Amicus Curiae Brief — Geier v. American Honda Motor Co.

2 ee he ty 9

No. 98-1811 NOV 8 1999

In the Supreme Court of the

ALEXIS GEIER, ET AL., PETITIONERS

v.

AMERICAN HONDA Motor COMPANY, INC., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING AFFIRMANCE

SETH P. WAXMAN

Solicitor General

NANCY E. MCFADDEN Counsel of Record

General Counsel DAVID W. OGDEN

PAUL M. GEIER Acting Assistant Attorney

Assistant General Counsel General

y le .

for Ligation LAWRENCE G. WALLACE

FRANK SEALES, JR. Deputy Solicitor General

Chief Counsel

National Highway Traffic 3 — 9

Safety Administration Sts icitor

9 General

Tra — DOUGLAS N. LETTER

Washington, D.C. 20590 KATHLEEN MORIARTY MUELLER

N Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the National Traffic and Motor Vehicle

Safety Act of 1966, 15 U.S.C. 1381 et seg. (1988), or Fed-

eral Motor Vehicle Safety Standard 208, 49 C.F.R.

571.208 (1987), preempts a state common law tort claim

that an automobile manufactured in 1987 was defec-

tively designed because it lacked an airbag.

TABLE OF CONTENTS

Page

Interest of the United States 1

Statement 2

Summary of argument 8

Argument:

The Safety Act does not expressly preempt petitioners’

tort claims, but the claims are impliedly preempted be-

cause a judgement for petitioners would frustrate the

purposes of Standard 208 10

A. The Safety Act does not expressly preempt

petitioners’ tort claims ll

B. Standard 208 impliedly preempts petitioners’

tort claims 15

Conclusion 30

TABLE OF AUTHORITIES

Cases:

American Tel. & Tel. Co. v. Central Office Tel.,

524 U.S. 214 (1998) 16, 23

Barnett Bank v. Nelson, 517 U.S. 25 (1996) 26

CSX Transp., Inc. v. Easterwood, 507 U.S. 658

(1993) 12

California Fed. Sav. & Loan Ass'n v. Guerra, 479

U.S. 272 (1987) 16

Chicago & N.W. Trans. Co. v. Kalo Brick & Tile

Co., 450 U.S. 311 (1981) 16-17, 22, 26

Cipollone v. Liggett Group, 505 U.S. 504 (1992) ............ » CH

City of Chicago v. Environmental Defense Fund,

511 U.S. 328 (1994) 14

City of New York v. FCC, 486 U.S. 57 (1888) 17

(III)

IV

Cases—Continued: Page

English v. General Elec. Co., 496 U.S. 72 (19990) ............. 16

Fidelity Fed. Sav. & Loan Ass'n v. De la

Cuesta, 458 U.S. 141 (1982) 26

Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963) 17

Freightliner Corp. v. Myrick, 514 U.S. 280

(1995) 7, 11, 16, 26

Gade v. National Solid Waste Management Ass'n,

505 U.S. 88 (1992) 28

Gustafson v. Alloyd Co., 513 U.S. 561 (199557 13, 14

Harris v. Ford Motor Co., 110 F.3d 1410 (9th

Cir. 1997) 10

Hillsborough County v. Automated Med. Labs, Inc.,

471 U.S. 707 (1985) 27

Hines v. Davidowitz, 312 U.S. 52 (1941) 26

International Paper Co. v. Ouellette, 479 U.S. 481

(1987) 16, 25

John Hancock Mut. Life Ins. Co. v. Harris Trust

& Sav. Bank, 510 U.S. 86 (1993) 17-18

Jones v. Rath Packing Co., 430 U.S. 519 (19777 17

Malone v. White Motor Corp., 435 U.S. 497 (1978) ......... 16

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ......... 11, 12, 15, 27

Motor Vehicle Mfrs. Ass'n v. State Farm Mut.

Auto Ins. Co., 463 U.S. 29 (1983) 3

Northwest Cent. Pipeline Corp. v. State Corp.

Comm'n, 489 U.S. 493 (1989) 10

Pacific Legal Found. v. DOT, 593 F. 2d 1338

(D.C. Cir.), cert. denied, 444 U.S. 830 (19799 24

San Diego Bldg. Trades Council v. Garmon, 359

U.S. 236 (1959) 12, 28

Silkwood v. Kerr-McGee Corp., 464 U.S. 238

(1984) 15

Cases—Continued:

State Farm Mut. Auto. Ins. Co. v. Dole, 802 F 2d

474 (D.C. Cir. 1986), cert. denied, 480 U.S. 951

Page

(1987)

Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204

U.S. 426 (1907)

17

Wood v. General Motors Corp.:

865 F. 2d 395 (Ist Cir. 1988), cert. denied, 494 U.S.

1065 (1990) 10, 11, 20, 21, 26

494 U.S. 1065 (1990)

11, 26

Constitution, statutes and regulations:

US. Const. Art. VI, Cl. 2 (Supremacy Clause

Act of July 5, 1994, Pub. L. No. 103-272, 108 Stat. 745

(49 U.S.C. 30101 et seg.)

9, 17,27

—

es

§ l(a), 108 Stat. 745

—

§ 1(e), 108 Stat. 941-973

Intermodal Surface Transportation Efficiency Act of

1991, 49 U.S.C. 30101 et seg.

49 U.S.C. 30108

49 U.S.C. 30100

49 U.S.C. 30103(b)(1)

49 U.S.C. 30103(e)

49 U.S.C. 30127

go yo

BR

49 U.S.C. 3012702)

Motor Vehicle and School Bus Safety Amendments

of 1974, Pub. L. No. 93-492, § 109, 88 Stat. 1482

(15 U.S.C. 1401(b) (1988))

National Traffic and Motor Vehicle Safety Act of

1966, 15 U.S.C. 1381 et seg. (1988):

15 U.S.C. 1381

15 U.S.C. 1391(2)

15 U.S.C. 1392

15 U.S.C. 1392(a)

15 U.S.C. 1392(d) (§ 103(d))

15 U.S.C. 1397

15 U.S.C. 1397(k) (§ 108(c))

:

8

8

ts

|

:

2

112 Cong. Rec. (1966):

p. 14,230 19

p. 19,663 20

p. 21,487 19, 21

p. 21,490 19

49 Fed. Reg. (1984):

°

:

H.R. Rep. No. 1776, 89th Cong., 2d Sess. (1986) 14, 19, 20

S. Rep. No. 1301, 89th Cong., 2d Sess. (1966). 12, 19, 25, 29

Webster s Third New International Dictionary

(1993) 12

In the Supreme Court of the United States

No. 98-1811

ALEXIS GEIER, ET AL., PETITIONERS

v.

