The Starcaps case advances. A Minnesota trial court has held that the NFL violated state law by failing to notify affected Vikings' players Kevin and Pat Williams of their test results within the required three day period. Nevertheless the court upheld the NFL's suspensions of the players, finding the notice violations had not harmed the players. This news report seems to have garbled some of the courts reasoning. It seems also the state court judge will suspend his ruling pending the players' appeal. Our previous post on the Eighth Circuit's opinion is here.

The NLRB has sued the State of Arizona to invalidate, as preempted, an Amendment to the Arizona Constitution which would require a secret ballot election before a union could be designated, selected, or authorized to be the collective bargaining representative for any group of employees. It will be surprising if this case lingers before a ruling in favor of the NLRB.

Ever come into the office and just get hacked off?

No particular reason, but you feel like all the crap -- cases, clients, colleagues, judges, opposing counsel, upcoming hearings, trips etc. -- builds up and you need an outlet for the hostility and aggression.

No, me neither.

So let's see, those into the craft of law can watch the Pleus v. Crist oral argument on the 5th DCA JNC dispute, where the great bow-tied one, Sandy D'Alemberte, delivers a classic and tangles (intellectually) with Justices Pariente, Polston, Canady and Quince. He even references Joseph Heller!

Preemption junkies (hi federal law clerks!) may enjoy this new change in preemption policy from The White House:

The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Federalism -- what a concept.

Aren't you glad you voted for him?

Oh oh -- our friends at the now-closed The Forge write in to the Herald to defend the late-night email firing without notice or severance of their staff:

For the past 40 years of business we have accepted the industry standard in laying off employees. In fact, almost all past employees leaving our employ have never given us notice.

It works both ways. Because of the industry's standard practices, we don't expect notice and our employees don't expect notice either.

I have not received one single complaint from an employee other than to wish us luck and speed in reopening and to thank us for the financial security we have always provided them.

Until now. So you offered not one ounce more than what industry practice requires -- how nice.

Does industry practice require that you fire your staff by email, and offer no severance? That's some industry.

Also, has it occurred to you that no one is complaining to your face because, in this bleak job market, some are hopeful you may rehire them after the purported $5 million renovation?

Speaking of firings, my old friend Normie Kent goes to bat for the always-embattled Neil Rogers:

''It's a mess that WQAM has to deal with, and basically they're just giving Neil three days off with pay because of their own snafu,'' said Norman Kent, the attorney.

Ironically, Rogers has mostly quit taking listeners' calls during his midday show because too many pranksters were unleashing long, obscenity-ridden tirades that had to be bleeped out. Instead, he encourages them to send e-mail that he reads on the air.

It was one of those e-mails, complaining about WQAM's dismissal of Rogers' longtime producer last week, that got him into trouble.

Rogers was reciting it aloud, relishing the insults it heaped on WQAM general manager Joe Bell, when he inadvertently included a line that said, ``[Bleep] Joe Bell.''

''Neil immediately hit the dump button, the button you use to cut out stuff during the seven-second delay,'' Kent said. ``But WQAM is moving into new studios, and Neil's dump button wasn't connected yet.''

They fired Jorge?

That sucks. I sure hope he received exactly what the industry standard requires.

Four states (Arizona, South Carolina, South Dakota and Utah) passed provisions requiring secret ballot elections to determine a union's majority status. First, it is extraordinarily unlikely the NLRB will abandon secret ballot elections, so any petition would be processed under the current, long-standing secret ballot election procedures used by the NLRB. As for voluntary recognition situations, under which employers and unions may by-pass the election process, the effect is less certain, but absent a major rethinking of federal preemption, I do not see how states can permissibly regulate the process of determining majority status by card check or other non-election evidence that a majority of the employees support unionization.

