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

ALexis GEIER, et al.,

Petitioners,

Vv.

AMERICAN HONDA Motor CoMPANY, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE NATIONAL CONFERENCE OF STATE

LEGISLATURES, COUNCIL OF STATE GOVERNMENTS,

NATIONAL ASSOCIATION OF COUNTIES, NATIONAL

LEAGUE OF CITIES, INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION AND

U.S. CONFERENCE OF MAYORS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

ROBERT BRAUNEIS RICHARD RUDA *

720 20th Street, N.W. Chief Counsel

Washington, D.C. 20052 JAMES I, CROWLEY

(202) 994-6138 STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WILSON - Eras Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

are

.

4

A ere

Amici will address the following questions:

1. Whether compliance with a safety standard issued

under the National Traffic and Motor Vehicle Safety Act,

15 U.S.C. § 1381 ef seq., precludes liability for breach of

a state common-law duty of due care in automobile design.

2. Whether the promulgation of an occupant crash

|

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAE

SUMMARY OF ARGUMENT ...

ARGUMENT

TABLE OF CONTENTS

I. THE NATIONAL TRAFFIC AND MOTOR

Il.

VEHICLE SAFETY ACT’S EXPRESS PRES-

ERVATION OF COMMON LAW CLAIMS

MAINTAINS A LONG-STANDING, SOUND

TRADITION |...

A. The Safety Act Expressly Distinguishes Be-

tween Preempted State Legislative or Ad-

ministrative op ommend and Preserved State

Common Law Claims .

B. The Safety Act’s Distinction Between Com-

mon Law and Administrative Regulation

Seeks to Maintain a Long-Standing Tradition

of Continuing Importance

THERE IS NO BASIS IN FEDERAL LEGIS-

LATION OR ADMINISTRATIVE REGULA-

TION FOR SELECTIVELY IMPLYING PRE-

EMPTION OF COMMON-LAW TORT CLAIMS

INVOLVING AIRBAGS 2000

(iii)

5 te ee

10

Cases

iv

TABLE OF AUTHORITIES

Arbet v. Gussarson, 225 N.W.2d 431 (Wis. 1975)..

Bailey v. Johnson, 48 F.3d 965 (6th Cir. 1995)...

Board of Governors v. Dimension Financial Corp.,

474 U.S. 361 (1986)

Buzzard v. Roadrunner Trucking, Inc., 966 F.2d

777 (3d Cir. 1992)

Caviote v. Shea, 165 A. 788 (Conn. 1933) .......... rid

Cellucci v. General Motors Corp., 706 A.2d 806

(Pa. 1998)

Chicago & North Western Trans. Co. v. Kalo Brick

& Tile Co., 450 U.S. 311 (1980) 0

Chicago, Burlington & Quincy R.R. Co. v. Perkins,

17 N.E. 1 (Ill. 1888)

Cipollone v. Liggett Group, Inc., 505 U.S. 504

RRR BEY Se oh aed ee eae de,” SEF 1, 6, 21

Cooper v. General Motors Corp., 702 So.2d 428

IID, AIUD cteitittlellnaiteliad ialnielatiniattintacerinastithenitl tania 18

CSX Transportation v. Easterwood, 507 U.S. 658

(1993) 6

Dorsey v. Honda Motor Company Ltd., 655 F.2d

650 (5th Cir. 1981), cert. denied, 459 U.S. 880

(1982) 11

English v. General Elec. Co., 496 U.S. 72 (1990).. 19

Franklin v. Gwinnett County Public Schools, 503

U.S. 60 (1992) 15

Freightliner Corp. v. Myrick, 514 U.S. 280 (1995). 1,18

Garcia v. San Antonio Metropolitan Transit Au-

; ae

thority, 469 U.S. 528 (1985) 2. 28

Goodson v. McDonough Power Equipment, Inc.,

443 N.E.2d 978 (Ohio 1983) 18

Grand Trunk Ry. Co. v. Ives, 144 U.S. 408 (1892).. 38,10

H.P. Hood & Sons, Inc. v. Ford Motor Co., 345

N.E.2d 683 (Mass. 1976) .......2......0....--ccccnceceeceeees 27-28

Handy wv. General Motors Corp., 518 F.2d 786

(9th Cir. 1975 ) 15

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

1997)

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

v

TABLE OF AUTHORITIES—Continued

Page

In re “Agent Orange” Prod. Liab. Litig., 635 F.2d

987 (2d Cir. 1980), cert. denied, 454 U.S, 1128

(1981) ........... 15

INS v. Chadha, 462 U.S. 919 (1983) .............. 22

Landgraf v. USI Film Products, 511 U.S. 244

(1994) 19

Larsen v. General Motors Cor 391 F.2d 495 (8th

BR, SII” Gist eecetachamelinhicisndisentilcnd ieee 27

MacPherson v. Buick Motor Co., 111 N.E. 1050

1 iy er ee 1

Malone v. White Motor Corp., 435 US. 497

(1978) ........... 21

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)... 1

Montauk-Caribbean Airways, Inc. v. Hope, 784

F.2d 91 (2d Cir.), cert. denied, 479 U.S. 872

RES RSE = BAP 15

Morales v. Trans World Airlines, ‘Ine., 504 U.S.

$74 (1992) ........... 7, 20

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

Auto. Ins. Co., 463 U.S. 29 (1983) —................... 14, 28

Northwest Airlines Inc. v. Transport Workers

Union of America, 451 U.S. 77 (1981) .......... 15-16

Pennsylvania R.R. Co. v. Puritan Coal Mining

Co., 237 U.S. 121 (1915) .................. 7

Pokorny v. Ford Motor Co., 902 F.2d 1116 (3rd

ee DL a Poy ns oe 17-18, 18, 21

Rodriguez v. United States, 480 U.S. 522 (1987).. 20

Schwartz v. American Honda Motor Co., 710 F.2d

878 (7th Cir. 1983) me 11

Shorter v. Champion Home Builders Co., T76 F.

