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

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— mYY b2 ;

No. 98-1811 |

LERK

=——— Seo

In THE

Supreme Court of the United States

ALExis GEIER, ef al.,

- Petitioners,

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 ALLIANCE OF AUTOMOBILE

MANUFACTURERS AND THE ASSOCIATION OF

INTERNATIONAL AUTOMOBILE

MANUFACTURERS, INC., AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

THOMAS W. MERRILL *

NORTHWESTERN UNIVERSITY

SCHOOL OF LAW

Brett M. KAVANAUGH GENE C,. SCHAERR

RICHARD A. CORDRAY JOHN E. FEE

KIRKLAND & ELLIS SHONA M. MACINTYRE

655 15th Street, N.W. SIDLEY & AUSTIN

Suite 1200 Bank One Plaza

Washington, D.C. 20005 10 South Dearborn Street

(202) 879-5000 Chicago, IL 60608

(312) 853-7000

Counsel for Amici Curiae

November 19, 1999 * Counsel of Record

———a a entianitnieenenntnsinenieleen

WILSON-Eres Printinc Co., Inc. - (202) 789-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

QUESTION PRESENTED

Amici will address the following question: Whether a

civil action seeking to hold an automobile manufacturer

liable under state tort law for failing to include an airbag

in a vehicle that was manufactured at a time when the

applicable Federal Motor Vehicle Safety Standard gave

manufacturers an option as to whether to install airbags

is expressly preempted by the National Traffic and Motor

Vehicle Safety Act of 1966.

(i)

I. THE PLAIN LANGUAGE OF SECTION

1392(d) PREEMPTS A STATE SAFETY

STANDARD THAT WOULD MANDATE THE

INSTALLATION OF AIRBAGS IN VEHI-

CLES WHEN THE APPLICABLE FEDERAL

STANDARD MADE AIRBAGS OPTIONAL...

THE EXPRESS PREEMPTION OF “ANY

SAFETY STANDARD” NOT IDENTICAL TO

A FEDERAL STANDARD INCLUDES A

SAFETY STANDARD IMPOSED BY STATE

ES

A. “Any Safety Standard” Is Not Limited To

Positive Regulations ~.................--...-.ccc0.-.-----

B. Common-Law Standards Are “Established”

Or “Continued In Effect” By A “State”...

C. Construing “Any State Standard” To Include

SECTION 1397(k) DOES NOT LIMIT OR

QUALIFY THE PREEMPTIVE FORCE OF

SECTION 1392(d) ceijiaepneimieapiamions

A. The Language Of Section 1397(k) Does Not

Limit Or Qualify The Scope Of Section

A

(iii)

12

17

21

iv

TABLE OF CONTENTS—Continued

B. Sections 1392(d) And 1397(k) Play Com-

plementary Roles In Determining Which

Common-Law Claims Can Be Maintained...

C. Section 1397(k) Should Not Be Interpreted

To Destroy The Uniformity Of Safety

0 SS ae

ee meniennumes

28

S

v

TABLE OF AUTHORITIES

CASES Page

American Airlines, Inc. v. Wolens, 513 U.S. 219

| | . 27,29

Asahi Metal Indus. Co. ¥. "Superior Court, 480 US.

102 (1987) . pom 13

AT&T Co. V. Central ‘Office ‘Tel., “Ine. ‘118 s. Ct.

1956 (1998) . allianditiedi 29

Atherton Vv. FDIC, 519 ‘US. 213 (1997) . 13

Beatty vy. Trailmaster Prods., Inc., 625 A2a 1005

RPE aS a eS ee 25

BMW of N. Am., Inc. Vv. Gore, 517 U.S. 559

RST A LE A 19

Brooks v. Beech Aircraft Corp., 902 P.2d 54 (N.M.

