Marshall Lloyd v. Ford Motor Co.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0080p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
IN RE: FORD MOTOR COMPANY F-150 AND RANGER TRUCK FUEL ECONOMY │
MARKETING AND SALES PRACTICES LITIGATION. │
__________________________________________________________ │
MARSHALL B. LLOYD; TRACEY TRAVIS; DUSTIN DAWSON AND RICK SHAWLEY; │ No. 22-1245
MICHAEL SMITH; EVAN ALLEN; AL BALLS; BRIAN LEJA; STEPHEN MATTSON; >
JOHN SAUTTER; RANDY TRANSUE; RICK SHURTLIFF; RONALD J. DISMUKES; │
JEFFERY FOSHEE; ACCURATE CONSTRUCTION CORPORATION; STEVE BEAVERS; │
DAVID BREWER; RYAN COMBS; VICTOR PEREZ; HAROLD BROWER; KYLE │
MANNION; NICHOLAS LEONARDI; DEAN KRINER; JAMES WILLIAMS; MATTHEW │
COMBS; DUSTIN WALDEN; STEVEN HULL; KENNETH BERNARD; MARK HILL; │
CODY SMITH; DANIEL GARDNER; ROBERT GOOLSBY; JOHN JUNG; MATTHEW │
SMITH; JOSH BRUMBAUGH; RYAN HUBERT; WILLIAM DON COOK; HILARY │
GOODFRIEND; KATHRYN HUMMEL; SCOTT FORMAN; DILLON DRAKE; RAMIN │
SARTIP, DARREN HONEYCUTT; AHMED ABDI; JAMAR HAYNES; SCOTT │
WHITEHILL; MATTHEW BROWNLEE; BENJAMIN BISCHOFF, STEPHEN │
LESZCZYNSKI; CASSANDRA MORRISON; ROBERT RANEY; DAVID POLLEY; MARK │
NAPIER; KEITH FENCL; MARK ARENDT; HARVEY ANDERSON; ROSALYNDA │
GARZA; JEFFREY QUIZHPI; JEFFREY KALOUSTIAN; RONALD CEREMELLO; │
RANDALL MAINGOT; GEORGE ANDREW RAYNE; ROBERT LOVELL; SAMUEL │
HUFFMAN, │
│
Plaintiffs-Appellants, │
│
v.
│
FORD MOTOR COMPANY, │
│
Defendant-Appellee. ┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
Nos: 19-md-02901, 19-cv-11319, 19-cv-11639, 19-cv-11728, 19-cv-11728, 19-cv-
11993, 19-cv-12015, 19-cv-12035, 19-cv-12080, 19-cv-12135, 19-cv-12309–12310, 19-
cv-12373, 19-cv-12375, 19-cv-12377, 19-cv-12427, 19-cv-12436–12438, 19-cv-12554,
19-cv-12895, 19-cv-13197, and 20-cv-12272—Sean F. Cox, District Judge.

Argued: March 8, 2023

Decided and Filed: April 21, 2023

Before: GRIFFIN, BUSH, and MURPHY, Circuit Judges.
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 2
Econ. Marketing and Sales Practices Litig.

_________________

COUNSEL

ARGUED: Steve W. Berman, HAGENS BERMAN SOBOL SHAPIRO LLP, Seattle,
Washington, for Appellants. Stephanie A. Douglas, BUSH SEYFERTH PLLC, Troy, Michigan,
for Appellee. ON BRIEF: Steve W. Berman, HAGENS BERMAN SOBOL SHAPIRO LLP,
Seattle, Washington, E. Powell Miller, Sharon S. Almonrode, Emily E. Hughes, THE MILLER
LAW FIRM, Rochester, Michigan, Adam J. Levitt, John E. Tangren, DICELLO LEVITT
GUTZLER LLC, Chicago, Illinois, for Appellants. Stephanie A. Douglas, BUSH SEYFERTH
PLLC, Troy, Michigan, Jill M. Wheaton, Kyle M. Asher, DYKEMA GOSSETT PLLC, Ann
Arbor, Michigan, for Appellee.
_________________

OPINION
_________________

GRIFFIN, Circuit Judge.

Plaintiffs are a group of consumers alleging that defendant Ford Motor Company
intentionally submitted false fuel economy testing figures for certain vehicles to the U.S.
Environmental Protection Agency (EPA). Plaintiffs claim that this, in turn, led the agency to
provide an inaccurate fuel economy estimate to consumers, which induced consumers (including
plaintiffs) to buy those vehicles. The district court ruled that federal law preempted plaintiffs’
state-law claims. We agree and affirm.

I.

This case centers on allegations that Ford cheated on its fuel economy and emissions
testing for certain truck models, including the F-150 and Ranger. The Energy Policy and
Conservation Act (EPCA), 42 U.S.C. § 6201 et seq., and its corresponding regulations
specifically control such testing, so an initial overview of this testing regime is in order.

Congress enacted the EPCA in 1975 to develop a comprehensive regulatory scheme for
fuel economy testing; the stated purposes of the act include “improv[ing] energy efficiency of
motor vehicles” and “provid[ing] a means for verification of energy data to assure the reliability
of energy data.” 42 U.S.C. § 6201(5), (7). This act introduced corporate average fuel economy
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 3
Econ. Marketing and Sales Practices Litig.

(CAFE) standards that automobile manufacturers must follow in designing, manufacturing, and
marketing their vehicles. See, e.g., 15 U.S.C. §§ 2001–13 (1975). In 1994, Congress updated
those standards. See Pub. L. 103-272, 108 Stat. 745 (1994); 49 U.S.C. §§ 32901–19. Those
standards, applicable today, require automobile manufacturers to follow the EPA’s fuel economy
standards, see § 32902, describe how the EPA and manufacturers calculate average fuel
economy, see § 32904, dictate how manufacturers report the resulting figures, see § 32908, and
set requirements for how the EPA ensures compliance with the CAFE standards, see § 32911.
The EPA has the authority to implement these statutes by regulation. See, e.g., 49 U.S.C.
§§ 32902(k)(2); 32908(g)(1).

