# 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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0277%3A12. Public record. Not legal advice.