Supp. 833 (N.D. Ohio 1991) 7

Stonehocker v. General Motors Corp., 587 F.2d 151

SN i I 11

Taylor v. General Motors Corp., 875 F.2d 816

BE RS, ir 17, 18, 21, 23

Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co.,

BINS RE tS 7

Thompson v. New York Cent. R.R., 17 N.E. 690

(N.Y. 1888) ..... . 10

vi

TABLE OF AUTHORITIES—Continued

Page

Touche Ross & Co. v. Redington, 442 U.S. 569

SIG ccceisantinntniatntinmssapaitigpesneienpmitenetaiiinitnaiaiind 15

Transamerica Mortgage Advisors, Inc. v. Lewis,

8 ' 3. as 15

Volkswagen of America v. Young, 321 A.2d 737

(Md. 1974) . , 11, 27

Statutes and Regulations

ft iT. |S | a eer 1,17

Le EE Seer ree ... 24, 25

Be ee ectcbereeaccncctintnctitbinsniiiinienititoasiannalis 26

RT | eS Se 24, 25

BG TEs Bee eecetccersesencicccncniticncsvtchintiinenntiangiettinints 2, 6, 24

og FG CE ea hae passim

SE Ry BB rctctntevcecttcctnentedintvendasvicamiainticats 4, 21

15 U.S.C. § 1410b(b) (3) (B) -.......-.--.-----------------neeeee 21

Re Ee ES eo 22

Rb dl hE 21

et te ae ee 22

15 U.S.C. § 2072(a) ...................... is 15

RG A) on 7

of) ee |) ee a en 7

21 U.S.C. § 360pp (e) ........-----------.--2-0-<--e0 g

Oe Be Be eiiciriccceicsntneenestvttieninniinttmnanincgiaiiiinns 8

GB TEEEG, BGR GD cncncecccsesecictersecernecstitincinamnniintnnie 7

t) §))0UdUd rrr 7

PR ee Et ee ese Se 8g

ft. @) > -_- 2, 22, 23

49 C.F.R. § 571.208 S4.1.3.1 (1986) .......................... 23

49 C.F.R. § 571.208 $4.1.3.1.2 (1987) 26

Department of Transportation and Related Agen-

cies Appropriation Act, 1979, Pub. L. No. 95-

335, § 317, 92 Stat. 435, 450 (1978) ..................... 23

Department of Transportation and Related Agen-

cies Appropriation Act, 1980, Pub. L. No. 96-

131, § 317, 93 Stat. 1023, 1039 (1979) ................ 23

Motor Vehicle Safety and Schoolbus Amendments

of 1974, Pub. L. 93-492, Title I, § 109 (1974),

88 Stat. 1482 21

vii

TABLE OF AUTHORITIES—Continued

Page

National Manufactured Housing Construction and

» o~ dieenaaseander ses 1974, 42 U.S.C. § 5401

(RR ERIS 5 ae! 7

National Traffic and Motor Vehicle Safety Act,

15 U.S.C. § 1381 et seg. (now 49 U.S.C. § 30101

et seq.) 1

Radiation Control for Health and Safety Act of

1968, Pub. patie ela 82 Stat. 1173

(1968) ............. a Ca 8

Legislative and Administrative Materials

112 Cong. Rec. 14,230 (1966). 10

112 Cong. Rec. 19,668 (1966) 00 10

112 Cong. Rec. 21,487 (1966) 0.00.20. 12

112 Cong. Rec. 21,490 (1966) .................... 11

Federal Motor Vehicle Safety Standards Occupant

Restraint System, 42 Fed. Reg. 34,289 (1977) .... 22

Federal Motor Vehicle Safety Standard Occupant

Crash Protection, 49 Fed. Reg. 29,001 (1984)... 25,

25-26, 27

H.R. Rep. No. 1776, 89th Cong., 2d Sess. (1966)... 9

Hearings on H.R. 13228 Before the House Com-

mittee on Interstate and Foreign Commerce,

89th Cong., 2d Sess. (1966) 00 10

S. Rep. No. 1301, 89th Cong., 2d Sess. (1966)... 10, 16

Other Authorities

John S. Allee, Product Liability (1989) 0... 13

Steven Garber & John Adams, Product and Stock

Market Responses to Automotive Product Lia-

bility Verdicts, in Brookings Papers on Eco-

nomic Activity: Microeconomics (Martin Baily,

Ne aa arene 17

W. Keeton et al., Prosser and Keeton on the Law

OF TerGe CUT OF. TOBE) anna. cecccnccccececccevescoceceeee 11

Jerry L. Mashaw & David L. Harfst, Regulation

and Legal Culture: The Case of Motor Vehicle

Safety, 4 Yale J. on Reg. 257 (1987) ................. - 14

viii

TABLE OF AUTHORITIES—Continued

Amal Nag, Ford Settles Lawsuit Over Accident

Victim For $1.8 Million Total, The Wall Street

Journal 17 (March 16, 1984) ............-..........---...

Restatement (Second) of Torts (1965) .................

Restatement (Third) of Torts: Products Liability

(1998)

Victor E. Schwartz & Liberty Mahshigian, Offen-

sive Collateral Estoppel: It Will Not Work In

Product Liability, 31 N.Y. L. Sch. L. Rev. 583

CRED cibincshnnicnthtsetinmabiiicartiiediiiesnetipetandiiciaiaaiiind

Page

28

10-11

11

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county, and municipal governments and officials through-

out the United States, have a strong interest in legal

issues that affect state and local governments, including

issues of federal preemption of state law. Amici accord-

ingly have filed briefs in such preemption cases as Med-

tronic, Inc. v. Lohr, 518 U.S. 470 (1996); Freightliner

Corp. v. Myrick, 514 U.S. 280 (1995); and Cipollone v.

Liggett Group, Inc., 505 U.S. 504 (1992). This case

involves another important preemption issue: whether

the National Traffic and Motor Vehicle Safety Act (Safety

Act), 15 U.S.C, § 1381 et seg. (now 49 U.S.C. § 30101

et seq.), preempts state common-law tort claims prem-

ised on a manufacturer’s negligence in omitting airbags in

the design of a motor vehicle.

Through the distinctive institution of the common law

of torts, the States have long protected persons injured

by negligently and defectively designed products by re-

quiring that manufacturers compensate them. See, ¢.g.,

MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y.

1916). In the context of negligently designed motor

vehicles, state tort liability also promotes public safety

by encouraging manufacturers to design their products in

light of available safety technology. In keeping with the

Safety Act’s purpose of reducing the toll of motor vehicle

accidents, deaths and injuries, see 15 U.S.C. § 1381

(1982 & Supp. 1987),? Congress expressly preserved

1 Pursuant to Rule 37.3 of the Rules of this Court, the parties

have consented to the filing of this brief amicus curiae. Their

letters of consent have been filed with the Clerk of the Court.

Pursuant to Rule 37.6, amici state that this brief was not au-

thored in whole or in part by counsel for a party, and no person

or entity, other than amici or their members, made a monetary

contribution to the preparation or submission of this brief.

2 All citations to the prior version of the National Traffic and

Motor Vehicle Safety Act are to the 1982 U.S. Code and the 1987

Supplement thereto.

2

state common law tort liability even when a negligence

claim is premised on a design that complies with an

applicable federal safety standard. See 15 U.S.C.

§ 1397(k).

Because of the importance of the issues presented to

amici and their members, amici submit this brief to assist

the Court in its resolution of this case.

SUMMARY OF ARGUMENT

Federal law preserves petitioners’ claim that the re-

spondent’s omission of airbags in their design of the

1987 Honda Accord breached their state common law

duty of due care. As a general matter, the Safety Act

expressly preserves, rather than preempts, common law

claims concerning automobile components that comply

with an applicable federal motor vehicle safety standard.

Because the common law of negligence takes regulatory

requirements into account as evidence of the proper

standard of due care, the intended effect of the Safety

Act’s preservation scheme is not to create two unrelated

bodies of law affecting automakers, but to maintain the

traditional sound relationship between legislative or ad-

ministrative regulation and common law liability. Within

the Safety Act’s general framework of preservation, neither

federal legislation nor the particular federal regulation ad-

dressing occupant crash protection, 49 C.F.R. § 571.208

(Standard 208), reveals any basis for selectively implying

preemption of petitioners’ specific airbag claim.

1. The two provisions of the Safety Act that define the

preemptive force of administratively established motor ve-

hicle safety standards, 15 U.S.C. § 1392(d) and 15 U.S.C.

§ 1397(k), expressly distinguish between preempted state

legislative or administrative law and preserved state com-

mon law. Section 1392(d) uses identical substantive and

procedural language to describe the federal law that ex-

3

erts preemptive force and the state law that it preempts—

“safety standards” that have been “established” and are

“in effect.” It is thus read most naturally to preempt the

kinds of state law that are created in the same way that

the preempting federal law is: legislation and admin-

istrative regulation. Section 1397(k) reinforces this dis-

tinction by explicitly preserving “liability under common

law,” but not state legislation and regulation, in the face of

compliance with federal standards. Unlike other federal

sco -preemption provisions, section 1397(k) contains

neither an exception for state law covered under sec-

tion 1392(d), nor coverage of state statutory law that is

not covered under section 1392(d). Accordingly, section

1397(k) is both too broad and too narrow to serve as a

general savings clause preserving whatever state law is not

inconsistent with federal law.

