# Supplemental Brief — Air Conditioning & Refrigeration Institute v. Energy Resources Conservation & Development Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0202%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Supplemental Brief - **Published:** January 1, 2005 - **Citation:** 546 U.S. 1014 ## Text does not squarely conflict with a “sole{]" holding of this Court or another court of appeals. U.S. Br. 17. Its use of the qualifier “solely” presumably is meant to account for the fact that this Court has indeed “declined to apply a presumption against preemption ... on the ground that the relevant sphere of conduct had not traditionally been regulated by the States.” U.S. Br. 17; see Pet. 14-15 (discussing, among others, Buck- man Co. ¥. Plaintiffs Legal Comm., 531 U.S. 341, 347-48 (2001)). The government further argues that there is no conflict among the circuits. This is not so. At an absolute minimum, the decision of the First Circuit in UPS, Inc. v. Flores- Galarza conflicts squarely with the decision in this case, as well as decisions of the Fourth and Seventh Circuits stating that the presumption against preemption always applics. Compare 318 F.3d 323, 336 (Ist Cir. 2003) (the presumption “only arises ... if Congress legislates in a field traditionally occupied by the states” (emphasis added)), with Frank Bros., Inc. v. Wisconsin Dep't of Transp., 409 F.3d 880, 885 (7th Cir. 2005) (“we presume that, in all circumstances, ‘Congress does not intend to supplant state law’” (emphasis added)), and Pinney v. Nokia, Inc., 402 F.3d 430, 453 (4th Cir.), cert. de- nied, 126 S. Ct. 551, 552 (2005) (Nos. 05-198, 05-207); see Pet. 16-17 (discussing same). The government dismisses the clear statement in U/’S as “dictum,” U.S. Br. 19 n.7, but it is nothing of the sort--this was the First Circuit's clear state- ment of the governing principle, it was unequivocal, and it remains the law of the First Circuit. 318 F.3d at 336. The government does not even cite, much less address, Frank Brothers and Pinney. The remainder of the government's argument depends upon giving the case law an unduly narrow reading. But even pars- ing the cases as finely as the government does. its argument fails. It seeks to divide the cases into two categories: those holding that the presumption doves apply when there is a his- tory of state regulation, and those holding that it does not ap- 9 ply when there is a history of federa/ regulation. Thus, it suggests, this case falls into an intermediate category—with no history of federal or state regulation —that it says neither the court below nor other courts have addressed. U.S. Br. 18- 19 & nn.5-6. This is not so. The all-or-nothing cases cited above, and largely ignored by the government, would apply equally to this supposed intermediate zone. Other cases like- wise do not fall into the neat dichotomy the government pos- its. Eg. Public Util. Dist. No. 1 v. Odacorp Inc., 379 F 34 641, 648 n.7 (9th Cir. 2004) (“We apply a presumption against federal preemption unless the state attempts to regu- late an area in which there is a history of significant federal regulation.””). In any event, the decision below does place this case into one of the two categories the government intuits—it treats this as a case with no history of federal regulation, for it would not have applied the presumption if there were such a history. Pet. App. 4a n.1. The Ninth Circuit would find a his- tory of federal regulation in a New Deal-era statute. /d. (cit- ing Ting v. ATAT, 319 F.3d 1125, 1136 (9th Cir. 2003), which relied upon the Federal Communications Act of 1934)). But the line drawn by this case and Jing conflicts directly with cases holding that a shorter history suffices to defeat the presumption, as well as cases that require a longer history of federal regulation. The First Circuit has held that a federal statute more recent than EPCA—the Federal Aviation Administration Authorization Act of 1994-—sufficed to dem- onstrate a history of federal regulation that defeated applica- tion of the presumption. L/7/’S, 318 F.3d at 336. By contrast, the California Supreme Court has held that