Hints from Parker Drilling for the Sandy Hook Litigation?
Earlier this week, the Supreme Court unanimously decided a sleepy statutory interpretation question concerning the Outer Continental Shelf Lands Act. That case, however, may contain clues about how the Court could approach the interpretive question involved in the Sandy Hook litigation over the Protection for Lawful Commerce in Arms Act (PLCAA).
In Parker Drilling the Court had to determine when the Outer Continental Shelf Lands Act commanded use of state laws as federal law; according to the statute, that was only “[t]o the extent that [state laws] are applicable and not inconsistent with” other federal law. The debate turned, in large part, on how to define “applicable.” PLCAA uses similar language to exempt certain state law causes of action from its ban on suits against the firearms industry: those in which a gun manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” The debate over this phrase—the so-called “predicate exception”—has also largely turned on the meaning of the term “applicable.” Specifically, the debate in PLCAA litigation is whether “applicable” means any law that could be applied to the sale or marketing of a gun (such as Connecticut’s general unfair trade practices law) or whether it only includes those laws that by their terms apply to gun sales or gun marketing (such as rules about age restrictions on gun sales or marketing restrictions on gun ads).
So what, if anything, can we glean from Parker Drilling?
There, the Court first noted a circuit split in how to read the relevant phrase. The Fifth Circuit adopted a narrow reading, holding that “state law only applies to the extent it is necessary ‘to fill a significant void or gap’ in federal law.” The Ninth Circuit, on the other hand, “held that state law is ‘applicable’ under the OCSLA whenever it ‘pertains to the subject matter at hand.’”
The Court observed that the question was a close and difficult one that could not be resolved by the words themselves.
In short, the two terms standing alone do not resolve the question before us. Particularly given their indeterminacy in isolation, the terms should be read together and interpreted in light of the entire statute.
But in the end, it sided with the Fifth Circuit’s narrow reading. Given the statutory scheme, the Court concluded that the phrase “applicable and not inconsistent” means that the statute only incorporates state law as federal law when other federal law does not address the relevant issue. “Put another way, to the extent federal law applies to a particular issue, state law is inapplicable.” Because an irrelevant law would never apply, it rejected the Ninth Circuit’s reading as too broad.
As well as the place of the phrase in the “overall statutory scheme,” the Court supported its reading with three additional arguments: (1) a contrary reading would “deprive much of the statute of any import,” (2) the Court’s reading accords with the rationale for the statute and its historical development, and (3) the Court’s precedent supports the adopted interpretation.
These are all types of arguments that might reappear in litigation over PLCAA if the Court thinks the plain text doesn’t resolve the dispute at the threshold. The Court might ask if a broad reading would sap PLCAA of “any import” or which reading comports with the rationale for and history of the law. If the Supreme Court thinks it has jurisdiction over the appeal, and grants the upcoming petition, we may just see another debate about the term “applicable” return to the Court.