# Opposition Brief — Connor v. Aerovox Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2273%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1984 - **Citation:** 469 U.S. 1015 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2273%3A2. Public record. Not legal advice.