AMERICAN HONDA MOTOR COMPANY, INC., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING AFFIRMANCE

INTEREST OF THE UNITED STATES

The National Traffic and Motor Vehicle Safety Act of

1966, 15 U.S.C. 1381 et seg. (1988), requires the Secre-

tary of Transportation to promulgate motor vehicle

safety standards. 15 U.S.C. 1392(a).' This case

concerns the preemptive effect of the Act and one of

those standards, Federal Motor Vehicle Safety

Standard 208, 49 C.F.R. 571.208 (1987), which governs

occupant crash protection. The Court’s decision may

affect the manner in which the Secretary exercises his

regulatory authority under the Act.

The Act was recodified, along with other Acts governing

, on July 5, 1994, “without substantive change.”

Pub. L. No. 108-272, § 1(a), 108 Stat. 745; see § 1(e), 108 Stat. 941-

973 (codifying new 49 U.S.C. 30101 et seq.). Like the court of

appeals and petitioners, we generally refer to the earlier version of

the Act.

(1)

2

STATEMENT

1. Congress enacted the National Traffic and Motor

Safety Vehicle Act of 1966 (Safety Act or Act) to

“reduce traffic accidents and deaths and injuries to

persons resulting from traffic accidents.” 15 U.S.C.

1381. The Act directs the Secretary of Transportation

to “establish by order motor vehicle safety standards,”

15 U.S.C. 139 2a), which are defined as minimum stan-

dardls] for motor vehicle performance or motor vehicle

equipment performance,” 15 U.S.C. 1391(2). Each stan-

dard “shall be practicable, shall meet the need for motor

vehicle safety, and shall be stated in objective terms.”

15 U.S.C. 1392(a).

The Safety Act contains a preemption provision,

which provides in relevant part:

Whenever a Federal motor vehicle safety standard

established under this subchapter is in effect, no

State or political subdivision of a State shall have

any authority either to establish, or to continue in

effect, with respect to any motor vehicle or item of

motor vehicle equipmentl, ] any safety standard ap-

plicable to the same aspect of performance of such

vehicle or item of equipment which is not identical

to the Federal standard.

15 U.S.C. 1392(d).? The Act also contains a provision,

which petitioners refer to as a savings clause, that de-

As we explain in note 1, supra, the Safety Act was amended

and recodified in 1994 without substantive change. Section 1392(d)

is now codified at 49 U.S.C. 30103(b)(1) and states in relevant part:

When a motor vehicle safety standard is in effect under this

chapter, a State or political subdivision of a State may

prescribe or continue in effect a standard applicable to the

same aspect of performance of a motor vehicle or motor

vehicle equipment only if the standard is identical to the

standard prescribed under this chapter.

scribes the effect of compliance with federal standards

on common law liability. That clause provides that

“{cJompliance with any Federal motor vehicle safety

standard issued under this subchapter does not exempt

any person from any liability under common law.” 15

U.S.C. 139700.

2. Federal Motor Vehicle Safety Standard 208 regu-

lates occupant crash protection. 49 C.F.R. 571.208. The

Secretary promulgated the version of Standard 208 at

issue in this case in 1984, after nearly 15 years of

analysis, rulemaking, and litigation. See Motor Vehicle

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 34-38 (1983); State Farm Mut. Auto. Ins. Co. v.

Dole, 802 F.2d 474, 477-478 (D.C. Cir. 1986), cert.

denied, 480 U.S. 951 (1987).

Beginning with the 1987 model year (in which peti-

tioners’ car was manufactured), Standard 208 phased in

a requirement that all new passenger cars have some

type of passive restraint system, i.e., a device that

works automatically, without any action by the

occupants, to help protect occupants from injury during

a collision. Standard 208 required manufacturers to

install some type of passive restraint in at least 10% of

their 1987 model year cars. 49 C. F. R. 571.208.S4.1.3.1.*

Section 1397(k) is now codified at 49 U.S.C. 30103(e), which

states: “Compliance with a motor vehicle safety standard pre-

scribed under this chapter does not exempt a person from liability

at common law.”

4 The percentages increased each year until the 1990 model

year. Beginning in that model year, all new cars were required to

have a passive restraint system. 49 C. F. R. 571.208.84.1.3.2,

571.208.84.1.3.3, 571.208.84.1.4. In response to the Intermodal

Surface Transportation Efficiency Act of 1991, 49 U.S.C. 30127, the

Secretary has amended Standard 208 to require that, beginning in

the 1998 model year, all new cars have an airbag at the driver's and

right front passenger’s position. 49 C. F. R. 571.208. 84. 1.5.3.

Section 30127(f)(2) provides that At his section and the

4

The rule did not, however, require installation of any

particular type of passive restraint. Instead, it gave

manufacturers the option to install automatic seatbelts,

airbags, or any other suitable technology that they

might develop, provided they met the performance

requirements specified in the rule.

In adopting that standard, the Secretary expressly

considered, and rejected, a proposal to require airbags

in all cars. See 49 Fed. Reg. 29,000-29,002 (1984). The

Secretary reasoned that some people had serious

concerns about airbags, and, if airbags were required in

all cars, there could be a public backlash in which some

people disabled the airbags, thus eliminating their

safety benefit. Jd. at 29,001. The Secretary also

concluded that, although airbags and seatbelts together

may provide greater safety benefits than automatic

seatbelts alone, the effectiveness of an airbag system is

“substantially diminished” if, as then often occurred,

the occupant does not wear the seatbelt. Jd. at 28,996.

Further, airbags were found “unlikely to be as cost

effective” ad automatie seatbelts, and, because of the

high replacement cost <f airbags, some people might

not replace them after depicyment, leaving no

automatic protection for front seat occupants. Id. at

29,001. Finally, little developmental work haa deen

done to install airbags in smaller cars, and the Secre-

tary found that unrestrained occupants, particularly

children, could be injured by the deployment of airbags

in those cars. Ibid.

In light of those concerns, the Secretary determined

that manufacturers should have a choice of ways to

amendments to Standard 208 made under this section may not be

construed as indicating an intention by Congress to affect any

liability of a motor vehicle manufacturer under applicable law

related to vehicles with or without [airbags].”

5

comply with the passive restraint requirement. 49 Fed.

Reg. at 28,997. The Secretary anticipated that manu-

facturers would respond to that choice by using a

variety of passive restraints, including airbags and

automatic seatbelts. Although airbags were more ex-

pensive than automatic seatbelts, the Secretary ex-

pected manufacturers to install airbags in some cars

because one manufacturer had already begun to offer

airbags, others had indicated plans to do so, and the

rule provided an incentive to use airbags and other non-

belt technologies. Jbid.°

The Secretary concluded that installation of a variety

of passive restraint systems would have several safety

advantages. The latitude provided the industry would

enable manufacturers to “develop the most effective

systems” and would “not discourag[e] the development

of other technologies.” 49 Fed. Reg. at 28,997. In

addition, the availability of alternative devices would

enable the industry to “overcome any concerns about

public acceptability by permitting some public choice.”

Ibid. Customers who did not like airbags could buy a

car with automatic seatbelts, and those who did not

want the automatic belts could select a car with airbags.

