. has no affiliates other

than wholly-owned subsidiaries.

Aerovox, Inc. is a subsidiary of RTE Corporation. The only

subsidiaries of RTE Corporation, other than wholly-owned

subsidiaries, are CARTE Electric Ltd., a Canadian corpora-

tion and ARTEMA S.A., a French corporation. RTE Corpora-

tion also is a partial owner of RTE Zellweger Co., a Swiss

partnership, Micro Faradios S.A. is the only subsidiary of

Aerovox, Inc. that is not wholly-owned.

1

TABLE OF CONTENTS

Page

ST TTT eee ere eee ee I

eg at a Sr I

eee 2 |

Reasons for Denying the Writ....................... 3

I. Prior Decisions Of This Court Giving Broad

Preemptive Effect To FWPCA And MPRSA

Compelled The Decision Of The Court Of

RRR Te er ree re 3

II. The Decision Below Resolves No Important

Question Of Law Required To Be Settled By

This Court And Is In Accord With The Other

Decision Addressing The Same Issue Of Law.. 6

ee eta a ee We cu ks Wha hn a kA 7

TABLE OF AUTHORITIES

Cases |

Conner v. Aerovox, Inc., 730 F.2d 835 (Ist Cir. 1984)... 5

Foremost Insurance Co. v. Richardson, 457 U.S. 668

ee ia ay eG kA XW Aon as OS 5

Illinois v. Milwaukee, 406 U.S. 91 (1972).............. 4

Middlesex County Sewerage Authority v. National Sea

Clammers Ass'n., 453 U.S. 1 (1981)............. Passim

Milwaukee v. Illinois, 451 U.S. 304 (1981)......... Passim

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978). ..4, 5

National Sea Clammers Ass'n. v. City of New York, 616

fe a a 4

In re Oswego Barge Corp., 664 F.2d 327 (2nd Cir. 1981). 7

Silkwood v. Kerr-McGee Corp., 104 S.Ct. 615 (1984)... 6

Statutes

Federal Water Pollution Control Act, 33 U.S.C. §1251. 2, 3,

4,5

Maritime Protection, Research and Sanctuaries Act, 16

eh ia ewe Gacdea bes 40 2,3,5

Toxic Substances Control Act, 15 U.S.C. §2601......... 2

in the

Supreme Court of the United States

OCTOBER | ERM, 1YS4

No. 84-444

CHARLES J. CONNOR; THOMAS VITAL;

FREDERICK STOWELL, JR.; PAUL DUBOIS;

STEPHEN BOZA; ROBERT SAKWA;

ANTONE FARIAS, JR.; RICHARD J. PERZENTZ;

SCOTT FRYER; and MASSACHUSETTS

LOBSTERMEN’S ASSOCIATION, INC.,

PETITIONERS,

e,

AEROVOX INCORPORATED and

CORNELL-DUBILIER ELECTRIC CORPORATION,

RESPONDENTS.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit

RESPONDENTS’ BRIEF

IN OPPOSITION TO CERTIORARI

The respondents Aerovox, Inc. and Cornell-Dubilier Elec-

tronics Corp. (the “respondents”’) respectfully request that the

Court deny the petition for a writ of certiorari seeking review

of the decision of the United States Court of Appeals for the

First Circuit in this case. The Court of Appeals’ opinion is

reported at 730 F.2d 835 (1984).

2

STATEMENT OF THE CASE

The petitioners are commercial lobstermen and a lobster-

men’s trade association who claim to have been harmed by

contamination of New Bedford Harbor and neighboring

waters by polychlorinated biphenyls (“PCBs”). More par-

ticularly, they allege that the closing of those waters to fishing,

which they claim was the result of PCB discharges by the

respondents, required them to fish in more distant and dif-

ficult waters and thereby decreased the profits and increased

the risks associated with their business. These allegations, they

contend, support a federal maritime tort claim sounding in

nuisance, which they seek to maintain in this action.

The respondents moved to dismiss the action on the ground

that federal statutes preempted the judicially-created claim

the petitioners had put forward. The statutes relied upon were

three comprehensive regulatory enactments: the Federal

Water Pollution Control Act, 33 U.S.C. §1251 et seq.

(“FWPCA”), the Maritime Protection, Research and Sanc-

tuaries Act, 16 U.S.C. §1431 et seg. (*MPRSA”) and the Toxic

Substances Control Act, 15 U.S.C. §2601 et seg. (“TSCA”).

