Ramsey Winch Inc. v. Henry

• Citation: 555 F.3d 1199
• Decision Date: 18 February 2009
• Docket Number: No. 07-5166.,07-5166.
• Parties: RAMSEY WINCH INC.; Auto Crane Company; ConocoPhillips; Norris, a Dover Resources Company; DP Manufacturing, Inc., a Delaware Corporation; Tulsa Winch, Inc., a Delaware corporation, Plaintiffs-Appellees, v. C. Brad HENRY, Governor of the State of Oklahoma; W.A. Drew B. Edmonson, Attorney General of the State of Oklahoma, and their Agents and Successors, Defendants-Appellants, National Rifle Association; The Brady Center to Prevent Gun Violence; The American Society of Safety Engineers; ASIS International; Society of Human Resources Management; HR Policy Association; Equal Employment Advisory Council; National Federation of Independent Business Legal Foundation, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

555 F.3d 1199

RAMSEY WINCH INC.; Auto Crane Company; ConocoPhillips; Norris, a Dover Resources Company; DP Manufacturing, Inc., a Delaware Corporation; Tulsa Winch, Inc., a Delaware corporation, Plaintiffs-Appellees, v. C. Brad HENRY, Governor of the State of Oklahoma; W.A. Drew B. Edmonson, Attorney General of the State of Oklahoma, and their Agents and Successors, Defendants-Appellants, National Rifle Association; The Brady Center to Prevent Gun Violence; The American Society of Safety Engineers; ASIS International; Society of Human Resources Management; HR Policy Association; Equal Employment Advisory Council; National Federation of Independent Business Legal Foundation, Amici Curiae.

No. 07-5166.

United States Court of Appeals, Tenth Circuit.

February 18, 2009.

Steven A. Broussard (Mark K. Blongewicz, Robert P. Fitz-Patrick, and Marshall J. Wells, Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa, OK; and W. Kirk Turner and Christopher S. Thrutchley, Newton, O'Connor, Turner & Ketchum, Tulsa, OK; with him on the briefs) Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, OK; for Plaintiffs-Appellees.

Charles J. Cooper (Sherry A. Todd, Oklahoma Attorney General's Office, Oklahoma City, OK, with him on the briefs) Cooper & Kirk, PLLC, Washington, D.C. for Defendants-Appellants.

Before KELLY, BALDOCK, and McCONNELL, Circuit Judges.

BALDOCK, Circuit Judge.

A number of Oklahoma businesses forbid their employees from bringing firearms onto company property. In March 2004, the Oklahoma legislature amended its laws to narrow the reach of such company policies. These new laws hold employers criminally liable for prohibiting employees from storing firearms in locked vehicles on company property. Various Oklahoma businesses subsequently filed suit seeking to enjoin the enforcement of the new Oklahoma laws, alleging they were (1) unconstitutionally vague; (2) an unconstitutional taking of private property, as well as a violation of Plaintiffs' due process right to exclude others from their property; and (3) preempted by various federal statutes. The district court for the Northern District of Oklahoma held that the challenged laws were preempted by the Occupational Health and Safety Act (OSH Act) of 1970 and permanently enjoined enforcement of the new laws. We have jurisdiction under 28 U.S.C. § 1291, and reverse.

I.

Numerous Oklahoma businesses maintain a policy of absolute prohibition on employees' possession of firearms on company property, a violation of which may serve as grounds for termination. After several Oklahoma employees were, in fact, discharged for storing firearms in their vehicles on company parking lots, the Oklahoma legislature amended its firearms laws. Specifically, the legislature amended the Oklahoma Firearms Act (OFA) of 1971 and the Oklahoma Self-Defense Act (OSDA) of 1995 to prohibit property owners from banning the storage of firearms locked in vehicles located on the owner's property.¹ See 21 Okla. Stat. §§ 1289.7a & 1290.22.²

Whirlpool Corporation filed the initial action in this case seeking an injunction against enforcement of the Amendments.³ In November 2004, the district court entered a temporary restraining order (TRO) against enforcement of the Amendments, finding they were likely preempted by various federal laws. Before deciding whether to issue a permanent injunction, the district court certified to the Oklahoma Court of Criminal Appeals the question of whether the Amendments were criminal statutes. At the time, the status of the Amendments was uncertain. The district court was concerned that if the Amendments were civil in nature, the Oklahoma Governor and Attorney General might not have enforcement authority over the Amendments, thereby making them improper parties to this action. The Court of Criminal Appeals alleviated the district court's concerns, ruling that the Amendments were, in fact, criminal statutes. See Whirlpool Corp. v. Henry, 110 P.3d 83, 86 (Okla.Crim.App.2005).⁴ Following this ruling, the district court moved forward with Plaintiffs' request for a permanent injunction and ordered extensive briefing by the parties on the issue of preemption, in particular whether the Amendments conflict with the OSH Act.⁵

In October 2007, the district court ruled the Amendments were not an unconstitutional taking and did not violate Plaintiffs' due process rights. The district court further ruled Plaintiffs lacked standing to assert a facial vagueness challenge. Lastly, the district court held the Amendments were preempted by the OSH Act's general duty clause.⁶ Accordingly, the district court permanently enjoined enforcement of the Amendments.⁷

II.

