Supplemental Brief — American Cyanamid Co. v. Geye

Supreme Court, U'S.

FILED

JUN 4 - 2003

No. 02-367 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

AMERICAN CYANAMID COMPANY,

Petitioner,

V.

TERRY GEYE and BRANDON GEYE,

Respondents.

On Petition For A Writ of Certiorari

To The Supreme Court of Texas

PETITIONER’S THIRD SUPPLEMENTAL BRIEF:

RESPONSE TO BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

LAWRENCE S. EBNER

Counsel of Record

CHRISTINA M. CARROLL

~-— MCKENNA LONG &

ALDRIDGE LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 496-7500

Attorneys for Petitioner

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

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Cipollone v. Liggett Group, Inc., 505 U.S. 504

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Construction Laborers v. Curry, 371 U.S. 542 (1963).......... 3

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Hudson Distribs., Inc. v. Eli Lilly & Co., 377 U.S.

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Pierce County v. Guillen, 123 S. Ct. 720 (2003) ..............008 7

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PETITIONER’S THIRD SUPPLEMENTAL BRIEF'

Pursuant to Sup. Ct. R. 15.8, Petitioner American

Cyanamid Company hereby submits this Third Supplemental

Brief, which responds to the Brief for the United States As

Amicus Curiae (“U.S. Br.”), filed May 30, 2003.

DISCUSSION

The Government’s brief, which the Court invited by

order of November 12, 2002, acknowledges that the petition

in this case “raises potentially important questions respecting

the preemptive effect of Section 136v(b) of FIFRA.” USS.

Br. at 8. Further, the Government nowhere disputes that the

significant federal pre-emption question conclusively

addressed in the opinion below — whether agricultural crop

injury claims are excluded from the widely accepted

principle that FIFRA pre-empts labeling-related damages

claims — continues to divide the Texas Supreme Court and

California Supreme Court, and also the Texas Supreme Court

and U.S. Court of Appeals for the Fifth Circuit. After almost

seven months of consideration, however, the Government has

filed a brief which takes “no position at this time” on the

merits of this frequently recurring “exception to pre-emption”

question, whose prompt resolution is vital to farmers, the

pesticide industry, and the agricultural economy. /d. at 19.

Instead, the brief asserts that the opinion below “‘is not ‘final’

for purposes of 28 U.S.C. 1257,” and as a result, that this

case does not provide the Court with “an appropriate

opportunity” for review. Jd. at 8.

' The amended Rule 29.6 corporate disclosure statement filed with

Petitioner’s Supplemental Brief remains accurate.

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We respecifully disagree. The Texas Supreme Court

rendered a final decision holding “that state common-law

claims about target area crop damage are not preempted” by

FIFRA. Pet., App. at 2a. As previously discussed, this final

state court decision on the federal pre-emption issue falls

squarely within the fourth category of “cases in which, the

Court has treated the decision on the federal issue as a final

judgment for purposes of 28 U.S.C. § 1257 and has taken

jurisdiction without awaiting the completion of the additional

proceedings anticipated in the lower state courts.” Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 477 (1975). This

is because (i) “the federal issue has been finally decided in

the state courts;” (ii) “reversal of the state court on the federal

issue would be preclusive of any further litigation on the

relevant cause of action;” and (ili) “refusal immediately to

review the state court decision might seriously erode federal

policy.” Jd. at 482-83 (emphasis added). See Pet. at 1-3;

Petitioner’s Reply Br. at 1-4; Br. of CropLife America as

Amicus Curiae in Support of Petitioner at 2-8.

This Court has recognized that “the power of [a] state

court to proceed in the face of [a] preemption claim” is “an

issue separable from the merits and ripe for review .. .

particularly ‘when postponing review would seriously erode

the national . . . policy’” at issue. Cox, 420 U.S. at 483

(referring to and quoting Construction Laborers v. Curry,

371 U.S. 542, 550 (1963)). As a result, the Court on

numerous occasions has granted immediate review of

“interlocutory” state court pre-emption decisions. See Br. of

CropLife America at 4-7 (collecting cases). The

Government’s brief fails to acknowledge these cases.