The filing of the motion followed closely upon two decisions of

this Court giving broad preemptive effect to FWPCA and

MPRSA. The District Court for the District of Massachusetts,

Skinner, J., granted the respondents’ motion, holding that the

all-encompassing regulatory program established by FWPCA

and MPRSA preempted the petitioners’ claim.

The Court of Appeals affirmed the dismissal on grounds of

statutory preemption. The court observed that the elements of

the maritime tort on which the petitioners based their claim

were the same as a claim of common law nuisance, which the

petitioners conceded to have been preempted. 730 F.2d at 838.

Therefore, although assuming for purposes of analysis that

prior decisions of this Court had not addressed maritime tort

claims directly, the Court of Appeals found no basis in law or

3

logic to distinguish between maritime tort and other judicially-

created federal nuisance claims with respect to the preemptive

effect of FWPCA and MPRSA. 730 F.2d at 839-42.

REASONS FOR DENYING THE WRIT

The decision of the Court of Appeals for the First Circuit

dismissing the petitioners’ claims on the grounds of preemp-

tion is compelled by the decisions of this Court and the reasons

stated in Milwaukee v. Illinois, 451 U.S. 304 (1981)

(Milwaukee II), and Middlesex County Sewerage Authority v.

National Sea Clammers Ass'n, 453 U.S. 1 (1981). No subse-

quent decision of this Court gives reason to question the result

below.

The decision below did not resolve novel or important ques-

tions of law; nor is it in conflict with any other decision of any

federal court of appeals or state court of last resort. Compelled

as it was by Milwaukee I] and Sea Clan.mers, the Court of Ap-

peals decision did not resolve any important question not

already settled by this Court. Its determination that FWPCA

and MPRSA preempt maritime as well as other federal

judicially-created law accords with the decision of the other

court of appeals to have addressed the issue.

I. Prior Decisions Or Tuts Court Givinc Broap PREEMPTIVE

Errect To FWPCA Anp MPRSA Compe.t_ep THE DECISION

Or Tue Court OF APPEALS.

In Sea Clammers, the Court stated “that the federal com-

mon law of nuisance in the area of water pollution is entirely

pre-empted” by comprehensive statutory regulation. 453 U.S.

at 22. Accordingly, the Court dismissed tort claims brought by

fishermen to recover damages for injury to their fishery from

water pollution, claims identical in substance to those peti-

tioners seek to press here. See 453 U.S. at 4-5, 22. The

4

plaintiffs in Sea Clammers sought to maintain their tort

claims, based upon the same allegations, under both federal

question and admiralty jurisdiction, and the Court of Appeals

peri. tted them to do so. National Sea Clammers Ass'n v. City

of New York, 616 F.2d 1222, 1233-36 (3rd Cir. 1980). In view

of the limited grant of certiorari in Sea Clammers, however, it

is not entirely clear whether the maritix.«° tort claims were

formally before the Court and, accordingly, among the

“common-law claims” dismissed. 453 U.S. at 10-11, 22.

Regardless of the extent of the Court's formal adjudication

in Sea Clammers, the reasons for its dismissal of common law

claims apply with no less force to maritime tort claims than to

other judicially-created claims. The basis of the dismissal in

Sea Clammers was the Court's prior decision in Milwaukee II.

Before the Court there was a claim brought by the State of IIli-

nois under federal common law to abate a public nuisance

allegedly arising from pollution of Lake Michigan by operators

of municipal sewer facilities in Wisconsin. 451 U.S. at 308-10.

The Court had noted the availability of such a remedy, in the

absence of comprehensive statutory regulation of water pollu-

tion, in Illinois v. Milwaukee, 406 U.S. 91, 107 (1972)

(Milwaukee I). Shortly after the decision in Milwaukee I, Con-

gress enacted FWPCA, which provided for comprehensive

regulation of discharges of pollutants, including fines and

other penalties for violations. Having granted certiorari for the

purpose of determining the effect of FWPCA on federal com-

mon law nuisance claims for water pollution, the Court deter-

mined in Milwaukee II that the Act preempted I]linois’ claim.

451 U.S. at 307-08, 332.

The Court reached its finding of preemption in Milwaukee

II on the basis of a conclusion that Congress had addressed the

question raised by Illinois’ common law claim. This standard

for determining when federal statutes preempt judicially-

created federal law was formulated in Mobil Oil Corp. v.

Higginbotham, 436 U.S. 618 (1978), a decision holding that

5

the Death on the High Seas Act preempted application of a

judicially-created measure of damages for wrongful death

actions in admiralty. With specific reference toe the Higgin-

botham decision, the Court in Milwaukee I] stated as follows:

Thus the question was whether the legislative scheme

“spoke directly to a question”—in that case the question

of damages—not whether Congress had affirmatively

proscribed the use of federal common law.

