Keeping Tabs on the Ninth Circuit
December 02, 2022 - This Week at the Ninth

This Week At The Ninth: Retroactivity and Recalls

ballot box

This week, the Court addresses the retroactive effect of a preemption decision by the Federal Motor Carrier Safety Administration, and the constitutionality of California’s prohibition on an incumbent appearing on the ballot to succeed himself in a recall election.

The Court holds that the Federal Motor Carrier Safety Administration’s decision to preempt California’s meal and rest break rules with respect to truck drivers subject to federal regulations bars plaintiffs from proceeding with lawsuits seeking to enforce those rules that commenced before the preemption decision was made.

The panel: Judges Callahan, Thomas, and Humetewa (D. Ariz.), with Judge Thomas writing the opinion, and Judge Humetewa dissenting.

Key highlight: “Our interpretation of the preemption decision at issue here accords with principles of federalism and the logic animating the doctrine of preemption. We have described preemption as a doctrine establishing that state and local laws are not enforceable if they impinge upon an exclusive federal domain. An entity attempting to enforce a preempted law has attempted to exercise power which it does not possess because of an express or implied denied of that authority in the Constitution, valid federal laws and regulations promulgated thereunder, or valid treaties. When we declare a state law preempted, that judgment renders the law unenforceable even in the case before us. We, as judges, cannot enforce the state law because the Laws of the United States are supreme and displace the Laws of any State to the Contrary.” (citations and internal quotation marks omitted).

Background: In 2018, the Federal Motor Carrier Safety Administration (FMCSA) decided to preempt California’s meal and rest break rule (MRB rules) with respect to truck drivers subject to federal regulations. In International Brotherhood of Teamsters, Local 2785 v. Federal Motor Carrier Safety Administration, 986 F.3d 841, 846 (9th Cir. 2021), the Ninth Circuit held that the agency’s decision was a lawful exercise of its power under the Motor Carrier Safety Act of 1984 (MCSA), but left open whether the preemption decision bars plaintiffs from proceeding with lawsuits that commenced before the decision was made. After the Ninth Circuit issued its decision, the district court sua sponte dismissed this pending case, filed by two former hourly truck drivers for defendant Swift Transportation, that alleged violations of California’s MRB rules and derivative state-law claims on the ground that the court had no authority to enforce the regulations upon which the Plaintiffs’ meal and rest break claims rested. Plaintiffs appealed

Result: The Ninth Circuit affirmed. Answering the question left open in International Brotherhood of Teamsters, Local 2785, the Court held that the FMCSA’s decision to preempt California’s MRB rules prevented them from continuing their lawsuit. Plaintiffs argued that there is a presumption against retroactive application of laws and that the MCSA’s language is insufficiently specific to operate retroactively. The Court concluded, however, that the FMCSA’s preemption decision does apply retroactively. To determine retroactivity, the Court explained, courts should apply the two-step framework set out in Landgraf v. USI Film Products, 511 U.S. 244 (1994). First, courts consider whether Congress authorized retroactivity and whether the agency intended to impose retroactive rules.. But second, if Congress’s or the agency’s intent is not clear, the Court considers whether retroactivity would impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability, in respect to transactions or considerations already past, and applies the law only prospectively if it would have such an effect. Here, the Court only applied the first step because it concluded that Congress intended for the FMCSA’s to have the power to halt enforcement of state laws and because FMCSA intended for this particular preemption determination to apply to pending lawsuits. Congress’s intent was clear because the MCSA provides that a state “may not enforce” preempted laws (49 U.S.C. 31141(a)), a rule that would be contravened by a court decision giving effect to California’s MRB rules. And the agency also clearly expressed its intent to act retroactively by declaring that “California may no longer enforce the MRB Rules.”

Judge Humetewa dissented. She agreed that Landgraf provides the relevant framework, but disagreed that Congress’s or the agency’s intent in favor of retroactivity was clear. The first step of Landgraf, she stated, is whether the statute contains an express statement on its proper temporal reach, which the MCSA does not. Judge Humetewa stated that the majority’s decision to treat the MCSA’s simple statement that “[a] State may not enforce a State law or regulation on commercial motor vehicle safety that the Secretary of Transportation decides under this section may not be enforced” as a clear statement of temporal reach is inconsistent with the strong presumption against retroactivity. The language of the FMCSA’s preemption decision also was not clear on whether the ruling should apply retroactively, Judge Humetewa opined, because it provides that “California may no longer enforce the [MRB rules] with respect to drivers of property-carrying [commercial motor vehicles] subject to FMCSA’s [hours of service] rules.” In fact, that language strongly suggests prospective, not retroactive, application. Applying Landgraf’s second-step, Judge Humetewa would have held that because application of the FMSCA preemption decision to pending cases would have the effect of impairing plaintiffs’ existing rights, it should be applied only prospectively.

The Court holds that California’s constitutional recall procedure—which prohibits officials subject to a recall from appearing as a candidate for successor—does not violate federal due process.

The panel:  Judges O’Scannlain, Watford, and Hurwitz, with Judge Watford writing the opinion.

Key Highlight: “California has an important interest in ensuring that the power to recall guaranteed to its voters is effective and does not invite an endless cycle of recall attempts. That interest justifies § 15(c)’s relatively minor burden on the right to vote.”

Background: The California Constitution enables voters to recall some elected officials. A recall ballot asks first whether the official should be removed from office, and second who should succeed the official in the event the recall is successful. Article II, § 15(c) of the California Constitution expressly provides that the official subject to recall “may not be a candidate” to succeed himself or herself. 

A.W. Clark, a voter who opposed the recall of Governor Gavin Newsom, sued the state, alleging that California’s recall process forbidding him from voting for Newsom as a successor violated Clark’s Fourteenth Amendment due process and equal protection rights. The district court denied a preliminary injunction, and later dismissed for failure to state a claim, granting judgment to the California secretary of state.

Result: The Ninth Circuit affirmed. Clark was not prohibited from voting for a successor if the recall was successful, the Court pointed out, even if he voted against recalling Governor Newsom on the first question. “All voters have an equal right to answer ‘yes’ or ‘no’ in response to question one, and regardless of how they vote on that question, they may then choose to vote for a successor on question two from the list of candidates who qualified for the ballot.” “[B]ecause all voters enjoyed an equal right to vote on both questions, and all votes cast on each question were afforded equal weight,” there was no constitutional defect with structuring the recall process that way. It also did not matter that an incumbent must receive a majority vote in his or her favor on question one to remain in office, while a successor may be elected with a mere plurality of the vote on question two. Because the separate ballot questions represent two separate elections, “[e]very vote is weighted equally in each election, and the right to equal representation is not violated simply because the two elections require different vote thresholds or because one election is decided by a plurality vote.” 

The Court also rejected Clark’s argument that restricting Newsom from running on the successor ballot imposed a severe restriction on the right to vote. Previously, the Ninth Circuit had upheld term limits in a similar challenge, reasoning they were “a neutral candidacy qualification” and made “no distinction on the basis of the content of protected expression, party affiliation, or inherently arbitrary factors such as race, religion, or gender.” So too here. If anything, the recall restriction “is arguably less burdensome than term limits because it bars an incumbent from running in just one election while term limits sideline a candidate for good.” And it advanced an important government interest in “preventing the anomalous result that an officer recalled by a majority would be immediately returned to office by a slim plurality.”

Finally, the Court declined to consider Clark’s state law arguments, finding “no abuse of discretion in the court’s refusal to exercise supplemental jurisdiction after it dismissed all of Clark’s federal claims with prejudice.”