even federal regu- lation since 1935 is not enough; “federal activity” must be “manifest since the beginning of our Republic.” Bronco Wine Co. v. Jolly, 95 P.3d 422, 441 n.42 (Cal. 2004), cert. denied, 125 8. Ct. 1646 (2005), see also Pinney, 402 F.3d at 454 n.4 (“there 1s not the same federal presence in the wire- 10 less teclecommunications area as there is in the area of mari- time commerce” at issue in Locke). Most importantly, it remains abundantly clear that the Ninth Circuit's formulation of the presumption against pre- emption, and the repeated “narrow interpretations” that fol- lowed from its application of the presumption, drove the re- sult in this case. The government offers only the most timid suggestion to the contrary, U.S. Br. 15, and instead relies upon its own statutory analysis. That analysis is wrong, for all of the reasons set forth above, and so what remains is the badly distorted statutory analysis sect forth by the Ninth Cir- cuit. Given the importance of this issue, both to the national regulatory scheme that Congress enacted and to the regulated industries governed by that scheme, it plainly merits this Court's review. CONCLUSION For the foregoing reasons, the Petition for a Writ of Certio- rari should be granted. STEPHEN R. YUREK GENERAL COUNSEL VICE PRESIDENT, Poticy & PUBLIC AFFAIRS AIR-CONDITIONING & REFRIGERATION INSTITUTE 4100 North Fairfax Drive Suite 200 Arlington, VA 22203 (703) 524-8800 JOSEPH M. MATTINGLY VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL GAS APPLIANCE MANUFACTURERS ASSOCIATION, INC. 1207 Wilson Bivd, Ste. 600 Arlington, VA 22201 (703) 525-7060 CLARK REID SILCOX COUNSEL NATIONAL ELEC TRICAI MANUFACTURERS ASSOCIATION 1300 N. 17th St., Ste. 1847 Rosslyn, VA 22209 (703) 841-3200 Respectfully suomit(ed, CARTER G. PHILLIPS* Joseru R. GUERRA Eric A. SHUMSKY SIDLLY AUSTIN Brown & Woop LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 CHARLES A. SAMUELS GENERAL COUNSFI ASSOCIATION OF HOME APPLIANCE MANUFACTURERS MINTZ LEVIN COHN FERRIS GLovsKy & Porto PC 701 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 434-7300 JOUN A. HODGES Bruce L. MCDONALD Peter J. RieuM WILEY REIN & FIELDING LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000 Counsel for Petitioners May 26, 2006 * Counsel of Record OCT 25 2005 ‘ ifs No. 05-331 3 Rien” IN THE Supreme Court of the United States AIR CONDITIONING & REFRIGERATION INSTITUTE ef al., Petitioners, Vv. ENERGY RESOURCES CONSERVATION AND DEVELOPMENT COMMISSION ef ai., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit REPLY BRIEF CARTER G. PHILLIPS* JOSEPH R. GUERRA Eric A. SHUMSKY SIDLEY AUSTIN BROWN & WOOD LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 Counsel for Petitioners October 25, 2005 * Counsel of Record {Additional Counsel Listed on Inside Cover] Sat SARA ARC I Psa Sa ONE TR ARE i ES ORL COBEN RES WILSON-EPES PrinTING Co.. INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001 STEPHEN R. YUREK JosePpH M. MATTINGLY GENERAL COUNSEL VICE PRESIDENT, SECRETARY VICE PRESIDENT, POLIcy & AND GENERAL COUNSEL PUBLIC AFFAIRS GAS APPLIANCE AIR-CONDITIONING & MANUFACTURERS REFRIGERATION INSTITUTE ASSOCIATION, INC. 4100 North Fairfax Drive 1207 Wilson Blvd Suite 200 Suite 600 Arlington, VA 22203 Arlington, VA 22201 (703) 524-8800 (703) 525-7060 CHARLES A. SAMUELS CLARK REID SILCOX GENERAL COUNSEL COUNSEL ASSOCIATION OF HOME NATIONAL ELECTRICAL APPLIANCE MANUFACTURERS MANUFACTURERS MINTZ LEVIN COHN FERRIS ASSOCIATION GLOVSKY & Popeo PC 1300 North 17th Street 701 Pennsylvania Avenue, Suite 1847 N.W. Rosslyn, VA 22209 Washington, D.C. 20004 (703) 841-3200 (202) 434-7300 JOHN A. HODGES Bruce L. MCDONALD PETER J. RIEHM WILEY REIN & FIELDING LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........:.cc:ccosscesssesssesesessveesveee ii A gate set Sala wee eA leet 6 I I. THE DECISION BELOW CONFLICTS WITH BINDING PRECEDENT OF THIS COURT ON AN IMPORTANT QUESTION OF FEDERAL Il. THE DECISION BELOW CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER COURTS OF APPEALS REGARDING THE “PRESUMPTION AGAINST PREEMPTION” ..... a Ill. THE DECISION BELOW WAS MISTAKEN, AND THREATENS SERIOUS