72 F.4th 1261
11th Cir.2023Background
- John Carson used Roundup for ~30 years and developed cancer; he sued Monsanto under Georgia law for failing to warn that Roundup can increase cancer risk.
- Monsanto moved for judgment on the pleadings arguing FIFRA’s express-preemption clause, 7 U.S.C. § 136v(b), bars Carson’s failure-to-warn claim because the EPA registered Roundup without a cancer warning and classifies glyphosate as "not likely to be carcinogenic."
- The district court granted judgment for Monsanto as to claims tied to the absence of a cancer warning; the parties settled remaining claims and Carson appealed.
- A panel reversed, holding that an agency action lacking "force of law" (under United States v. Mead Corp.) cannot preempt state law, so EPA label registration does not preempt Carson’s claim.
- The court granted rehearing en banc to decide whether a "force-of-law" inquiry is a threshold requirement under § 136v(b); the en banc majority held the question must be resolved by ordinary statutory interpretation and remanded to the panel to decide remaining issues.
- The appeal also raised Article III justiciability issues because Monsanto paid Carson $100,000 and required him to pursue the appeal; the majority found the appeal non-collusive and justiciable, while a dissent would dismiss as collusive.
Issues
| Issue | Plaintiff's Argument (Carson) | Defendant's Argument (Monsanto) | Held |
|---|---|---|---|
| Whether a "force-of-law" (Mead) analysis is a threshold requirement for express preemption under FIFRA § 136v(b) | Agency registration and internal agency conclusions lack force of law and so cannot preempt state law | EPA registration and agency determinations establish the federal "requirements under" FIFRA that preempt conflicting state requirements | Court: Whether a force-of-law inquiry is required depends on ordinary statutory interpretation of § 136v(b); not categorically required. Remanded to panel to apply statutory analysis |
| Whether EPA’s registration of Roundup without a cancer warning (and its glyphosate findings) preempts Carson’s Georgia failure-to-warn claim | EPA action lacks force of law and therefore cannot preempt; state common-law duty is not "different from" requirements under FIFRA | EPA’s repeated scientific conclusions and label approval show that a state-law cancer-warning requirement would be "in addition to or different from" federal requirements | Court did not resolve on the merits; remanded to panel for resolution under statutory-interpretation framework |
| Whether express-preemption analysis is governed by ordinary statutory interpretation (and whether a presumption against preemption applies) | (Implicit) force-of-law requirement or presumption against preemption should constrain preemption findings | Express preemption should be resolved by the statute’s text and framework; no special presumption applies to express preemption | Court: Express preemption turns on statutory text and framework; no presumption against preemption applies when Congress enacted an express provision |
| Article III justiciability given the settlement (Monsanto paid Carson to appeal) | Carson: settlement does not make the appeal collusive; both sides retain adverse legal and financial interests | Monsanto: payments funded the appeal but does not defeat justiciability; it has an interest in final resolution | Majority: appeal is a live controversy and not collusive; concurrence emphasizes adequacy of adversity; dissent would dismiss as collusive and non-justiciable |
Key Cases Cited
- Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) (FIFRA’s express-preemption clause can preempt state-law labeling requirements; common-law duties can be preempted requirements)
- United States v. Mead Corp., 533 U.S. 218 (2001) (framework for whether agency action has "force of law" for deference and preemption analyses)
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (express preemption analysis focuses on statutory text and framework)
- Wyeth v. Levine, 555 U.S. 555 (2009) (implied preemption/conflict preemption principles and impossibility of compliance inquiries)
- Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115 (2016) (no presumption against preemption where Congress enacted an express-preemption provision)
- Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) (standing and Article III principles regarding live controversy and appellate jurisdiction)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) (settlement-conditional appeals and mootness considerations)
- Nixon v. Fitzgerald, 457 U.S. 731 (1982) (conditional settlement and appealability principles)
- United States v. Johnson, 319 U.S. 302 (1943) (collusive suits lack Article III case-or-controversy and must be dismissed)
- Hardeman v. Monsanto Co., 997 F.3d 941 (9th Cir. 2021) (contrasting Ninth Circuit decision that plaintiffs’ failure-to-warn claims were not preempted under FIFRA)