451 U.S. at 315. Accordingly, because Higginbotham was an

admiralty case, in determining the preemptive effect of

FWPCA, the Court used the term “federal commen law” to

refer to maritime law created by federal judges. Moreover, the

standard the Court used in Milwaukee [] to determine the

preemptive effect of FWPCA was a standard previously used

to determine whether statutes preempted maritime law. The

Court's holding that FWPCA and MPRSA entirely preempted

the federal common law of nuisance compelled the decision,

reached by the Court of Appeals, that those statutes pre-

empted claims of maritime tort sounding in nuisance.

The position urged by the petitioners not only is in conflict

with the analysis supporting Milwaukee J] and Sea Clammers.

but it also wouid render meaningless the result in Sea Clam-

mers. There, the Court held nuisance claims by commercial

fishermen for damage caused to their business by water pollu-

tion to have been preempted by FWPCA and MPRSA. The

petitioners’ position is that the Acts preempt only those

nuisance claims brought under section 1331 federal question

jurisdiction and not those brought under section 1333 admir-

alty jurisdiction. As noted by the Court of Appeals, the reach

of admiralty jurisdiction would extend to virtually any

nuisance claim by a fisherman for damage to his business as a

result of water pollution. See Foremost Insurance Co. v.

Richardson, 457 U.S. 668 (1982); Conner v. Aerovox, Inc..,

730 F.2d 835, 839 (Ist Cir. 1984). Accordingly, acceptance of

6

the petitioners’ position would permit plaintifts to maintain

the very claims held by the Court in Sea Clammers to have

been preempted and all like claims merely by reciting section

1333 as a jurisdictional basis. In short, if the petitioners’ posi-

tion were not rejected, statutes determined by the Court to

have broad preemptive effect would have essentially no

preemptive effect.

No decision by the Court after Sea Clammers and

Milwaukee II gives reason to question the decision of the Court .

of Appeals. In particular, the petitioners misplace their

reliance on Silkwood v. Kerr-McGee Corp., 104 S.Ct. 615

(1984). There, the Court determined that the Atomic Energy

Act did not preempt state law claims to recover punitive

damages for radiation injuries on the grounds that the state

law damage remedy was neither in conflict with federal law

nor calculated to frustrate the objectives of federal law. 104

S.Ct. at 626. As the Court stated in Milwaukee II, precedents

regarding federal preemption of state law are not instructive

when preemption of judicially-created federal law by federal

statutory law is at issue. 451 U.S. at 316. In the latter cir-

cumstances, where principles of federalism requiring defer-

ence to state law are inapplicable, the proper inquiry is solely

whether Congress has addressed the matters at issue with a

comprehensive regulatory program. 451 U.S. at 317. Because

Congress has done so in the area of water pollution, the peti-

tioners’ claims are preempted.

II. THe Decision BELOow Resotves No IMPpoRTANT QUESTION

Or Law Regu:rep To BE Sert_ep By THis Court ANp Is

In Accorp WitH THE OTHER DECISION ADDRESSING THE

SAME IssuE OF Law.

The single issue decided by the Court of Appeals is not of

such importance that it need be settled by this Court. That

issue is whether statutes that entirely preempt the federal com-

mon law of nuisance in a particular area preempt maritime as

7

well as other judicially-created federal law. The Court already

has addressed the question of the preemptive effect of those

statutes twice. The analyses of that question in Milwaukee II

and Sea Clammers, even if interpreted not to adjudicate the

precise issue presented here, certainly furnish ample guidance

to the lower federal courts.

In fact, the question presented by the petition has not given

rise to conflict among the federal courts. One other court has

addressed the question. It reached the same result as the court

below. See In re Oswego Barge Corp., 664 F.2d 327 (2nd Cir.

1981).

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

does not present any question warranting the Court’s review,

and the Court should deny the petition.

Respectfully submitted,

AEROVOX INCORPORATED CorRNELL-DUBILIER

‘ ELECTRONICS Corp.

By its attorneys,

By its attornevs

Pau. B. GALVANI , YS,

Rosert B. ALLENSWORTH JOHN M. STEVENS

Ropes & Gray WILLIAM J. CHEESEMAN

225 Franklin Street Fotey, Hoac & E.iot

Boston, MA 02110 One Post Office Square

(617) 423-6100 Boston, MA 02109

(617) 482-1390