Lilian S. ILETO, an individual and mother to Joseph S. Ileto, deceased; Joshua Stepakoff, a minor, by his parents Loren Lieb and Alan B. Stepakoff; Mindy Gale Finkelstein, a minor, by her parents David and Donna Finkelstein; Benjamin Kadish, a minor, by his parents Eleanor and Charles Kadish; and Nathan Lawrence Powers, a minor, by his parents Gail and John Michael D.C. No. Powers, for himself and on behalf of a class of persons similarly situated, Plaintiffs-Appellants, v. GLOCK, INC., a Georgia corporation; RSR Management Corporation; and RSR Wholesale Guns Seattle Inc., Defendants-Appellees, Maadi, an Egyptian business entity; Quality Parts Co., formerly doing business as Bushmaster Firearms, a Maine corporation; Imbel, a Brazilian business entity; The Loander Pawnshop Too, a Washington corporation; David McGee, an individual; Intrac Arms International, Inc., a Tennessee Corporation, formerly doing business as Intrac corporation also known as Doe 1, and China North Industries Corp., aka Norinco, Defendants, and United States of America, Defendant-Intervenor-Appellee.
Nos. 06-56872, 07-15403, 07-15404
United States Court of Appeals, Ninth Circuit
Argued and Submitted Aug. 5, 2008. Filed May 11, 2009.
565 F.3d 1126
Further proceedings before us are stayed pending the California Supreme Court‘s decision regarding certification, and in the event the California Supreme Court accepts certification, pending our receipt of the answers to the questions certified. Submission of this case is withdrawn.
After the California Supreme Court makes its determination whether to accept certification of these questions, the parties shall file a joint report informing this court of the decision. If the California Supreme Court accepts the certified questions, the parties shall file a joint status report to our court every six months after the date of acceptance, or more frequently if circumstances warrant.
If the California Supreme Court denies the request for certification, this case will be resubmitted automatically upon notice of that denial. If the California Supreme Court accepts the request for certification, the case will be resubmitted automatically upon receipt of the California Supreme Court‘s answer to the certified question.
SO ORDERED.
Lilian S. ILETO, an individual and mother to Joseph S. Ileto, deceased; Joshua Stepakoff, a minor, by his parents Loren Lieb and Alan B. Stepakoff; Mindy Gale Finkelstein, a minor, by her parents David and Donna Finkelstein; Benjamin Kadish, a minor, by his parents Eleanor and Charles Kadish; and Nathan Lawrence Powers, a minor, by his parents Gail and John Michael D.C. No. Powers, for himself and on behalf of a class of persons similarly situated, Plaintiffs-Appellants,
v.
GLOCK, INC., a Georgia corporation; RSR Management Corporation; and RSR Wholesale Guns Seattle Inc., Defendants-Appellees,
Maadi, an Egyptian business entity; Quality Parts Co., formerly doing business as Bushmaster Firearms, a Maine corporation; Imbel, a Brazilian business entity; The Loander Pawnshop Too, a Washington corporation; David McGee, an individual; Intrac Arms International, Inc., a Tennessee Corporation, formerly doing business as Intrac corporation also known as Doe 1, and China North Industries Corp., aka Norinco, Defendants,
and
United States of America, Defendant-Intervenor-Appellee.
Lilian S. Ileto, an individual and mother to Joseph S. Ileto, deceased; Joshua Stepakoff, a minor, by his parents Loren Lieb and Alan B. Stepakoff; Mindy Gale Finkelstein, a minor, by her parents David and Donna Finkelstein; Benjamin Kadish, a minor, by his parents Eleanor and Charles Kadish; and Nathan Lawrence Powers, a minor, by his parents Gail and John Michael Powers, for himself and on behalf of a class of persons similarly situated, Plaintiffs-Appellants,
China North Industries Corp., aka Norinco, Defendant-Appellee,
and
United States of America, Defendant-Intervenor-Appellee,
and
RSR Management Corporation; RSR Group Nevada, Inc., formerly doing business as RSR Wholesale Guns Seattle Inc.; Maadi, an Egyptian business entity; Quality Parts Co., formerly doing business as Bushmaster Firearms, a Maine corporation; Imbel, a Brazilian business entity; The Loander Pawnshop Too, a Washington corporation; David McGee, an individual; Intrac Arms International, Inc., a Tennessee Corporation, formerly doing business as Intrac Corporation also known as Doe 1; Glock, Inc., a Georgia corporation, Defendants.
Lilian S. Ileto, an individual and mother to Joseph S. Ileto, deceased; Joshua Stepakoff, a minor, by his parents Loren Lieb and Alan B. Stepakoff; Mindy Gale Finkelstein, a minor, by her parents David and Donna Finkelstein; Benjamin Kadish, a minor, by his parents Eleanor and Charles Kadish; and Nathan Lawrence Powers, a minor, by his parents Gail and John Michael Powers, for himself and on behalf of a class of persons similarly situated, Plaintiffs-Appellees,
v.
China North Industries Corp., aka Norinco, Defendant-Appellant,
and
RSR Management Corporation; RSR Group Nevada, Inc., formerly doing business as RSR Wholesale Guns Seattle Inc.; Maadi, an Egyptian business entity; Quality Parts Co., formerly doing business as Bushmaster Firearms, a Maine corporation; Imbel, a Brazilian business entity; The Loander Pawnshop Too, a Washington corporation; David McGee, an individual; Intrac Arms International, Inc., a Tennessee Corporation, formerly doing business as Intrac Corporation also known as Doe 1; Glock, Inc., a Georgia corporation, Defendants.
Peter Nordberg, Berger & Montague, P.C., Philadelphia, PA; and Sayre Weaver, The Educational Fund to Stop Gun Violence, La Habra, CA, for the plaintiffs-appellants.
Charles H. Dick, Jr., and Shannon D. Sweeney, Baker & McKenzie LLP, for defendant-appellant/appellee China North.
Christopher Renzulli, Renzulli Law Firm, LLP, White Plains, NY, for defendants-appellees Glock & RSR.
H. Thomas Byron, III, Appellate Staff Civil Division, Department of Justice, Washington, D.C., for the defendant-intervenor-appellee.
Beth S. Brinkman, Morrison & Foerster LLP, Washington, D.C., for amicus curiae.
Before: STEPHEN REINHARDT, SUSAN P. GRABER, and MARSHA S. BERZON, Circuit Judges.
Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge BERZON.
By enacting the Protection of Lawful Commerce in Arms Act (PLCAA
or Act
),
FACTUAL AND PROCEDURAL HISTORY
On August 10, 1999, Bufford Furrow shot and injured three young children, one teenager, and one adult at a Jewish Community Center summer camp in Granada Hills, California. Later that day, he shot and killed Joseph Ileto, a postal worker. Furrow was carrying at least seven firearms, which he possessed illegally.
In 2001, the shooting victims and Ileto‘s surviving wife filed this action against the manufacturers, marketers, importers, distributors, and sellers of the firearms. They alleged that Defendants intentionally produce, market, distribute, and sell more firearms than the legitimate market demands in order to take advantage of resales to distributors that they know or should know will, in turn, sell to illegal buyers. They also alleged that Defendants’ deliberate and reckless marketing and distribution strategies create an undue risk that their firearms would be obtained by illegal purchasers for criminal purposes.1 They did not, however, allege that Defendants violated any statute prohibiting manufacturers or sellers from aiding, abetting, or conspiring with another person to sell or otherwise dispose of firearms to illegal buyers. Instead, Plaintiffs brought their claims against Defendants solely under California common law tort statutes for foreseeably and proximately causing injury, emotional distress, and death through knowing, intentional, reckless, and negligent conduct.
In 2002, the district court dismissed the case for failure to state a claim under California law. Ileto v. Glock, Inc., 194 F.Supp.2d 1040 (C.D.Cal.2002). We affirmed in part and reversed in part. Ileto v. Glock, Inc., 349 F.3d 1191 (9th Cir.2003) (Ileto I
). We held that Plaintiffs stated cognizable negligence and public nuisance claims under California law with respect to the firearms actually used in the shootings. Id. at 1203-15. We therefore reversed the dismissal of the action against Defendants RSR Management Corp. and RSR Wholesale Guns Seattle Inc. (collectively RSR
), Glock Inc., and China North Industries Corp. (China North
), because Plaintiffs alleged that Furrow may have used the firearms manufactured and distributed by those Defendants. Id. at 1215-16. We affirmed the dismissal of the action against all other Defendants, however, because the allegations did not support a conclusion that Furrow fired the firearms associated with those Defendants. Id. at 1216.
That holding resulted in disagreement within our court. The majority of our colleagues declined, however, to take the case en banc. Ileto v. Glock Inc., 370 F.3d 860 (9th Cir.2004) (order denying rehearing). As noted in our opinion our holding was not an outlier: Other jurisdictions had upheld similar claims against manufacturers and distributors of firearms under other state laws. Ileto I, 349 F.3d at 1200 n. 10, 1206-07, 1214 & n. 30 (citing Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055, 1061 (2001); City of Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 768 N.E.2d 1136, 1142 (2002); City of Chicago v. Beretta U.S.A. Corp., 337 Ill.App.3d 1, 271 Ill.Dec. 365, 785 N.E.2d 16, 24 (2002), rev‘d, 213 Ill.2d 351, 290 Ill.Dec. 525, 821 N.E.2d 1099 (2004)).
