The plaintiff in this case, John D. Carson, Sr., sued Monsanto, asserting claims arising from his exposure to the pesticide Roundup. After the district court held that his claims are expressly preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136, Mr. Carson appealed the court’s ruling as to his failure-to-warn claim. Public Citizen filed an amicus brief in support of Mr. Carson in the court of appeals, explaining that FIFRA neither expressly nor impliedly preempts his claim. In a unanimous opinion issued in July 2022, the court of appeals agreed, rejecting Monsanto’s preemption argument.
The Eleventh Circuit then granted rehearing en banc to address whether, in express preemption cases, the court must consider whether the agency actions claimed to preempt the state law have the force of law. Public Citizen filed a second amicus brief in support of Mr. Carson at the en banc stage. The en banc Eleventh Circuit held that whether the agency acted with the force of law is relevant to express preemption only if the express preemption provision makes it relevant. The court remanded to the panel to determine whether the text of FIFRA’s express-preemption provision compels a force-of-law analysis.