Ibid. Finally, widespread use of both airbags and

automatic seatbelts was “the only way to develop de-

finitive data” about which alternative is more effective.

Ibid.

5 In determining whether a manufacturer installed passive

restrami in the requisite percentage of its fleet during the phase-

in period, Stanaa.2 208 counted each car with an airbag or other

non-belt passive restramt 2s the equivalent of 1.5 cars with

automatic seatbelts. 49 C. F. R. 571.202 S4.1.3.4; 49 Fed. Reg. at

29,000.

The Secretary also concluded that a gradual phase-‘~ of the

passive restraint requirement would better serve the Act’s safety

purpose than a uniform implementation on a single future date.

6

3. In January 1992, while driving a 1987 Honda

Accord, petitioner Alexis Geier collided with a tree in

the District of Columbia. Although she was wearing

her seatbelt, sho sustained “serious and grievous

injuries.” J.A. 2-5. Ms. Geier and her parents (also

petitioners) sued respondent American Honda Motor

Company, Inc., in the United States District Court for

the District of Columbia. Pet. App. 2n.1. Alleging that

their car was negligently and defectively designed

because it lacked a driver’s-side airbag in addition to a

manual seatbelt, they sought damages under the

common law of the District of Columbia. Pet. Br. 12.

The district court granted respondent’s motion for

summary judgment. Pet. App. 17-20. The court held

that petitioners’ tort claims were expressly preempted

by the Safety Act because recovery on the claims would

be “equivalent to a safety standard promulgated by the

state legislature or a state regulatory body.” Id. at 19.

4. The court of appeals affirmed, but it employed a

different preemption analysis. Pet. App. 1-16. The

court acknowledged that the term “standard” in the

Safety Act’s preemption provision could be read in

isolation to encompass requirements imposed by com-

mon law tort verdicts, but the court recognized that the

preemption clause must be interpreted in light of the

entire Safety Act, including the savings clause. Id. at 9-

One purpose of the phase-in was to achieve the installation of

passive restraints in some cars earlier than if a single effective

date had been established, since it would have taken longer for all

cars to be redesigned to include a passive restraint. The phase-in

also increased the likelihood that manufacturers would use airbags,

which required a longer lead time for redesign. Finally, the phase-

in gave consumers and the agency time to develop more infor-

mation about the benefits of passive restraints, thus enhancing the

opportunity to overcome public resistance. 49 Fed. Reg. at 28,999-

29,000.

—

7

11. The court ultimately found it unnecessary to re-

solve the express preemption question, because it con-

cluded that a verdict in petitioners’ favor would stand

as an obstacle to the federal government’s chosen

method of achieving the Act’s safety objectives, and

consequently, the Act impliedly pre-empts [the]

lawsuit.” Id. at 12.

The court of appeals rejected petitioners’ claim that

this Court’s decision in Cipollone v. Liggett Group,

505 U.S. 504 (1992), prevents courts from conducting

implied preemption analysis when a statute has an

express preemption provision and a savings clause.

Pet. App. 12-13. The court of appeals noted that this

Court rejected a similar argument in Freightliner Corp.

v. Myrick, 514 U.S. 280 (1995), in which the Court en-

gaged in implied preemption analysis after concluding

that the Safety Act did not expressly preempt the state

tort claim at issue.

Applying implied preemption analysis, the court of

appeals determined that “allowing liability for the

absence of airbags would interferſe] with the method

by which Congress intended to meet its goal of

increasing automobile safety. Pet. App. 14 (citation

omitted). The court explained:

A successful no-airbag claim would mean that an

automobile without an airbag was defectively

designed. Congress, however, delegated authority

to prescribe specific motor vehicle safety standards

to the Secretary of Transportation, who in turn ex-

plicitly rejected requiring airbags in all cars on the

ground that a more flexible approach would better

serve public safety.

Ibid. (citation omitted). The Secretary had decided that

a choice among passive restraint systems would ad-

vance public safety by “allowing consumers to adjust to

8

the new technology and by permitting experimentation

with designs for even safer systems.” Id. at 15. The

court therefore concluded that “allowing design defect

claims based on the absence of an airbag for the model-

year car at issue would frustrate the Department’s

policy of encouraging both public acceptance of the

airbag technology and experimentation with better

passive restraint systems.” Ibid.

SUMMARY OF ARGUMENT

Petitioners’ tort claims are not expressly preempted

by the Safety Act, but they are impliedly preempted

because they conflict with Standard 208. The Safety

Act’s preemption clause, 15 U.S.C. 1392(d), does not bar

the claims, because, particularly when read in conjunc-

tion with the Act’s savings clause, 15 U.S.C. 1397(k), it

expressly preempts only prescriptive rules affirma-

tively promulgated by a state legislature or admini-

strative agency. Although the reference in the pre-

emption provision to a state “standard” could, in isola-

tion, be understood to encompass common law tort

rules, that reading is not consistent with the remainder

of the Act, including the express reference to “common

law” in Section 1397(k). Moreover, if Section 1392(d)

preempted all common law actions involving the same

aspect of performance as a federal safety standard,

there would be no meaningful role for Section 1397(k),

which provides that compliance with a federal safety

standard does not “exempt” a person from common law

liability.

The Secretary of Transportation has therefore long

taken the view that, although state legislatures and

administrative agencies may not adopt a safety stan-

dard that differs from a federal standard governing the

same aspect of performance, state courts are not neces-

sarily precluded from entering tort judgments that a

— —

— — —

9

vehicle was defectively designed with respect to that

aspect of performance. That interpretation could create

some tension within the Safety Act, but any tension

reflects a congressional compromise between the in-

terests in uniformity and in permitting States to

compensate accident victims.

There is no danger that tort liability will undermine

the Act, because common law claims still must yield if

they conflict with federal safety standards. Section

1397(k) does not preserve those claims because it

neither refers to preemption nor states that common

law liability is preserved even if it conflicts with a

federal standard. Congress legislates against the back-

ground of the Supremacy Clause, which provides that

state law yields if it conflicts with federal law. Thus,

absent a solid basis to believe that Congress intended

to alter traditional preemption analysis, a statute

should not be interpreted to permit state laws to

operate in a manner that conflicts with federal law.

Petitioners’ claims conflict with Federal Motor Ve-

hicle Safety Standard 208, because a judgment for

petitioners would stand as an obstacle to the ac-

complishment of the full purposes and objectives of the

Standard. In promulgating the version of Standard 208

that was in effect when petitioners’ car was manu-

factured, the Secretary rejected a proposal to require

airbags in all cars, because she determined that safety

would best be served if manufacturers were permitted

at that time to install a variety of passive restraints.

Petitioners’ attempt to hold a manufacturer liable for

failing to install a particular type of passive restraint—

an airbag—would conflict with that policy of encourag-

ing a diversity of passive restraints. Petitioners’ claims

are therefore preempted.