Congress derives its power to preempt state law under the Supremacy Clause in Article VI of the United States Constitution. See Choate v. Champion Home Builders Co., 222 F.3d 788, 791 (10th Cir.2000). Determining whether Congress intended to preempt state law is the ultimate touchstone of preemption analysis. See Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 96, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992). Three types of preemption exist. See Choate, 222 F.3d at 792. First, Congress can explicitly preempt state law, also known as "express preemption." Id. Second, courts infer preemption where Congress extensively regulates conduct in an entire field, or where the federal interest clearly dominates. See id. This is known as "field preemption." Id. Express and field preemption do not apply to the present case. The third category, known as "conflict preemption," occurs "where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. Conflict preemption requires that the state law materially impede or thwart the federal law or policy. See id. at 796.

The district court enjoined enforcement of the Amendments based upon conflict preemption, ruling that (1) gun-related workplace violence is a recognized hazard under the general duty clause; and (2) the Amendments impermissibly conflict with Plaintiffs' ability to comply with the general duty clause, thereby thwarting Congress' overall intent in passing the OSH Act. See ConocoPhillips, 520 F.Supp.2d at 1330. In support of its ruling, the district court relied on various studies and scholarly works outlining the growing problem of workplace violence. The district court also cited published statements from the Occupational Safety and Health Administration (OSHA) and prior cases concerning the OSH Act's general duty clause. We review the district court's preemption determination de novo. See Mount Olivet Cemetery Ass'n. v. Salt Lake City, 164 F.3d 480, 486 (10th Cir.1998).

A.

Courts do not "lightly attribute to Congress or to a federal agency the intent to preempt state or local laws." Nat'l Solid Wastes Mgmt. Ass'n v. Killian, 918 F.2d 671, 676 (7th Cir.1990) In fact, we begin "with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Altria Group, Inc. v. Good, ___ U.S. ___, ___, 129 S.Ct. 538, 543, ___ L.Ed.2d ___, ___ (2008) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). This assumption applies with greater force when the alleged conflict is in an area traditionally occupied by the States. See id. Here, we are faced with "public crimes" meant "to protect the health, safety, and public welfare of citizens and to deter crime." Whirlpool, 110 P.3d at 86. The Amendments, therefore, implicate Oklahoma's police powers, an area traditionally controlled by the states. See, e.g., United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (noting in its preemption review of the federal Gun-Free School Zones Act of 1990 that defining and enforcing criminal law primarily rests with the states); Richmond Boro Gun Club, Inc. v. City of New York, 97 F.3d 681, 687 (2d Cir.1996) (recognizing in its preemption review of a city gun ordinance that areas of safety and health are traditionally occupied by the states). Accordingly, our analysis is guided by the assumption that Congress did not intend the OSH Act to preempt the Amendments. See Altria Group, 129 S.Ct. at 543.

B.

Congress's declared "purpose and policy" in enacting the OSH Act was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. § 651(b). To effect its stated purpose, Congress authorized the Secretary of Labor and OSHA to set and enforce occupational safety and health standards for businesses. See 29 U.S.C. § 651(b)(3); see also OSHA's Role, http://www .osha.gov/ oshinfo/mission.html. In addition to requiring employers' compliance with OSHA's promulgated standards, see 29 U.S.C. § 654(a)(2), Congress imposed upon employers a general duty to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." 29 U.S.C. § 654(a)(1). This provision of the OSH Act, known as the general duty clause, was not meant to "be a general substitute for reliance on standards, but would simply enable the Secretary to insure the protection of employees who are working under special circumstances for which no standard has yet been adopted." S.Rep. No. 91-1282, at 5186 (1970).

The original impetus behind the OSH Act was danger surrounding traditional work-related hazards. See 29 U.S.C. § 651(a) (noting the OSH Act arose from concern surrounding "personal injuries and illnesses arising out of work situations"); S. Rep. 91-1282, at 5178 (describing at length the problems of industrial accidents and occupational diseases, without referencing workplace violence). In...