The dispute soon reached the floor of the United States Congress and, in 2005, Congress enacted the PLCAA. The PLCAA generally preempts claims against manufacturers and sellers of firearms and ammunition resulting from the criminal use of those products. The PLCAA affects future and pending lawsuits, and courts are required to immediately dismiss[]
any pending lawsuits preempted by the PLCAA.
After enactment of the PLCAA, the district court halted discovery and sought briefing on the effect of the Act on this case. Plaintiffs argued that the PLCAA did not apply here and, in the alternative, that the PLCAA is unconstitutional. The district court permitted the United States to intervene, pursuant to
In a published opinion, the district court dismissed Plaintiffs’ claims against Defendants Glock and RSR. Ileto v. Glock, Inc., 421 F.Supp.2d 1274 (C.D.Cal.2006). The court held that the PLCAA preempted Plaintiffs’ claims against those Defendants, id. at 1284-98, and upheld the constitutionality of the Act, id. at 1298-1304. The court eventually entered a final judgment pursuant to Federal Rule of Civil Procedure 54(b) as to Defendants Glock and RSR. Plaintiffs timely appealed.
In an unpublished order, the district court denied Defendant China North‘s motion for summary judgment. The court held that the PLCAA did not preempt Plaintiffs’ claims against China North because, by contrast to Glock and RSR, China North is not a federal firearms licensee, as required by the PLCAA. The district court then certified an interlocutory appeal of that order.
We consolidated the appeals. In addition to the parties, the United States appears before us as an intervenor in support of the constitutionality of the PLCAA, and we accepted an amicus curiae brief from the Legal Community Against Violence in support of Plaintiffs.
STANDARD OF REVIEW
All the questions presented here are questions of law that we review de novo. See United States v. Lujan, 504 F.3d 1003, 1006 (9th Cir.2007) ([T]he constitutionality of a federal statute [is] a question of law that we review de novo.
); J. & G. Sales Ltd. v. Truscott, 473 F.3d 1043, 1047 (9th Cir.) (We apply a de novo standard of review to . . . questions of statutory interpretation.
), cert. denied, --- U.S. ---, 128 S.Ct. 208, 169 L.Ed.2d 146 (2007); Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999) (This court reviews de novo Rule 12(c) judgments on the pleadings.
).
DISCUSSION
A. Preemption of Claims Against Defendants Glock and RSR
The PLCAA requires that federal courts immediately dismiss[]
a qualified civil liability action.
The term qualified civil liability action
means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include [specified enumerated exceptions.] civil action
brought by a person
for damages resulting from the criminal . . . misuse of a qualified product by . . . a third party.
manufacturer[s] or seller[s] of a qualified product,
manufacturer
); seller
).
The PLCAA therefore requires dismissal if none of the specified exceptions applies. Plaintiffs argue that the third exception,
an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm fоr which relief is sought, including---
(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of
section 922 of Title 18 [.]
This exception has come to be known as the predicate exception,
because a plaintiff not only must present a cognizable claim, he or she also must allege a knowing violation of a predicate statute.
City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 390 (2d Cir.2008), cert. denied, --- U.S. ---, 129 S.Ct. 1579, --- L.Ed.2d --- (2009); District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 168 (D.C.2008), cert. denied, --- U.S. ---, 129 S.Ct. 1579, --- L.Ed.2d --- (2009); Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 429-30 (Ind.Ct.App.2007). That is, a plaintiff must allege a knowing violation of a State or Federal statute applicable to the sale or marketing of the product.
Here, we previously ruled that Plaintiffs’ negligence and public nuisance allegations state cognizable claims under California law.2 Ileto I, 349 F.3d at 1209, 1215. To meet the requirements of the predicate exception, Plaintiffs do not point to an allegation of a knowing violation of any separate statute. Instead, Plaintiffs point out that, unlike many jurisdictions, California‘s general tort law is codified in its civil California tort laws
), provide both the cause of action and the requisite predicate statute under the PLCAA. Defendants counter that only a separate statute, regulating firearms exclusively (or at least explicitly), can be a predicate statute.
The parties’ disagreement, then, is whether the California tort laws are predicate statutes under the PLCAA. More specifically, the parties dispute whether the Californiа tort statutes are applicable to the sale or marketing of[firearms3].
Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.
); FMC Corp. v. Holliday, 498 U.S. 52, 57, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) (We begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.
(internal quotation marks omitted)). If the statute‘s terms are ambiguous, we may use canons of construction, legislative history, and the statute‘s overall purpose to illuminate Congress‘s intent.
Jonah R. v. Carmona, 446 F.3d 1000, 1005 (9th Cir.2006).
1. Text of the Predicate Exception
The plainness or ambiguity of statutory [text] is determined by reference to the [text] itself, the specific context in which that [text] is used, and the broader context of the statute as a whole.
Robinson, 519 U.S. at 341, 117 S.Ct. 843. Here, the statutory text states that a predicate statute is a State or Federal statute applicable to the sale or marketing of [firearms].
applicable
to the sale or marketing of firearms within the meaning of the PLCAA.
As discussed below, Plaintiffs and Defendants present competing definitions of the term applicable.
Like most terms, applicable
does not have only one meaning when viewed in isolation. Not surprisingly then, courts have struggled to determine the meaning of applicable
as used in a variety of statutes. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (statute governing medical devices); McGee v. Peake, 511 F.3d 1352 (Fed.Cir.2008) (statute governing the United States Court of Appeals for Veterans Claims); Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350 (D.C.Cir.2006) (statute governing the Federal Motor Carrier Safety Administration).
One everyday meaning, and a dictionary definition, of the term applicable
is capable of being applied.
Black‘s Law Dictionary 98 (6th ed. 1990). Plaintiffs urge us to conclude that this expansive definition is the only possible meaning of the term applicable
in the PLCAA‘s predicate exception. Under that definition, Plaintiffs would prevail: Because we held in Ileto I that Plaintiffs’ claims concerning the sale and marketing of firearms are cognizable, the California tort laws are
By contrast, Defendants argue that Congress intended a very narrow use of the term applicable,
which can mean relevant
or applicable specifically.
Defendants argue that, under that narrow meaning of the term, the requirements of the predicate exception would be met only if a plaintiff alleged a knowing violation of a statute that pertained exclusively to the sale or marketing of firearms. The dictionary captures this narrower definition, see Black‘s Law Dictionary at 98 (defining applicable
as relevant
), and so does everyday usage.4
We are convinced at the outset, then, that the term applicable
has a spectrum of meanings, including the two poles identified by the parties. To determine Congress’ intended meaning in the PLCAA, we must examine the specific context in which [the term
Robinson, 519 U.S. at 341, 117 S.Ct. 843.applicable
] is used[] and the broader context of the statute as a whole.
Congress listed examples of predicate statutes in the PLCAA:
(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of
section 922 of Title 18 [.]
applicable
appears too broad, but that Defendants’ proposed restrictive meaning appears too narrow. See Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961) (noting that a word is known by the company it keeps
); Cal. State Legislative Bd. v. Dep‘t of Transp., 400 F.3d 760, 763 (9th Cir.2005) ([T]he general term should be defined in light of the specific examples provided.
).
The illustrative predicate statutes pertain specifically to sales and manufacturing activities, and most also target the firearms industry specifically. Those examples suggest that Plaintiffs’ proposed all-encompassing meaning of the term applicable
is incorrect, because each of the examples has---at the very least---a direct connection with sales or manufacturing. Indeed, if any statute that could be applied
to the sales and manufacturing of firearms qualified as a predicate statute, there would be no need to list examples at all. Similarly, the examples suggest that Defendants’ asserted narrow meaning is incorrect, because some of the examples do not pertain exclusively to the firearms industry.
applicable
has a range of meanings. The context in which the term appears in the PLCAA suggests that neither Plaintiffs’ nor Defendants’ asserted meaning is wholly correct. In any event, we conclude, as did the Second Circuit, City of New York, 524 F.3d at 401, that the text of the statute alone is inconclusive as to Congress’ intent.5 We thus are left to examine the additional indicators of congressional intent. Jonah R., 446 F.3d at 1005.
2. The Purpose of the PLCAA
Congress enacted the PLCAA in response to [l]awsuits . . . commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.
are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.
[t]he possibility of imposing liability on an entire industry for harm that is solely caused by others.
[t]he liability actions . . . are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law.
The PLCAA‘s stated primary purpose is:
To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.