Re a Ee ee 25

Chicago & Northwest Transp. Co. v. Kalo Brick

& Tile Co., 450 U.S. 311 (1981) .. 30

Cipollone v. Liggett Group, Ine. 505 ‘US. 504

0 ESS a aS eee See ee 12, 19

Cooper Vv. Aaron, 358 U.S. 1 (1958) —- oo on 19

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

(1998) .......... I Fee a ee Sw 12, 23

Erie R.R. Co. v. Tompkins, 804 U.S. 64 (1938)... 19

Gracia Vv. Volvo Europa Truck, N.V., 112 F.3d

291 (7th Cir. 1997), cert. denied, 118 S. Ct. 697

SELLS ae Rae eT ae ee ree 26

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

1997) . 22

International Paper Co. v. ‘Ouellette, ‘479 U. s. “481

TRE Oe ce sae ne ee ee 18, 29

Kermarec Vv. Compagnie Generale Transatlantique,

bf OD. RS ee ee See 13

Maryland vy. Louisiana, 451 U.S. 7125 (1981)... 22

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ....12, 16, 18

Morales v. Trans World Airlines, Inc., 504 U.S.

874 (1992) ......... EAC aa STE ONE a 29

New York Times Co. v. Sullivan, 376 U.S. 254

as RDS a en eee edeee te ae RCE 19

Pennsylvania v. Nelson, 350 U.S. 497 ( 1956)... vain 26

Perry Vv. Mercedes Benz of N. Am., Inc., 957 F.2d

f£ \ § £x—_ ees 20, 24

vi

TABLE OF AUTHORITIES—Continued

Pilot Life Ins. Co. v. Dedeauz, 481 U.S. 41 (1987).. 30

San Diego Bldg. Trades Council v. Garmon, 359

.) § Fo ee ae aa es ee 16, 26

Shelley v. Kraemer, 334 U.S. 1 (1948) ................... 19

Smith v. United States, 508 U.S. 223 (1993) ........... 23

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

iy | ) wes 5, 21, 29, 30

United Gas Improvement Co. v. Continental Oil

Co., 381 U.S. 392 (1965) . 13

Wagner v. Clark Equip. Co., 700 “A2d 28 (Conn.

re ae 25

FEDERAL STATUTES AND REGULATIONS

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

OB ccncnmncasnaisckaiinedadiait ics diteiaManeNie td 10

15 U.S.C. §§ 1381- 1431 (1988) (recodified at 49

U.S.C. §§ 30101-30169 (1994) ) cccccccceeeneeveeen 1

ee a 9, 14, 15

OD * SERRE SURE 8, 6, 7, 9, 15

§ 1897(k) EER ENIIS f - 21

SS a RE: RR Bs: i HEL 9

§1399(a) ........ EE ASAP S 9

RSIS SMe LRT OSL: «6 10

Oy iin 19

49 C.F_R. §1.50(a) (1998) 0... ie MS al 9

$$ 571.101-.500 (1998) nec ennneneeceeeeereee 9, 26

§ 571.208 (1998) ........... italien Ballas 2 omit 1, 10, 21

Federal Motor Vehicle Safety Standards, 49 Fed.

Reg. 28,962 (1984) (codified at 49 C.F.R. pt.

| rs aiid Pare ene eeeey ae eee 9

STATE STATUTES

Kan. Stat. Ann. § 60-3304(a) (1999) ................. 25

Mich. Comp. Laws Ann. § 600.2946(4) (West

EEE 25

i

vii

TABLE OF AUTHORITIES—Continued

LEGISLATIVE HISTORY Page

S. Rep. No. 89-1301 (1966), reprinted in 1966

I tr 7, 8, 28

112 Cong. Rec. 14,253 (1966) (statement by

ee x

112 Cong. Rec. 19,663 (1966) (statement of Sena-

a aE eR 28

112 Cong. Rec. 21,487 (1966) (statement of Sena-

| EE ea ae ae 25, 28

112 Cong. Rec. 21,490 (1966) (statement of

Ea IE IE TERE SES 25

COURT RULE

EE Oe eS eee eae See 1

OTHER AUTHORITIES

Random House Dictionary of the English Lan-

guage (Unabridged ed. 1966) ....... 13

Restatement (Second) of Torts (1965) ............ 14, 22

Restatement (Third) of Torts: Product Liability

ora Sn tact Ak GAB STS 2 A GEL: SS BN 15

Stephen Breyer, Regulation and Its Reform

SEES EES NOSES Fy SEE a 16

Guido Calabresi, The Costs of Accidents (1970)... 16

Isaac Ehrlich & Richard A. Posner, An Economic

Analysis of Legal Rulemaking, 3 J. Legal Stud.