These statutes and corresponding regulations mandate that manufacturers follow a
complex testing methodology set by the EPA. To produce testing data that the EPA uses in its
own fuel economy calculation, manufacturers test the fuel economy of their vehicles with a
dynamometer. 40 C.F.R. § 1066.401 et seq.; U.S. EPA, How Vehicles are Tested.1
A dynamometer is essentially a “treadmill for vehicles” (as plaintiffs describe), and, as such, it
does not naturally simulate other environmental and physical forces acting on a vehicle during
normal operation like “aerodynamic drag, tire rolling resistance, driveline losses, and other
effects of friction.” 40 C.F.R. § 1066.301. The dynamometer thus must be calibrated to recreate
those forces through incorporation of “road load” figures, 40 C.F.R.§ 1066.210(a), which is “the
force imparted on a vehicle while driving at constant speed over a smooth level surface from
sources such as tire rolling resistance, driveline losses, and aerodynamic drag,” U.S. EPA, 2015-
04: Determination and Use of Vehicle Road-Load Force and Dynamometer Settings 2 (Feb. 23,
2015). “The general procedure for determining road-load force is performing coastdown tests
and calculating road-load coefficients.” 40 C.F.R. § 1066.301(b). “This procedure is described
in SAE J1263 and SAE J2263” and “incorporated by reference in § 1066.1010,” though the
regulations allow “certain deviations from those procedures for certain applications.” Id.2

1
Available at: https://www.fueleconomy.gov/feg/how_tested.shtml (last visited April 19, 2023).
2
“SAE” refers to the Society of Automotive Engineers, a “global association of more than 128,000
engineers and related technical experts in the aerospace, automotive, and commercial-vehicle industries.” About SAE
International, available at https://www.sae.org/about (last visited April 19, 2023). The SAE develops engineering
mobility standards, including those referenced here, to further “[t]he design of safety, productivity, dependability,
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 4
Econ. Marketing and Sales Practices Litig.

Coastdown testing tells manufacturers “how much rolling resistance and drag a vehicle
has[,] so that when a vehicle is testing on a dynamometer, the manufacturer knows how much
drag and rolling resistance to apply to the vehicle to simulate the road.” First Amended
Complaint (Complaint), R.78, PageID 2056; see also U.S. EPA, 2015-04: Determination and
Use of Vehicle Road-Load Force and Dynamometer Settings 4. “In a coastdown test, a vehicle is
brought to a high speed on a flat, straight road,” at about eighty mph, “and then set coasting in
neutral until it slows to a low speed,” at about nine mph. Complaint, R.78, PageID 2151, 2168.
The test is performed at least five times, and, each time, devices on the vehicle measure
environmental conditions, performance data, speed, and distance traveled. Id. A manufacturer
records the time it takes for a vehicle to slow as “[t]he test produces data that identifies or maps
the drag and other forces acting on the vehicle in the real world.” Id. at 2168–69. The
coastdown testing ultimately produces the figures used for dynamometer testing (known as
“target coefficients”), thus allowing the dynamometer to simulate the “actual load on the
[vehicle’s] engine during on-road driving.” Id. at 2170–71, 2173.

Once a manufacturer determines a vehicle’s road-load “target coefficients,” 40 C.F.R.
§ 1066.301(a), it uses those coefficients in its simulated dynamometer testing, see id. § 1066.210.
The EPA also heavily regulates this testing, see 49 U.S.C. § 32904(c), and its regulations again
prescribe the exact process (and formulas) a manufacturer must use. See 40 C.F.R. § 600.210-
12(a), (b); U.S. EPA, Testing at the National Vehicle and Fuel Emissions Laboratory.3

Throughout this entire process, manufacturers must “establish, maintain, and retain”
records relating to their testing, 40 C.F.R. § 600.005(a), and allow the EPA to access or inspect
testing facilities, id. § 600.005(b). Once a manufacturer has finished testing a vehicle, it must
submit the results and supporting documentation to the EPA. Id. § 600.006; see also 49 U.S.C.
§ 32907(b). The EPA may require the manufacturer to submit the disputed vehicle for testing or
to conduct additional testing itself if, “based on the results of an inspection . . . or any other

efficiency, and certification.” See SAE Standards, available at https://www.sae.org/standards (last visited April 19,
2023).
3
Available at: https://www.epa.gov/greenvehicles/testing-national-vehicle-and-fuel-emissions-laboratory
(last visited April 19, 2023).
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 5
Econ. Marketing and Sales Practices Litig.

information,” the agency “has reason to believe that the manufacturer has not followed proper
testing procedures,” the “testing equipment is faulty or improperly calibrated,” or the records
provided to the EPA cannot confirm the manufacturer’s figures. 40 C.F.R. § 600.008(e)(1).

Once a manufacturer submits data for review, that data “must be judged reasonable and
representative” by the EPA. Id. § 600.008(c)(1). In reviewing the data, the EPA may accept it,
require additional manufacturer testing, or perform its own confirmatory testing. Id.
§ 600.008(c). The EPA confirms about “15-20%” of manufacturer-provided test results through
its own testing. U.S. EPA, How Vehicles are Tested. If it does perform such testing, it compares
its own data with that provided by the manufacturer; if an “unacceptable” discrepancy exists, the
EPA may reject “all fuel economy data submitted by the manufacturer until the cause of the
discrepancy is determined and the validity of the data is established by the manufacturer.”
40 C.F.R. § 600.008(a), (d). If the agency does not perform its own confirmatory testing, a
manufacturer “must” instead perform said testing if certain “conditions” exist, including a prior
failure of an emissions standard or that the reported fuel economy is “higher than expected based
on procedures approved by the” EPA. Id. § 600.008(b)(1). The EPA evaluates confirmatory
results submitted by the manufacturer for “reasonableness and representativeness.” Id.
§ 600.008(c)(3).