Unless the Court reviews at this time the important

FIFRA pre-emption question decided by the Texas Supreme

Court and raised by the petition in this case, Petitioner, and

other pesticide manufacturers, formulators, or distributors

which sell their products in Texas, the nation’s second largest

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agricultural state, will be compelled to “face further

proceedings in the state courts which the state courts have no

power to conduct.” Construction Laborers, 371 U.S. at 550.

That would continue to seriously erode the congressional

policy underlying § 136v(b) of FIFRA, which is “to ensure a

uniform nationwide approach to pesticide labeling.” U.S. Br.

at 5.

1. The Government’s brief does not deny that

“refusal immediately to review the state court decision might

seriously erode federal policy.” Cox, 420 U.S. at 483. See

Petitioner’s Reply Br. at 4-6; Br. of CropLife America at 4.

According to the Government, however, the Court lacks

jurisdiction because “petitioner cannot show that ‘reversal of

the state court on the federal issue would be preclusive of any

further litigation on the relevant cause of action.” U.S. Br.

at 11 (quoting Cox, 420 U.S. at 482-83) (emphasis added).

This is plainly incorrect. The “relevant cause[s] of action”

for purposes of the federal issue (i.e., the FIFRA pre-emption

question) decided by the Texas Supreme Court are

Respondents’ labeling-related causes of action, no matter

how denominated (e.g., strict liability, breach of implied or

express warranties, violation of the Texas Deceptive Trade

Practices Act). The labeling-related causes of action are the

“relevant cause[s] of action” because, as the Government’s

brief agrees, “FIFRA preempts state-law damages actions

that impose labeling and packaging requirements in addition

to, or different from, those that FIFRA imposes.” U.S. Br. at

16 (capitalization of argument heading omitted). By its very

nature, the federal pre-emption doctrine precludes a plaintiff

from pursuing state law causes of action that conflict with

federal law. See, e.g., Cipollone v. Liggett Group, Inc., 505

U.S. 504, 521-24 (1992). Therefore, if this Court grants the

petition for certiorari and then reverses the Texas Supreme

Court’s pre-emption holding, that necessarily “would be

preclusive of any further litigation on the relevant cause[s] of

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action” (i.e., on the labeling-related causes of action). Cox,

420 U.S. at 482-83.

According to the Government’s brief, reversal of the

federal pre-emption opinion below would not be preclusive

because “(t]he [Texas] supreme court, unlike the lower Texas

courts, did not address the question whether or not

{Respondents’] claims were ‘label-related.’”’ U.S. Br. at 8.

To the contrary, that is exactly what the state supreme court

did, albeit implicitly:

First, as the Government’s brief explains, the state

court of appeals explicitly affirmed at the outset of its

opinion that the “off-label” advertising statements on which

all of Respondents’ causes of action are based “merely

repeated information on the [herbicide labels],” and as a

result, affirmed that “[{ajll of [Respondents’] state law claims

relate directly or indirectly to the product label stating that

the herbicides may be combined by tank mixing.” Pet., App.

at l6a & 16a n.2; see U.S. Br. at 7. Yet, the court of appeals

held that because those labeling-related claims involve

agricultural crop damage, they are not pre-empted. By

affirming this court of appeals judgment, the Texas Supreme

Court implicitly agreed that Respondents’ causes of action

are labeling-related.

Second, the Government’s brief overlooks a crucial

point underlying the Texas Supreme Court’s pre-emption

analysis: In reaching its conclusion that FIFRA does not pre-

empt Respondents’ claims, the court indicated that “it is not

the breadth of preemption, but rather the breadth of the

congressionally created exception to express preemption that

determines the outcome.” Pet., App. at la (emphasis added).

The state supreme court did not have to “struggle to

determine the breadth of federal preemption” under FIFRA

because, as the court explained, it previously had held,

consistent with the overwhelming majority of federal and

state cases, that FIFRA pre-empts “claims relating directly or

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indirectly to labeling.” Jd. at 13a, 14a (quoting Quest Chem.