SEE SE SRE OY naan 13

Ford W. Hall, The Common Law: An Account of

Its Reception in the United States, 4 Vand. L.

i <a J a i 18

Mary L. Lyndon, Tort Law and Technology, 12

Yale J. on Reg. 187 (1995) .................................. 17

Steven Shavell, Liability for Harm Versus Regula-

tion of Safety, 13 J. Legal Stud. 357 (1984)... 16

Lawrence Tribe, American Constitutional Law

SF a ee ee eee 26

INTEREST OF AMICI CURIAE 1

The Alliance of Automobile Manufacturers (“Alli-

ance”) and the Association of International Automobile

Manufacturers, Inc. (“AIAM”) are non-profit national

trade organizations whose member companies are princi-

pally engaged in the production and sale of motor vehicles.

They include all of the major distributors of motor vehicles

in the United States market.”

The vehicles that these companies distribute in the

United States must comply with the National Traffic and

Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381-

1431 (1988) (recodified at 49 U.S.C §§ 30101-30169

(1994)) (the “Safety Act”), and with the Federal Motor

Vehicle Safety Standards that are adopted by the National

Highway Traffic Safety Administration (“NHTSA”) pur-

suant to the statute. Among those standards is FMVSS

208, 49 C.F.R. § 571.208 (1998) (“Standard 208”),

which addresses occupant restraint systems.

The version of Standard 208 applicable to petitioners’

automobile, a 1987 Honda Accord, expressly permitted

1 Petitioners and respondents have consented to the filing of this

brief, in letters that are on file in the Clerk’s office. The under-

signed counsel alone have authored this brief, and no other person

or entity other than the two amici has made a monetary contribu-

tion to its preparation or submission. See Sup. Ct. R. 37.3.

2 The members of the Alliance are BMW of North America, Inc.,

DaimlerChrysler Corp., Fiat Auto S.p.A., Ford Motor Co., General

Motors Corp., Isuzu Motors America, Inc., Mazda Motor of America,

Inc., Nissan North America, Inc., Toyota Motor North America

(Toyota Motor Sales USA Inc.), Volkswagen of America, Inc., and

Volvo Cars of North America, Inc.

The members of AIAM are American Honda Motor Co., Inc.,

American Suzuki Motor Corp. BMW of North America, Inc.,

Daewoo Motor Co., Ltd.. Hyundai Motor America, Isuzu Motor

America, Inc., Mitsubishi Motor Sales of America, Inc., Porsche

Cars of North America, Inc., Saab Cars USA, Inc. Subaru of

America, Inc., Toyota Motor Sales USA, Inc., Volkswagen of Amer-

ica, Inc., and Volvo North America Corp.

2

and encouraged manufacturers to install a variety of occu-

pant restraint systems in vehicles produced that year, of

which airbags were but one option. Petitioners’ legal

claim is that, notwithstanding the choice granted to manu-

facturers by Standard 208, the States are nevertheless free

to impose civil liability o1. manufacturers for failing to

install airbags in 100 percent of the vehicles manufac-

tured in that year. This legal claim, if upheld, would

punish automobile manufacturers for carrying out an

express federal policy in favor of diversity among restraint

systems in 1987. It would also allow motor vehicles to

be subject to a multitude of safety standards in different

States.

The result would be intolerable. Motor vehicles are

produced and distributed on a national scale. And, once

sold, they are resold through a national wholesale market

for used vehicles. If States were free to set safety stand-

ards that differ from federal standards dealing with the

very same safety issues, after-the-fact through their tort

law, manufacturers would have no way of anticipating

which standard would eventually apply to any given car.

