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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 861

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0277%3A09. Public record. Not legal advice.