In view of those congressional findings and that statement of purpose, Congress clearly intended to preempt common-law claims, such as general tort theories of liability.6 Plaintiffs’ claims---classic negligence and nuisance,
Ileto I, 349 F.3d at 1202---are general tort theories of liability that traditionally have been embodied in the common law. With this background in
The predicate exception covers causes of action that allege knowing violations of a state or federal statute applicable to the sale or marketing of firearms. Plaintiffs argue that this exception covers all state statutes that could be applied to the sale or marketing of firearms. Because California long ago codified its common law into the California Civil Code, Plaintiffs argue that its general tort claims fall within this exception. We disagree for three reasons.
First, although the California legislature codified its common law,
it was not the intention of the Legislature in enacting section 1714 of the Civil Code, as well as other sections of that code declarative of the common law, to insulate the matters therein expressed from further judicial development; rather it was the intention of the Legislature to announce and formulate existing common law principles and definitions for purposes of orderly and concise presentation and with a distinct view toward continuing judicial evolution.
Li v. Yellow Cab Co. of Cal., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, 1233 (1975). In other words, although California has codified its common law, the evolution of those statutes is nevertheless subject to the same judicial evolution
as ordinary common-law claims in jurisdictions that have not codified common law. That judicial evolution
was precisely the target of the PLCAA:
The liability actions . . . are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States.
Second, congressional findings speak to the scope of the predicate exception. Against the backdrop of Congress’ findings on the unjustified expansion of the common law,
[t]he manufacture, importation, possession, sale, and use of firearms and ammunition in the United States are heavily regulated by Federal, State, and local laws,
Third, Plaintiffs’ argument leads to a result that is difficult to square with Congress’ intention to create national uniformity. If Plaintiffs’ view is correct, then general tort theories of liability are not preempted by the PLCAA in those states, like California, that have codified its common law. But, at the same time, those same theories of liability are preempted by the PLCAA in the states that have not codified their common law.
In conclusion, an examination of the text and purpose of the PLCAA shows that Congress intended to preempt general tort theories of liability even in jurisdictions, like California, that have codified such causes of action.
3. Legislative History
We make two general observations from our review of the extensive legislative history of the PLCAA.7 First, all of the This bill does not shield [those who] . . . have violated existing law . . . and I am referring to the Federal firearms laws.
); id. S9217-02 (statement of Sen. Hutchison) ([Lawsuits] would also be allowed where there is a knowing violation of a firearms law.
); id. (statement of Sen. Craig reading a Wall Street Journal article) (The gun makers . . . would continue to face civil suits for defective products or for violating sales regulations.
); id. (statement of Sen. Reed in opposition to the PLCAA) (We will let [plaintiffs] proceed with their suit if there is a criminal violation or a statutory violation, a violation of regulations, but for the vast number of other responsibilities we owe to each other, that are defined for the civil law, one will not have the opportunity to go to court.
); id. S8927-01 (statement of Sen. Reed) (stating that the PLCAA would not apply to violations of statutes related to the sale or manufacturing of a gun
); id. S9246-02 (statement of Sen. Santorum) (This bill provides carefully tailored protections that continue to allow legitimate suits based on knowing violations of Federal or State law related to gun sales.
).
Second, congressional speakers referred to this very case as the type of case they meant the PLCAA to preempt. See 151 Cong. Rec. E2162-03 (statement of Rep. Stearns) (I want the Congressional Record to clearly reflect some specific examples of the type of predatory lawsuits this bill will immediately stop[:] . . . [An] example is the case of Ileto v. Glock, in Federal court in Los Angeles, CA.
); id. (statement of Sen. Craig) (I want to give some examples of exactly the type of predatory lawsuits this bill will eliminate. . . . [An] example of a lawsuit captured by this bill is the case of Ileto v. Glock, pending in Federal court in Los Angeles, CA.
); see also Adames v. Sheahan, 378 Ill.App.3d 502, 316 Ill.Dec. 823, 880 N.E.2d 559, 586 (2007) (noting that Congress was primarily concerned with novel nuisance cases like Ileto
), rev‘d on other grounds, 233 Ill.2d 276, 330 Ill.Dec. 720, 909 N.E.2d 742 (2009).
We are mindful of the limited persuasive value of the remarks of an individual legislator. See, e.g., Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 118, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980) ([O]rdinarily even the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history.
); Brock v. Writers Guild of Am., W., Inc., 762 F.2d 1349, 1356 (9th Cir.1985) (The remarks of legislators opposed to legislation are entitled to little weight in the construction of statutes.). Nevertheless, the unanimously expressed understanding of the scope of the PLCAA assists our analysis, particularly when that expressed understanding is in complete harmony with the congressional purpose and the statutory text.
4. Conclusion
Our inquiry into the scope of a statute‘s pre-emptive effect is guided by the rule that ‘[t]he purpose of Congress is the ultimate touchstone in every pre-emption case.’
Altria Group, Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). The purpose of
B. Constitutionality of the PLCAA
Decrying primarily the retroactive aspects of the Act, Plaintiffs argue that the PLCAA is unconstitutional on its face and as applied. We note at the outset that retroactive statutes raise particular concerns.
Landgraf v. USI Film Prods., 511 U.S. 244, 266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Indeed,
[t]he Legislature‘s unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.
The strongest protection that federal courts give to those concerns, however, is a requirement that Congress manifest the retroactive nature of legislation with clear intent.
Id. at 272, 114 S.Ct. 1483. [A] requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness.
Id. at 268, 114 S.Ct. 1483; see also id. at 272–73, 114 S.Ct. 1483 (Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.
). Such a requirement allocates to Congress responsibility for fundamental policy judgments concerning the proper temporal reach of statutes, and has the additional virtue of giving legislators a predictable background rule against which to legislate.
Id. at 273, 114 S.Ct. 1483.
Where, as here, Congress has expressed its clear intent that the legislation be retroactive, the constitutional impediments to retroactive civil legislation are nоw modest.
Id. at 272, 114 S.Ct. 1483; see also id. at 267, 114 S.Ct. 1483 (The Constitution‘s restrictions, of course, are of limited scope.
). [T]he potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.
Id. Retroactivity provisions often serve entirely benign and legitimate purposes, [including] . . . simply to give comprehensive effect to a new law Congress considers salutary.
Id. at 267-68, 114 S.Ct. 1483.
Additionally, we note that the only function of the PLCAA is to preempt certain claims. The practical effect of the PLCAA is thus to shift the economic burden for those claims from the firearms industry to the would-be plaintiffs. It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). [T]he strong deference accorded legislation in the field of national economic policy is no less applicable when that legislation is applied retroactively . . .
Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984).
With that background in understanding, we address each of Plaintiffs’ constitutional challenges. Like all appellate courts that have assessed the constitutionality of the PLCAA, City of New York, 524 F.3d at 392-98; Adames, 909 N.E.2d at 763-66; District of Columbia, 940 A.2d at 172-82, we hold that the Act is constitutional on its face and as applied.
1. Separation of Powers
Plaintiffs argue that, on its face, the PLCAA violates the constitutional requirement of separation of powers because, by enacting that Act, Congress impinged on the role of the judiciary. It has long been recognized that Congress may not prescribe rules of decision to the Judicial Department of the government in cases pending before it.
United States v. Klein, 80 U.S. (13 Wall.) 128, 147, 20 L.Ed. 519 (1872). Whatever the precise scope of Klein, however, later decisions have made clear that its prohibition does not take hold when Congress ‘amend[s] applicable law.’
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (quoting Robertson v. Seattle Audubon Soc‘y, 503 U.S. 429, 441, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992)). Thus, if a statute ‘compel[s] changes in the law, not findings or results under old law,’ it merely amends the underlying law, and is therefore not subject to a Klein challenge.
Imprisoned Citizens Union v. Ridge, 169 F.3d 178, 187 (3d Cir.1999) (alteration in original) (quoting Robertson, 503 U.S. at 438, 112 S.Ct. 1407).
Here, Congress has amended the applicable law; it has not compelled results under old law. The PLCAA sets forth a new legal standard---the definition (with exceptions) of a qualified civil liability action
---to be applied to all cases. As we explained in Catholic Social Services, Inc. v. Reno, 134 F.3d 921, 926 (9th Cir.1997) (per curiam), the Supreme Court in Robertson held that a statute affecting pending cases, indeed designating them by name and number, did not offend separation of powers because Congress was changing the law applicable to those cases rather than impermissibly interfering with the judicial process.
Here, Plaintiffs’ argument that the PLCAA runs afoul of Klein is even less compelling than the argument in Robertson bеcause the PLCAA applies generally to all cases, both pending and future.
We likewise reject Plaintiffs’ alternative argument that the PLCAA violates the Supreme Court‘s holding in Plaut that Congress cannot overrule[] ‘the judicial department with regard to a particular case or controversy.’
(Quoting Plaut, 514 U.S. at 227, 115 S.Ct. 1447.) As the quoted sentence makes clear, that rule applies to final decisions by the judiciary, not to pending cases. See id. ([E]ach court, at every level, must decide [a case] according to existing laws. Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy [and cannot be overruled by congressional act].