The intended purpose of the Safety Act’s preemption

scheme is to ensure unitary legislative and administrative

regulation of automobile safety, while preserving the tra-

ditional relationship between administrative regulations

and common-law liability, which deems regulations inform-

ative but not determinative of liability. That traditional

relationship, acknowledged by this Court over a century

ago in Grand Trunk Railway Co. v. Ives, 144 U.S. 408,

421 (1892), maintains the distinct identity of the two

complementary regimes of administrative regulation and

the common law of torts. Those two regimes have dif-

ferences of particularity, temporal perspective, and pur-

pose that counsel against collapsing them, as this Court

has recognized in the opposite direction by its reluctance

to imply private rights of action into federal regulatory

schemes. Where, as here, Congress has provided in plain

language for the continued partial independence of the two

regimes, there is no reason not to implement that directive.

2. Against the background of general express preserva-

tion of common law claims alleging negligence in designs

4

complying with federal motor vehicle safety standards,

neither federal legislation nor Standard 208 and its history

provide any basis for selectively implying preemption of

airbag claims. The case for implied preemption in the

face of express preservation is at its strongest where there

is an actual conflict between state and federal law, forcing

an affected person to violate one law or the other, and

where the express provision at issue is a general savings

clause that purports to preserve all state law without dis-

tinction. It is at its weakest where, as here, there is no

actual conflict, but only an invocation of Congressional

purpose that is usually best defined by the text of the

Statute itself, and where the express language of the stat-

ute precisely limits the federal law’s preemptive force to a

particular type of state law.

The federal legislation mistakenly relied on by some

lower courts to support selective implied preemption of

airbag claims, 15 U.S.C. § 1410b, falls short in three

respects. Section 1410b is completely consistent with con-

tinued preservation of common-law claims regarding air-

bags; it imposed only procedural limitations on the Secre-

tary’s ability to promulgate safety standards requiring air-

bags; and those limitations lapsed in 1977, when the

Secretary first promulgated a regulation phasing in a pas-

sive restraint requirement.

In the absence of any relevant legislation other than the

Safety Act itself, it is doubtful that the Secretary had any

authority to immunize manufacturers from liability for

automobile components on a case-by-case basis, since sec-

tion 1392(d) and section 1397(k) clothe standards issued

under the Act with uniform preemptive force. In any

event, neither Standard 208 nor its history reveal any evi-

dence of an intent to create a unique “liability-free zone”

around airbags. Standard 208’s provision of alternative

means to comply with occupant crash protection require-

5

ments is perfectly consistent with an intent to provide

flexibility under federal law while leaving state common

law claims untouched. Most of the regulatory history

cited by the lower courts in support of selective preemp-

tion is either irrelevant or actually weighs against a find-

ing of implied preemption. The few sentences of regu-

latory history that speak vaguely of automakers’ discre-

tion with regard to passive restraints are far too indistinct

and equivocal to extinguish, without further notice and

opportunity to object, the States’ ability to provide relief

to persons injured in their jurisdictions by negligent

conduct.

ARGUMENT

I. THE NATIONAL TRAFFIC AND MOTOR VEHICLE

SAFETY ACT’S EXPRESS PRESERVATION OF

COMMON LAW CLAIMS MAINTAINS A LONG-

STANDING, SOUND TRADITION

The plain language of the National Traffic and Motor

Vehicle Safety Act’s preemption provisions require safety

standards established by state legislative and administra-

tive bodies to be identical to federal standards validly es-

tablished by the Secretary of Transportation, but do not

prevent state courts from awarding compensation to in-

dividuals injured by motor vehicles that violate traditional

common-law standards of due care, even if they meet

federal standards. The courts that have held Safety Act

standards to preempt common-law tort actions rely heavily

on the view that the common law regulates in virtually the

same manner as administrative schemes, and therefore

should not be treated differently for preemption purposes,

even in the face of plain language that mandates different

treatment. This understanding, however, fails to recognize

the different, complementary roles and purposes of admin-

istrative regulation and tort liability. For over a century,

6

both this Court and state courts have recognized the dif-

ferent roles of these legal regimes, and have established

a traditional understanding of their distinctiveness. In

light of this tradition, Congress’s demonstrated intent to

displace state administrative regulation while leaving state

common law in place makes eminent sense.

A. The Safety Act Expressly Distinguishes Between

Preempted State Legislative or Administrative Reg-

ulation and Preserved State Common Law Claims

When read together, the two Safety Act provisions cru-

cial to this case, 15 U.S.C. § 1392(d) and 15 U.S.C.

§ 1397(k), expressly establish a distinction between state

legislative and administrative regulations, which are pre-

empted if not identical to federal standards, and state

common-law tort liability, which may be imposed even if

the defendant has complied with a relevant federal stand-

ard. Even if read alone, section 1392(d) most naturally

applies only to state administrative regulations, and not to

common-law liability. Most tellingly, that section uses

identical language to describe (1) the federal law that

exerts preemptive force—a “safety standard” that has

been “established” and is “in effect,” and (2) the scope

of that preemption—a removal of state authority to “es-

tablish” or to “continue in effect” any “safety standard”

not identical to the federal standard. Congress may some-

times use general terms such as “requirement,” “prohibi-

tion,” and “standard” to encompass liability rules sug-

gested by the verdicts in common-law tort cases. See, e.g.,

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521

(1992); CSX Transportation v. Easterwood, 507 US.

658, 664 (1993). Here, however, the parallel use of both

substantive and procedural terms suggests that Congress

meant to preempt those state “safety standards” that were

7

“established” and “in effect” in the same way that the

federal standards were established and in effect—through

legislative and administrative adoption.

Any doubt about the proper reading of section 1392(d)

is put to rest by 15 U.S.C. § 1397(k), which provides in

full that “[c]ompliance with any Federal motor vehicle

safety standard issued under this title does not exempt any

person from any liability under common law.” Like a

perfectly matching puzzle piece, section 1397(k) ex-

pressly preserves just that portion of state law—common

law—that is not preempted under the most natural read-

ing of section 1392(d).* Section 1397(k) is therefore not

a general savings clause of the type that this Court has

sometimes construed narrowly to eliminate conflict with

other substantive provisions. See, e.g., Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 384-85 (1992) (con-

struing a provision purporting to save “the remedies now

existing at common law or by statute”); Chicago & North

Western Trans. Co. v. Kalo Brick & Tile Co., 450 US.

311, 328 (1980) (same); Pennsylvania R.R. Co. v. Puri-

tan Coal Mining Co., 237 US. 121, 129 (1915) (same);

Texas & Pacific Rwy. Co. v. Abilene Cotton Oil Co., 204

U.S. 426, 446 (1907) (same); cf. 15 U.S.C. § 2074(a)

(purporting to preserve “liability at common law or under

State statutorv law”); 15 U.S.C. § 4406(c) (purporting

to preserve “liability . . . at common law or under state

statutory law”); 21 U.S.C. § 360pp(e) (purporting to pre-

serve “liability at common law or under Statutory law”);

3 To amici’s knowledge, there is only one other federal statutory

scheme that exhibits the same preemption-clause structure. The

National Manufactured Housing Construction and Safety Standards

Act of 1974, 42 U.S.C. $5401 et seq., contains provisions nearly

identical to 15 U.S.C. $$ 1892(d) and 1397(k). See 42 U.S.C.