CONSE- QUENCES TO IMPORTANT FEDERAL IN- CFSE Ee Docecunsecssersemnssenpesesevinannasetnmeeremmenennascenaeniings 19 (1) TABLE OF AUTHORITIES CASES Page Aetna Health Inc. v. Davila, 542 U.S. 200 Inds sidinasiatiteeiaibndendeseepebibadeaetdniihoodstababinnecieds 3 Barbier v. Connolly, 113 U.S. 27 (1884) ...........0000 7 Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788 ee ctnicaniithanabttidnnibarentuasintsiateintnntneteeniioon 3,7 Buckman v. Plaintijjs’ Legal Comm., 531 U.S. OE i i 7 Engine Mfrs. Ass'n v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004)........ccccccceeeeeees i,2 Frank Bros., Inc. vy. Wisconsin Dep't of Transp., 409 F.3d 880 (7th Cir. 2005) ......ccccccccereeecereeereres 5 Medtronic, Inc. vy. Lohr, 518 U.S. 470 (1996)......... 6 Mid-Con Freight Sys., Inc. v. Michigan Pub. Serv. Comm'n, 125 S. Ct. 2427 (2005)......-.000000 3 Nixon vy. Missouri Mun. League, 541 U.S. 125 CESS SRE AT CLR ee Bee 3 Puerto Rico Dep't of Consumer Affairs v. Isla Pe- troleum Corp., 485 U.S. 495 (1988) ........ccccccceeee 10 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 Sy idediie etlstihinetenbettslnienibaledealadiblomezeinitpiae 6 UPS, Inc. v. Flores-Galarza, 318 F.3d 323 (\st GR ee cntisiatidh ctiencecitititecicaenitiscachinthtiripsninstabaneinioe 5 United States v. Locke, 529 U.S. 89 (2000) ............. 6,7 STATUTES Ee Sahat OED scrivnsecisciciesintinntappiolcochdapinpinapeuanttontes 8 SER eee 2, 8,9 RULE Sa ie Wee intaceetntn spbiensticctbesinstenicunnseeioneistias l iii TABLE OF AUTHORITIES—continued SCHOLARLY AUTHORITIES Page Caleb Nelson, Preemption, 86 Va. L. Rev. 225 Cee iinksgdiitcnemidninlgbihedavienisivtonden ttaaas 5 Viet D. Dinh, Reassessing the Law of Preemp- tion, 88 Geo. L.J. 2085 (2000) ........cccecccseseeeeeceees 5 REPLY BRIEF In the decision below, the Ninth Circuit distorted a federal statutory scheme because it found the State's regulatory ap- proach to be “laudable,” a proposition unsupported by any record evidence. This method of statutory interpretation, ob- jectionable in and of itself, flies in the face of this Court's de- cision just two Terms ago to vacate a similar Ninth Circuit decision, which likewise interpreted a federal preemption pro- vision in a limited, atextual fashion to uphold a state statute that the Ninth Circuit deemed praiseworthy. See Engine Mfrs. Ass'n v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004) (“EM 1"). This alone merits certiorari. See Sup. Ct. R. 10(c) (review is warranted when a lower court “decided an important federal question in a way that conflicts with rele- vant decisions of this Court”). Moreover, in the course of ignoring this Court's recent precedent, the decision below exacerbated a circuit split over the proper application of the “presumption against preemp- tion.” Respondent CEC all but concedes the existence of this conflict, answering only that the conflict is not acknowledged, and that it can be written off as merely loose language em- ployed by some courts of appeals. The former contention is quite beside the point, and the latter simply is not true. The lower courts are in disarray over the proper application of the presumption against preemption, and the conflict on this issue is beyond question. This Court's review is necessary to bring clarity to this recurring issue that arises in a badly confused area of law under the Supremacy Clause. I. THE DECISION BELOW CONFLICTS WITH BINDING PRECEDENT OF THIS COURT ON AN IMPORTANT QUESTION OF FEDERAL LAW. The Petition demonstrates that the decision below stands squarely in conflict with EMA. Pet. 11-14. In EMA, this Court analyzed an express preemption provision of the Clean Air Act “which prohibits the adoption or attempted enforce- 2 ment of any state or local ‘standard relating to the control of emissions from new motor vehicles or new motor vehicle en- gines."”” 