Corp. v. Elam, 898 S.W.2d 819, 820 (1995)). Instead, the

court undertook to “determine the breadth . . . of an exception

to that preemption” (i.e., to FIFRA pre-emption of labeling-

related claims). Id. at 14a (emphasis added). In light of this

approach, the court’s holding that there is an “exception to

express preemption” for crop damage claims necessarily

recognizes that Respondents’ causes of action are labeling-

related. Otherwise, the state supreme court would have been

rendering an advisory opinion, which it cannot do. See Texas

Ass'n of Business v. Texas Air Contral Bd., 852 S.W.2d 440,

444 (Tex. 1993) (“Texas courts, like federal courts, have no

jurisdiction to render such [advisory] opinions.”).

Indeed, it is reasonable to infer from the opinion

below that the Texas Supreme Court implicitly affirmed,

consistent with the explicit opinions of the lower Texas

courts, that a/l of Respondents’ claims (i.e., causes of action)

are labeling-related. For example, rather than attempting to

distinguish its holding in Quest Chem. Corp. v. Elam, that

FIFRA pre-empts “claims relating directly or indirectly to

labeling,” on the ground that some or all of Respondents’

claims are not labeling-related, the court explained that “[t]he

fundamental difference is that Quest involved a claim for

personal injury while this case involves a claim for target

crop damage.” Pet., App. at 13a.

The Government’s brief argues that the Texas

Supreme Court has not addressed whether Respondents’

claims are “label-related” because it supposedly “has not

resolved whether respondents’ causes of action in this case

actually entail the imposition of ‘any requirements for

labeling or packaging in addition to or different from those

required under [FIFRA],’ within the meaning of Section

136v(b).” U.S. Br. at 8, 9; see id. at 15. In other words,

according to the Government, unless a claim is found to be

pre-empted by § 136v(b), it cannot be found to be labeling-

—~—

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related. The Government fails to reconcile this contention,

however, with the opinion of the state court of appeals, which

the Texas Supreme Court affirmed. As indicated above, the

Government’s brief acknowledges the court of appeals

“stated at the outset that ‘[a]ll of [respondents’] state law

claims relate directly or indirectly to the product label stating

that the herbicides may be combined by tank mixing.’ ” U.S. |

Br. at 7 (quoting Pet, App. at 16a). The court of appeals then |

“held that ‘plaintiffs’ state law claims relating directly or

indirectly to labeling are not preempted by FIFRA because

such claims involve the efficacy of the products and not the

risks to humans and the environment posed by the use of the

product.” /d. at 7-8 (quoting Pet., App. at 24a) (emphasis

added). Thus, contrary to the Government’s contention that

the lower court could not have determined that Respondents’

claims are labeling-related without finding them to be pre-

empted, the court of appeals did just that by holding that even

though Respondents’ claims all relate directly or indirectly

to the labeling involved in this case, they are not pre-empted.

The Texas Supreme Court adopted this approach

when it held that claims involving crop damage are excluded

from FIFRA pre-emption of labeling-related claims. Thus,

the Texas Supreme Court already has implicitly affirmed that

all of Respondents’ causes of action are labeling-related. As

a result, if this Court grants review and reverses the lower

court’s holding that causes of action involving crop damage

are excluded from FIFRA pre-emption, there will be nothing

remaining for the lower court to do except mandate dismissal

of this case.

2. Even if the state supreme court had construed only

some of Respondents’ claims as labeling-related, that would

be enough to confer jurisdiction under § 1257. Nothing in

Cox’s fourth category requires that reversal of the state

court’s ruling on the federal issue must terminate the entire

~ jitigation. Instead, as the Government’s brief repeatedly

Se es

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indicates, the final decision on the federal issue must only be

“preclusive of any further litigation on the relevant cause[s]

of action” (i.e., on the labeling-related claims). Cox, 420

U.S. at 482-83 (emphasis added). Cf Pierce County v.

Guillen, 123 S. Ct. 720, 728-29 (2003).

Along the same lines, the Government’s jurisdictional

arguments fail to take into account Respondents’ concession

in their Brief in Opposition that at least some of their claims

are labeling-related. See Respondents’ Brief in Opposition at

1-2. Because reversal of the Texas Supreme Court’s opinion

would be preclusive of any further litigation ai least as to

those admittedly labeling-related claims, that 1s enough to

invoke the Court’s jurisdiction under § 1257. See

Petitioner’s Reply Br. at 4 n.4.