Some States might follow the federal standard and permit

but not require airbags. Some might decide that all ve-

hicles must have airbags. A few might even decide that

no vehicles should have airbags. It is doubtful at best

whether the resulting uncertainty would have any positive

effect on motor vehicle safety, although the litigation it

would spawn would certainly increase the costs to

consumers,

The resolution of the express and implied preemption

issues presented in this case are therefore of great interest

to amici. This brief will focus, in particular, on the

express preemption issue.

3

SUMMARY OF ARGUMENT

1. The Safety Act contains an express preemption

clause, 15 U.S.C. § 1392(d), which prohibits the States

from establishing or continuing in effect “any safety stand-

ard” which is “not identical” to a federal motor vehicle

safety standard that applies to “the same aspect of per-

formance” of a vehicle or its equipment. The plain lan-

guage of this clause makes clear that Congress established

a fundamental principle of uniformity with respect to

safety standards. Once the federal agency has established

a safety standard with respect to a particular aspect of

performance, that standard is the only safety standard

with which the vehicle must comply, no matter where in

the United States it may be subsequently driven or resold.

Petitioners’ no-airbag claim in this case falls squarely

within Standard 208, which governs vehicle occupant

restraint systems. Under the version of Standard 208 that

applies to petitioners’ vehicle, manufacturers had a choice

either to install a manual seat belt and shoulder harness

system, an automatic belt passive restraint system, or a

passive restraint system including an airbag. A require-

ment that manufacturers install airbags in all vehicles is

“not identical to” a standard that says manufacturers have

a choice among a variety of occupant restraint systems,

of which an airbag is only one option.

2. This conclusion does not change because petitioners

seek the same result through the adoption of a common-

law tort standard. This Court has held that words such

as “requirement” or “prohibition” in express preemption

clauses include standards of care enforced through com-

mon-law damages actions. The basis for concluding that

the operative language of Section 1392(d)—“any safety

standard”— includes common-law standards of care is if

anything even stronger, since the common law proceeds

more often by articulating standards than by prescribing

requircments.

4

Petitioners also err in asserting that interpreting “any

safety standard” to include common-law standards would

preempt “virtually all” common-law causes of action. Pet.

Br. 24-25. The preemptive effect of Section 1392(d)

extends only to common-law actions that seek to impose

a standard with respect to the “same aspect of perform-

ance” addressed by a federal safety standard. Thus,

claims of improper design or manufacture falling outside

the performance requirements of a federal standard would

not be preempted. In addition, Section 1392(d) expressly

excludes from preemption state standards that seek to

enforce a standard identical to a federal standard. This

means that States are free to impose common-law liability

on manufacturers for failing to adhere to the requirements

of federal standards.

3. Section 1397(k) of the Safety Act likewise does not

change the conclusion that petitioners’ action is expressly

preempted by Section 1392(d). That provision states that

“(c]ompliance with any Federal motor vehicle safety stand-

ard issued under this subchapter does not exempt any

person from any liability under common law.” One can-

not be “exempted” from common-law liability unless one

is first subject to such liability. Because Section 1392(d)

deprives the States of any authority to adopt safety stand-

ards that are not identical to federal safety standards

with respect to the same aspect of performance, a de-

fendant who properly establishes preemption under Section

1392(d) is not subject to a common-law duty the breach

of which could give rise to any liability.

Properly construed, Sections 1392(d) and 1397(k)

each play an important role in determining when common-

law claims are preempted. Where a federal standard

governs an aspect of performance, Section 1392(d) estab-

lishes that the States can enforce an identical standard,

but may not enforce any safety standard as to that aspect

of performance, through the common law or otherwise,

5

that is not identical to the federal standard. By contrast,

where an aspect of performance is not governed by a fed-

eral standard—even where a federal safety standard has

been adopted with respect to some other aspect of perform-

ance for the specific equipment involved—Section 1397(k)

makes clear that the States are free to enforce their own

standards of care and impose them by means of state

tort law. Specifically, Section 1397(k) establishes in

these circumstances that the Safety Act does not create

a federal “compliance with government standards” defense,

and that such compliance does not preempt the field of

state tort liability. Finally, even if a federal safety stand- ©

ard is in effect as to a particular aspect of performance,

Section 1397(k) establishes that the States may enforce

other common-law standards—under the law of contract,

for example—as long as they are not related to safety.