$§ 5408(d), 5409(c). The only reported decision to construe these

provisions concluded that thev preserved the plaintiff’s common-law

tort claim. See Shorter v. Champion Home Builders Co., 776 F.

Supp. 333, 338 (N.D. Ohio 1991).

8

46 U.S.C. § 4311(g) (purporting to preserve “liability

at commor law or under State law”). Unlike these

blanket provisions, § 1397(k) singles out a particular

kind of state law—common law—for preservation.

Because section 1397(k) does not preserve state statu-

tory and administrative law, it is too narrow, as well as

too broad, to support the lower courts’ view that it was

meant to clarify “that compliance with Federal standards

does not exempt anyone from any liability that the States

have authority to impose.” Harris v. Ford Motor Co., 110

F.3d 1410, 1415 (9th Cir. 1997); Pet. App. Sa (noting

that the district court followed the Ninth Circuit’s ap-

proach in Harris). Congress knows how to write the pro-

vision that the Ninth Circuit and the district court mis-

takenly read into section 1397(k), and it did so just

two years after it drafted section 1397(k), in the Radia-

tion Control for Health and Safety Act of 1968. In lan-

guage similar to that of 15 U.S.C. § 1392(d), but without

its precise parallelism, the first sentence of section 360F

of that Act provides that promulgation of an electronic

product performance standard under the Act deprives

States of the authority to establish different standards re-

specting the same aspect of performance. See Radiation

Control for Health and Safety Act of 1968, Pub. L. 90-

602, § 360F, 82 Stat. 1173 (1968), reprinted in 1968

U.S.C.C.A.N. 1352, 1367-68, codified at 21 U.S.C.

§ 360ss. Section 360C(e) of the Act then provides:

Except as provided in the first sentence of section

360F, compliance with this subpart or any regula-

tions issued thereunder shall not relieve any person

from liability at common law or under statutory law.

Radiation Control for Health and Safety Act of 1968, Pub.

L. 90-602, § 360C(e), 82 Stat. 1173 (1968), reprinted

in 1968 U.S.C.C.A.N. 1362, 1366, codified at 21 U.S.C.

§ 360pp(e) (emphasis added). By contrast, section

1397(k) has no qualifying clause indicating that it yields

9

to any potential conflict with section 1392(d), and it has

no reference to the preservation of liability under statu-

tory law. The first omission makes § 1397(k) too broad

to preserve state law only when there is no applicable

federal standard, and the second omission makes it too

narrow, since it would then leave some state statutory

and administrative law in limbo—not preempted by sec-

tion 1392(d), but not preserved by section 1397(k),

either. The unavoidable conclusion is that the Safety Act’s

preemption scheme was not cast in the same mold as the

Radiation Control Act’s, but instead reflects a conscious

decision to distinguish between preempted state legislative

and administrative regulation, and non-preempted state

common law.

Legislative history materials only reinforce the plain

meaning of sections 1392(d) and 1397(k), by confirming

that the distinction between preempted state legislation and

preserved common-law liability was indeed contemplated

by members of Congress, without recorded opposition.

The House Committee Report, for example, explained

that § 1397(k) meant that “compliance with safety stand-

ards is not to be a defense or otherwise to affect the rights

of parties under common law, particularly those relating

to warranty, contract, and tort liability.” H.R. Rep. No.

1776, 89th Cong., 2d Sess. 24 (1966). During floor

debates, Representative Dingell argued against a proposed

amendment adding criminal penalties to the bill by noting

that it already provided ‘or more than enforcement of

federal safety standards:

{W]e have preserved every single common-law rem-

edy that exists against a manufacturer for the bene-

fit of a motor vehicle . This means that all

of the warranties and all of the other devices of

common law which are afforded to the purchaser,

remain in the buyer, and they can be exercised

10

112 Cong. Rec. 19,663 (1966). This and other legisla-

tive history leaves no doubt that the plain meaning of

sections 1392(d) and 1397(k) was the meaning aired

during the legislative process.* hat plain meaning pre-

empts state legislative and administrative regulation, but

preserves common law tort actions such as Ms. Geier’s.

B. The Safety Act’s Distinction Between Common Law

and Administrative Regulation Seeks to Ma’...:'n a

Long-Standing Tradition of Continuing Impert nce

Over a hundred years ago, this Court, following the

broad consensus of state courts, ruled that compliance

with legislative safety standards was not a conclusive de-

fense in a common-law personal injury action, but only

provided evidence of the defendant's exercise of due care.

See Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 420-21

(1892) (citing Chicago, Burlington & Quincy R.R. Co.

v. Perkins, 17 N.E. 1 (Tl. 1888) and Thompson v. New

York Cent. R.R., 17 N.E. 690 (N.Y. 1888)). Over the

intervening century, this principle has remained the near-

universal understanding of the ordinary relationship be-

tween legislative or administrative regulation and common-

law tort liability. In 1965, the Restatement (Second) of

Torts acknowledged the settled understanding that “[c]om-

pliance with a legislative enactment or an administrative

4 For other statements articulating this plain meaning, see S. Rep.

No. 1301, 89th Cong., 2d Sess. 12 (1966) (“[T]he Federal minimum

safety standards need not be interpreted as restricting State com-

mon law standards of care. Compliance with such standards would

thus not necessarily shield any person from product liability at

common law.”) ; 112 Cong. Rec. 14,230 (1966) (statement of Senator

Magnuson) (“Compliance with Federal standards would not neces-

sarily shield any person from broad liability at the common law.

The common law on product liability still remains as it was.”);

Hearings on H.R. 13228 Before the House Committee on Interstate

and Foreign Commerce, 89th Cong., 2d Sess. 1260 (1966) (state-

ment of Representative Mackay) (“[{T]he agency bill provides for

certification of vehicles that actually met minimum safety stand-

ards. This does not . . . relieve makers of any legal liability what-

soever in terms of their obligation to the consumer.”).

11

regulation does not prevent a finding of negligence where

a reasonable man would take additional precautions.”

Restatement (Second) of Torts §288C (1965). Over

three decades later, the Restatement (Third) of Torts:

Products Liability reiterated that “a product’s compliance

with an applicable product safety statute or administra-

tive regulation is properly considered in determining

whether the product is defective with respect to the risks

sought to be reduced by the statute or regulation, but

such compliance does not preclude as a matter of law a

finding of product defect.” Restatement (Third) of Torts:

Products Liability § 4(b) (1998); see W. Keeton, et al.,

Prosser and Keeton on the Law of Torts 233 (Sth ed.

1984) (“While compliance with a statutory standard is

evidence of due care, it is not conclusive on the issue.”).