The Government’s brief asserts, however, that “[i]f

the Court were to conclude that at least one (but not all) of

respondents’ causes of action would be preempted if it

reversed the decision of the Texas Supreme Court ... the

question would then arise whether 28 U.S.C. 1257 should be

construed (in the manner of Fed. R. Civ. P. 54(b)) to permit a

judgment that is not final as to the entire case to be regarded

as final with respect to the disposition of particular claims.”

U.S. Br. at 16 n.3. Cox (which restated the holdings of

earlier cases on § 1257 jurisdiction) already answers this

question in the affirmative by limiting the “finality” analysis

to whether “the federal issue has been finally decided” and

whether “reversal of the state court on the federal issue

would be preclusive of any further litigation on the relevant

cause[s] of action.” Cox, 420 U.S. at 482-83 (emphasis

added); see, e.g., Hudson Distribs., Inc. v. Eli Lilly & Co.,

377 U.S. 386, 389 n.4 (1964) (“The fact that separate and

unresolved issues are pending in the Ohio courts and subject

to ‘further proceedings’ therein on the cross-petition does not

render the judgment of the Ohio Supreme Court on the issue

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here considered and decided nonfinal or unappealable within

the meaning of 28 U.S.C. § 1257.”).

3. Rather than adhering to this Court’s “intensely

‘practical’ approach” to finality issues under § 1257, the

Government’s brief advocates one that is immensely

impractical. Mathews v. Eldridge, 424 U.S. 319, 331 n.11

(1976). Under the Government’s constricted view of finality

in this case, this Court would have no jurisdiction to resolve

the deep split of authority on the important federal pre-

emption question presented unless and until Petitioner were

to (i) endure a trial before a Texas state court jury on failure-

to-warn product liability claims which the lower courts

already have determined are labeling-related, and which

Cyanamid contends are pre-empted; (ii) suffer an adverse

judgment; and then (iii) relitigate the FIFRA pre-emption

issue in the Texas appellate courts and obtain a Texas

Supreme Court opinion which explicitly affirms that

Respondents’ claims are labeling-related but again holds that

because they involve crop damage, they are not pre-empted.

See Br. of CropLife America at 7-8. This costly, time-

consuming, repetitious, and very uncertain procedure that the

Government’s brief maintains is required for obtaining a

“final” state court federal pre-emption ruling which qualifies

for § 1257 jurisdiction could not have been what the Court

intended when it explained in Cox that “the requirement of

finality is to be given a ‘practical rather than a technical

construction.” ” Cox, 420 U.S. at 478 n.7 (quoting Cuhen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949)).

4. The Government’s brief notes the pending

certiorari petition in Eyl v. Ciba-Geigy Corp., No. 02-1500

(filed April 10, 2003). U.S. Br. at 19 n.5. As discussed in

Petitioner’s Second Supplemental Brief, the petition in Eyl

requests the Court to review, despite the near unanimity

among the lower courts, the basic, well established principle

that § 136v(b) of FIFRA expressly pre-empts failure-to-warn

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and other labeling-related damages claims. There is no

reason for the Court to grant the Ey/ petition. indeed, the

Government’s brief here provides the Court with even more

reason to deny the Ey/ petition by advising the Court that the

“United States has reexamined” the categorical position

against FIFRA tort pre-emption that it advocated as amicus

curiae in Etcheverry vy. Tri-Ag Service, Inc., 993 P.2d 366

(Cal. 2000), and that it “has concluded” that its Etcheverry

amicus position (a position upon which the Eyl petition

heavily relies) is “incorrect” and “no longer represents the

view of the United States.” U.S. Br. at 9 (emphasis added);

see also id. at 17. Moreover, the Government’s brief does

not dispute that if the Court were to grant review in Eyl and

uphold the lower court’s affirmation of FIFRA pre-emption

in that personal injury case, the crop damage “exception to

pre-emption” question presented here would remain

completely unresolved. See Petitioner’s Second

Supplemental Brief. This is all the more reason why the

Court should deny review in Ey/ and grant review here.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

CHRISTINA M. CARROLL

MCKENNA LONG &

ALDRIDGE LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 496-7500

Attorneys for Petitioner

June 2003

ig