Once the EPA is satisfied with the fuel economy figure, it adopts that figure as its own.
See 49 U.S.C. § 32904(c) (dictating that “[t]he [EPA] Administrator shall measure fuel economy
for each model and calculate average fuel economy for a manufacturer under testing and
calculation procedures prescribed by the Administrator”) (emphasis added). The EPCA
establishes that the “fuel economy” of a vehicle produced by these procedures is “the average
number of miles traveled by an automobile for each gallon of gasoline (or equivalent amount of
other fuel) used, as determined by the [EPA] Administrator under [49 U.S.C. §] 32904(c).” Id.
§ 32901(a)(11) (emphasis added). And the regulations provide that, so long as the estimates
satisfy the EPA’s prescribed testing procedures, “[t]he label values that the manufacturer
calculates and submits . . . shall constitute the EPA fuel economy estimates.” 40 C.F.R.
§ 600.312-08(a)(3). See also Fuel Economy Labeling of Motor Vehicles: Revisions To Improve
Calculation of Fuel Economy Estimates, 71 Fed. Reg. 77872, 77872–76 (Dec. 27, 2006) (to be
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 6
Econ. Marketing and Sales Practices Litig.

codified at 40 C.F.R. pts. 86 and 600) (describing the estimates as “the EPA fuel economy
estimates”). This figure is included by law on the label, colloquially called a “Monroney”
sticker, that is attached to each new vehicle sold. 49 U.S.C. § 32908(b)(1)(A); 40 C.F.R.
§ 600.302-12; see also Fuel Economy Labeling of Motor Vehicles, 71 Fed. Reg. at 77916 n.80.

The purpose of the standardized EPA estimate is two-fold. It not only “provide[s]
consumers with a basis on which to compare the fuel economy of different vehicles,” but it also
“provide[s] consumers with a reasonable estimate of the fuel economy they can expect to
achieve.” Fuel Economy Labeling of Motor Vehicles, 71 Fed. Reg. at 77873. But the EPA also
warns consumers that the estimates are, indeed, estimates. “[F]uel economy varies from driver
to driver for a wide variety of reasons, such as different driving styles, climates, traffic patterns,
use of accessories, loads, weather, and vehicle maintenance.” Id. at 77874; see also 40 C.F.R.
§ 600.302-12(b)(4) (providing that the Monroney sticker must include the disclaimer: “Actual
results will vary for many reasons, including driving conditions and how you drive and maintain
your vehicle.”).

The EPA monitors compliance with these requirements. See 49 U.S.C. §§ 32910–12. If
the EPA suspects that a manufacturer has “fail[ed] to comply with an applicable average fuel
economy standard” under § 32902, it “shall conduct a proceeding, with an opportunity for a
hearing on the record, to decide whether a violation has been committed.” Id. § 32911(b). If, at
any point during the model year, the EPA determines that the label values have been calculated
incorrectly, it may correct those figures or require the manufacturer to do so. 40 C.F.R.
§ 600.312-08(a)(5). Among the possible violations a manufacturer could commit would be in its
“obligation to report truthful and complete information” following testing. 40 C.F.R.
§ 1066.2(b); see also 49 U.S.C. § 32911. The EPA may “void any certificates or approvals
associated with a submission of information,” including “for all engine families certified based
on emission data collected,” if it determines that the manufacturer “intentionally submitted false,
incomplete, or misleading information.” 40 C.F.R. § 1066.2(c). Civil and criminal penalties
may also apply. Id. § 1066.2(b) (citing 18 U.S.C. § 1001 and 42 U.S.C. § 7413(c)(2)).
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 7
Econ. Marketing and Sales Practices Litig.

While the EPA regulates the fuel economy estimate provided to consumers on the
Monroney sticker, the Federal Trade Commission (FTC) regulates advertising to consumers.
Fuel Economy Labeling of Motor Vehicles, 71 Fed. Reg. at 77917. Its “Guide Concerning Fuel
Economy Advertising for New Vehicles . . . advises vehicle manufacturers and dealers how to
disclose the established fuel economy of a vehicle, as determined by the [EPA’s] rules.” Id. The
FTC also discourages manufacturers from advertising other fuel economy figures beyond that
determined by the EPA: “Given consumers’ exposure to EPA estimated fuel economy values
over the last several decades, fuel economy and driving range estimates derived from non–EPA
tests can lead to deception if consumers understand such estimates to be fuel economy ratings
derived from EPA–required tests.” 16 C.F.R. § 259.4(l)(1). “Accordingly, advertisers should
avoid such claims and disclose the EPA fuel economy or driving range estimates.” Id.

II.

Pursuant to this testing regime, Ford conducted testing and provided the resulting figures
to the EPA for the 2018, 2019, and 2020 F-150 and 2019 and 2020 Ranger trucks. The EPA then
published its fuel-economy estimates for those vehicles. The F-150 had an EPA-estimated mpg
of 20 city, 26 highway, and 22 combined, while the Ranger had an EPA-estimated 20 city, 25,
highway, and 22 combined mpg. Ford used these figures in its advertisements, promoting the
2019 Ranger as the “most fuel-efficient gas-powered midsize pickup in America” and the F-150
as “best in class for fuel economy.”

Plaintiffs claim, however, that Ford committed fraud in its testing. In September 2018,
several Ford employees questioned the testing process, which led to Ford announcing that it
would investigate its testing of the 2019 Ranger and other vehicles. It then disclosed that it was
under criminal investigation by the Department of Justice (DOJ) for its emissions and fuel-
efficiency testing. Several other agencies opened investigations, including the EPA. After these
allegations arose, independent car reviewers performed “real-world mileage” tests and
determined that the actual performance of the Ranger and other vehicles was “nowhere close” to
the EPA estimates. Complaint, R.78, PageID 2157–58.
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 8
Econ. Marketing and Sales Practices Litig.

Plaintiffs tested the 2018 Ford F-150 and 2019 Ford Ranger to verify the fuel economy of
those vehicles. Their testing (which they contend conformed to the EPA’s standards) showed
that Ford fraudulently reduced the road-load resistance level used in the dynamometer testing.
The road-load figures obtained from the “coastdown [tests] for each vehicle [were] found to have
more resistance (which would result in more fuel consumption) than the road-load models
reported to the EPA.” Complaint, R.78, PageID 2172. They determined that the mpg estimates
of the F-150 should be 17.7 city, 22.7 highway, and 20.0 combined, with the Ranger being 18.3,
23.4, and 20.6, respectively. In short, plaintiffs’ testing allegedly proves that the EPA estimates
for both those truck models are several mpg better than what they should be. This means that
both trucks consume much more fuel than previously estimated, costing consumers thousands of
dollars in added fuel cost.