10

ARGUMENT

THE SAFETY ACT DOES NOT EXPRESSLY PREEMPT

PETITIONERS’ TORT CLAIMS, BUT THE CLAIMS ARE

IMPLIEDLY PREEMPTED BECAUSE A JUDGMENT

FOR PETITIONERS WOULD FRUSTRATE THE PUR-

POSES OF STANDARD 208

In cases addressing whether the Safety Act or Stan-

dard 208 preempts tort claims that an automobile is

defectively or negligently designed because it does not

contain an airbag, the parties, and some courts, have

tended to take an all-or-nothing view of preemption.

Manufacturers have argued, and some courts have held,

that Section 1392(d) preempts any common law ruling

imposing a standard of care greater than the standard

set by federal law. See, e.g., Harris v. Ford Motor Co.,

110 F.3d 1410, 1413-1415 (9th Cir. 1997); Wood v.

General Motors Corp., 865 F.2d 395, 412-413 (Ist Cir.

1988), cert. denied, 494 U.S. 1065 (1990). In contrast,

plaintiffs have argued (as do petitioners in this case)

that a federal safety standard can never preempt a tort

claim because Section 1397(k) preserves all common law

actions.

We agree with neither approach. As this Court has

explained, when a federal regulatory scheme preserves

a role for state law, “conflict-pre-emption analysis must

be applied sensitively * * * to prevent the diminution

of the role Congress reserved to the States while at the

same time preserving the federal role.” Northwest

Cent. Pipeline Corp. v. State Corp. Comm’n, 489 U.S.

493, 515 (1989).

The Secretary’s longstanding view is that, read in the

full statutory context, Section 1392(d) prohibits state

legislative or administrative bodies from prescribing

safety standards different from those prescribed by the

Secretary but does not expressly preempt state tort

— — — — — —

11

claims. At the same time, the Secretary’s view has

been that Section 1397(k) does not preserve tort claims

that actually conflict with a federal standard but rather

provides that compliance with federal standards does

not, in itself, immunize manufacturers from liability.

See U.S. Amicus Br. at 16 & n.10, 28-29, Freightliner

Corp. v. Myrick, 514 U.S. 280 (1995); U.S. Amicus Br. at

7-16, Wood v. General Motors Corp., 494 U.S 1065

(1990) (No. 89-46). That view is entitled to “substantial

weight.” Medtronic, Inc., v. Lohr, 518 U.S. 470, 496

(1996); id. at 505-506 (Breyer, J., concurring).

Petitioners’ tort claims that their vehicle was de-

fectively and negligently designed because it lacked an

airbag are thus not expressly preempted by the Safety

Act. Their claims are, however, preempted by impli-

cation, because a judgment for petitioners would frus-

trate Standard 208’s policy of encouraging a variety of

passive restraints.

A. The Safety Act Does Not Expressly Preempt Peti-

tioners’ Tort Claims.

In 1987, when petitioners’ automobile was manu-

factured, the Safety Act’s preemption clause stated:

Whenever a Federal motor vehicle safety standard

established under this subchapter is in effect, no

State or political subdivision of a State shall have

any authority either to establish, or to continue in

effect, with respect to any motor vehicle or item of

motor vehicle equipmentl,] any safety standard ap-

plicable to the same aspect of performance of such

vehicle or item of equipment which is not identical

to the Federal standard.

12

15 U.S.C. 1392(d)." It is our view that, read in its

statutory context, this provision expressly preempts

only prescriptive rules affirmatively promulgated by a

state legislature or administrative agency.

The term “standard,” construed in isolation, could be

read to encompass duties imposed by tort law. The

common law of torts is sometimes described in general

terms as articulating “standards of care” to be applied

on a case-by-case basis to assess a defendant’s conduct

and fault. See S. Rep. No. 1301, 89th Cong., 2d Sess. 12

(1966); ef. CSX Transp., Inc. v. Easterwood, 507 U.S.

658, 664 (1993) (legal duties imposed by common law fall

within scope of “law, rule, regulation, order, or standard

relating to railroad safety”); San Diego Bldg. Trades

Council v. Garmon, 359 U.S. 236, 246-247 (1959). How-

ever, “standard” may also connote a prescriptive crite-

rion, adopted in advance by responsible authorities,

such as legislative or administrative bodies“ Con-

sideration of the Safety Act as a whole confirms that

this is the meaning of “standard” as used in the express

preemption provision of Section 1392(d).

Unlike the statute in CSX, which preempted any

relevant “law, rule, regulation, order or standard” (507

U.S. at 664), and thus reached every method by which a

State can in pose legal obligations, or the statutes in

Cipollone v. Liggett Group, 505 U.S. 504 (1992), and

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), Section

As explained at notes 1-2, swpra, that provision has been

amended and recodified at 49 U.S.C. 30103(b)\(1), but the amend-

ments were not intended to be substantive.

See Webster’s Third New International Dictionary 2223

(1993) (def. 3a “something that is established by authority, custom,

or general consent as a model or example to be followed: CRITE-

RION, TEST.“ def. 4 “something that is set up and established by

authority as a rule for the measure of quantity, weight, extent,

value, or quality”).

wes —

—- —

— <a ap ©

*

13

139 20d) preempts only safety standard[s],” which is

also the term used to describe the administrative re-

quirements promulgated by the Secretary. See 15

U.S.C. 1392(a). Moreover, Section 1392(d) uses the

verb “establish” to describe the enactment of the state

standards it preempts, just as the Safety Act uses that

verb to describe the of standards by the

Secretary. See 15 U.S.C. 1392.“ It is a “normal rule of

statutory construction that identical words used in

different parts of the same act are intended to have the

same meaning.” Gustafson v. Alloyd Co., 513 U.S. 561,

570 (1995) (internal quotation marks omitted). Further,

Section 1392(d) preempts standards established by

a “State or political subdivision of a State,” a phrase not

normally used to describe a court in a common law dam-

ages action. Finally, the Act defines standards as pro-

viding “objective criteria,” 15 U.S.C. 1391(2); see also 15

U.S.C. 1392(a) (“objective terms”), a description that

would appear to exclude tort judgments, which are

determinations of liability and damages.

Our interpretation of Section 1392(d) is further but-

tressed by the specific reference to common law in

Section 1397(k), which states that “[c]ompliance with

any Federal motor vehicle safety standard issued under

this subchapter does not exempt any person from any

liability under common law.“ The reference to com-

mon law liability in that Section suggests that Congress

The recodification uses “prescribe” to describe the enact-

ment of both state and federal standards. See 49 U.S.C.

30103(b)\(1); note 2, supra. The use of “prescribe,” which was not

intended as a substantive change from the use of “establish” in the

former 15 U.S.C. 1392(d) (see note 1, supra), confirms that “stan-

dards” are limited to positive enactments.

% As we have in notes 1 & 3, supra, this Section is

now codified as amended at 49 U.S.C. 30103(e), but the changes

were not intended to alter the substance of the provision.