Harmonizing Section 1392(d) and Section 1397(k) in

this fashion is especially appropriate here, given the estab-

lished canon that a savings provision should not be

construed so that the Act “destroy[s] itself.” See Texas

& Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S.

426, 446 (1907). Petitioners’ interpretation of Section

1397(k), which would exempt all common law from pre-

emption, destroys the uniformity of safety standards com-

manded by Congress. Harmonizing these two provisions

as suggested herein is not only consistent with the Act's

language and structure; it also preserves the Act’s funda-

mental policy of uniformity.

ARGUMENT

The court of appeals in this case addressed two theories

as to why petitioners’ legal action is preempted by the

Safety Act and Standard 208: express preemption and

implied preemption. The court ultimately concluded that

it was not necessary to resolve the express preemption

issue because it found that petitioners’ action conflicts

6

with Standard 208, and hence is preempted by implication.

Amici concur fully in the lower court’s conclusion and

reasoning with respect to implied preemption. Neverthe-

less, amici also believe that the judgment below can be

affirmed on the alternative theory of express preemption,

which was also raised below by respondent American

Honda Motors Co. The purpose of this brief is to discuss

more fully the legal basis supporting the express preemp-

tion theory.

I. THE PLAIN LANGUAGE OF SECTION 1392(d)

PREEMPTS A STATE SAFETY STANDARD THAT

WOULD MANDATE THE INSTALLATION OF

AIRBAGS IN VEHICLES WHEN THE APPLI-

CABLE FEDERAL STANDARD MADE AIRBAGS

OPTIONAL.

The Safety Act includes an express preemption clause,

15 U.S.C. § 1392(d). The first sentence of that clause

sets forth the scope of state activity that is preempted, and

is followed by two sentences setting forth exceptions.

Because the language of the clause is critical to the express

preemption argument, we set it forth here in full:

[1] Whenever a Federal motor vehicle safety stand-

ard established under this title is in effect, no State

or political subdivision of a State shall have any

authority either to establish, or to continue in effect,

with respect to any motor vehicle or item of motor

vehicle equipment any safety standard applicable to

the same aspect of performance of such vehicle or

item of equipment which is not identical to the Fed-

eral standard. [2] Nothing in this section shall be

construed as preventing any State from enforcing any

safety standard which is identical to a Federal safety

standard. [3] Nothing in this section shall be con-

strued to prevent the Federal Government or the

government of any State or political subdivision

thereof from establishing a safety requirement appli-

cable to motor vehicles or motor vehicle equipment

7

procured for its own use if such requirement imposes

a higher standard of performance than that required

to comply with the otherwise applicable Federal

standard.

15 U.S.C. 1392(d)8

1. As is obvious from its language, Section 1392(d)

enacts a fundamental federal policy of uniformity with

respect to certain key motor vehicle safety standards.

Under the clause, where the federal government has estab-

lished a standard with respect to a particular safety issue,

the States are prohibited from adopting any safety stand-

ard that is “not identical to the Federal standard.” Thus,

Congress decreed that when a federal safety standard is in

effect with respect to “an aspect of performance” of a

vehicle or item of equipment, there shall be only one safety

standard with which the vehicle must comply—and that

is the standard set forth in the federal safety standard.

This policy of uniformity is confirmed by the second

and third sentences of the preemption clause. The second

sentence recognizes a narrow exception to the express pre-

emption created by the first sentence, to wit, where States

are seeking to enforce safety standards that are “identical

to a Federal safety standard.” This reveals that Congress

had no objection to state enforcement of safety standards

as such. See S. Rep. No. 89-1301, at 12 (1966), reprinted

in 1966 U.S.C.C.A.N, 2709, 2720. The point of the pre-

emption clause was not to confer a federal monopoly on

enforcement, but to assure that, whoever does the enforc-

ing, there will be a single uniform standard applied once

a federal safety standard is in effect.