(emphasis added) (citation and internal quotation marks omitted)). The PLCAA applies only to pending and future cases and does not purport to undo final judgments of the judiciary. The mere fact that members of Congress want-
For those reasons, we hold that the PLCAA does not violate the constitutional separation of powers. See also City of New York, 524 F.3d at 395-96 (holding that the PLCAA does not violate separation of powers doctrine); District of Columbia, 940 A.2d at 172-73 (same).
2. Equal Protection, Substantive Due Process, and Takings
Plaintiffs next argue that the PLCAA violates equal protection and substantive due process principles because the Act is an unconstitutional exercise of congressional power that cannot withstand rational basis review. Plaintiffs face an uphill battle: [B]arring irrational or arbitrary conduct, Congress can adjust the incidents of our economic lives as it sees fit. Indeed, the Supreme Court has not blanched when settled economic expectations were upset, as long as the legislature was pursuing a rational policy.
Lyon v. Agusta S.P.A., 252 F.3d 1078, 1086 (9th Cir.2001) (citations omitted); see also Pension Benefit, 467 U.S. at 729 (Provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches[.]
); Usery, 428 U.S. at 15, 96 S.Ct. 2882 (It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.
).
There is nothing irrational or arbitrary about Congress’ choice here: It saw fit to adjust the incidents of our economic lives
by preempting certain categories of cases brought against federally licensed manufacturers and sellers of firearms. In particular, Congress found that the targeted lawsuits constitute[] an unreasonable burden on interstate and foreign commerce of the United States,
[t]o prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce,
manufacturer
); qualified product
); seller
).
Plaintiffs disagree with Congress’ judgment in this regard. In their view, the firearms industry is subject to relatively few lawsuits compared to other major industries and, in any event, the pending lawsuits could not possibly have an appreciable effect on the firearms industry (and, by extension, on interstate or foreign commerce). We need not tarry long on these considerations, because our only task is to consider whether Congress’ chosen allocation was irrational or arbitrary.
Lyon, 252 F.3d at 1086; Usery, 428 U.S. at 15, 96 S.Ct. 2882; see also Pierce County v. Guillen, 537 U.S. 129, 147, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003) (upholding a Commerce Clause challenge because Congress could reasonably believe
that the statute affected interstate commerce). We have it was eminently rational for Congress to conclude that the purposes of the [PLCAA] could be more fully effectuated if its . . . provisions were applied retroactively.
Pension Benefit, 467 U.S. at 730; see also City of New York, 524 F.3d at 395 (We find that Congress has not exceeded its authority in this [PLCAA] case, where there can be no question of the interstate character of the industry in question and where Congress rationally perceived a substantial effect on the industry of the litigation that the Act seeks to curtail.
); District of Columbia, 940 A.2d at 175 (Thus the PLCAA is reasonably viewed as an ‘adjust[ment of] the burdens and benefits of economic life’ by Congress, one it deemed necessary in exercising its power to regulate interstate commerce.
(alteration in original) (quoting Usery, 428 U.S. at 15, 96 S.Ct. 2882)); Adames, 909 N.E.2d at 764-65 (similarly rejecting a Commerce Clause challenge to the PLCAA).
Plaintiffs argue, in the alternative, that both equal protection and substantive due process principles require us to conduct a more searching review. Plaintiffs cite Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), but they fail to identify---and we fail to see---any suspect classification common to those adversely affected by the PLCAA.
Plaintiffs also argue that greater scrutiny is required because they have a vested property right in their accruеd state-law causes of action. Plaintiffs’ premise is incorrect: We have squarely held that although a cause of action is a species of property, a party‘s property right in any cause of action does not vest until a final unreviewable judgment is obtained.
Lyon, 252 F.3d at 1086 (emphasis and internal quotation marks omitted); see also Fields v. Legacy Health Sys., 413 F.3d 943, 956 (9th Cir.2005) (Causes of action are a species of property protected by the Fourteenth Amendment‘s Due Process Clause. However, a party‘s property right in any cause of action does not vest until a final unreviewable judgment is obtained.
(citation, internal quotation marks, and emphasis omitted)); Austin v. City of Bisbee, 855 F.2d 1429, 1435 (9th Cir.1988) (explaining that, although a cause of action is a species of property, it is inchoate and affords no definite or enforceable property right until reduced to final judgment
(internal quotation marks omitted)).
Plaintiffs’ argument that the PLCAA effects an unconstitutional taking without just compensation fails for the same reason. See Landgraf, 511 U.S. at 266, 114 S.Ct. 1483 (The Fifth Amendment‘s Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights . . .
(emphasis added)); see also Concrete Pipe & Prods. of Cal. Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 641, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (Given that [the petitioner‘s] due process arguments are unavailing, it would be surprising indeed to discover [that] the challenged statute nonetheless violat[ed] the Takings Clause.
); District of Columbia, 940 A.2d at 180-82 (rejecting a Takings Clause challenge to the PLCAA).
3. Procedural Due Process
Plaintiffs next argue that the PLCAA violates their procedural due process rights because their pending lawsuit was abridged without adequate hearing. As [the Supreme Court‘s] decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the op-
Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982).
In Logan, state law required a state commission to conduct a fact-finding conference within 120 days of receiving of an employment discrimination complaint. Id. at 424, 102 S.Ct. 1148. The plaintiff filed a timely complaint, but the commission inadvertently convened the conference after the 120-day deadline. Id. at 424-25, 102 S.Ct. 1148. The Illinois Supreme Court held that the Commission therefore lacked jurisdiction over the complaint because the 120-day deadline was jurisdictional, and rejected the plaintiff‘s due process arguments. Id. at 426-27, 102 S.Ct. 1148.
The United States Supreme Court reversed. The Court held that the plaintiff had a protected property interest in her claim and that ‘some form of hearing’ is required before the owner is finally deprived of a protected рroperty interest.
Id. at 433, 102 S.Ct. 1148 (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570 n. 8, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). To put it as plainly as possible, the State may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement.
Id. at 434, 102 S.Ct. 1148.
But the Court explicitly limited its holding to a procedural limitation on the claimant‘s ability to assert his rights, not a substantive element of the [underlying] claim.
Id. at 433, 102 S.Ct. 1148. The Court explained:
Of course, the State remains free to create substantive defenses or immunities for use in adjudication or to eliminate its statutorily created causes of action altogether---just as it can amend or terminate its welfare or employment programs. The Court held as much in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), where it upheld a California statute granting officials immunity from certain types of state tort claims. We acknowledged that the grant of immunity arguably did deprive the plaintiffs of a protected property interest. But they were not thereby deprived of property without due process, just as a welfare recipient is not deprived of due process when the legislature adjusts benefit levels. In each case, the legislative determination provides all the process that is due.
Id. at 432-33, 102 S.Ct. 1148 (some citations omitted) (emphasis added).
Here, the PLCAA does not impose a procedural limitation; rather, it creates a substantive rule of law granting immunity to certain parties against certain types of claims. In such a case, the legislative determination provides all the process that is due.
Id. at 433, 102 S.Ct. 1148. On the substantive question created by the PLCAA---whether this case meets the definition of a qualified civil liability action
---Plaintiffs were, of course, afforded an ample hearing before the district court. We therefore hold that the PLCAA did not violate Plaintiffs’ procedural due process rights. See also District of Columbia, 940 A.2d at 177 ([W]e hold that while the plaintiffs’ cause of action . . . ‘is a species of property protected by . . . [d]ue process,’ they received ‘all the process that is due’ when Congress barred pending actions such as theirs from proceeding as a rational means ‘to give comprehensive effect to a new law that it considered salutary.’
(quoting Logan, 455 U.S. at 428; Landgraf, 511 U.S. at 268) (brackets omitted)).
In conclusion; like all other appellate courts to have addressed the issue, we hold that the PLCAA is constitutional.
4. Constitutional Avoidance
We respond briefly to the thoughtful views of our dissenting col-
We begin with the scope of the doctrine. In Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988), the Supreme Court stated that, where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.
(emphasis added); see also Clark v. Martinez, 543 U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (describing the doctrine as a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts
(emphasis added)). As the Court has instructed, we may invoke the doctrine only if we have grave doubts
about the constitutionality of the statute. Almendarez-Torres v. United States, 523 U.S. 224, 237-38, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (quoting United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061 (1916)); see also id. at 238, 118 S.Ct. 1219 ([T]hose who invoke the doctrine must believe that the alternative is a serious likelihood that the statute will be held unconstitutional.
(emphasis added)).
We have no grave doubts here. The dissent does not, and cannot, point to a single case in which we, the Supreme Court, or any sister circuit has held that a federal statute violates substantive due process for the reasons asserted by Plaintiffs. And, as discussed above, we have upheld against constitutional challenges many statutes with characteristics nearly identical to those of the PLCAA.
The dissent bypasses those important and indisputable facts in the following way. First, it argues that the Supreme Court has never addressed the precise issue at hand: whether Congress may abolish pending common-law claims11 without providing any alternative means of redress. Second, the dissent argues that the Supreme Court has suggested that this issue would raise serious constitutional questions. We disagree on both counts.