Plaintiffs then filed a host of putative class-action suits alleging that Ford cheated during
its coastdown testing procedure to ensure that it received a more favorable fuel economy
estimate from the EPA. The Judicial Panel on Multidistrict Litigation consolidated those cases
in the Eastern District of Michigan. The district court directed plaintiffs to file a consolidated
master complaint, and the ensuing complaint, at nearly 1,000 pages long, included claims of
breach of contract, negligent misrepresentation, breach of express warranty, fraud, and unjust
enrichment under the laws of every state. Plaintiffs requested several forms of relief, including:
1) certification of the proposed class; 2) “Declaring, adjudging, and decreeing the conduct of the
Defendant as alleged herein to be unlawful, unfair, and deceptive”; 3) “Requiring that all Class
members be notified about the lower fuel economy ratings and higher emissions at Ford’s
expense and providing correct fuel economy and emissions ratings”; and 4) awarding plaintiffs
restitution and damages. Id. at 3014–15.

Ford moved to dismiss the complaint, raising a host of reasons. Pertinent for our
purposes, Ford contended that 1) federal law both expressly and impliedly preempted plaintiffs’
claims, 2) the EPA had primary jurisdiction over the case, such that the district court should
dismiss the case, and 3) plaintiffs’ misrepresentation and omission claims failed to state a claim
upon which relief can be granted. The district court agreed with Ford on all counts and
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 9
Econ. Marketing and Sales Practices Litig.

dismissed plaintiffs’ complaint.4 In re Ford Motor Co. F-150 & Ranger Truck Fuel Econ. Mktg.
& Sales Pracs. Litig., No. 2:19-md-02901, 2022 WL 551221 (E.D. Mich., Feb. 23, 2022).
Plaintiffs timely appealed.

III.

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). We review de
novo a district court’s decision to dismiss a case under Rule 12(b)(6), Taylor v. City of Saginaw,
922 F.3d 328, 331 (6th Cir. 2019), including whether the district court properly did so on federal
preemption grounds, McDaniel v. Upsher-Smith Labs., Inc., 893 F.3d 941, 944 (6th Cir. 2018).
In doing so, we must “construe the complaint in the light most favorable to the plaintiff and
accept all allegations as true.” Taylor, 922 F.3d at 331 (citation omitted). The defendant has the
burden of showing that a plaintiff has failed to state a plausible claim for relief. Id. at 331–32.

IV.

The Supremacy Clause of the U.S. Constitution provides that “the Laws of the United
States . . . shall be the supreme Law of the Land . . . , any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. “The phrase ‘Laws of the
United States’ encompasses both federal statutes themselves and federal regulations that are
properly adopted in accordance with statutory authorization.” City of New York v. F.C.C., 486
U.S. 57, 63 (1988). Thus, “state laws that ‘interfere with, or are contrary to the laws of congress,
made in pursuance of the constitution’ are invalid.” Wis. Pub. Intervenor v. Mortier, 501 U.S.
597, 604 (1991) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211 (1824)). This inquiry is largely one
of congressional intent, i.e., whether the statute demonstrates an “intent to supplant state
authority in a particular field.” Id. at 604–05. In line with the standards governing motions for

4
While the case progressed, the federal investigations into Ford’s alleged fraud did too. By the time Ford
moved to dismiss the complaint, the DOJ had closed its investigation and did not intend to take further action. The
EPA similarly closed its own investigation shortly before the district court issued its decision. On appeal, plaintiffs
have acknowledged that these investigations closed without further agency action.
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 10
Econ. Marketing and Sales Practices Litig.

dismissal, a defendant bears the burden of proof in establishing preemption as grounds for
dismissal. Brown v. Earthboard Sports USA, Inc., 481 F.3d 901, 912 (6th Cir. 2007).

Ordinary preemption provides an affirmative defense to support dismissal of a claim (as
Ford did here). Hudak v. Elmcroft of Sagamore Hills, 58 F.4th 845, 852 (6th Cir. 2023).5
“State-law claims can be preempted expressly in a federal statute or regulation, or impliedly,
where congressional intent to preempt state law is inferred.” McDaniel, 893 F.3d at 944 (citation
omitted). Through an express preemption clause, Congress may make clear “that it is displacing
or prohibiting the enactment of state legislation in a particular area.” Matthews v. Centrus
Energy Corp., 15 F.4th 714, 720 (6th Cir. 2021). By contrast, implied preemption applies in one
of two forms: field or conflict. Id. “Field preemption occurs ‘where the scheme of federal
regulation is so pervasive as to make reasonable the inference that Congress left no room for the
States to supplement it.’” Id. (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98
(1992)). Conflict preemption may instead be present when “Congress has not entirely displaced
state regulation over the matter in question.” Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248
(1984). In that circumstance, state law may be preempted “to the extent it actually conflicts with
federal law, that is, when it is impossible to comply with both state and federal law, or where the
state law stands as an obstacle to the accomplishment of the full purposes and objectives of
Congress.” Id. (internal citations omitted).

A.

We begin and end with implied preemption. Ford asserts that plaintiffs’ fraud-on-the-
agency claims are impliedly preempted because those claims conflict with the EPA’s testing and
fraud-policing authority set forth in the EPCA and with the fact that the EPA is responsible for
the fuel economy figures. Plaintiffs say otherwise, arguing their claims are based on state-law
duties that are identical to those that federal law imposes on auto manufacturers. We agree with

5
Ordinary preemption is distinguished from the “misleadingly named doctrine” of complete preemption, a
“jurisdictional” doctrine under which a court could conclude “that the pre-emptive force of a statute is so
extraordinary that it converts an ordinary state common-law complaint into one stating a federal claim for purposes
of the well-pleaded complaint rule.” Hogan v. Jacobson, 823 F.3d 872, 879 (6th Cir. 2016) (quotation marks
omitted). This “complete preemption” doctrine is a narrow one that the Supreme Court has applied in only three
statutory settings. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6–11 (2003).
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 11
Econ. Marketing and Sales Practices Litig.