As many of the lower court decisions correctly constru-

ing the Safety Act’s preemption scheme have noted, the

scheme preserves this traditional relationship between reg-

ulations and common-law tort liability, while ensuring

unitary legislative and administrative control of the regu-

lations. See, e.g., Dorsey v. Honda Motor Company Ltd.,

655 F.2d 650, 656 (Sth Cir. 1981), cert. denied, 459

U.S. 880 (1982); Stonehocker v. General Motors Corp.,

587 F.2d 151, 156-57 (4th Cir. 1978); Schwartz v.

American Honda Motor Co., 710 F.2d 378, 383 (7th

Cir. 1983); Volkswagen of America v. Young, 321 A.2d

737, 746 (Md. 1974). Two floor statements about the

Act demonstrate that Congress was entirely aware of this

consequence. Senator Cotton explained that the Act “de-

clar[es] that compliance with any Federal standard does

not exempt any person from liability under common law,”

112 Cong. Rec. 21,490 (1966), but further stated that

“jt seems clear . . . that proof of compliance with Federal

standards may be offered in any proceeding for such rele-

vance and weight as courts and juries may give it.” /d.

Senator Magnuson similarly stated his understanding that

12

§ 1397(k), while providing that “compliance with Federal

Standards does not exempt any person from common law

liability[,] . . . does not prevent any person from introduc-

ing in a lawsuit evidence of compliance or noncompliance

with Federal standards.” 112 Cong. Rec. 21,487 (1966).

1. An appreciation of this traditional doctrine, and its

function in keeping the institutions of administrative reg-

ulation and the common law of torts distinct, leads to a

firmer grasp of Congressional intent in delineating the

scope of preemption as it did in sections 1392(d) and

1397(k). The principle that compliance with legislative

or administrative regulation is not determinative of com-

mon-law tort liability reflects differences of particularity,

temporal perspective, and purpose between those two legal

regimes. First, while statutes and administrative regula-

tions are necessarily abstract and general, common-law

tort liability begins with and remains tied to the particular

facts of each case. One corollary of this difference is

that a legislative regulation cannot anticipate every par-

ticular circumstance in which a reasonable person exercis-

ing due care would take additional precautions. See, e.g.,

Caviote v. Shea, 165 A. 788, 789 (Conn. 1933) (defend-

ant’s compliance with parking regulations did not preclude

a finding that he should have taken additional precautions

to ensure visibility on winding road in dark, foggy condi-

tions). In the case of automobile occupant crash protec-

tion devices, for example, an automaker might learn that,

whether or not airbags substantially reduce passenger in-

juries in car accidents generally, they dramatically reduce

injuries in smaller-than-average cars, or in cars with some

other specific set of features. If compliance with a gen-

eral occupant crash protection standard such as Standard

208 shields the automaker from common-law tort liability

for failure to install airbags in the particular models in

which they would make a dramatic difference, accident

victims are left without a remedy for injuries caused by

ee Te a

13

the automaker’s unreasonable behavior, and the auto-

maker has no legal incentive to act on its knowledge to

reduce injuries.

The particularity of the common law—the fact that

cases are its basic building blocks—also means that com-

mon-law tort litigation does not establish rules in the same

way that legislative or administrative regulation does, so

that preserving common-law liability does not create the

same potential for conflict as would preserving state statu-

tory regulation. First, in the common law system of prec-

edent, defendants are always free to argue that a previous

case should be read more narrowly than its explicit lan-

guage suggests, to limit it to particular facts in that case.

Second, because of the importance of factual variations

in product liability cases, courts have refused to let plain-

tiffs engage in the offensive use of collateral estoppel in

those cases, outside of the narrow areas of asbestos and

diethylstilbestrol (DES) cases. See, e.g., Goodson v.

McDonough Power Equipment, Inc., 443 N.E.2d 978,

988 (Ohio 1983) (“non-mutual collateral estoppel may

not be used to preclude the relitigation of design issues

relating to mass-produced products when the injuries arise

out of distinct underlying incidents”); John S. Allee,

Product Liability § 9.03{2] (1989); Victor E. Schwartz

& Liberty Mahshigian, Offensive Collateral Estoppel: It

Will Not Work In Product Liability, 31 N.Y. L. Sch. L.

Rev. 583, 587 (1986) (footnote omitted). The result is

that a finding of liability in one case does not necessarily

fix a standard of conduct in the way that legislative or

administrative regulation does.

2. Tort law also contributes a different temporal per-

spective on conduct than does legislative and administra-

tive regulation. A statute or regulation is based on infor-

mation gathered before its enactment, and yet only gov-

erns conduct after enactment. It is therefore potentially

obsolete as soon as it becomes effective. No legislature

14

or administrative body can continuously and instantane-

ously update standards as new information and technol-

ogy become available; amendments can only be made

periodically, and with substantial lag time. The National

Highway and Transportation Safety Authority is no ex-

ception to this general rule. By many accounts, its rule-

making efforts have been particularly subject to delay.

See, e.g., Jerry L. Mashaw & David L. Harfst, Regulation

and Legal Culture: The Case of Motor Vehicle Safety,

4 Yale J. on Reg. 257, 283, 295-97 (1987). This Court

itself has noted the lengthy delay in promulgating Stand-

ard 208, which “{o]ver the course of approximately 60

rulemaking notices, [was] imposed, amended, rescinded,

reimposed, and . . . rescinded again.” Motor Vehicle

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

29, 34 (1983).

By contrast, the development of the common-law duty

of due care is continuous. If, as a result of new informa-

tion or advances in technology, a reasonable person would

have changed the design of a product in time to prevent

an injury—allowing for a reasonable period to implement

that design through manufacturing—then that person is

legally responsible for that injury, even if regulatory stand-

ards have not kept up with the relevant advances in

knowledge and technology. This temporal perspective

allows tort law to fill unavoidable gaps in statutory or

administrative safety regulation.

3. Finally, tort law and safety regulation have differ-

ent primary purposes. Traditionally, the primary purpose

of the common law of torts is providing compensation

for injury to private parties. Although tort law also has

a deterrence function, the absence of a deterrent effect in

a particular case has no effect on an injured party’s ability

to recover compensation.

By contrast, the primary purpose of safety regulation

is to reduce future injury and property damage, not to

15

provide compensation for injuries. Although a few fed-

eral safety regulation schemes specifically provide for pri-

vate rights of action, see, e.g., 15 U.S.C. § 2072(a) (pro-

viding a private right of action for violations of the Con-

sumer Products Safety Act), the National Traffic and

Motor Vehicle Safety Act is typical in its omission of

explicit private rights of action. Recognizing the impor-

tant difference between public safety regulation and pri-

vate liability for injuries, courts have generally refused to

imply private rights of action under federal safety regu-

lations, including the NTMVSA. See, e.g., Handy v.

General Motors Corp., 518 F.2d 786, 788 (9th Cir.

1975) (NTMVSA); Bailey v. Johnson, 48 F.3d 965,

967-68 (6th Cir. 1995) (FDCA); Montauk-Caribbean

Airways, Inc. v. Hope, 784 F.2d 91, 97 (2d Cir.)

(FAA), cert. denied, 479 U.S. 872 (1986); In re “Agent

Orange” Prod. Liab. Litig., 635 F.2d 987, 991-92 n.9

(2d Cir. 1980) (FIFRA), cert. denied, 454 U.S. 1128

(1981).

In refusing to redefine private tort liability in terms of

public regulatory standards, these courts are demonstrat-

ing the same sensitivity to Congressional intent that this

Court has shown in its reluctance to imply private rights

of action generally. See Touche Ross & Co. v. Redington,

442 U.S. 560, 578 (1979); Transamerica Mortgage Ad-

visors, Inc. v. Lewis, 444 U.S. 11, 18, 23-24 (1979);

Franklin v. Gwinnett County Public Schools, 503 U.S.