First, the PLCAA does not completely abolish Plaintiffs’ ability to seek redress. The PLCAA preempts certain categories of claims that meet specified requirements, but it also carves out several significant exceptions to that general rule. Some claims are preempted, but many are not. Indeed, as we hold below, Plaintiffs may proceed on their claims against Defendant China North. Plaintiffs’ ability to seek redress has been limited, but not abolished.12
Second, we do not doubt the constitutionality of the PLCAA, let alone have grave doubts.
As discussed above, no decision by us, the Supreme Court, or any sister circuit has held that a statute violates substantive due process for the reasons asserted by Plaintiffs. To the contrary, scores of cases concerning very similar statutes have held that the statutes do not violate substantive due process principles.
The dissent finds, in a small number of sources, hints that there could be a lurking, serious constitutional question. Justice Marshall stated in a concurrence that he would adopt a more searching review, see PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 93-94, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (Marshall, J., concurring), and Justice White stated in a dissent from dismissal of certiorari that he would prefer to address the issue, see Fein v. Permanente Med. Group, 474 U.S. 892, 894-95, 106 S.Ct. 214, 88 L.Ed.2d 215 (1985) (White, J., dissenting from dismissal of certiorari). Dissent at 1150-51. Those comments do not raise a serious constitutional question. The doctrine of constitutional avoidance requires grave doubts,
not occasional statements by a justice or two.
More importantly, the dissent quotes majority opinions in two cases: N.Y. Cent. R.R. Co. v. White, 243 U.S. 188, 201, 37 S.Ct. 247, 61 L.Ed. 667 (1917); and Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 88, 98, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). Dissent at 1148-49. But those sources do not demonstrate a serious constitutional question either. In White, the Court expressed concern about whether a State might, without violence to the constitutional guaranty of ‘due process of law,’ suddenly set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute.
243 U.S. at 201, 37 S.Ct. 247 (emphasis added). That dictum is inapposite. The PLCAA contains numerous exceptions and comes nowhere near setting aside all common-law rules concerning firearm manufacturers.
The dissent‘s reliance on Duke Power is even less persuasive. There, the Court reiterated that it was an open question whether a legislature may abolish a common-law recovery scheme without providing a reasonable substitute remedy. Duke Power, 438 U.S. at 88, 98 S.Ct. 2620. As we have repeatedly noted, here Congress has left in place a number of substitute remedies.
For these reasons, we decline to apply the doctrine of constitutional avoidance.
C. Preemption of Claims Against Defendant China North
Finally, we address Defendant China North‘s interlocutory appeal from the district court‘s order holding that the PLCAA does not preempt Plaintiffs’ claims against it. We return to the text of the PLCAA, which preempts
a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or оther relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include [specified enumerated exceptions.]
civil action
brought by a person
for damages and other relief to redress harm, resulting from the criminal . . . misuse of a qualified product by . . . a third party.
brought against a manufacturer or seller of a qualified product.
In Ileto I, 349 F.3d at 1215, we held that Plaintiffs’ claims against Defendant China North stated a claim under California law because of China North‘s status as a manufacturer and seller of firearms. The PLCAA preempts only actions brought against federally licensed manufacturers and sellers of firearms. See manufacturer
); seller
).13 China North concedes that it is not a federally licensed manufacturer or seller of firearms. It follows, then, that the PLCAA does not preempt Plaintiffs’ claims against China North.
To escape this straightforward reasoning, China North points out that the PLCAA preempts more than actions brought against federally licensed manufacturers and sellers of firearms. The PLCAA also preempts actions brought against all sellers of ammunition.
The PLCAA preempts specified types of liability actions; it does not provide a blanket protection to specified types of defendants. See A qualified civil liability action may not be brought in any Federal or State court.
). Furthermore, Congress chose to preempt certain actions brought against manufacturers and sellers of firearms, but explicitly limited the preemptive effect to those manufacturers and sellers who are federally licensed. China North‘s reading of the statute would eviscerate that limitation when, as here, the defendant also happens to be a seller of ammunition.
China North argues that, had Congress intended a nexus between the basis of the allegations and the nature of the defendant‘s business, it would have modified the term qualified product
with the definite article the,
instead of the indefinite article a.
The scope of preempted actions thereby would encompass
a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of the qualified product . . .
We therefore affirm the district court‘s holding that the PLCAA does not preempt Plaintiffs’ claims against China North, and we remand for further proceedings.
CONCLUSION
We sympathize with Plaintiffs, who suffered grievous harm, that Congress preempted some of their claims. Nevertheless, the Constitution “allocates to Congress responsibility for [such] fundamental policy judgments.” Landgraf, 511 U.S. at 273, 114 S.Ct. 1483. Finding no constitutional flaw, we affirm the district court‘s holding that the PLCAA applies to Plaintiffs’ claims against Defendants Glock and RSR. We also affirm the district court‘s holding that the PLCAA does not apply to Plaintiffs’ claims against Defendant China North because, lacking a federal firearms license, it cannot seek haven under the PLCAA.
No. 06-56872: AFFIRMED. Costs on appeal awarded to Defendants-Appellees Glock and RSR.
Nos. 07-15403 & 07-15404: AFFIRMED and REMANDED for further proceedings. Costs on appeal awarded to Plaintiffs-Appellants.
BERZON, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that the language of the PLCAA‘s predicate exception is ambiguous. The interpretation on which the majority ultimately settles, however, requires deciding what I consider to be a substantial constitutional question: whether, if the PLCAA requires the dismissal of Plaintiffs’ pending state causes of action, the statute will unconstitutionally deprive them of a protected property interest....
The majority resolves this question by concluding that the PLCAA‘s mandatory dismissal provision is rationally related to a legitimate government interest and that no heightened level of constitutional scrutiny is warranted. The majority‘s cursory discussion of the constitutional issue belies the sweeping nature of what it reads the PLCAA to do, and the difficult questions of constitutional law required to uphold that reading. Neithеr the Supreme Court nor this Circuit has ever made clear that rational basis review is the proper standard on which to review a federal statute that retroactively requires the dismissal of pending causes of action for injuries cognizable at common law but does not leave any alternative means of redress. Moreover, even if we were to assume that no heightened level of scrutiny is appropriate, I am not convinced that such a statute would survive the rational basis review outlined by the Supreme Court in Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978).
The majority tacitly breaks new ground in deciding these questions. It need not—and should not—do so. The canon of constitutional avoidance counsels that we
I.
A.
Plaintiffs have raised a number of constitutional challenges. The one that concerns me here is their substantive due process argument. Before I explain why their challenge presents a serious constitutional question, I think it useful, as a preliminary matter, to identify the property interest on which Plaintiffs contend the PLCAA intrudes. See Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir.1994).
Generally speaking, if a plaintiff alleges that a fundamental right is burdened by a state action, the state action is subject to strict scrutiny and cannot stand unless it is “narrowly tailored to serve a compelling state interest.” Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal quotation marks omitted). If a lesser liberty or property interest is at stake, the state action is subject to rational basis review, which requires “a reasonable relation to a legitimate state interest.” Id. at 722, 117 S.Ct. 2258. Various forms of intermediate scrutiny, in between these two poles, have sometimes been found applicable. See Hutchins v. District of Columbia, 188 F.3d 531, 563 & n. 24 (D.C.Cir.1999) (Rogers, J., concurring in part) (collecting cases).
Plaintiffs here have asserted a property interest in maintaining their pending state-law causes of action. They acknowledge that the monetаry award those causes of action might ultimately yield if they proceeded to a final judgment is uncertain, so they currently have no enforceable right to any particular amount of damages. But, they assert, the PLCAA also trenches on a separate and independently valuable interest: their interest in maintaining their causes of action prior to judgment and not having them dismissed.
The majority implicitly agrees with Plaintiffs’ position that this interest is cognizable and protected by the Due Process Clause. This much is clear, because the majority applies rational basis review. If Plaintiffs’ interest were wholly unprotected, no scrutiny, rational basis or otherwise, would be required.
I pause to emphasize this point, because the majority then goes on to make a potentially misleading statement: that Plaintiffs have no “vested property right in their accrued state-law causes of action.” Maj. Op. at 1141. What the majority appears to mean is that Plaintiffs have not stated a fundamental property interest deserving of heightened scrutiny. I do not understand the majority to mean that Plaintiffs have no property interest in their causes of action at all. If that were what the majority meant, it would be quite wrong. Like stocks or business operating licenses, the probable value of a plaintiff‘s cause of action may fluctuate over time—here, be-
I therefore read the majority‘s statement that Plaintiffs lack a “vested property right in their accrued state-law causes of action,” Maj. Op. at 1141, to indicate the majority‘s view that although there is a protected property interest at stake, it is not a fundamental right, so rational basis review, rather than strict scrutiny, is sufficient. This usage, though odd, appears to be consistent with our case law. Lyon v. Agusta S.P.A., 252 F.3d 1078 (9th Cir. 2001), for example, stated that “a party‘s property right in any cause of action does not vest until a final unreviewable judgment is obtained,” id. at 1086 (internal quotation marks and emphasis omitted), but it also assumed that a statute depriving the party of the ability to litigate that cause of action must nevertheless withstand rational basis review. See id. (“Of course, the legislature must act in a rational manner; that almost goes without saying. Here the choice was assuredly rational.“) (internal citations omitted). Accord Duke Power, 438 U.S. at 88 n. 32, 98 S.Ct. 2620 (stating that “[a] person has no property, no vested interest, in any rule of the common law,” but applying rational basis review to federal statute precluding suit) (internal quotation marks and citation omitted); Fields v. Legacy Health Sys., 413 F.3d 943, 955-56 (9th Cir.2005) (upholding statute against substantive due process challenge on rational basis review; recognizing a distinction between vested and non-vested property rights only in the context of petitioner‘s procedural due process claim).3
B.
