Cert Petition Seeks Uniformity in Circuit Courts’ Cellphone-Safety Rulings

There's profound inconsistency among the appellate courts over whether certain FCC guidelines “impliedly preempt state-law claims about cellphone safety,” and the Supreme Court has a “golden opportunity” to bring uniformity to the decision-making, said two dozen iPhone users in a Jan. 23 cert petition docketed Thursday (docket 22-698). The petition seeks a reversal of the 9th U.S. Circuit Court of Appeals Aug. 26 opinion, affirming the district court’s summary judgment for Apple, based on federal law preemption of the state-law claims.

In the 4th Circuit, said the petition, the FCC’s guidelines don’t preempt any state-law claims. In the D.C. Court of Appeals, they preempt only some claims, and in the 3rd and 9th circuits, they preempt all such claims, it said. “Even standing alone, this split warrants review,” it said. “This case is about far more than cellphones. It presents this Court with a golden opportunity to resolve a deeper divide at the intersection of our federalism and the separation of powers -- a divide over whose intent counts for preemption and how judges should discern that intent.”

In some courts, it's congressional intent that counts, said the petition. But other courts, like the 9th Circuit, “set aside” congressional intent and focus instead on whether an agency meant to preempt state law, it said. They then “hunt through the administrative record to find an answer,” it said.

SCOTUS “should set things right,” said the petition. “This case cleanly presents an opportunity to resolve a longstanding split and, at the same time, to settle a far more fundamental rift in the jurisprudence of implied agency preemption,” it said: In doing so, SCOTUS “can ensure that lower courts remain faithful to the Constitution’s balance between both the state and national governments, on the one hand, and the judicial, executive, and legislative powers, on the other.”

The plaintiffs, all iPhone users, allege Apple failed to warn them of the risks, uncovered in independent testing, that iPhones can emit radiation at levels that can be dangerous to humans, said the petition. The plaintiffs sued Apple in 2019, asserting state-law claims of negligence, breach of warranty, consumer fraud and unjust enrichment. it said. The district court said the claims “were impliedly preempted by the FCC’s procedural guidelines” governing cellphones’ RF emissions, and the 9th Circuit affirmed, it said.

All that’s required for a regulation to have “preemptive force,” the 9th Circuit said, is proof an agency’s regulation falls within the scope of a generic grant of rulemaking authority, and a showing that the agency must have meant to preempt state law, said the petition. But the decision “exacerbates an acknowledged, longstanding conflict over whether the FCC’s guidelines on reporting cellphone radiation preempt state health and safety laws,” it said.

This conflict “on an important issue of federal law by itself warrants certiorari,” said the petition. But the conflict is also “emblematic of a far more fundamental divide in the lower courts over whose intent counts for implied agency preemption and how judges should discern that intent,” it said.

The petition asks: Is it congressional intent that counts or the agency’s? The text of the statute or legislative history? The actual regulation or agency commentary? “Given the vast reach of the modern administrative state, these foundational questions are likely to recur again and again in a broad range of regulatory contexts,” said the petition. “Lower courts -- some of them led astray by overbroad language in this Court’s own cases -- are badly in need of guidance.”