Lindsey
Lindsey v. Tacoma-Pierce County Health Department
Opinion
Lead Opinion
ORDER; Concurrence by Judge O’SCANNLAIN.
ORDER
The opinion filed on November 19, 1999 and published at 195 F.3d 1065 is amended to include Judge O’Scannlain’s specially concurring opinion attached hereto.
Concurring Opinion
Scannlain, J.
specially concurring:
I concur in the thorough and well-reasoned opinion of the court, which faithfully applies Supreme Court precedent governing FCLAA preemption, as set forth in Cipollone v. Liggett Group, Inc., 505 U.S. 504 , 112 S.Ct. 2608 , 120 L.Ed.2d 407 (1992). I write separately only to note that in recent decisions outside of the FCLAA context,, the Court appears to be moving toward an approach to preemption issues that is more pragmatic (rather than strictly textual) and more deferential towards state law. See, e.g., New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645 , 115 S.Ct. 1671 , 131 L.Ed.2d 695 (1995) (analyzing ERISA preemption).
The Court has made clear, however, that “[i]f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477, 484 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989); see also Agostini v. Felton, 521 U.S. 203, 237 ,…