14

would have referred to common law expressly in

Section 1392(d) if it had wanted to preempt all common

law actions involving the same aspect of performance as

a federal safety standard. See, e.g., City of Chicago v.

Environmental Defense Fund, 511 U.S. 328, 338 (1994).

Finally, if Section 1392(d) preempted all common law

tort actions involving the same aspect of performance

as a federal safety standard, there would be no mean-

ingful role for Section 1397(k). That Section provides

that compliance with a federal safety standard does not

“exempt” a person from, i.e., provide a defense to, com-

mon law liability. See 15 U.S.C. 1397(k); H.R. Rep. No.

1776, 89th Cong., 2d Sess. 24 (1966) (“compliance with

safety standards is not to be a defense or otherwise to

affect the rights of parties under common law”). There

is, however, no need to negate a defense to claims that

have already been preempted. And the only claims that

would not be preempted under the broad reading of

Section 1392(d) are those that involve an aspect of

performance not addressed by any federal standard.

Yet no court would otherwise have held that compli-

ance with a federal standard provided a defense to such

a suit. Congress could not have intended the pre-

emption provision to sweep so broadly that it renders

superfluous another provision in the Act. See, e. g.,

Gustafson, 513 U.S. at 574."

For those reasons, the Safety Act prohibits state

legislatures and administrative agencies from adopting

che only remaining role for Section 1397(k) would be to dis-

avow congressional intent to occupy the field and thereby displace

all tort actions involving motor vehicle safety. But even that role

is unnecessary because the preemption provision itself makes the

lack of field preemption clear by permitting States to establish

standards identical to the federal standards and standards cover-

ing aspects of performance not addressed by the federal standards.

See 15 U.S.C. 1392(d).

2 —

15

prescriptive safety standards that differ from a federal

standard governing the same aspect of performance. It

does not, however, necessarily preclude state courts

from entering tort judgments that a vehicle was de-

fectively designed with respect to that aspect of

performance.

the Safety Act, because allowing manufacturers to be

held liable for design defects in vehicles that comply

with federal standards could run counter to Congress’s

interest in uniform performance standards. But any

tension reflects a congressional compromise between

the interests in uniformity and in permitting States to

compensate accident victims, embodied both in the

savings clause (15 U.S.C. 1397(k)) and in the definition

of a federal standard as a “minimum standard” (15

U.S.C. 1391(2)). See Silkwood v. Kerr-McGee Corp.,

464 U.S. 238, 256 (1984). Moreover, tort suits can some-

times complement federal regulations and the Act’s

safety purpose by supplying manufacturers with an

additional incentive to design a safe product. See

Medtronic, 518 U.S. at 495. Finally, there is no danger

that tort liability will impair the purpose of the Act,

because, as we explain below, common law claims still

must yield if they conflict with federal standards. Cf.

Silkwood, 464 U.S. at 256 (conflict preemption analysis

still applies despite congressional intent generally to

preserve state tort actions).

B. Standard 208 Impliedly Preempts Petitioners’ Tort

Claims.

State law is impliedly preempted if 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 t and execution of

the full purposes and objectives of [federal law.“

16

English v. General Elec. Co., 496 U.S. 72, 79 (1990

(citations omitted). Petitioners’ tort claims are pre-

empted under that analysis. Holding respondent liable

for not installing airbags in petitioners’ car would

frustrate Standard 208’s policy of encouraging a variety

of passive restraints.

1. Contrary to petitioners’ contention (Br. 25-41),

the Safety Act’s savings clause, 15 U.S.C. 1397(k), does

not foreclose implied preemption analysis.

a. As an initial matter, any suggestion (see Pet. Br.

37-38) that the presence of a savings clause auto-

matically precludes implied preemption analysis is in-

correct. Savings clauses vary significantly in both

phraseology and context, and, as with any other statu-

tory provision, a court must ascertain the meaning of

the specific clause. Cf. Freightliner, 514 U.S. at 289.”

Thus, this Court frequently conducts implied pre-

emption analysis even though a statute contains a

savings clause. Indeed, the Court hesitates to read a

savings clause to authorize claims that conflict with

federal law. See, ¢.g., American Telephone & Tele-

graph Co. (AT&T) v. Central Office Telephone, 524 U.S.

214, 227-228 (1998); International Paper Co. v.

Ouellette, 479 U.S. 481, 494 (1987); Chicago & N. W.

Trans. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 328

2 Petitioners’ reliance (Br. 38) on Malone v. White Motor

Corp., 435 U.S. 497 (1978), and California Federal Savings & Loan

Ass'n v. Guerra, 479 U.S. 272 (1987), is unpersuasive. In Malone,

the issue was essentially field preemption, and the Court held that

two savings provisions (more broadly worded than the one at issue

here) indicated that the federal labor statutes did not foreclose all

state regulation of pension plans. 435 U.S. at 504-505. In Guerra,

the plurality examined the savings provisions in the Civil Rights

Act of 1964 and found that “Congress has indicated that state laws

will be pre-empted only if they actually conflict with federal law”

(479 U.S. at 281); see also id. at 295-296 (Scalia, J., concurring).

17

(1981); Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204

U.S. 426, 446 (1907).

There is good reason for that approach. Conflict

preemption arises directly from the operation of the

Supremacy Clause (U.S. Const. Art. VI, Cl. 2), rather

than from a specific intent to displace state law. Thus,

Aa] holding of federal exclusion of state law is

inescapable and requires no inquiry into

design where compliance with both federal and state

regulations is a physical impossibility.” Florida Lime &

Avocado Growers, Inc. v. Paul, 373 U.S. 182, 142-143

(1963). Similarly, a state law that “stands as an obstacle

to the accomplishment and execution of the full pur-

poses and objectives of Congress” may be impliedly

preempted by a federal statute, even in the absence of

any expression of intent to supersede state law-making

authority. See Jones v. Rath Packing Co., 430 U.S. 519,

540-543 (1977). Those implied preemption principles are

equally applicable to conflicts between state laws and

federal regulations. Whether or not Congress has

addressed preemption, “(t]he statutorily authorized

regulations of an agency will pre-empt any state or local

law that conflicts with such regulations or frustrates

the purposes thereof.” City of New York v. FCC, 486

U.S. 57, 64 (1988).

Because Congress enacts laws against the back-

ground of the Supremacy Clause, a court should assume

that Congress believes that federal law (whether

enacted directly by Congress or promulgated by a

federal agency pursuant to statutory authorization) will

prevail in any collision with state law. Of course,

Congress is free to change the general rule and to allow

state laws to operate in the place of conflicting federal

law. But absent a “solid basis” for believing that

Congress “intended fundamentally to alter traditional

preemption analysis,” John Hancock Mut. Life Ins. Co.

18

v. Harris Trust & Sav. Bank, 510 U.S. 86, 99 (1993), a

statute should not be interpreted to permit state laws

to operate in conflict with federal law.

The presumption that Congress does not intend to

alter traditional principles of conflict preemption is

particularly appropriate when Congress enacts a

statute such as the Safety Act that takes effect through

administrative action. Congress did not itself prescribe

motor vehicle safety standards in the Safety Act.