Ford and conclude that plaintiffs’ claims inevitably conflict with the EPCA and its regulatory
scheme.6

In this, as in any preemption inquiry, the Supreme Court instructs that the “purpose of
Congress is the ultimate touchstone,” as “explicitly stated in the statute’s language or implicitly
contained in its structure and purpose.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)
(citations omitted). We normally “apply a strong presumption against implied preemption in
fields that States traditionally regulate” because “preemption can trammel upon state
sovereignty.” Torres v. Precision Indus., 995 F.3d 485, 491 (6th Cir. 2021) (per curiam)
(citation and internal quotation marks omitted); cf. Puerto Rico v. Franklin Cal. Tax-Free Tr.,
579 U.S. 115, 125 (2016). Further, the presence of an express preemption provision “does not
bar the ordinary working of conflict pre-emption principles.” Geier v. Am. Honda Motor Co.,
Inc., 529 U.S. 861, 869 (2000).

Although no court has addressed implied preemption in this specific context, we do not
write on a blank slate—a host of caselaw exists addressing similar fraud-on-the-agency claims in
the context of implied preemption. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341
(2001), is the seminal case. There, the plaintiffs claimed injuries resulting from bone screws that
had been reviewed and approved by the Food and Drug Administration (FDA). Id. at 343–46.
The Court began its analysis by noting that no presumption against preemption existed in this
context: “Policing fraud against federal agencies is hardly ‘a field which the States have
traditionally occupied,’ such as to warrant a presumption against finding federal pre-emption of a
state-law cause of action.” Id. at 347 (internal citation omitted). Instead, “the relationship
between a federal agency and the entity it regulates is inherently federal in character because the
relationship originates from, is governed by, and terminates according to federal law.” Id.

Given that lack of presumption, the Court held that “the plaintiffs’ state-law fraud-on-the-
FDA claims conflict with, and are therefore impliedly pre-empted by, federal law.” Id. at 348.
Its reasoning was straightforward—the federal scheme empowered the FDA to punish and deter

6
Given that our conclusion on implied preemption disposes of the case entirely, we need not address the
alternative arguments the parties raise, including express preemption. See Buckman Co. v. Plaintiffs’ Legal Comm.,
531 U.S. 341, 348 n.2 (2001).
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 12
Econ. Marketing and Sales Practices Litig.

fraud, and the agency used that authority to balance several statutory objectives, which state-law
fraud-on-the-agency claims would skew. Id. For example, the FDA has “a variety of
enforcement options that allow it to make a measured response to suspected fraud upon the
[agency].” Id. at 349. And the FDA had “flexibility” in pursuing its objectives, including “the
difficult task of regulating the marketing and distribution of medical devices without intruding
upon decisions statutorily committed to the discretion of health care professionals.” Id. at 349–
50. Thus, state-law fraud-on-the-agency claims would “inevitably conflict with the FDA’s
responsibility to police fraud consistently with the Administration’s judgment and objectives.”
Id. at 350. “In sum, were plaintiffs to maintain their fraud-on-the-agency claims here, they
would not be relying on traditional state tort law” predating the federal law at issue. Id. at 353.
“On the contrary, the existence of these federal enactments is a critical element in their case;” the
claims existed solely because of the FDA’s regulatory and disclosure scheme. Id. Therefore,
“this sort of litigation would exert an extraneous pull on the scheme established by Congress, and
it is therefore pre-empted by that scheme.” Id.

Courts have applied Buckman to other regulatory schemes. Consider Garcia v. Wyeth-
Ayerst Laboratories, 385 F.3d 961 (6th Cir. 2004). There, we held that a Michigan statute
immunizing drug manufacturers from product-liability claims was not facially unconstitutional;
as part of our analysis, we concluded that a state-law fraud-on-the-FDA tort claim was impliedly
preempted under Buckman. Id. at 965–66. In so doing, we reasoned that “Buckman teaches that
state tort remedies requiring proof of fraud committed against the FDA are foreclosed since
federal law preempts such claims.” Id. at 966 (citation omitted).

The Ninth Circuit similarly applied Buckman to hold that state-law claims of improper
disclosures related to the harmful effects of a pesticide were preempted under the Federal
Insecticide, Fungicide, and Rodenticide Act. Nathan Kimmel, Inc. v. DowElanco, 275 F.3d
1199, 1205–06 (9th Cir. 2002). That act, like the FDA scheme in Buckman, “is a comprehensive
regulatory scheme aimed at controlling the use, sale, and labeling of pesticides,” and it both
required EPA approval of a pesticide’s label and prohibits submitting false information. Id. at
1204. The Ninth Circuit concluded that Buckman’s analysis similarly applied—the scheme
empowered the EPA to punish fraud, the balancing of statutory objectives can be skewed by
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 13
Econ. Marketing and Sales Practices Litig.

allowing fraud-on-the-agency claims to proceed, and “the existence of the [act’s] requirements
are similarly a critical element of [the plaintiff’s] state-law case.” Id. at 1204–06.

And in Farina v. Nokia, Inc., the Third Circuit held that state-law claims alleging the
fraudulent marketing of cell phones as safe despite their dangerous radio frequencies were
preempted by federal law governing the Federal Communications Commission (FCC). 625 F.3d
97, 104 (3d Cir. 2010). “The Supreme Court’s preemption case law indicates that regulatory
situations in which an agency is required to strike a balance between competing statutory
objectives lend themselves to a finding of conflict preemption.” Id. at 123 (citing Buckman, 531
U.S. at 348). The purpose of the FCC’s regulations was to balance protecting the public from
emissions with enabling companies to supply quality services in a cost-effective way, and the
FCC’s balancing of these objectives “is a policy question, not a legal one.” Id. at 124–25
(citation omitted). “A jury determination that cell phones in compliance with the FCC’s [radio
frequency] guidelines were still unreasonably dangerous would, in essence, permit a jury to
second guess the FCC’s conclusion” and, given that state-law standards vary, “eradicat[e] the
uniformity necessary to regulating the wireless network.” Id. at 125–26.