541 U.S. at 251. At the center of this Court’s deci- sion was its interpretation of the statutory term “standard.” Adopting an approach designed to preserve state law at all costs, the Ninth Circuit held that the generic term “standard” did not include “standards imposed through purchase restric- tions.” Jd. at 256. This Court rejected that limiting interpre- tation because the language of the statute “is categorical.” /d. Here, too, the Ninth Circuit sought to circumvent the “cate- gorical” language of the statute. In sweeping language, the Energy Policy and Conservation Act preempts “any State regulation [that] provides at any time for the disclosure of in- formation with respect to any measure of energy consump- tion.” 42 U.S.C. § 6297(a) (emphases added). Rather than interpret the term “disclosure” by its terms, however, the Ninth Circuit applied a “narrow interpretation,” see Pet. App. 7a, to conclude that the term means “labeling directed to con- sumers at point of sale or use,” id. at 8a. In both this case and in EMA, the Ninth Circuit imposed an atextual limitation on statutory text. Certiorari is warranted, just as in EMA, to re- verse the Ninth Circuit's erroneous interpretation of an impor- tant federal statute. Indeed, review is nore important here than it was in EMA, so that this Court can reaffirm the valid- ity of its own recent precedent that the Ninth Circuit casually cast aside. See id. at 22a (Noonan, J., dissenting). It is telling that the CEC has almost nothing to say about EMA, other than to argue that this case involves “a different statute.” Opp. ||. It should hardly require explanation that, although the two cases interpret different statutes, they con- cern the same /ega/ rule—namely, that lower courts should not distort the text of federal statutes in an effort to preserve from preemption state statutes that they find “laudable.” The Ninth Circuit took that approach in EMA, and this Court re- 3 versed. Ti.2 Ninth Circuit followed precisely that course again here, and this Court again should reverse. For the same reason, the CEC is mistaken to argue that there is no important issue of federal law at stake. Opp. 4. It is of course true, as CEC argues, that at its narrowest this case involves the interpretation of a preemption provision in one federal statute. /d. But this is true of every case involving express preemption under the Supremacy Clause, and it has been no barrier to this Court’s granting review to interpret numerous statutory preemption clauses— including four in the last two Terms alone.’ This is for good reason. Whether a court may impose a crabbed, atextual interpretation on a statutory preemption provision is a question of surpassing national importance and federal concern. It has substantial implications for the legisla- tive process. If courts may do what the Ninth Circuit did here, then the legislative bargains that lie at the heart of com- plex regulatory statutes will be undercut, leading to uncer- tainty .n the legislative process, and placing entities regulated at the federal level unsure as to what rules to follow. Preemp- tion provisions are often enacted to ensure that, when an in- dustry is subjected to additional regulatory burdens at the fed- eral law, it can count on uniform regulation. But if the guai- antee of uniformity is meaningless—as it is following deci- sions like the Ninth Circuit’s in EMA and this case—then the ' The CEC also argues that EMA presented a better case for review be- cause it involved a circuit split over the interpretation of a particular stat- ute. Opp. 1. To the contrary, this is the more compelling case for certio- rari. In addition to its conflict with EMA, the decision below involves a well-established conflict over a fundamentz! legal principle —the proper application of the presumption against preemption—that affects not just a single statute, but potentially governs the preemptive effect of every fed- eral statute. See Pet. 14-21; infra Section Il. ? See Mid-Con Freight Sys., Inc. v. Michigan Pub. Serv. Comm'n, 125 S. Ct. 2427 (2005), Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788 (2005), Aetna Health Inc. v. Davila, 542 U.S. 200 (2004); EMA, 541 U.S. 246 (2004); Nixon v. Missouri Mun. League, 54\ U.S. 125 (2004). 