Instead, it delegated their promulgation (and revision

in light of experience) to the Secretary of Transporta-

tion. Thus, Congress could not know what federal

standards would be promulgated, and it could not

predict whether or how States might adopt conflicting

measures.

b. The Act’s savings clause, Section 1397(k), pro-

vides no sound basis to conclude that Congress in-

tended to alter the general rule that federal law

preempts conflicting state law. Nothing in the text of

the clause suggests that common law liability is saved

from preemption even if it conflicts with a federa!

safety standard. Indeed, the language of the clause

does not directly address preemption at all. It states

that “[c]lompliance with any Federal motor vehicle

safety standard issued under [the Safety Act] does not

exempt any person from any liability under common

law.“ 15 U.S.C. 1397(k).“ As we have explained, the

'8 Petitioners therefore err in suggesting (Br. 38-39) that the

presumption that cautions against unduly broad construction of

preemption provisions favors their reading of the savings clause.

The presumption against preemption of state laws that can coexist

harmoniously with federal law is quite different from a pre-

sumption in favor of preservation of state laws that conflict with

federal law.

The recodification substituted the modifier “a” for “any,”

note 3, supra, without intending substantive change, note 1, supra.

19

clause thus preserves common law liability in the sense

that a manufacturer cannot invoke its compliance with

federal law as an automatic defense against a claim that

a car was defectively designed. See p. 14, supra. The

clause does not, however, preserve common law

liability that conflicts with federal law.

The legislative history supports that interpretation.

The provision originated in the House of Repre-

sentatives, and the House Report expressly states that

the clause “establishes[] that compliance with safety

standards is not to be a defense or otherwise to affect

the rights of parties under common law.” See H.R.

Rep. No. 1776, supra, at 24 (emphasis added). Other re-

ferences in the legislative history are consistent with

the understanding that Section 1397(k) negates a sub-

stantive defense to liability and does not directly

address preemption.” Petitioners have not identified,

The fact that Congress perceived no distinction between the use of

the words “a” and “any” refutes the suggestion (see Pet. Br. 25)

that the use of “any” was intended to signal a broad construction of

the clause.

1 See, e. g., S. Rep. No. 1301, supra, at 12 (explaining that

federal standards “need not be interpreted as restricting State

common law standards of care” so that compliance with federal

standards “would thus not necessarily shield any person from

product liability at common law”) (emphasis added); 112 Cong. Rec.

14,230 (1966) (Sen. Magnuson) (also using qualifier “not neces-

sarily”); id. at 21,487 (Sen. Magnuson) (stating that Senate

conferees adopted the House provision, which “makes explicit, in

the bill, a principle developed in the Senate report”); ibid.

(explaining that the provision does not prevent use of compliance

or noncompliance as evidence“) id. at 21,490 (Sen. Cotton) (“proof

of compliance” may be offered “for such relevance and weight as

courts and juries may give it”). Petitioners also rely (Br. 29) on the

comments of a witness at House hearings who expressed the

concern that manufacturers would respond to lawsuits with a claim

that “Our product meets Government standards.” Comments by

members of the public reveal little about congressional intent. In

20

and we have not found, any statement in the legislative

history that describes Section 1397(k) as preserving

from preemption common law claims that conflict with

federal law.

That interpretation of Section 1397(k) is reinforced

by the fact that Congress did not include the savings

clause in the Section of the Safety Act that addresses

preemption (Section 103(d) (codified at 15 U.S.C.

1392(d))) but inserted it five sections later (Section

108(c) (codified at 15 U.S.C. 1397(k))). Thus, the

structure of the Act confirms that the savings clause

was not intended directly to address preemption.”

any event, the witness’s concern was precisely that manufacturers

would use compliance with federal standards as a substantive

defense to liability.

As noted in the text, the House Report states that com-

pliance with federal standards is not to be a defense or otherwise to

affect the rights of parties under common law.” H.R. Rep. No.

1776, supra, at 24 (emphasis added). The context suggests that the

italicized language refers to substantive changes to common law

rules rather than the possibility of preemption. Petitioners also

note (Br. 29) that Senator Magnuson stated that “(t]he common

law on product liability still remains as it was.” That statement too

is properly understood as explaining that the Act made no change

to the substance of product liability law. Finally, petitioners rely

(Br. 30-31) on a statement by Representative Dingell that “we

have preserved every single common-law remedy that exists

against a manufacturer for the benefit of a motor vehicle pur-

chaser.” 112 Cong. Rec. at 19,663. Mr. Dingell made that state-

ment to explain why he opposed an amendment that would have

criminalized willful violations of federal standards. Thus, the

statement indicates only that common law actions based on the

violation of federal standards are preserved; it does not indicate

that actions that would conflict with federal standards are

similarly preserved. See Wood, 865 F. 2d at 407 n.14.

7 The recodification included both provisions in 49 U.S.C.

30103 (entitled “Relationship to other laws”) but in separate sub-

sections, one entitled “Preemption” (49 U.S.C. 30103(b)) and the

other entitled “Common law liability” (49 U.S.C. 30103(e)).

- — —

ie tae —

—̃ . . un , ...

21

Our interpretation does not render the savings clause

meaningless, as petitioners contend (Br. 26-27). Peti-

tioners’ argument would have force only if the pre-

emption clause applied to common law claims, a reading

that we reject. See ibid.; pp. 11-15, supra. Instead, our

interpretation preserves an important role for Section

1397(k): In cases in which tort liability does not conflict

with a federal standard, Section 1397(k) makes clear

that compliance with the standard does not immunize a

manufacturer from liability. Those cases can arise

frequently, since state tort law does not conflict with a

federal “minimum standard” (15 U.S.C. 1391(2)) merely

because state law imposes a more stringent require-

ment.” For example, Federal Motor Vehicle Safety

Standard 105, 49 C.F.R. 571.105, which establishes re-

quirements for brake performance, does not require

anti-lock brakes in addition to airbrakes in all vehicles,

but the Secretary has not determined that requiring

anti- lock brakes would disserve safety. Section i397(k)

makes clear that compliance with Standard 105 is not a

defense to a common law tort claim that a vehicle is

defectively designed because it lacks anti-lock brakes.

Federal Motor Vehicle Safety Standard 125, 49 C. F. R.

We therefore agree with petitioners (Br. 46-47) that their

claims are not preempted merely because the Secretary made

airbags one of several design options that manufacturers could

choose. We disagree, however, with the contention (Br. 44, 46)

that the Secretary provided options because she had no statutory

authorization to do otherwise. The Secretary could have imposed

performance requirements that effectively required an airbag

design. See Wood, 865 F.2d at 416-417; 112 Cong. Rec. at 21,487

(Sen. Magnuson) (performance standards expected to affect de-

sign). As we explain at pages 23-26, infra, the Secretary chose not

to do so in order to encourage the provision of a variety of passive

restraints, because she determined that would best promote

safety. Petitioners’ claims are preempted because they would

frustrate that policy judgment.