Major new preemption decision by the Supremes -- sanity has been (somewhat) restored:

WYETH v. LEVINE

CERTIORARI TO THE SUPREME COURT OF VERMONT

No. 06–1249. Argued November 3, 2008—Decided March 4, 2009

Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the “IVpush” method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label includedan adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as aprofessional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claimswere pre-empted by federal law because Phenergan’s labeling hadbeen approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.

Held: Federal law does not pre-empt Levine’s claim that Phenergan’slabel did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.

(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-lawduties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug labelonly after the FDA approves a supplemental application, the agency’s“changes being effected” (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration,and there is no evidence that the FDA would ultimately have rejected 2 WYETH v. LEVINE

Syllabus

such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenerganlabel would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bearsprimary responsibility for drug labeling. It is a central premise of theFood, Drug, and Cosmetic Act (FDCA) and the FDA’s regulationsthat the manufacturer bears responsibility for the content of its labelat all times. Pp. 11–16.

(b) Wyeth’s argument that requiring it to comply with a state-lawduty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law. The history of the FDCA shows that Congress didnot intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that statelaw failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can preempt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacleto achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, theweight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency,and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the preemption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding positionthat state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25.

___ Vt. ___, 944 A. 2d 179, affirmed.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA, J., joined.

Wow -- I never thought I would see the day I would find myself agreeing with something Justice Thomas said:

Because such a sweeping approach to pre-emption leads to the illegitimate—and thus, unconstitutional—invalidation of state laws, I can no longer assent to a doctrine that preempts state laws merely because they “stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives” of federal law.

Justice Thomas, a serious legal scholar on preemption?

I better read the opinion again.

Earlier this month NLRB General Counsel Lafe Solomon urged threatened to sue four states unless they acknowledge their recently passed state laws requiring secret ballot elections are preempted by the NLRA. The four state's attorneys general have now responded. The point asserted is that the state laws are consistent with the NLRB's current law which also requires a secret ballot election when an employer refuses to recognize a union voluntarily. If that were the end of discussion, the AG's would be correct, but the head scratchers would ask what is the reason to pass such legislation. It is widely believed the legislation is a preemptive strike against the possibility the NLRB might change its rules, or Congress might pass something like EFCa. If such a conflict arose, it would be real and implicate federal preemption. Also, the state laws purport to regulate voluntary recognition, which likely will revert to pre-Dana law which guarantees no secret ballot election.

So I understand some football was played this weekend?

And some more will be played tonight, it seems.

Meanwhile the NFL is reeling from this 8th Circuit opinion released last week that allows players to challenge drug tests under their own state laws.

Preemption is great! (Unless it's bad).

Other sports are affected too:

Meanwhile, the 8th Circuit's precedent allows players to use state laws to challenge their sport's drug-testing policies, which could have broader implications for the NFL, the NBA, MLB and the NHL.

"The integrity of competition in any league hinges on uniform enforcement of rules, policies and procedures," said Deputy NHL Commissioner Bill Daly. "The integrity of any collectively bargained, league-wide drug-testing program hinges on the same uniform application.

"If allowed to stand, this ruling would compromise the stability of competition and undermine the public's confidence — a result that benefits no one."

I totally agree -- wait a minute, the NHL?

Are they still in business?

Come on, at least use a sport that matters.

You might as well consider an amicus from the peewee junior beach tennis association or the National Darts League or the Toy Train Aficionados as well.

Four states have passed laws requiring secret ballot elections by workers on unionization. This insurance policy was taken out by republican and business interests last November, even though EFCA was already dead. Now the NLRB has threatened to sue the states unless they agree the laws are unconstitutional and preempted. A few years back, I would have bet this was a slam dunk issue for the NLRB, but the scope of Garmon preemption may not seem as broad for the current Supreme Court. We have already entered a time when serious talk of nullification of federal laws by state officials would raise John C. Calhoun from eternal rest and spin Andrew Jackson a few times in his grave. Can serious talk of narrowing preemption when it serves to undercut federal authority be far off?