4 legislative deal is undone, thereby creating great uncertainty and imposing tremendous costs on interstate businesses. See Pet. 23-24 & nn.14-17; Br. for Alliance of Automobile Mfrs. et al. as Amici Curiae (“AAM Br.”), at 12-16. These are in- deed important questions of federal law, and they merit this Court’s review, Il. THE DECISION BELOW CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER COURTS OF APPEALS REGARDING THE “PRE- SUMPTION AGAINST PREEMPTION.” The Petition further demonstrates that there is a well- developed conflict among the courts of appeals concerning the proper formulation of the “presumption against preemp- tion.” Pet. 16-17. At least cight circuits have weighed in, and they are badly divided. The First, Second, Eighth, Eleventh and D.C. Circuits hold that the presumption only applies when the federal preemption provision concerns a field of significant or “traditional” state regulation. /d. at 16 (citing cases). This formulation is consistent with this Court's prior decisions. /d. at 14-15. In direct conflict, the Fourth, Seventh and Ninth Circuits a/ways apply the presumption. /d. at 16- 17. Given the breadth and maturity of this conflict-—and par- ticularly in light of the innumerable federal preemption provi- sions that are necessarily affected by the presumption—this important issue of federal law warrants review. The CEC’s inability to muster a substantive argument why this conflict is unworthy of certiorari only confirms that cer- tiorari is appropriate. The CEC secks to cast aside the circuit split, chalking it up to “incidental differences in wording” among the circuits. Opp. at 6. But it offers no analysis to substantiate this assertion—no showing that the conflict is illusory, or inat the cases actually employ the same legal rule. That is no mere oversight: Even the most cursory review re- veals that the lower courts have announced flatly inconsistent rules. The First Circuit, for instance, in UPS, Inc. v. Flores- Galarza, declined to apply the presumption because it “only 5 arises ... if Congress legislates in a field traditionally occu- pied by the states.” 318 F.3d 323, 336 (Ist Cir. 2003) (em- phasis added). The Seventh Circuit, by contrast, has reasoned that the presumption applies “in ail circumstances.” Frank Bros., Inc. v. Wisconsin Dep't of Transp., 409 F.3d 880, 885 (7th Cir. 2005) (emphasis added). The problem is not that the courts of appeals are failing to use “the exact same words,” Opp. 6; it is that they are not using the same principle. The conflict over this principle, moreover, is an extremely important one. Prominent commentators repeatedly have criticized the lack of clarity surrounding the presumption against preemption. See, e.g, Viet D. Dinh, Reassessing the Law of Preemption, 88 Geo. L.J. 2085, 2086 (2000), Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 298-303 (2000). And, others have indeed “supposed,” cf. Opp. 7, that this case merits this Court's review—in fact, this petition is not even the only one currently pending before the Court that presents this precise issue. See Petition for Writ of Certiorari at 25-26 & n.6, Nokia, Inc. v. Naquin, No. 05-198 (filed Aug. 10, 2005). The briefs filed in that case further demonstrate the intractable confusion surrounding the application of the pre- sumption. :here are conflicts over numerous aspects of when the presumption arises and how it should be applied. For in- stance, there is genuine disarray as to what federal presence in a field is sufficient to overcome the presumption when it oth- erwise would apply, and disagreement about how to define the relevant domains of state and federal regulation in decid- ing whether cither has significantly, traditionally or histori- cally regulated a field. See Br. of Product Liability Advisory Council, Inc. as Amicus Curiae at 6-13, Nokia, Inc. v. Naquin, No. 05-198 (filed Sept. 30, 2005).’ ‘ Because Nokia relates to conflict preemption (rather than express pre- emption) and has an overlay of regulatory preemption, it would be appro- priace to grant certioran in both Nokia and this case. At a minimum, how- ever, if certiorari is granted in Nokia, this petition should be held pending resolution of that case. 6 Ill. THE DECISION BELOW WAS MISTAKEN, AND THREATENS SERIOUS CONSEQUENCES TO IMPORTANT FEDERAL INTERESTS. Finally, the Petition demonstrates that the decision below was wrong, and that the Ninth Circuit's error threatens severe consequences for the companies regulated by the California regime, and for national industries that depend on consistent enforcement of federa! preemption provisions. Pet. 17-25; see also AAM Br. at 12-16. In response, the CEC argues that the Ninth Circuit correctly articulated the presumption against preemption, and correctly applied it to the California statute. The former contention is mistaken; the latter is largely beside the point at this stage, but in any event is also incorrect. 1. The CEC intimates that the Ninth Circuit was correct that the presumption against preemption always applies. It argues that the decision below “did no more than apply this Court’s admonition that *|c}onsideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law." Opp. 7 (alteration in original; emphasis omitted) (quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). The Ninth Circuit, however, aid not even cite Maryland v. Louisiana, and the CEC misinterprets that case in any event. The CEC relies on a portion of Maryland in which the Court interpreted Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947), and this Court already has ex- plained that Rice “does not support the scope given to it” by the CEC, and that the presumption applies only when Con- gress legislates “‘in a field which the States have traditionally occupied."” United States v. Locke, 529 U.S. 89, 107-08 (2000) (quoting Rice, 331 U.S. at 230). Locke interprets in similar fashion Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (which the decision below did actually cite, Pet. App. 4a). See Locke, 529 U.S. at 108. In short, the Ninth Circuit indeed got it wrong, and the CEC now does the same. Nor is the decision below correct because the California regulations fall within the State's police powers. Opp. 7. The 7 implication—although the CEC fails to explain it—is that the presumption applies whenever a State acts pursuant to its po- lice powers. That is not the law. The presumption applies when there is a “significant” history of state regulation, or the dispute arises in “‘a field which the States have traditionally occupied."” Buckman v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001); see Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788, 1801 (2005) (“In areas of traditional state regula- tion, we assume that a federal statute has not supplanted state law ....""). It applies to areas in which the States actually have traditionally regulated, and the disclosure of energy appliance information is not such an area. Contrary to the rule the CEC advances, this Court has re- jected application of the presumption when a State plainly was acting pursuant to its police powers. In Buckman, for instance, the Court held that a claim of fraud——which unques- tionably involves a State’s general police powers—was not protected by the presumption against preemption because the variety of fraud alleged (fraud on a federal government agency) was not “‘a field which the States have traditionally occupied.”” 531 U.S. at 347. The rule that the CEC proposes would prove far too much—nearly all state regulation is pur- suant to the States’ police powers, see Barbier v. Connolly, 113 U.S. 27, 31 (1884), and all state regulation can be charac- terized as such. The CEC’s proposed rule is limitless. Even were the CEC correct that some of this Court’s prece- dents stand for the view that the presumption against preemp- tion always applies, then that simply would mean that this Court’s own decisions conce”’ ‘g the presumption are incon- sistent. Some (like Locke, » ine cases cited in the Petition at 14-15) stand for the pro . sition that the presumption ap- plies only “‘in a field which ‘he States have traditionally oc- cupied,”” Locke, 529 U.S. at 108, and others (like Maryland and Medtronic, if the CEC is correct) would mean that the presumption always applies. If the CEC is correct that a con- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0202%3A3. Public record. Not legal advice.