Buckman and its progeny apply with equal force here—the regulatory scheme governing
the EPA’s approval of fuel economy estimates preempts plaintiffs’ state-law claims. Both the
EPCA and its corresponding regulations set the standards for testing that a manufacturer must
follow. The regulations dictate how a manufacturer must test on a dynamometer, see, e.g.,
40 C.F.R. § 1066.401, et seq., and how to input correct road-load figures to simulate normal drag
and friction, id. §§ 1066.301, 1066.1010. They set specific standards for testing, id.
§ 1066.301(b), and provide formulas to calculate city and highway fuel mileage, id. § 600.210-
12. Throughout this process, the EPA is empowered to investigate suspected fraud. See 49
U.S.C. §§ 32910–12. If it suspects a manufacturer is not following proper testing procedures, the
agency may require the manufacturer to submit the vehicle for inspection or to conduct
additional testing. 40 C.F.R. § 600.008. When a manufacturer later submits proposed figures,
the EPA must review them for reasonableness before adopting those figures; if those figures are
not reasonable, the EPA may again require additional testing. Id. Manufacturers have an
obligation to submit truthful information, and the EPA may take corrective or punitive action if
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 14
Econ. Marketing and Sales Practices Litig.

information is incomplete or false. 40 C.F.R. § 1066.2. The EPA thus “has at its disposal a
variety of enforcement options that allow it to make a measured response to suspected fraud
upon the Administration.” Buckman, 531 U.S. at 349. And, ultimately, the fuel economy figure
is the EPA’s own; it is not adopted or published unilaterally by Ford (or by any other
manufacturer). See 49 U.S.C. §§ 32904(c), 32901(a)(11).

The EPA uses this regulatory scheme to “achieve a somewhat delicate balance of
statutory objectives” in providing fuel economy estimates. See Buckman, 531 U.S. at 348. The
testing regime—whereby manufacturers test the vehicles and submit the figures before the EPA
may confirm those figures in several ways—is “designed to represent a reasonable balance
between the need for accurate fuel economy data and the need to contain the cost of testing for
both industry and EPA.” Fuel Economy Labeling of Motor Vehicles, 71 Fed. Reg. at 77881.
The “criteria for use of the mpg-based approach . . . are based on the balance of three factors.”
Id. at 77897. “First, [the EPA] designed them to be sufficiently large so that typical test-to-test
variability would not cause a test group to fail the criteria.” Id. “Second, [the EPA] want[ed] to
minimize the potential error in the fuel economy label.” Id. “Third, [the EPA] want[ed] to avoid
requiring additional fuel economy testing that will have little to no impact on the label values.”
Id. This balance is reflected in what the EPA requires for approval of fuel economy figures: that
they be “reasonable and representative.” 40 C.F.R. § 600.008(c)(1). The EPA does not require
the figures to be strictly accurate; rather, they must be reasonably related to the testing performed
and the EPA’s expected fuel economy ratings. This demonstrates that the EPA has significant
discretion throughout this process.

Plaintiffs’ claims inevitably conflict with this regime.7 First, because the EPA accepted
Ford’s testing information and published its estimate based on that information, plaintiffs’ claims
essentially challenge the EPA’s figures. Cf. Farina, 625 F.3d at 122 (“Whether or not Farina
intends to expressly challenge the FCC standards at trial, the inescapable effect of his complaint
is to do so.”). To evaluate their claims, a jury would have to decide whether Ford’s testing
7
As a threshold matter, Buckman made clear that state law has not traditionally regulated fraud against a
federal agency; that relationship is “inherently” federal because it owes its very existence to federal law. 531 U.S. at
347–48. Thus, unlike in other circumstances where states have traditionally regulated conduct, cf. Torres, 995 F.3d
at 491, no presumption against preemption exists here (and plaintiffs do not argue to the contrary).
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 15
Econ. Marketing and Sales Practices Litig.

figures are correct or fraudulent. This inescapably and impermissibly puts a jury into the EPA’s
regulatory shoes. See id. at 125 (“Allowing juries to impose liability on cell phone companies
for claims like Farina’s would conflict with the FCC’s regulations.”). So even though the EPA
exercised its statutory duty and found Ford’s testing to be acceptable, a jury would still make its
own determination, thus conflicting with the EPA’s authority to set its own fuel-economy
figures.

Second, allowing juries to second-guess the EPA’s fuel economy figures would permit
them to rebalance the EPA’s objectives. As explained, the EPA’s process accounts for several
factors, including cost, accuracy of data, and redundancy of testing. See Fuel Economy Labeling
of Motor Vehicles, 71 Fed. Reg. at 77881, 77897. The EPA does not require manufacturers’ fuel
economy figures to be stringently accurate, and it warns consumers that estimates may vary. See
40 C.F.R. § 600.302-12(b)(4). It is for the EPA, not a jury, to balance its own objectives in
determining whether fuel economy data is reasonable: “Allowing juries to perform their own
risk-utility analysis and second-guess the [EPA’s] conclusion would disrupt the expert balancing
underlying the federal scheme.” Farina, 625 F.3d at 126. Because the EPA’s authority must
balance certain statutory objectives, it “can be skewed by allowing fraud-on-the-[EPA] claims
under state tort law.” Buckman, 531 U.S. at 348; see also Geier, 529 U.S. at 875–81 (holding
that federal law preempted state-law claims based on the lack of airbags because the Department
of Transportation’s regulation depended on a balancing of multiple factors, such as safety, cost,
technological development, and consumer preferences).