60, 77 (1992) (Scalia, J., concurring in the judgment)

(suggesting that the Court “perhaps ought to abandon

the notion of implied causes of action entirely”). When

Congress creates an integrated scheme of public regula-

tion and enforcement, this Court has noted that it would

often defeat Congress’s purpose, rather than further it,

to redefine private liability based on those public regula-

tory standards. See, e.g., Northwest Airlines, Inc. v.

Transport Workers Union of America, 451 U.S. 77, 93-

16

94 (1981) (declining to recognize an implied right of

action for contribution against a joint tort-feasor under

the Equal Pay Act of Title VII because private enforce-

ment would likely defeat Congressional intent).

For the same reasons that this Court has become reluc-

tant to create new private rights of action by implication,

it should be reluctant to destroy existing private rights of

action by implication. Both actions are likely to miscon-

strue Congressional purpose by oversimplification, assum-

ing that, if Congress approved of a substantive standard,

it wanted that standard and only that standard enforced

by all possible means. Congress legislates against the

background of a legal system in which the common law

of torts is a longstanding institution with a focus, perspec-

tive, and purpose distinct from administrative regulation.

Because of those distinctions, it makes perfect sense that

Congress would want the federal government to become

the sole administrative regulator, preempting administra-

tive regulation at the state level, while leaving the state

common law of torts intact.

To be sure, one of Congress’s interests in adopting a

scheme of federal automobile safety regulation was an in-

terest in uniformity, as various snippets of legislative his-

tory suggest. See, e.g., S. Rep. No. 1301, 89th Cong. 2d

Sess. 12, reprinted in 1966 U.S.C.C.A.N. 2709, 2720

(describing the desideratum of motor vehicle safety stand-

ards that are “uniform throughout the country”). Yet

Congress could well have believed that the lion’s share of

uniformity benefits were achieved by ensuring that auto-

makers will only have to deal with one set of administra-

tive safety regulations rather than fifty. After all, most auto-

mobile safety issues will never become the subject of liti-

gation by an individual against an automaker, because the

amounts involved are too small. In that small percentage

of cases in which individuals are gravely enough injured

by a defective automobile to contemplate an expensive,

——

17

time-consuming product liability suit against an auto-

maker, Congress could have decided that the balance

tilted in favor of allowing States to award compensation

for negligent conduct.’ In those infrequent cases, the in-

terest in providing relief to the injured party is at its

apex, and the automaker’s conduct is of the type that it

is most important to deter to promote automobile ‘safety,

which is, after all, the principal purpose of the Safety ‘Act.

See 15 U.S.C. § 1381 (declaring that the putpose of the

Safety Act is “to reduce traffic accidents and deaths and

injuries to persons resulting from traffic accidents”). Ulti-

mately, however, neither Congress’s particular reasons for

preserving common law tort claims nor their persuasive-

ness are controlling. The plain language of the Safety Act

makes clear Congress’s intent to distinguish between ‘pre-

empted administrative regulation and non-preempted com-

mon-law actions.

II. THERE IS NO BASIS IN FEDERAL LEGISLATION

OR ADMINISTRATIVE REGULATION FOR SELEC-

TIVELY IMPLYING PREEMPTION OF COMMON-

LAW TORT CLAIMS INVOLVING AIRBAGS

A number of lower courts, including the court below,

have used implied preemption doctrine to create a non-

textual “airbag exception” to the Safety Act’s express pres-

ervation of common-law tort claims. See Pet. App. 15a-

16a; Taylor v. General Motors Corp., 875 F.2d 816, 827-

28 (11th Cir. 1989); Pokorny v. Ford Motor Co., 902

SIf Congress had indeed judged that automotive product liability

litigation would be relatively rare and inconsequential, that judg-

ment has been confirmed by a recent study that uncovered only 93

automotive product liability awards over an eleven-year period—

less than nine per year—and that found that the awards had no

statistically significant effect on the defendants’ stock prices or on

sales of the defective automobile model. See Steven Garber & John

Adams, Product and Stock Market Responses to Automotive Product

Liability Verdicts, in Brookings Papers on Economie Activity:

Microeconomics 1 (Martin Bailey, et al., eds., 1998).

18

F.2d 1116, 1123-25 (3rd Cir. 1990); Cooper v. General

Motors Corp., 702 So.2d 428, 438-40 (Miss. 1997);

Cellucci v. General Motors Corp., 706 A.2d 806, 811

(Pa. 1998).

These courts acknowledge that a Federal Motor Vehicle

Safety Standard does not ordinarily create a safe harbor

immunizing manufacturers from common-law defective de-

sign liability. See, e.g., Buzzard v. Roadrunner Trucking,

Inc., 966 F.2d 777, 783 (3d Cir. 1992) (holding that

the Federal Motor Vehicle Safety Standard governing

illumination did not preempt state common-law tort claims

for defective design of illumination, and expressly distin-

guishing airbag cases). Yet they conclude that in the case

of defective design claims involving airbags, preemption

of the common law of torts must be implied to protect a

Congressional purpose abstracted from various bits of fed-

eral legislation, administrative regulation, and legislative

history. See Pet. App. 14a-15a (citing Standard 208 and

its “tortured history”); Taylor, 875 F.2d at 826-28 (citing

Standard 208 and three pieces of federal legislation);

Pokorny, 902 F.2d at 1123-24 (citing Standard 208 and

one piece of federal legislation); Cooper, 702 So.2d at

438 (citing Standard 208); Cellucci, 706 A.2d at 810

(citing Standard 208). This conclusion relies both on an

excessive loosening of this Court’s implied preemption re-

quirements and on unwarranted inferences of legislative

and administrative intent. A careful reading of the rele-

vant legislation and regulations reveals no evidence of in-

tent sufficient to imply preemption under proper preemp-

tion standards.

1. As this Court noted in Freightliner Corp. v. Myrick,

514 U.S. 280, 288 (1995), the presence of an express

preemption provision does not “entirely foreclose[] any

possibility of implied pre-emption.” The latitude for sup-

plementary implied preemption, however, differs greatly

depending upon the type of implied preemption and the

. ee Oe .

Conflict between state and federal law that renders it

“impossible for a private party to comply with both state

and federal requirements,” English v. General Elec. Co.,

496 U.S. 72, 79 (1990), most easily trumps an express

preemption provision. Here, preemption is supported by

an elementary principle of fairness, namely, that a person

under the concurrent jurisdiction of two coordinate sov-

ereigns should not be forced by one to do something pro-

hibited by the other. Just as the principle that individuals

should be able to plan their conduct according to know-

able law leads to the strong judicial presumption against

statutory retroactivity, see, e.g., Landgraf v. USI Film

Products, 511 U.S. 244, 265 (1994), so this principle

leads to a strong presumption in favor of preemption.

This presumption, when applicable, counters and out-

weighs the general presumption against preemption, and

should require for rebuttal a clearer statement than is

provided by a general preemption clause.®

By contrast, preemption should rarely be implied

beyond the scope of an express preemption provision

6In theory, the Safety Act could provide an occasion for appli-

cation of this type of preemption. In the unlikely event that an

automaker were found liable under state common law for manu-

facturing an automobile to a specification mandated by an estab-

lished federal safety standard (if, for example, liability was based

on a finding that a headlight of the minimum brightness mandated

by the federal safety standard was excessively bright), a court

might be justified in finding that the federal standard impliedly

preempted state law, even though section 1397(k) provides that

compliance with a federal standard never exempts anyone from

common-law liability. Of course, no such conflict is presented by

this case.

