In Carson v. Mansanto Co., No. 21-10994 (11th Cir. July 10, 2023), the en banc Eleventh Circuit holds that it has appellate jurisdiction to adjudicate a dispute about whether a “federal agency action that otherwise lacks the force of law preempts the requirements of state law,” despite the complication that the defendant paid the plaintiff $100,000 to take the appeal as part of a settlement.
Plaintiff “Carson developed cancer after decades of using the popular weedkiller Roundup. He sued its manufacturer, Monsanto Company, for failing to warn him that the product can increase users’ cancer risks. The district court ruled that a provision of the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136v(b), expressly preempts some of Carson’s claims under Georgia law because the Environmental Protection Agency had approved a label for Roundup that lacked a cancer warning and the Agency classifies Roundup’s main ingredient—glyphosate—as ‘not likely to be carcinogenic.'”
The district court granted judgment on the pleadings in favor of Monsanto “insofar as Carson’s suit relied on the lack of a cancer warning in Roundup’s label,” agreeing that any state-law duty to warn was preempted by the federal act. The parties thereafter “reached a partial settlement, and Carson amended his complaint to abandon the claims that were not dismissed.” Carson then took an appeal of the preemption issue.
At first, an Eleventh Circuit panel reversed the district court, “determin[ing] that Georgia’s common-law standard for product-safety warnings was less demanding than the federal prohibition against marketing ‘misbranded’ pesticides.” The full court vacated the panel decision and reheard the matter en banc.
On the merits, the en banc court remands the matter back to the original panel to decide whether section 136v(b) of the federal act was preemptive. “A conflict between a state-law rule that has the force of law and [an EPA] rule that does not have the force of law is not the type of conflict between state and federal legal obligations that the Supremacy Clause addresses. But this reasoning does not extend to express-preemption cases, where, as we have explained, the meaning of the express-preemption provision—not conflicting federal and state legal obligations—triggers preemption . . . . [W]e leave for the panel’s consideration Carson’s argument that section 136v(b)’s reference to ‘requirements’ compels a force-of-law inquiry as a matter of statutory interpretation.”
The Eleventh Circuit divides, though, over whether the appeal was a justiciable case-or-controversy under Article III. The jurisdictional issue raised by the en banc court was whether the appeal — filed only because the defendant paid the plaintiff $100,000 in a settlement agreement to bring it — was a collusive and thereby lacking the “honest and actual antagonistic assertion of rights”, United States v. Johnson, 319 U.S. 302, 305 (1943), necessary for a case or controversy.
The majority opinion holds that there is a case or controversy. “[B]oth parties have a real interest in the legal positions they advance in this appeal, and nothing in the record establishes that Monsanto controls Carson or his representation . . . . To be sure, Monsanto paid him to abandon his other claims and to appeal the judgment against him, but if he wins, he receives a larger payout than if he loses, which means that he has a stake in this appeal . . . . For its part, Monsanto’s encouragement of the appeal—possibly to create a circuit split—does not deprive us of jurisdiction. In the settlement, Monsanto secured the abandonment of several ofCarson’s potentially valuable claims. And Monsanto has an interest in winning on appeal: it seeks the dismissal of the remaining claim against it and is liable for a smaller settlement payment if it prevails.”
A concurring opinion by Judge Jordan expresses uneasiness about the settlement, though ultimately siding with the majority. “The agreement is, however, a bit peculiar. As noted, it basically forces Mr. Carson to file and pursue an appeal of the preemption ruling in order to receive the $100,000. And it prevents him from appealing any other issues. It seems to me that Monsanto—the prevailing party below—is the ‘driving force’ behind the appeal in an effort to create a circuit split on the matter of preemption. I can therefore see why [dissenting] Judge Wilson is concerned.”
Nevertheless, “Carson has always maintained that his failure-to-warn claim is not preempted. In the normal course of events, one would expect a personal-injury plaintiff in his position to appeal if his state-law tort claim was dismissed on federal preemption grounds. So the agreement’s requirement that . . . Carson appeal in order to secure the $100,000, while admittedly odd, is not constitutionally problematic. Things would be different if Monsanto tried to control (or limit) the precise legal theories or arguments that . . . Carson could present on appeal regarding preemption . . . . But that is not what is going on here.”
Juge Wilson, dissenting, would hold that the settlement agreement constituted collusion that vitiated the court’s jurisdiction. “The agreement required—not merely permitted—Carson to file a notice of appeal challenging the district court’s preemption decision. It required—not merely permitted—Carson to fully prosecute this appeal or face forfeiture of nearly the entire $100,000 payment. This agreement usurped Carson’s role as master of his own appeal and placed the course of this litigation ‘under the domination of’ Monsanto, depriving it of an ‘honest and actual antagonistic assertion of rights’ to be adjudicated.'”
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