Third, as the EPA has the authority to approve or reject fuel economy figures, its “federal
statutory scheme amply empowers the [agency] to punish and deter fraud.” Buckman, 531 U.S.
at 348. The EPA has several statutory and regulatory ways to police suspected fraud and
monitor compliance with its testing procedures. See, e.g., 49 U.S.C. § 32910; 40 C.F.R.
§ 600.312-08; 40 C.F.R. § 600.008; 40 C.F.R. § 1066.2. Thus, “Congress has afforded the EPA
substantial enforcement powers under [the EPCA] that enable the EPA to make a measured
response to suspected fraud against it,” including conducting hearings, requiring additional
testing, and rejecting a manufacturer’s data. Kimmel, 275 F.3d at 1205–06. Both determining
whether a manufacturer has committed fraud against the agency and policing said fraud is,
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 16
Econ. Marketing and Sales Practices Litig.

consequently, the responsibility of the EPA. Such explicit authority was a foundational reason
Buckman determined the claims at issue were preempted. See 531 U.S. at 350 (“State-law fraud-
on-the-FDA claims inevitably conflict with the FDA’s responsibility to police fraud consistently
with the Administration’s judgment and objectives.”). In adjudicating a state-law claim, a jury
would be empowered to usurp the EPA’s fraud-policing powers.

Finally, state-law claims would skew the disclosures that manufacturers need to make to
the EPA. Manufacturers like Ford have documentation that they must submit to the EPA, and
the EPA has the responsibility to determine whether this documentation is sufficient. See
40 C.F.R. § 600.008(e)(1). But if a state-law claim were to proceed, a jury may find this
documentation inadequate even if the EPA had previously determined otherwise. Thus, as was
noted in Buckman, “[a]pplicants would then have an incentive to submit a deluge of information
that the Administration neither wants nor needs, resulting in additional burdens on the [EPA’s]
evaluation” of the manufacturer’s fuel economy data. 531 U.S. at 351. This would burden the
agency’s approval process and obstruct its goal of “provid[ing] consumers with a basis on which
to compare the fuel economy of different vehicles.” Fuel Economy Labeling of Motor Vehicles,
71 Fed. Reg. at 77873.

In sum, federal law provides how the EPA regulates fuel economy standards and what the
EPA must balance in arriving at its own estimates. It similarly gives the EPA significant
authority to investigate and deter fraud. State-law tort claims, like plaintiffs’, would skew this
balance and permit juries to take the EPA’s place in determining whether fuel economy estimates
are reasonable. Therefore, as with the claims and regulatory scheme in Buckman, plaintiffs’
claims are preempted as conflicting with federal law. See 531 U.S. at 348.

B.

Plaintiffs contend that several Supreme Court cases dictate the opposite conclusion.
First, they cite Wyeth v. Levine, where the Supreme Court addressed preemption of state-law
claims based on a manufacturer’s failure to warn consumers of a drug’s possible side effects.
555 U.S. 555, 559–60 (2009). The Court held that the FDA’s approval of the drug label did not
preempt these claims—under the federal regulatory scheme at issue, the manufacturer bore the
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 17
Econ. Marketing and Sales Practices Litig.

responsibility for the label’s contents, and the regulations permitted unilateral alteration of the
label. Id. at 568–73. Therefore, the state-law claims complemented federal law, and the
manufacturer “failed to demonstrate that it was impossible for it to comply with both federal and
state requirements.” Id. at 573. Then, they point to Silkwood v. Kerr-McGee Corp., where the
Court determined that federal law did not preempt a state damages award arising from an escape
of plutonium from a nuclear facility. 464 U.S. at 241, 258. Congress had provided strict safety
regulations for such facilities, but it never provided any remedy for a violation of those standards
that would preempt a state law. Id. at 253–56. Thus, “Congress assumed that state-law
remedies, in whatever form they might take, were available to those injured by nuclear
incidents.” Id. at 256. And, finally, they raise Medtronic v. Lohr, where the Court held that
state-law claims were not preempted by a statute prohibiting requirements that were “different
from, or in addition to,” federal requirements. 518 U.S. 470, 492–502 (1996). Nothing in the
preemption statute at issue denied a state “the right to provide a traditional damages remedy for
violations of common-law duties when those duties parallel federal requirements.” Id. at 495;
see also Bates v. Dow Agrosciences LLC, 544 U.S. 431, 447–48 (2005) (concluding that, so long
as a state law imposed only a “parallel requirement[],” no express preemption applied—the
statute did “not preclude States from imposing different or additional remedies, but only different
or additional requirements”); Fulgenzi v. PLIVA, Inc., 711 F.3d 578, 586–87 (6th Cir. 2013)
(“[The plaintiff’s] suit is not even premised on violation of federal law, but rather on an
independent state duty. The alleged breach arises from the same act, but the legal basis is
different. This is simply not grounds for preemption.”). Plaintiffs claim that these cases
illustrate how Ford’s state-law duties are identical to the EPCA’s and that, given Ford’s fraud,
Ford can comply with both to rectify their actions. We cannot agree.

First, plaintiffs’ fraud-on-the-agency claims here arose out of the EPCA’s requirements—
i.e., that Ford failed to follow the EPCA by not providing truthful information as required by the
EPCA—not solely out of state-law tort principles. “[T]he existence of these federal enactments
is a critical element in their case.” Buckman, 531 U.S. at 353. Both Buckman and Kimmel
distinguished Medtronic and similar caselaw on this basis. See id. at 352 (“[I]t is clear that the
Medtronic claims arose from the manufacturer’s alleged failure to use reasonable care in the
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 18
Econ. Marketing and Sales Practices Litig.

production of the product, not solely from the violation of FDCA requirements.”); Kimmel, 275
F.3d at 1206 (“[W]e believe that the existence of the FIFRA requirements are similarly a critical
element of Kimmel’s state-law case . . . .”). While plaintiffs’ claims may be founded in part on
state-law fraud principles, they are also necessarily premised on violations of federal law,
namely a failure to follow the testing procedures set by the EPA. To demonstrate that Ford
committed fraud, plaintiffs would need to show that Ford failed to follow the EPA-proscribed
testing procedures or its obligation to report truthful information to the EPA. 40 C.F.R.
§ 1066.2(b). Their claims would not exist without specific standards regulating the
dynamometer, “road load,” and coastdown testing process. Therefore, plaintiffs’ claims could
not exist apart from federal law. See Buckman, 531 U.S. at 353 (“[A]lthough Medtronic can be
read to allow certain state-law causes of actions that parallel federal safety requirements, it does
not and cannot stand for the proposition that any violation of the FDCA will support a state-law
claim.”).