571.125, provides multiple options for the design of

reflective devices to warn approaching traffic of the

presence of a stopped vehicle, but the Secretary did not

determine that the availability of options was necessary

to promote safety. Section 1397(k) makes clear that

compliance with Standard 125 is not a defense to a

common law tort claim that the reflective device is de-

fectively designed unless it uses one rather than

another of those options. Thus, under our reading,

Section 1397(k) has a sensible and important role.“

e. It is petitioners’ reading of the clause as pre-

serving tort claims even if they conflict with federal

safety standards that would have anomalous results.

The Safety Act’s purpose “is to reduce traffic accidents

and deaths and injuries to persons resulting from traffic

accidents,” 15 U.S.C. 1381, and Congress chose to carry

out that purpose by empowering the Secretary to issue

safety standards, 15 U.S.C. 1392, 1397. In some in-

stances, such as the present case, holding a manu-

facturer liable for what a jury might find to be a design

defect would significantly impair the Secretary’s efforts

to promote safety. Reading the savings clause to pre-

serve that liability from preemption would impermissi-

bly allow courts to second-guess the Secretary’s judg-

ment on matters “entrusted to [his] informed dis-

cretion” (Kalo Brick & Tile Co., 450 U.S. at 330) and

18 Petitioners contend (Br. 27 n.11) that there was no need for

Congress to specify that compliance with federal standards is not a

defense to common law liability because every State already

provided that compliance with a federal regulation is not a defense

to a design defect claim. But even if Congress understood that to

be the common law rule, it could not be certain that rule would not

change. It therefore had ample reason to assure that the Safety

Act would not be construed to create a new, automatic federal

defense.

lead the Act “to destroy itself” (AT&T, 524 U.S. at

228).

For example, the Secretary has established wind-

shield retention requirements in Federal Motor Vehicle

Safety Standard 212, 49 C.F.R. 571.212, in order to

prevent occupants from being thrown from their cars in

crashes. If manufacturers could be held liable under

state tort law on a theory that it is a design defect for

windshields in those vehicles to be retained in a crash

because passengers could be injured if they struck the

windshields, it would be impossible for manufacturers

to comply with both the federal standard and the duties

imposed by state tort law. Thus, if the tort claims were

not preempted, the Secretary would have to rescind the

federal standard, or manufacturers would have to

continue to produce windshields that do not eject in

order to comply with Standard 212, while paying tort

judgments based on the theory that the federally

mandated failure of the windshields to release in a

crash rendered their cars defectively designed. There

* indication that Congress intended that startling

t.

2. a. This case does not pose that type of conflict,

but it poses a closely related one. In issuing the version

of Standard 208 in effect when petitioners’ car was

manufactured, the Secretary rejected a rule requiring

airbags in all cars in favor of a rule encouraging

manufacturers to offer a variety of passive restraints.

The Secretary determined—based on the history of

consumer (and congressional) responses to passive

restraint requirements—that diversity would best

promote safety by helping to ensure public acceptance

of passive protection systems,” encouraging the de-

2 In 1972, the Secretary adopted a rule requiring an interlock

mechanism preventing engine ignition unless manual seatbelts

velopment of new and improved technologies,” and

enabling the agency to acquire more data to make

regulatory decisions. See 49 Fed. Reg. at 28,987-28,997,

29,000-29,001. The Secretary also determined that the

high replacement costs of airbags could cause some

consumers to decline to replace them after they were

deployed, which would leave occupants without passive

protection. Id. at 29,000-29,001. At the same time, the

Secretary took steps that she reasonably determined

would prompt manufacturers to install airbags in some

were fastened. That rule provoked a strong public reaction,

prompting Congress to ban the interlock requirement and impose

procedural limitations on the agency’s future efforts to require

restraints other than seatbelts. Motor Vehicle and School Bus

Safety Amendments of 1974, Pub. L. No. 93-492, § 109, 88 Stat.

1482 (codified at 15 U.S.C. 1401(b) (1988)). Given the public’s ad-

verse reaction to the interlock system, one factor the Secretary

properly considered was the public’s willingness to accept various

passive restraint technologies. 49 Fed. Reg. at 28,987. See Pacific

Legal Found. v. DOT, 593 F.2d 1338, 1345-1346 (D.C. Cir.), cert.

denied, 444 U.S. 830 (1979). “Airbags engendered the largest

quantity of, and most v worded, comments” during the

rulemaking. 49 Fed. Reg. at 29,001. Commenters expressed con-

cerns that the chemical used to inflate airbags would be hazardous,

that airbags would deploy inadvertently and thereby cause injury,

and that airbags would not deploy during an accident. Ibid. Given

those widespread concerns, the Secretary concluded that Ii lf air-

bags were required in all cars, these fears, albeit unfounded, could

lead to a backlash affecting the acceptability of airbags. This could

lead to their being disarmed, or, perhaps, to a repeat of the

interlock reaction.” Ibid.

The Secretary determined that experience could show that

automatic seatbelts would be used more frequently than antici-

pated, and that manufacturers might develop better and more

acceptable automatic seatbelt systems. That development could

result in automatic seatbelts that were as effective as airbags but

cost less. The Secretary also concluded that requiring airbags in

all cars would unnecessarily stifle further innovation in occupant

protection systems. 49 Fed. Reg. at 29,001.

— —

25

of their cars. See p. 5 & n. 5, supra. Standard 208 thus

diversity

would be frustrated if manufacturers could be held

liable for not installing airbags. If, when the Secretary

the rule in 1984, t and other

manufacturers had known that they could later be held

liable for failure to install airbags, the prospect of siz-

able compensatory and punitive damage awards, com-

bined with the “centralized, mass production, high

volume character of the motor vehicle manufacturing

industry in the United States,” S. Rep. N~. 1301, supra,

at 12, would likely have led them to ins. all airbags in all

cars. That outcome would have eliminated the divers-

ity that the Secretary found necessary at that time to

promote motor vehicle safety. At the very least,

holding manufacturers liable for not installing airbags

would have interfereld] with the methods by which

[Standard 208] was designed to reach [its] goal.”