If this case were directly controlled by the case law just cited, I would agree that rational basis review is the proper level of scrutiny to apply here. And if the PLCAA were indistinguishable from the statutes at issue in Lyon, Duke Power, Fields and Austin, I would be constrained to hold that the PLCAA‘s intrusion on Plaintiffs’ interest survives rational basis review.
But the PLCAA is unlike those other statutes in critical respects. We have never upheld against substantive due process attack a federal statute with precisely the PLCAA‘s constellation of characteristics: (1) it completely extinguishes an individual litigant‘s ability to litigate a cause of action, rather than limiting the amount of recovery or the procedure for bringing suit, and it leaves no alternative channel by which the individual may address his injury; and (2) the individual‘s cause of action is for an injury that would be cognizable under state common law, and it was filed and pending at the time of the federal statute‘s enactment.4 To hold such a stat-
In general, the majority is correct that Congress may limit or abrogate rights recognized at common law when enacting legislation “adjusting the burdens and benefits of economic life,” so long аs the abrogation is rationally related to a permissible goal. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). It is not clear from past case law, however, whether rational basis review is the appropriate level of scrutiny for a statute that abrogates common-law remedies without providing or leaving open a substitute remedial scheme.
In fact, the Supreme Court as a whole and individual Justices of the Court have repeatedly recognized that “[q]uite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way.” PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 93-94, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (Marshall, J, concurring). See also New York Central R.R. Co. v. White, 243 U.S. 188, 201, 37 S.Ct. 247, 61 L.Ed. 667 (1917) (expressing uncertainty as to whether “a state might, without violence to the ‘constitutional guaranty of due process of law,’ suddenly set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute“). To date, the Supreme Court has never decided what level of constitutional scrutiny applies to a statute that abrogates a common-law cause of action and leaves no alternative remedy available. Dissenting from the dismissal of certiorari in a case that would have presented this question squarely, Justice White noted:
Whether due process requires a legislatively enacted compensation scheme to be a quid pro quo for the common-law or state-law remedy it replaces, and if so, how adequate it must be, ... appears to be an issue unresolved by this Court, and one which is dividing the appellate and highest courts of several States.
Fein v. Permanente Med. Group, 474 U.S. 892, 894-95, 106 S.Ct. 214, 88 L.Ed.2d 215 (1985) (White, J., dissenting from dismissal of certiorari). This same question was expressly left unresolved in Duke Power, which declined to decide what constitutional test would apply to a statute that left no alternative remedies available:
Initially, it is not at all clear that the Due Process Clause in fact requires that a legislatively enacted compensation scheme either duplicate the recovery at common law or provide a reasonable substitute remedy. However, we need not resolve this question here since the Price-Anderson Act does, in our view, provide a reasonably just substitute for the common-law or state tort law remedies it replaces.
Following Duke Power‘s lead, when this Circuit confronted a substantive due process challenge to a portion of the Atomic Energy Act abolishing individuals’ ability to sue certain government contractors for injuries recognized at state common law in Atmospheric Testing, it upheld the Act on rational basis review only in conjunction with the observation that substitute remedies—both the Federal Tort Claims Act and veterans benefits legislation—were available to compensate the would-be plaintiffs for the unavailability of personal injury and wrongful death suits. See Atmospheric Testing, 820 F.2d at 990-91.5 Other courts of appeal have done the same. See, e.g., Hammond, 786 F.2d at 14 (noting that, in addition to the Federal Tort Claims Act‘s administrative scheme, “there may be government compensation available to many of those injured by radiation, including the plaintiff here, under veterans benefits legislation, ... or the [Federal Employees Compensation Act].“); Ducharme v. Merrill-Nat‘l Labs., 574 F.2d 1307, 1309 (5th Cir.1978) (upholding the Swine Flu Act‘s prohibition on tort suits against private manufacturers of swine flu vaccine, but also noting that “[t]he [substitute] cause of action provided by the Swine Flu Act to an injured person against the United States is substantially the same as that afforded ... under [Louisiana law] except that under the Swine Flu Act no trial by jury is afforded and the plaintiff is required to seek first administrative review of his claim.“)
Just as the federal courts are reluctant to construe a statute as abolishing common-law rules without providing some alternative method of redress, so Congress is reluctant to pass legislation immunizing a private industry from common-law tort liability—for example, when that industry is acting in concert with a governmental program or playing a vital role in the nation‘s economy or defense—without preserving state tort law as a parallel track or providing some alternative mechanism to compensate injured parties.6 Similarly, the Supreme Court has sometimes declined to read federal statutes as extinguishing the availability of state tort causes of action in preemption cases—even where no due process argument was advanced by the parties—when the statute
The statute at issue here is different. As interpreted by the majority, the PLCAA retroactively extinguishes Plaintiffs’ pending state tort causes of action, and it leaves them without any remedy for the injuries they claim they have suffered due to Defendants’ unlawful acts. No controlling case law establishes that such legislation survives constitutional scrutiny. Rather, the cases cаnvassed above suggest that at least a modified form of rational basis review, and perhaps a more searching type of review, may be warranted for such a statute.
More specifically, if one applied to a statute abolishing pending common-law causes of action and providing no alternative remedy a test no more searching than the rational basis review applied to the Price-Anderson Act in Duke Power, it is possible that such a statute would be held to violate due process. Duke Power inquired whether “the legislature has acted in an arbitrary and irrational way,” 438 U.S. at 84, 98 S.Ct. 2620 (quoting Usery, 428 U.S. at 15), but, as part of its “arbitrary and irrational” inquiry, engaged in a lengthy examination of the Price-Anderson Act, taking into consideration among other things that the Act provided a compensation scheme that was a “reasonably just substitute” to the common law, id. at 88, 98 S.Ct. 2620, and perhaps even an improvement on the common law.7 In other words, the availability and effectiveness of alternative remedies was a factor in determining whether Congress had acted rationally or not. Thus, Duke Power applied a modified rational basis test, not unlike the due process test applied in cases involving retroactive legislation. See Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984) (economic legislation that Congress plainly intends to have retroactive effect must not only be rationally related to a legitimate state interest as a general matter, but there must also be a rational basis for its retroactive application). Duke Power suggests that, at a minimum, a modified rational basis test would apply here, rendering the PLCAA constitutional only if there were rational bases both for Congress‘s failure to supply any alternative remedies and for its decision to apply the dismissal provision retroactively to extinguish the remedies for common-law injuries that had already occurred and were the subject of pending litigation.8
Alternatively, Duke Power leaves open the possibility that where the challenged statute leaves no alternative remedy available, the statute should be subject not to rational basis review but to a heightened form of scrutiny. See Duke Power, 438 U.S. at 88, 98 S.Ct. 2620. Concurring in PruneYard, which upheld a California state constitutional limitation on the availability of private trespass claims against peaceful leafletters, Justice Marshall agreed that states may alter the protection of the common law to a point, but he emphasized:
I do not understand the Court tо suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common-law rights by Congress or a state government. The constitutional terms “life, liberty, and property” do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect. Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish “core” common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.
PruneYard, 447 U.S. at 93, 100 S.Ct. 2035 (Marshall, J., concurring) (footnote omitted; emphases added). In other words, even though no one has a protected property interest in any particular rule of the common law “entitling him to insist that it shall remain unchanged for his benefit,” White, 243 U.S. at 198, 37 S.Ct. 247, an individual does have a weighty property interest in having some legal means available to redress an injury that would have been compensable at common law. Justice Marshall‘s concurrence in PruneYard suggests this interest may be so weighty as to require not merely a rational relation to a legitimate governmental interest, but a “compelling showing of necessity“—a heightened form of scrutiny. PruneYard, 447 U.S. at 93, 100 S.Ct. 2035 (Marshall, J., concurring).
C.