20

‘merely on ,the (basis that state law “stands as an obstacle

to the accomplishment and execution of the full purposes

and objectives of Congress.” Hines v. Davidowitz, 312

US. 52, 67 (1941). After all, every statute reflects a

compromise between competing purposes, which may in-

clude uniformity or flexibility, on the one hand, and pres-

ervation of ,established law affording compensation to

injured parties, on the other. The compromise struck

between those purposes is best reflected in the text

of the statute itself, including any provision defining

the scope of preemption. Thus, it is a mistake to

construct from .a substantive statutory provision or from

legislative history, some abstract purpose that -purport-

edly justifies overriding another provision of the same

statute. As this Court has noted, “[dleciding what com-

neting values will or will not be sacrificed to the achieve-

ment of a narticular obiective is the very essence of legis-

lative choice—and it frustrates rather than effectuates leg-

islative intent simplistically to assume that whatever fur-

thers the statwte’s rrimarv obiective mnst be the law.” Rod-

rieuez v. United States. 480 U.S. 522, 526 (1987): see

Roard af Gavernors vy. Dimension Financial Corp., 474

U.S. 361, 374 (1986).

The case for implying preemption to further some

purnose imnuted from a substantive statutory nrovision is

even weaker when, as in the case of the Safety Act, the

express clauses governing preemption do not purport

either to preempt all conflicting state law or to save it,

but instead strike a specific compromise. When implying

preemption from a substantive provision in the face of a

universal savings clause. courts will often refer to the

“commonplace of statutory construction that the specific

governs the general.” Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 384 (1992). The assumption under-

lying that canon of construction is that general clauses

framed in absolute terms are often boilerplate that statu-

we

21

tory drafters have not measured agains‘ the more thor-

oughly considered substantive provisions. That assump-

tion does not apply when, as here, the drafters have

crafted language that indicates the precise balance struck

between preemption and preservation of state law. In that

case, the statutory language “provides a ‘reliable indicium

of congressional intent with respect to state authority,’ ”

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517

(1992) (quoting Malone v. White Motor Corp., 435

U.S. 497, 505 (1978)), leaving no room for supple-

mentary implied preemption.

2. In this case, the legislation and regulations concern-

ing occupant crash protection provide no evidence that

Congress or the Secretary of Transportation intended to

create a specific exception to the general rule that federal

safety standards do not preempt the state common law

of torts. The principal legislation purportedly supporting

implied preemption is 15 U.S.C. § 1410b, which Congress

passed in 1974. See Motor Vehicle and Schoolbus Safety

Amendments of 1974, Pub. L. 93-492, Title I, § 109

(1974), 88 Stat. 1470, reprinted in 1974 U.S.C.C.A.N.

1687, 1701-04; Taylor, 875 F.2d at 826 (discussing sec-

tion 1410b); Pokorny, 902 F.2d at 1123-24 (same).

Section 1410b placed limitations on the Secretary of

Transportation’s authority to promulgate an occupant

crash protection regulation that required or allowed com-

pliance by any restraint system other than a seat belt

system.

The limitations, however, were merely procedural rather

than substantive, and had lapsed by 1977. Initially, sec-

tion 1410b provided that the Secretary had to follow a spe-

cial procedure when promulgating an occupant crash pro-

tection standard that required or permitted compliance by

means of anything other than a seat belt system. See 15

U.S.C. §§ 1410b(b)(3)(B), 1410b(c). The procedure

specified was designed principally to give Congress the

22

opportunity to exercise a “legislative veto.” 7 See 15 U.S.C,

§ 1410b(d). In 1977, the Secretary of Transportation

used this procedure to issue a standard that required auto-

makers to phase in passive restraints between 1981 and

1983, and that allowed manufacturers to use airbags to sat-

isfy the passive restraint requirement. See Federal Motor Ve-

hicle Safety Standard Occupant Restraint System, 42 Fed.

Reg. 34,289 (July 5, 1977). Congress chose not to exer-

cise its authority under section 1410b’s legislative veto

provision, and the regulation became law. See 49 C.F.R.

§ 571.208 (1977). When that occurred, a special pro-

vision in section 1410b lifted its procedural limitations

with respect to any future occupant crash protection

standard promulgated by the Secretary. Thus, in 1977

section 1410b became a dead letter. It had been designed

to give Congress a one-shot opportunity to consider a

legislative veto of a safety standard requiring or permit-

7 This Court declared the legislative veto process unconstitutional

in INS v. Chadha, 462 U.S. 919 (1983). By then, however, as

explained immediately below, section 1410b no longer gave Con-

gress a legislative veto opportunity.

8 Section 1410b(3)(C) provided:

Paragraph (2) [which prevented the issuance of safety stand-

ards requiring occupant crash protections other than seat belts]

shall not apply to a Federal motor vehicle safety standard if at

the time of promulgation of such standard (i) the 60-day period

determined under subsection (d) of this section has expired

with respect to any previously promulgated standard which the

Secretary has elected to promulgate in accordance with subsec-

tion (c) of this section, and (ii) both Houses of Congress have

not by concurrent resolution within such period disapproved

such previously promulgated standard.

15 U.S.C. § 1410b(3)(C) (1982). Once the 1977 standard became

law, it would be a conforming “previously promulgated standard”

with respect to any future occupant crash protection standard, thus

— that standard from any strictures imposed under section

1410b.

quire some form of “passive” or “automatic” restraint

such as airbags, automatic seat belts, or passive interiors,

and one which requires only manual seat belts. See 49

C.F.R. § 571.208, $4.1.3.1 (1986). The courts that have

implied preemption of airbag claims reason that this regu-

lation evinces an intent not only to give manufacturers

flexibility in complying with federal law, but also to shield

them from any potential state common-law consequences

of choosing one option or another. See, ¢.g., Pet. App.

14a-15a. The regulation’s provision of alternatives, how-

9In Taylor, the Eleventh Circuit cites as additional support for

implying preemption two Department of Transportation appropria-

tions bills which provided that “‘[n]one of the funds appropriated

{for the Department of Transportation] shall be used to implement

or enforce any standard or regulation which requires any motor

of Transportation and Related Agencies Appropriation Act, 1979,

Pub. L. No. 95-335, § 317, 92 Stat. 435, 450 (1978)); see Depart-

ment of Transportation and Related Agencies Appropriation Act,

1980, Pub. L. No. 96-131, § 317, 93 Stat. 1023, 1039 (1979).

There are a plethora of problems with implying state common

law preemption from federal appropriation riders. Without con-

sidering all of them, it suffices for this case to say that if one infers

these provisions a Congressional objection to airbags in 1978

979, then one should infer from the absence of similar provi-

sions in subsequent appropriations bills a withdrawal of that objec-

tion in 1980, seven years before the manufacture of the Honda

Accord here at issue.

24

ever, provides no basis for creating a unique “liability-

free zone” around airbags.

As an initial matter, the Safety Act nowhere grants the

Secretary the authority to decide on a component-by-

component basis whether and to what extent to immunize

automakers from common-law liability. Rather, it au-

thorizes the Secretary to issue “minimum standards for

performance” and clothes those standards with uniform

preemptive force. See 15 U.S.C. § 1392(a) (authorizing

the Secretary to promulgate “motor vehicle safety stand-

ard{[s]”); 15 U.S.C. § 1391(2) (defining “motor vehicle

safety standards” as “a minimum standard for motor ve-

hicle performance, or motor vehicle equipment perform-

ance”); 15 U.S.C. § 1392(d) (defining scope of preemp-

tion for established standards); 15 U.S.C. § 1397(k)

(preserving state common-law claims). Thus, were the

Secretary to decide explictly to immunize automakers from

common-law liability regarding some particular compo-

nent—whether airbags, or tempered-glass windshields, or

breakaway engine mounts, or anything else—it seems al-

most certain that the Secretary would be acting ultra vires.

