law-federal-preemption | concurrent jurisdiction

Preemption by Federal Law

Federal preemption of state law is derived from the Supremacy Clause of the United States Constitution:  
“This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.”  U.S. Const., art. VI, cl. 2.  Thus, when a state law conflicts with federal law, it is
preempted and has no effect.  Maryland v. Louisiana, 451 U.S. 725, 746 (1981);
BIC Pen Corp. v. Carter, 251
S.W.3d 500, 504 (Tex. 2008).  In fields the states have traditionally occupied, such as health and safety
regulation, there is a strong presumption against federal preemption.  See Hillsborough County, Fla. v.
Automated Med. Labs. Inc., 471 U.S. 707, 715 (1985).  
To overcome the general presumption that Congress did not intend to preempt state law, Congress’s intent to
preempt must be “clear and manifest.”  See id. at 715-16; Graber v. Fuqua, ___ S.W.3d ___, No. 05-0303,
2009 WL 51570, at *3 (Tex. Jan. 9, 2009).
Brockert v. Wyeth Pharmaceuticals, Inc. (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Brown)
federal preemption, product liability drugs FDA, defective design claim)
State laws may conflict with federal laws and be preempted in three ways:  (1) the federal law may expressly
preempt state law; (2) federal laws or regulations may impliedly preempt state law or regulations if the statute’
s scope indicates that Congress intended federal law or regulations to occupy the field exclusively; or (3)
state law is impliedly preempted if it actually conflicts with federal law or regulations because it is either
impossible for a private party to comply with both state and federal requirements or the state law obstructs
accomplishing and executing Congress’s full purposes and objectives.  See Graber, ___ S.W.3d at ___, 2009
WL 51570, at *2 (citing Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000)); BIC Pen Corp., 251
S.W.3d at 504.  Here, we are concerned with only the third basis for preemption - an actual conflict with
federal law or regulations.

Application of the Plea to the Jurisdiction to the State Law Claims

In effect, Shippers treats the real parties in interest's claims under the state wrongful-death and survival
statutes as if the parties actually sought compensation under the LHWCA.  The real parties in interest,
however, do not assert claims for compensation under the LHWCA.  As plaintiffs, each real party in interest “is
master to decide what law he will rely upon,"[11] and here, each plaintiff has brought against Shippers only
state-law claims pursuant to the wrongful-death and survival statutes.  By arguing that such claims are
preempted, Shippers has raised an affirmative defense.  Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)
(“Federal pre-emption is ordinarily a federal defense to the plaintiffs' suit."); Harrill v. A.J.'s Wrecker Serv.,
Inc., 27 S.W.3d 191, 194 (Tex. App.- Dallas 2000, pet. dism'd w.o.j) (“
Preemption is an affirmative
.").  But regardless of the merit of that defense to the specific claims pleaded in this case - a
question that we do not reach - its assertion does not deprive the state trial court of subject-matter
jurisdiction.  See Mills v. Warner Lambert Co., 157 S.W.3d 424, 426 (Tex. 2005) (per curiam) (stating that
federal preemption is generally an affirmative defense to suit but does not ordinarily deprive a state court of
jurisdiction).  Moreover, we will not recharacterize the state-law claims asserted by the real parties in interest
as federal claims.  See Aaron v. Nat'l Union Fire Ins. Co. of Pittsburg, Pa., 876 F.2d 1157, 1164-65 (5th Cir.
1989) (concluding that LHWCA did not so preempt field of state law that state action for wrongful death of the
longshoreman had to be recharacterized as stating federal cause of action, as would authorize removal), cert.
denied,  493 U.S. 1074 (1990); Tex. Employers' Ins. Ass'n v. Jackson, 862 F.2d 491 (5th Cir. 1988) (holding
that rights created by the LHWCA are not uniquely federal rights enforceable in federal court of equity so as
to permit injunction against state court action based on state law claims which are preempted by the Act), cert.
denied, 490 U.S. 1035 (1989).  The trial court therefore did not abuse its discretion in denying Shippers's
plea to the jurisdiction concerning these claims.  See Mills, 157 S.W.3d at 425 (“State-court jurisdiction is
affected only when Congress requires that claims be addressed exclusively in a federal forum."); Romney v.
Lin, 105 F.3d 806, 813 (2d Cir. 1997) (“There are thus some cases in which a state law cause of action is
preempted, but only a state court has jurisdiction to so rule.").
In re Shippers Stevedoring Co. (Tex.App.- Houston [14th Dist.] Nov. 20, 2008)(Guzman)(writ denied)
workers comp, federal preemption claim, jurisdiction issue, exclusive remedy, nonsubscriber)