I will not venture further into this unsettled constitutional territory. For purposes of the avoidance canon, it is sufficient to determine that a serious constitutional question exists, and the case law I have just canvassed demonstrates that this is so. Clark, 543 U.S. at 381, 125 S.Ct. 716. The majority disagrees, noting that “[t]he dissent does not, and cannot, point to a single case in which we, the Supreme Court, or any sister circuit has held that a federal statute violates substantive due process for the reasons asserted by Plaintiffs.” Maj. Op. at 1143. But that is precisely the point of the constitutional avoidance canon—to avoid open questions. As I have explained, the Supreme Court in Duke Power expressly left open the question whether “the Due Process Clause ... requires that a legislatively enacted compensation scheme either duplicate the recovery at common law or provide a reasonable substitute remedy.” Duke Power, 438 U.S. at 88, 98 S.Ct. 2620. See also PruneYard, 447 U.S. at 93, 100 S.Ct. 2035 (Marshall, J., concurring) (noting that the question whether Congress can constitutionally “abolish certain categories of com-
I therefore cannot join the majority in rejecting on the merits Plaintiffs’ substantive due process challenge. The applicable case law does not compel the majority‘s conclusions that, applying rational basis review, the PLCAA survives review. Nor does it foreclose the possibility that a focused form of rational basis review, taking special account of the retroactivity feature and the lack of any alternative means of redress, or, even, heightened scrutiny applies. Reading the PLCAA to extinguish Plaintiffs’ claims without providing any alternative scheme for compensation thus raises serious constitutional questions that neither we nor the Supreme Court have resolved. I do not know how I would resolve these questions if they were unavoidably before me, but I am certain that they are more serious and complex than the majority‘s brief treatment suggests.
II.
Given my view of the constitutional issue in this case, I am constrained to apply the venerable maxim of statutory interpretation prescribing that where ambiguous statutory language is capable of bearing two or more interpretations, courts should adopt the interpretation that does not raise a serious constitutional question “unless such construction is plainly contrary to the intent of Congress.” DeBartolo, 485 U.S. at 575, 108 S.Ct. 1392. See also INS v. St. Cyr, 533 U.S. 289, 299-300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (“[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is ‘fairly possible,’ we are obligated to construe the statute to avoid such problems.“) (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932)).
As I explain below, there is such an alternative interpretation of the PLCAA‘s predicate exception: one that would avoid raising the substantive due process question altogether, by construing Plaintiffs’ state-law causes of action as arising under “statute[s] ... applicable to the sale and manufacture” of firearms.
A.
The PLCAA‘s predicate exception creates a carve-out from the PLCAA‘s mandatory dismissal provision for “action[s] in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for
The ambiguity in this provision derives primarily from its use of the word “applicable.” As the majority notes, the phrase “applicable to X” can mean, broadly, “capable of being applied to X,” or, narrowly, “specifically or even exclusively relevant to X.” Construing other statutes and enactments, courts have read the word “applicable” more broadly or more narrowly, depending upon contextual clues. See, e.g., Fong v. Glover, 197 F.2d 710, 711 (9th Cir.1952); McGee v. Peake, 511 F.3d 1352 (Fed.Cir.2008); Snyder v. Buck, 75 F.Supp. 902, 907 (D.D.C.1948), vacated on other grounds, 179 F.2d 466 (D.C.Cir.1949). Like the majority, I think case law construing what Congress meant when it used the word “applicable” in other statutes unrelated to the PLCAA does little to illuminate the word‘s meaning here. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 522-24, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). What is clear, at least, is that the predicate exception cannot possibly encompass every statute that might be “capable of being applied” to the sale or manufacture of firearms; if it did, the exception would swallow the rule, and no civil lawsuits would ever be subject to dismissal under the PLCAA. I therefore agree with the majority that a limiting principle must be found, and that rather than trying to locate it in the word “applicable” itself, we must look to the predicate exception‘s surrounding words.
In my view, the key to interpreting the predicate exception is Congress‘s use of the word “knowingly.”
Neither of the California statutes on which Plaintiffs’ suit is based requires actual knowledge as a prerequisite for liability. The negligence statute,
That neither
Plaintiffs here allege that Defendants knowingly committed a range of acts in violation of California negligence and nuisance law. Specifically, they allege that “Defendants ... knowingly participate in and facilitate the secondary market where persons who are illegal purchasers[, including Furrow,] obtain their firearms,” First Amended Complaint (“FAC“) ¶ 31 (emphasis added), and that “Defen-dant[s] ... select and develop distribution channels that they know regularly provide guns to criminals and underage end users ... [and, despite information from govеrnment crime trace reports,] knowingly supply a range of disreputable distributors, dealers, gun shops, pawnshops, gun shows, and telemarketers in the State of California....” Id. ¶ 32 (emphases added).12 Plaintiffs also allege that Defendants intentionally flood police departments with
With their allegations, Plaintiffs are not imputing vicarious liability to Defendants for Furrow‘s unlawful acts. Rather, they are alleging that Defendants themselves knowingly engaged in unlawful conduct: dangerous distribution and marketing practices, and the knowing maintenance of a nuisance. And while the majority is correct that Furrow‘s shooting was the last link in the causal chain that occasioned Plaintiffs’ suit, see Maj. Op. at 1130 n.1, the violations of law for which Plaintiffs seek redress as against Defendants Glock and RSR are separate from the violations of law that Furrow himself committed. In other words, Plaintiffs advance a theory of direct liability, not vicarious liability, against Defendants. Their cause of action is premised on the allegation that Defendants’ own wrongful conduct proximately caused them harm.13
One could quarrel with Plaintiffs’ theory of causation, to be sure, and perhaps they would lose on summary judgment or at trial. But this Court determined on a prior appeal that Plaintiffs have properly stated violations of California law (including satisfying the statutes’ requirement of proximate cause) for purposes of surviving a motion to dismiss, see Ileto v. Glock, 349 F.3d 1191, 1194 (9th Cir.2003), and that holding is the law of the case. Maj. Op. at 1132 & n.2. The question now before us is whether, assuming that Plaintiffs have stated violations of California law, they have also alleged sufficient facts to come within the PLCAA‘s predicate exception and avoid its mandatory dismissal requirement.
At the time Plaintiffs’ complaint was originally filed, the PLCAA had not yet been enacted. So, by alleging that Defendants had actual knowledge of the impact
In short, Plaintiffs have presciently undertaken to prove that Defendants knew the impact of their actions and undertook them anyway, even though the underlying state statutes require only that Defendants should have known, and not that they actually knew, the impact of their actions. Because Plaintiffs have adequately and specifically pleaded actual knowledge, they have shown “knowing[] violat[ions]” of the California statutes that form the basis for their suit.
Understanding the phrase “knowingly violated” as imposing a heightened pleading requirement for litigants who seek to come within the predicate exception thus gives sense and structure to an otherwise ambiguous provision.
B.
My interpretation of the predicate exception is fully consistent with surrounding provisions of the PLCAA‘s text. Unlike the majority, I read the PLCAA‘s text as strongly supporting the view that the Act‘s purpose is to protect firearms manufacturers and sellers from liability for acts solely those of third parties.
First, according to the PLCAA‘s “Purposes” section, the purpose of the Act is “[t]o prohibit causes of action against manufacturers [and sellers] ... for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others.”
Indeed, the PLCAA repeatedly describes the sorts of lawsuits with which Congress was concerned as lawsuits based partiсularly on vicarious liability theories. See
Second, the majority notes that the PLCAA elsewhere speaks of “Federal, State, and local laws” that “heavily regulate[]” the manufacture and sale of firearms,
Third, the majority states that “Congress‘s intention to create national uniformity“—an intention to which the PLCAA adverts only indirectly, in the “Purposes” section at
I therefore conclude that the PLCAA‘s text is fully consistent with the reading of the predicate exception I have suggested: that “statute[s] applicable to the sale or marketing of [firearms]” includes any statutes capable of being applied to the sale or marketing of firearms, but that to proceed under the exception, litigants must allege that defendants “knowingly violated” those statutes.
C.
DeBartolo counsels that courts employing the canon of constitutional avoidance look not only to the statutory text, but also to the legislative history, to ensure that their reading of the statute is not contrary to Congress‘s clear intent. DeBartolo, 485 U.S. at 583-84, 108 S.Ct. 1392; see also Catholic Bishop, 440 U.S. at 504, 99 S.Ct. 1313. Unlike the majority, I read the PLCAA‘s legislative history not to foreclose the reading I suggest here, but rather in large part to support it.
Senator Sessions, one of the bill‘s leading supporters, stated that “[t]his bill is incredibly narrow. It only forbids lawsuits brought against lawful manufacturers and sellers of firearms or ammunition if the suits are based on criminal or unlawful misuse of the product by a third party.” 151 Cong. Rec. S8908 (July 26, 2005) (statement of Sen. Sessions). Reading through the legislative history, it becomes clear that like Senator Sessions, the bill‘s supporters broadly understood that the PLCAA would not do away with all tort liability, but rather that it would (1) limit firearms manufacturers or sellers’ tort liability to their own conduct, not the conduct of third parties (thus imposing a narrow view of foreseeability and proximate cause), and (2) impose an extra “knowledge” requirement on state-defined duties of care.16 The bill was viewed essentially
I recognize, of course, that individual legislators at times suggested divergent views of what sorts of lawsuits the PLCAA would affect if it were passed into law.18 Some of those views appear perhaps implausibly narrow or implausibly broad, likely because the bill excited
Here, the House Judiciary Committee Report confirms the picture that emerges from the legislative history as a whole—that the PLCAA was intended to preclude the imposition of strict or vicarious liability on the gun industry for the criminal actions of third parties. The House Report describes the bill as aimed at combating a trend of “[r]ecent litigation ... against the firearms industry ... based on novel claims that invite courts to dramatically break from bedrock principles of tort law,”
Reading the рredicate exception as preserving causes of action for injuries caused by gun manufacturers and sellers’ own knowingly unlawful conduct is fully consistent with that view.