Second, unlike in Silkwood, Congress has not disclaimed providing any remedy for
violating the EPA testing process. To the contrary, the regulatory scheme gives the EPA
significant authority to investigate and correct alleged fraud. See 49 U.S.C. §§ 32910–12. The
EPA may impose any number of civil or criminal penalties, including voiding fuel economy data
for all related engine families. 40 C.F.R. § 1066.2(c). These enforcement authorities, combined
with the balancing of EPA’s interests and the fact that these numbers belong to the EPA, strongly
suggest that Congress intended that the EPCA be enforced by the federal government. See
Buckman, 531 U.S. at 352.

Third, and crucially, the regulatory scheme governing fuel economy standards requires
the EPA to approve those figures and publish them as its own. While Ford must provide the
requisite testing data to the EPA, it is the EPA’s responsibility to determine whether that data is
“reasonable”; after doing so, the EPA adopts those figures. See, e.g., 49 U.S.C. § 32901(a)(11);
40 C.F.R. § 600.312-08(a)(3). The EPA must give its own approval, all the while balancing its
statutory and regulatory objectives. This renders Levine distinguishable, where the manufacturer
was responsible for the contents of the drug’s label and could alter it unilaterally without agency
approval. 555 U.S. at 568–73.
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 19
Econ. Marketing and Sales Practices Litig.

PLIVA, Inc. v. Mensing, which held that federal law preempted the state-law failure-to-
warn claims at issue, confirms this distinction. 564 U.S. 604, 609 (2011). The manufacturers in
Mensing—unlike in Levine—did not have the unilateral authority to modify the drug labels:
“Before the Manufacturers could satisfy state law, the FDA—a federal agency—had to
undertake special effort permitting them to do so.” Id. at 623. “[W]hen a party cannot satisfy its
state duties without the Federal Government’s special permission and assistance, which is
dependent on the exercise of judgment by a federal agency, that party cannot independently
satisfy those state duties for pre-emption purposes.” Id. at 623–24. The scheme at issue here is
like that in Mensing—Ford has no authority to modify or update the fuel economy figures for its
vehicles once the EPA has accepted those figures. It must go through the EPA, which has
already balanced several objectives in reaching its figures. Levine did not involve such a
balancing of factors—another reason that it is distinguishable. See, e.g., Farina, 625 F.3d at 130
(“[Levine] was not a balancing case.”).

Finally, plaintiffs attempt to rescue their case by arguing that Ford committed fraud on
consumers, not just the agency. But that distinction is immaterial for reasons previously noted—
any fraud committed by Ford on consumers is a byproduct of alleged fraud committed on the
EPA. One does not exist apart from the other. Consequently, plaintiffs’ claims for fraud on
consumers exist solely because of the EPCA’s requirements. Cf. Buckman, 531 U.S. at 353. In
any event, Ford’s advertisements relied solely on the EPA estimates to proclaim that the Ranger
was the “most fuel-efficient gas-powered midsize pickup in America” and that the F-150 had a
“best-in-class EPA-estimated highway fuel efficiency rating of 30 mpg.” Mere reliance on the
EPA estimates, without making any further disclosures about a vehicle’s supposed real-world
fuel economy, is not enough. See, e.g., Gray v. Toyota Motor Sales, U.S.A., Inc., 554 F. App’x
608, 609 (9th Cir. 2014) (“[A]s a matter of law, there is nothing false or misleading about a car
manufacturer’s advertising that identifies the EPA fuel economy estimates for the car.” (citation
omitted)); In re Ford Fusion and C-MAX Fuel Econ. Litig., No. 13-MD-2450 (KMK), 2015
WL 7018369, at *27 (S.D.N.Y. Nov. 12, 2015) (“To the extent that Plaintiffs’ claims rest on
Defendant’s mere use of EPA estimates . . . such claims are [expressly] preempted.” (citation and
original brackets omitted)). Indeed, complaining about how Ford uses those estimates is
 No. 22-1245 In re Ford Motor Co. F-150 & Ranger Truck Fuel Page 20
Econ. Marketing and Sales Practices Litig.

“tantamount to permitting Plaintiffs to challenge the EPA estimates themselves,” which plaintiffs
cannot do. See In re Ford Fusion and C-MAX Fuel Econ. Litig., No 13-MD-2450 (KMK), 2017
WL 3142078, at *10 (S.D.N.Y. July 24, 2017).

C.

In conclusion, we hold that plaintiffs’ fraud-on-the-agency claims against Ford are
impliedly preempted as conflicting with federal law.8 The EPCA provides ample authority for
the EPA to regulate testing, deter fraud, and publish its own fuel economy estimates. The EPA
must balance several objectives in doing so, and state-law tort claims would skew this balance.
“For the reasons stated above, we think this sort of litigation would exert an extraneous pull on
the scheme established by Congress, and it is therefore pre-empted by that scheme.” Buckman,
531 U.S. at 353.

IV.

For the foregoing reasons, we affirm the judgment of the district court.

8
We do not pass any opinion on the applicability of this analysis in the event that the EPA itself determines
that a manufacturer committed fraud in its fuel-economy testing. Cf. Buckman, 531 U.S. at 353–54 (Stevens, J.,
concurring) (noting that, if the agency had found fraud, “a plaintiff would be able to establish causation without
second-guessing the FDA’s decisionmaking or overburdening its personnel, thereby alleviating the Government’s
central concerns regarding fraud-on-the-agency claims”); Garcia, 385 F.3d at 966 (explaining that Buckman applied
to a plaintiff’s claim “on the basis of state court findings of fraud on the FDA,” but that similar concerns would not
arise “when the FDA itself determines that a fraud has been committed on the agency during the regulatory-approval
process”). Such a situation is not before us as the EPA closed its own investigation into Ford’s alleged fraud
without further action.