In any event, neither the language and structure of

Standard 208 nor its regulatory history provides any evi-

dence of such a decision. Because the provision of alter-

natives in Standard 208 is entirely compatible with an

intent to provide flexibility under federal law but not to

have any effect on state law, no inference in favor of

preemption can be drawn from the mere fact that manu-

facturers need not install airbags to meet Standard 208.

Hence, to draw such an inference, courts must rely on

extratextual regulatory history about the Secretary’s mo-

tives in providing the alternatives, such as the supple-

mentary information provided in the Federal Register

upon promulgation of the standard. Arguably, evidence of

agency motives that failed to find any expression in the

promulgated standard itself should never be a sufficient

hicle Safety Standard; Occupant Crash Protection, 49 Fed.

Reg. 29001 (1984). The Safety Act only authorizes the

establishment of performance standards, which specify, for

those standards. See 15 U.S.C. get oy aan

the Secretary to promulgate “motor }

ards”); 15 U.S.C. § 1391(2) (defining “motor vehicle

safety standard” as “a minimum standard for motor ve-

hicle equipment performance”) (emphasis added). Thus,

the fact that Standard 208 provides manufacturers the

flexibility to use airbags, automatic seat belts, or conceiv-

ably some other technology to provide passive restraint,

is traceable to the fundamental approach of the Safety

Act, and cannot be used to infer an intent to immunize

manufacturers from common-law tort liability.

Second, the Secretary expressed a desire to provide

consumers with a choice between different occupant crash

protection schemes, and to be able to gather comparative

data about the use of different schemes. See Federal

Motor Vehicle Safety Standard; Occupant Crash Protec-

tion, 49 Fed. Reg. 29001 (“Under the rule being issued,

if people have concerns about airbags, they can purchase

automobiles that use automatic belts.”); id. (“Widespread

use of both systems is the only way to develop definitive

data.”). Yet Standard 208, as promulgated, does not

guarantee consumer choice or the widespread use of dif-

ferent systems. It allows automakers to make all of their

cars with manual seat belts only, or with airbags only.”

The only method of guaranteeing diversity would be to

require minimum production quotas for each option. If

Standard 208 required an automaker to produce some

percentage of its cars with manual seat belts only, pre-

sumably the stronger “actual conflict” implied preemption

would protect it from common law liability for failing to

install airbags. Because Standard 208 as promulgated

does no such thing, the Secretary’s desires remain unac-

complished, and cannot be used to support implied pre-

emption.

Third, most of the Secretary’s other reasons for allow-

ing automakers to install crash protection systems other

than airbags are the types of reasons that the Safety Act

anticipates will shape the limitations of every Federal

Motor Vehicle Safety Standard. Because the Safety Act

also provides that such standards will not preempt state

common law, Congress cannot intend these reasons to

count toward implied preemption. The Safety Act re-

quires the Secretary to consider “whether a proposed

standard is reasonable, practicable, and appropriate for

the particular type of motor vehicle or item of motor

vehicle equipment for which it is prescribed.” 15 USC.

§$ 1392. The Secretary expressed doubts whether airbags

would be cost effective. see Federal Motor Vehicle Safety

Standard; Occunant Crash Protection, 49 Fed. Reg.

28991-92, 29000-01 (1984) and whether some consumers

10 For the year in which Ms. Geier’s car was manufactured.

Standard 208 required automakers to eauin at least 10% of their

cars with passive restraints. See 49 C.F.R. $571,208 $4121.92

(1987). This requirement, however, does not cuarantee diversity,

since it provides no maximum percentage for passive restraints.

en,

crash protection standard would not have the three-

a that has impressed all of the courts that

option scheme

found implied preemption; the Secretary’s decision to in-

clude options

stra

the

tary’s intent to displace state common law, then

promulgated standard would preempt common law, ren-

dering section 1397(k) a nullity. Thus, the expression of

such concerns in the regulatory history of Standard 208

to preempt state common-law tort liability when airbags

are at issue. See, e.g., id. (“[Bly restricting the manu-

the Safety Act’s express savings clause had been uniformly

held by a federal court of appeals and three state courts

of last resort to preserve common law actions in the face

of the federal regulatory scheme. See Larsen v. General

Motors Corp., 391 F.2d 495, 506 (8th Cir. 1968); Volks-

wagen of America, Inc. v. Young, 321 A.2d 737, 746

(Md. 1974); Arbet v. Gussarson, 225 N.W.2d 431, 438

(Wis. 1975); H.P. Hood & Sons, Inc. v. Ford Motor Co.,

345 N.E.2d 683, 688 (Mass. 1976)." Against this back-

ground, a few statements about “flexibility” that make no

mention of preemption hardly give the States fair notice

that their ability to provide relief for negligent, injurious

conduct is about to be extinguished. Thus, the political

process would be ill-served by ‘inding implied preemp-

tion on such a tenuous basis. Cf. Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528, 556

(1985) (“The political process ensures that laws that

unduly burden the States will not be promulgated.”).™

In sum, neither federal legislation, nor Standard 208,

nor the regulatory history of that standard, provides any

basis for selectively implying preemption of airbag claims

11 Moreover, just a few months earlier, the Ford Motor Company

had settled a state common-law airbag omission claim during trial

for $1.8 million, making common-law liability for airbag omission

a live issue, as well publicized in a feature article in The Wall Street

Journal. See Amal Nag, Ford Settles Lawsuit Over Accident Victim

For $1.8 Million Total, The Wall Street Journal 17 (March 16, 1984).

12 The “phase-in” of federal passive restraint requirements over

a period from 1986 to 1989 similarly provides no basis for implying

preemption of state tort liability regarding an automobile manu-

factured in 1987. The version of Standard 208 promulgated in 1977

required a phase-in of passive restraints by 1983. The Secretary

rescinded that requirement in 1981, but this Court held in 1983 that

the rescission was arbitrary and capricious. See Motor Vehicle

Mfrs, Ass'n v. State Farm Mut, Auto. Ins. Co., 463 U.S. 29, 46

(1983). At that time, the Court noted that “[flor nearly a decade,

the automobile industry waged the regulatory equivalent of war

against the airbag and lost—the inflatable restraint was proven

sufficiently.” Jd. at 49 (footnote omitted). When the Secretary, in

the wake of State Farm, reinstated the passive restraint require-

ments in 1984, she could not, for reasons of fairness given her

predecessor’s vacillation, assess penalties against automakers for

failing to equip cars with passive restraints overnight. Yet that

unjustified vacillation should not necessarily have prevented auto-

makers from recognizing that their common-law duty of due care

required the installation of passive restraints before 1987, nor

should it prevent persons injured by the automakers’ breach of

that duty from seeking compensation for their injuries.

in the face of the Safety Act’s express preservation of all

common-law claims regarding automobile safety.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

ROBERT BRAUNEIS RICHARD RuDA *

720 20th Street, N.W. Chief Counsel

Washington, D.C. 20052 JAMEs I. CROWLEY

(202) 994-6138 STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W

Suite 345

Washington, D.C. 20001

(202) 484-4850

* Counsel of Record for the

October 22, 1999 Amici Curiae