The majority correctly points out that both Senator Craig and Representative Stearns listed Ileto v. Glock among the lawsuits that they expected the PLCAA would preempt. See Maj. Op. at 1137-38. But there is no indication in their descriptions of the case that these lawmakers actually understood what Plaintiffs were alleging in this case: that Defendants themselves knowingly committed unlawful acts. Quite the contrary, Senator Craig and Representative Stearns‘s remarks suggest that they believed Ileto was purely a vicarious liability suit.20 Whatever effect
D.
Applying the PLCAA‘s predicate exception as written—that is, as applying to all statutes capable of being applied to the sale or marketing of firearms, but imposing an actual knowledge requirement—would prohibit a swath of lawsuits against firearms manufacturers and sellers, including those brought by municipalities for violations of no-fault or absolute liability statutes or those brought by individuals alleging vicarious liability under state tort law for the conduct of third parties of which the gun manufacturers or sellers were not aware.
It may well be that the PLCAA‘s application to these other state actions would be constitutionally problematic for the same reasons outlined in Part II above. The reading of the predicate exception‘s ambiguous language I have suggested might simply delay those hard constitutional questions for another case. But that is, ultimately, what the canon of constitutional avoidance is meant to do.21 The legislation or the constitutional law could change in the meantime, or no concrete case could arise in which the constitutional issue needs to be addressed. The reading
CONCLUSION
I would hold that the PLCAA does not require the dismissal of Plaintiffs’ suit, and not decide the difficult questions of constitutional law that the statute would otherwise rаise. I therefore respectfully dissent.
Notes
Under the ‘law of the case’ doctrine, one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case.(brackets and some internal quotation marks omitted)). Contrary to Defendants’ assertion, the intervening case People v. Arcadia Mach. & Tool, Inc. (In re Firearm Cases), 126 Cal.App.4th 959, 24 Cal.Rptr.3d 659 (2005), does not conflict with our previous holding. Additionally, California law designates certain civil actions as “choses in action,” which may be assigned to third parties while they are still pending. See
firearmsas a convenient shorthand for
firearms and ammunition.The majority also cites Austin v. City of Bisbee, 855 F.2d 1429 (9th Cir.1988), as supporting its constitutional holding. Austin is confusing. It states first that “[a] cause of action is a species of property protected by
the following rules are applicable to the game of basketball,one would expect to hear a list of rules concerning traveling, foul shots, and the like. One would not expect to hear that force equals mass times acceleration or that an object falls at an increasing rate of 9.8 meters per second per second. The rules of physics undeniably apply to the game of basketball in the broad sense of the term
applicable,but a speaker who listed those rules would almost certainly be doing so for comic effect. All the cases on which the majority relies are distinguishable on one or more of these grounds.
Lyon involved a challenge to the General Aviation Revitalization Act‘s statute of repose, which barred any “civil action” against a manufacturer if the accident occurred more than eighteen years after the aircraft was delivered to the purchaser. See 252 F.3d at 1081. The statute did not completely extinguish litigants’ rights to sue in tort, but only limited the window in which such causes of action could be filed. The Lyon plaintiffs had not yet filed an action at the time of the statute‘s passage. See id.
Austin involved a challenge to an amendment of the Fair Labor Standards Act that barred recovery of unpaid overtime wages accrued prior to 1986. See 855 F.2d at 1431. The amendment did not abrogate state tort law; rather, it curtailed a statutorily-created cause of action. See id. at 1436 (“Property rights to public benefits are defined by the statutes or customs that create the benefits. When, as here, the statute authorizing the benefits is amended or repealed, the property right disappears.“) (internal quotation marks omitted).
Fields involved a challenge to Oregon‘s statute of limitations for wrongful death suits and its statute of repose for medical malpractice suits. The state provisions did not extinguish individuals’ ability to sue entirely, but only narrowed the temporal window in which suits could be filed. See 413 F.3d at 956-57. Moreover, Fields noted that the plaintiffs’ “right of action for wrongful death is purely statutory and ... in Oregon there was no right of action for wrongful death at common law.” id. at 959. In addition, Oregon‘s statutes of limitation and repose were enacted long before Fields filed his suit. See id. at 949; see also
Duke Power involved a challenge to the Price-Anderson Act, which limited federally licensed nuclear facilities’ accident liability to $560 million. See 438 U.S. at 66-67, 98 S.Ct. 2620. The Act did not abrogate state tort remedies, but only imposed a federal limit on the maximum amount of recovery plaintiffs could obtain. The Act also provided for cost-sharing among nuclear operators and the mandatory waiver of defenses in case of an accident, id. which the Court held was a “reasonably just substitute for the [status quo at] common-law[.]” Id. at 88, 98 S.Ct. 2620. The plaintiffs, who lived close to planned nuclear facilities, had not filed any cause of action at the time of the Price-Anderson Act‘s passage; rather, they sought a declaratory judgment that the Act was unconstitutional, premised on the prospective due process violation they would suffer should a nuclear accident occur. Id. at 67-70, 98 S.Ct. 2620.
Here, unlike in Ileto, the City alleged activity on the part of the Manufacturers that facilitates unlawful sales and violates regulatory statutes.). Kyle Rys., Inc. v. Pacific Admin. Servs., Inc., 990 F.2d 513 (9th Cir.1993), is not to the contrary. The plaintiff in Kyle had not filed a state claim for unjust enrichment at the time of ERISA‘s passage, so the property interest he was asserting was an interest in bringing a lawsuit, not in maintaining a pending one. Kyle, 990 F.2d at 518-19. Additionally, although ERISA did not furnish Kyle with a replacement federal cause of action, id. at 519, it does provide certain “quid pro quos” to individuals covered by employee benefit plans. The PLCAA, in contrast, provides nothing but a “gap in the law.” Id.
[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.(brackets and internal quotation marks omitted)). Plaintiffs have not argued that their claims fall under this exception. Consider, for example, the National Childhood Vaccine Injury Act,
The canon of constitutional avoidance does not supplant traditional modes of statutory interpretation. We cannot ignore the text and purpose of a statute in order to save it.(citation omitted)); see also infra Part B.4. Of course, as rational basis review does not require that legislation be the least restrictive means of achieving Congress‘s ends, the alternative remedy would not need to be an equally good substitute for the tort remedy it displaced. See Atmospheric Testing, 820 F.2d at 991 (acknowledging that “Congress could have ... [achieved its goal of protecting independent government contractors from suit] and still provided those injured by radiation a more generous substitute compensation scheme,” but concluding that “we cannot say that Congress‘[s] choice of means was without any rational basis.“) (internal quotation
knowingstatutory violation, even though that requirement introduces a new, or more difficult, element for the plaintiff to prove. Dissent at 1163. That interpretation, however, also
abolishescommon-law remedies for a large class of plaintiffs, because certain claims that were cognizable before the enactment of the
manufacturermeans, with respect to a qualified product, a person who is engaged in the business of manufacturing the product in interstate or foreign commerce and who is licensed to engage in business as such a manufacturer under [federal law].
sellermeans, with respect to a qualified product--- (A) an importer (as defined in
Suppose, for example, that a municipality maintains a policy of hiring police officers without running criminal background checks on them or providing firearms training, and that it knows several of its officers have committed violent crimes in the course of duty in the past. If a police officer hired and retained under this policy then shoots and kills a group of innocent bystanders, the municipality would not be liable to the victims for the shooting on a respondeat superior theory, but it would be directly liable for its own wrongful act: maintaining a policy of inadequate screening and supervision with “deliberate indifference” to the risk of harm that policy created. See Bd. of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). The violations are distinct, even though the same act—the shooting—occasions the victim‘s suit.
Compare 151 Cong. Rec. S9226 (July 28, 2005) (statement of Sen. Kyl) (supporting the bill and opposing an amendment that would have expressly permitted suits alleging gross negligence or recklessness to go forward; arguing that the bill as written already would allow suits alleging “gross negligence or reckless conduct ... [as] the proximate cause of death or injury“), and 151 Cong. Rec. S9926 (July 25, 2005) (statement of Sen. Graham) (same), with 151 Cong. Rec. S9385 (July 29, 2005) (statement of Sen. Schumer) (opposing the bill as written, and arguing that “[e]ven when somebody is grossly negligent ... they will” be immune from suit), and id. at S9380 (statement of Sen. Kennedy) (same).