When Justice Gorsuch was first nominated for the Supreme Court, we took a look at his preemption decisions and were favorably impressed. We’re doing the same thing today with respect to the new nominee, Brett Kavanaugh, currently a judge on the United States Court of Appeals for the District of Columbia. Our job today won’t be as easy because there isn’t nearly as much state-law-based diversity tort litigation in the DC Circuit. Heck, there aren’t even any states in the DC Circuit. So it’s not likely that we’ll find a Caplinger v. Medtronic, Inc., 784 F.3d 1335 (10th Cir. 2015), in Judge Kavanaugh’s judicial resumé.
But we can try.
Our search for Kavanaugh opinions containing some form of the word “preempt!” produced 19 cases. Over half of them could be eliminated immediately, because “preempt!” appears only in a different opinion, one not written by the possible next Supreme Court justice.
We found only two Kavanaugh opinions concerning preemption that weren’t in the administrative context. The most significant of those was Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007), where Judge Kavanaugh dissented, in part on preemption grounds, from the court’s decision not to hear an appeal in one of those now (thankfully) eliminated Alien Tort claims involving plaintiffs and conduct that took place entirely overseas. In dissent, Judge Kavanaugh would have dismissed the Alien Tort claims on non-justiciability grounds due to interference with American foreign policy . Id. at 359-64. A few remaining state-law tort claims would be preempted for essentially the same reason:
[T]he possibility that state law (in this case, D.C. tort law) will produce something more than incidental effect in conflict with express foreign policy of the National Government requires preemption of the state law. Although we need not resolve the issue here, the state-law tort claims are likely preempted as a result of the State Department’s specific statement of harm to foreign policy.
Id. at 365 (dissenting opinion) (citations omitted). The Doe case rattled around the DC Circuit for quite some time. Judge Kavanaugh dissented again in Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011), vacated, 527 F. Appx. 7 (D.C. Cir. 2013), but did not reach preemption in that opinion. Finally, he participated in the ultimate dismissal of the case after Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), again not reaching preemption. See Doe v. Exxon Mobil Corp., 527 F. Appx. 7 (D.C. Cir. 2013).
Another Kavanaugh opinion that wasn’t administrative in nature was Mills v. Giant of Maryland, LLC, 508 F.3d 11 (D.C. Cir. 2007). It was a garbage class action, filed on behalf of DC residents who allegedly were lactose intolerant but didn’t know that yet. The district court had dismissed the case on FDCA preemption grounds – that the warning plaintiffs demanded was different from the labeling required by the FDA. Id. at 13. Judge Kavanaugh, however, didn’t reach preemption. Instead, he found that DC “tort-law principles foreclose failure-to-warn liability when the risk that some people might have an adverse reaction to the food is ‘widely known.’” Id. at 13-14. Having affirmed dismissal on state-law grounds, there was no need to reach preemption. Id. at 15-16. At least that ruling suggests that Judge Kavanaugh is a tort conservative.
Interestingly, both Doe and Mills are from 2007 and were Judge Kavanaugh’s first preemption decisions, since he joined the DC Circuit the year before, in 2006. He does not appear to have encountered preemption in the common-law tort context since.
A lot of the DC Circuit’s docket is administrative in nature, and in that procedural posture it is often the plaintiffs – various regulated businesses of one sort or another – that seek preemption, specifically additional preemption of state regulations beyond that recognized by the relevant federal agency. That’s not an easy position to win, as it arrays the government on the side against preemption. One of the administrative cases is Illinois Public Telecommunications Ass’n v. F.C.C., 752 F.3d 1018 (D.C. Cir. 2014), involving telephone refunds. Preemption was rejected. First, since the FCC had issued only a voluntary (“may, but are not required”) order covering the subject at issue. State decisions not to issue refunds thus were not preempted. Id. at 1024. Second, given the statutory scheme, the FCC’s decision not to preempt state decisionmaking was not “arbitrary or capricious.” Id. at 1025-26. Another such Kavanaugh decision – indeed, the with opinion the most occurrences of “preempt!” − was a total bust, as the preemption argument in American Road & Transportation Builders Ass’n v. E.P.A., 705 F.3d 453 (D.C. Cir. 2013), was both barred by the statute of limitations and previously adjudicated in a different court.
That’s basically it. In no other opinion has Judge Kavanaugh used “preempt!” in the Supremacy Clause context that interests us.
So our conclusion is that, unlike a lot of areas, Judge Kavanaugh has not left a lot of tort preemption footprints during the course of his judicial career. What little there is, we like. And that one administrative preemption opinion? It doesn’t bother us much. Shockingly, not all preemption arguments are meritorious, and from the discussion in Illinois Public, we might not even have found preemption.