Ouellette, 479 U.S. at 494." Therefore, tort claims like

2 Petitioners mistakenly argue (Br. 16, 44) that their tort

claims would not interfere with the Secretary's chosen methods

because, they assert (Br. 2, 10-1), the Secretary intended tort

liability to provide an incentive for manufacturers to install air-

bags. In support of that assertion, petitioners cite the Secretary’s

statement that “potential liability for any deficient systems” would

discourage manufacturers from using] the cheapest system to

comply with an automatic restraint requirement.” 49 Fed. Reg. at

29,000. Petitioners misunderstand the Secretary’s statement,

which meant that manufacturers could face tort liability if they

installed defective passive restraints. The Secretary did not mean

that manufacturers could be held liable for choosing one type of

passive restraint rather than another. Petitioners’ amici (Missouri

Br. 6; Ass’n of Trial Lawyers Br. 29) also mistakenly rely on a

petitioners’, which are based on the theory that a car

(subject to the version of Standard 208 in effect in 1987)

was defectively designed because it lacked an airbag,

“stand[] as an obstacle to the accomplishment and exe-

cution of the full purposes and objectives of [Standard

208).” Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

For those reasons, the Secretary has long taken the

view that Standard 208 preempts such claims. See

U.S. Amicus Br. at 28-29, Freightliner Corp. v. Myrick,

supra; U.S. Amicus Br. at 11-15, Wood v. General

Motors Corp., supra. That view is consistent with this

Court’s decisions holding that when Congress or an

agency determines that certain activity must be

permitted in order to further the purposes of federal

law, state law that would forbid that behavior is

preempted. See, e. g., Barnett Bank v. Nelson, 517 US.

25, 31 (1996); Fidelity Fed. Sav. & Loan Ass n v. De la

Cuesta, 458 U.S. 141, 154-155 (1982); Kalo Brick & Tile

Co., 450 U.S. at 326.

The Secretary’s view is entitled tu substantial

weight. “Because the [Department of Transportation]

is the federal agency to which Congress has

its authority to implement the [Safety] Act, the

[Secretary] is uniquely qualified to determine whether

a particular form of state law ‘stands as an obstacle to

public comment that the Secretary summarized in the description

of comments in the preamble. 49 Fed. Reg. at 28,972. An agency

does not endorse a comment merely by describing it.

Not all tort claims involving airbags would be preempted. A

claim that a manufacturer installed an airbag that deployed

improperly would not be preempted because it would not frustrate

the purposes of Standard 208. Even a claim that a manufacturer

should have chosen to install airbags rather than another type of

passive restraint in a certain model of car because of other design

features particular to that car (see Nat'l Conf. of State Leg. Br. 12)

would not necessarily frustrate Standard 208’s purposes.

the and execution of the full purposes

and objectives of Congress. Medtronic, 518 U.S. at

496; 1

conflict. See p. 17, supra. Here, because conflict preemption is at

issue, neither a statement of preemptive intent nor notice and

comment on preemption was required. For the same reasons, the

argument that the Secretary lacks authority to give any particular

federal standard preemptive force (Nat'l Conf. of State Leg. Br.

in the Standard that a choice of passive restraints would best

promote safety.

Garmon, 359 U.S. at 247. Indeed, petitioners’ amici

acknowledge that tort law “has a deterrence function.”

Nat'l Conf. of State Leg. Br. 14; see Ass’n of Trial

Lawyers Br. 10-12; Leflar Br. 12-13, 17; Missouri Br. 6,

13.

Petitioners also argue (Br. 16, 47-48) that, if manu-

facturers had changed their conduct and installed

airbags, they would have promoted public acceptance of

those devices. That may be true, but the Secretary

reasonably determined at that time that experience

with a variety of passive restraints would best promote

public acceptance. In any event, speculation of the sort

advanced by petitioners cannot displace the Secretary’s

reasonable conclusion that claims such as petitioners’

would thwart the purposes behind Standard 208.”

Petitioners further err in contending (Br. 48-49) that

their claims do not conflict with the goal of encouraging

innovation and development of more effective restraint

That tort law also has other purposes (such as com-

pensation) does not mean tort rules cannot conflict with federal law

(Nat'l Conf. of State Leg. Br. 14-15; Leflar Br. 17-19). Conflict

preemption flows from the effects of the state law, not its pur-

poses. See Gade v. National Solid Waste Mgmt. Ass u, 505 U.S.

88, 105-106 (1992).

* Petitioners suggest (Br. 16, 44) that a tort rule requiring

airbags is consistent with Standard 208 because the Secretary

determined that airbags were technologically the most effective

passive restraint and provided an incentive to encourage manu-

facturers to install them (see note 5, supra). That contention

overlooks the Secretary's conclusion that airbags would not be

effective in practice if they were installed in all cars because of the

likely public reaction and potential safety dangers in small cars. It

also overlooks the Secretary’s determination that further research

and development could lead to more cost-effective restraints. And

it overlooks the Secretary’s reason for providing the incentive to

install airbags—to ensure a variety of passive restraints, not to

maximize the number of cars with airbags.

— ——-_——— ——

systems. Contrary to petitioners’ suggestion, the

question is not whether tort liability in general stifles

innovation but whether liability for failure to install

airbags would have done so. The Secretary determined

that it would, because of the potential for large damage

awards and the “centralized, mass production, high

volume character of the motor vehicle manufacturing

industry in the United States,” S. Rep. No. 1301, supra,

at 12. This Court should decline invitation

to second- guess that reasonable determination.

Finally, petitioners argue (Br. 44-45) that their claims

do not conflict with Standard 208 because their car

was manufactured during the phase-in period (when

Standard 208 required the installation of some type of

passive restraint system in some, but not all, cars) and

their car did not have any passive restraint. Those

facts do not, however, alter the preemption analysis,

because petitioners do not claim that their car was

defectively designed because it lacked any type of

passive restraint. Rather, they claim that the car was

defectively designed because it lacked one particular

type of passive restraint—an airbag. See Pet. i; Pet.

Br. i. Thus, petitioners cannot prevail without a ruling

that a car manufactured in 1987 was defectively de-

signed unless it had an airbag. For the reasons we have

described, that ruling would conflict with the Secre-

tary’s determination that no particular type of passive

restraint should be required in any car because the use

of a variety of passive restraints would best promote

safety.”

27 This Court therefore need not decide whether Standard 208

would preempt a claim that a car manufactured during the phase-

in is defective if it lacks any passive restraint. The Secretary

believes that it would preempt such a claim, because the claim

would frustrate the safety purposes for which the Secretary

adopted the phase-in. See note 6, supra. A tort rule that effec-

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

NANCY E. MCFADDEN DAVID W. OGDEN

General Counsel Acting Assistant Attorney

PAUL M. GEIER General

Assistant General Counsel LAWRENCE G. WALLACE

TTHEW D. ROBERTS

18 Assistant to the Solicit

National Highway Traffic General

Safety Administration DOUGLAS N. LETTER

Department of KATHLEEN MORIARTY MUELLER

: Attorneys

NOVEMBER 1999

tively required passive restraints in all cars during the phase-in

would likely have resulted in the nearly exclusive use of automatic

seatbelts rather than airbags and impeded the development of data

about the benefits of passive restraints that could help prevent a

public backlash against them. See 49 Fed. Reg. at 28,999-29,000.

Contrary to petitioners’ contention (Br. 45), the fact that the claim

involved a car manufactured in 1987 or a crash that occurred after

the phase-in would not save the claim from preemption. The

relevant question is not what manufacturers would do after the

jury verdict in question but what they would have done when the

relevant version of Standard 208 was promulgated if they had

anticipated that they could later be held liable.