preemption

The Supreme Court has long resolved whether and when state law claims against drug manufacturers are preempted by federal law. The Third Circuit ruling in Merck Sharp & Dohme Corp. v. Albrecht is very favorable to state-law claims and likely will be modified, if not reversed, by the Supreme Court.

The Food and Drug Administration’s (FDA) approval of a drug warning label does not necessarily insulate drug manufacturers from state-law failure-to-warn claims. In Wyeth v. Levine (2009), the Supreme Court held that state failure-to-warn claims are preempted when there is “clear evidence” the FDA would not have approved the warning a plaintiff claims was necessary. In Merck Sharp & Dohme Corp. v. Albrecht, Merck claims there was such “undisputed” evidence in this case but the Third Circuit improperly allowed the case go to a jury for “conjecture as to why the FDA rejected the proposed warning.”

Virginia has the largest known uranium deposit in the United States. Since its discovery in the 1980s the Virginia legislature has banned uranium mining. Unsurprisingly the land owner, Virginia Uranium, wants to mine. In Virginia Uranium v. Warren the Supreme Court will decide whether the Atomic Energy Act (AEA) preempts the ban.

The AEA allows states to “regulate activities for purposes other than protection against radiation hazards.” Virginia and Virginia Uranium agree uranium mining isn’t an “activity” per the AEA so states may regulate it for safety reasons. Uranium-ore milling and tailings storage are “activities” under the AEA so states can’t regulate them for safety reasons. Milling is the process of refining ore and tailings storage refers to the remaining (radioactive) material which must be stored.

Most of the Trump administration’s disagreements over protecting undocumented immigrants have been with local governments. But on March 6 the Trump administration filed a complaint against the State of California. The administration claims three California statutes aimed at protecting undocumented immigrants are preempted by federal immigration law. The administration asks the court to issue a preliminary injunction disallowing California from enforcing the statutes.

CSG Midwest
State law sets forth X, but some municipal ordinances set forth X+1 or 2. Or some, but not all municipalities in a given state, regulate smoking, bagging materials, minimum wages or myriad other measures. Which layer of law prevails? Which should?

The very simple question in Artis v. District of Columbia is what does it mean for a statute of limitations to “toll” under 28 U.S.C 1367(d)? The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief agreeing with the District of Columbia’s interpretation of “toll.”

A year after the fact, Stephanie Artis sued the District of Columbia in federal court bringing a number of federal and state law claims related to her termination as a code inspector. It took the federal district court over two and a half years to rule on her claims. It dismissed her sole federal claim as “facially deficient” and no longer had jurisdiction to decide the state law claims.

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