The third sentence also confirms the importance of

uniformity by recognizing another narrow exception for

3 The recodified version of the express preemption clause uses

fewer words, but is to the the same effect. See 49 U.S.C. § 30103(b)

(1994). Following the lead of the lower court and the parties, we

refer in this brief to the earlier version of the Act.

procurement decisions by governmental authorities. This

sentence clarifies that governmental authorities are free to

establish “safety requirement{s]” for vehicles they purchase

for their own use (such as highway patrol cars) that reflect

a “higher standard of performance” than the federal safety

standards. It is telling that Congress thought it necessary

to specify that state and local governmental entities have

authority to enter into contracts for vehicles that have

different safety requirements than are required by federal

standards. This underscores Congress’s understanding that,

whenever a federal standard exists with respect to a par-

ticular safety issue, the preemption clause otherwise man-

dates the strictest uniformity in governmental standards.

Congress adopted this policy of uniform safety standards

to prevent the motor vehicle market from being balkanized

by a proliferation of different safety standards in different

jurisdictions. As the Senate Report observed in explaining

the rationale for the express preemption clause: “The cen-

tralized, mass production, high volume character of the

motor vehicle manufacturing industry in the United States

requires that motor vehicle safety standards be not only

strong and adequately enforced, but that they be uniform

throughout the country.” /d. Although divergent stand-

ards might cause little disruption in markets involving

products having a fixed location or products and services

having a limited geographic distribution, such a regime

would wreak havoc with products manufactured and dis-

tributed on a national scale. Motor vehicles, in particular,

are typically mass-produced on assembly lines in one or

two locations and then distributed throughout the fifty

states. After they are first sold, they are often driven to

different jurisdictions or resold through the national whole-

saie market for used cars. Subjecting such a product to

“50 standards in 50 different States” would be “chaotic”

and “unthinkable.” 112 Cong. Rec. 14253 (1966) (state-

ment of President Johnson).

To implement this policy of uniform national safety

standards, the Safety Act confers authority on the Secretary

of Transportation to adopt motor vehicle safety standards

that regulate the design, construction, and performance of

motor vehicles and associated equipment. See 15 U.S.C.

§$§ 1392(a), 1391(1) & (2).* The Safety Act does not

disregard the role of the States in the development and

enforcement of these standards. The statute requires the

Secretary to “consult with . . . State or interstate agencies”

when establishing a federal safety standard. /d. § 1392

(f)(2). And, as expressly recognized in § 1392(d), the

States are free to enforce the federal standards after they

are adopted. But the plain language of the express pre-

emption clause and the structure of the Act make clear

that once a federal safety standard is established, that

standard serves as the nationally uniform standard for all

vehicles it covers.

2. To understand the proper application of Section

1392(d) in this case, it is useful to begin by considering

what would have happened if the District of Columbia

(which the Act treats as a State, see 15 U.S.C. § 1391(8)),

had adopted an ordinance directing that all 1987 model

automobiles in the District, such as the Honda involved

in this case, include an airbag.

The version of the federal standard that addresses occu-

pant restraint systems, Standard 208, took effect in 1984.

See Federal Motor Vehicle Safety Standard, 49 Fed. Reg.

28,962 (1984) (codified at 49 C.F.R. pt. 571). With re-

spect to 1987 model vehicles, Standard 208 expressly

4The Secretary's statutory authority to adopt safety standards

has been delegated to NHTSA, which is the expert agency with

respect to motor vehicle safety. See 49 C.F.R. §1.50(a) (1998).

Over the years, NHTSA has exercised this authority by adopting

numerous regulations imposing specific safety standards in many

areas. See 49 C.F.R. §§ 571.101-.500 (1998). A manu-

is subject to federal civil penalties and injunctive relief

failure to comply. See 15 U.S.C. §§ 1398(a), 1399(a).

ay

10

authorized and encouraged manufacturers to provide a

variety of occupant protection systems as the best means

of promoting safety. See, e.g., 49 C.F.R. § 571.208 (1998).

These included manual lap and shoulder belt systems as

well as passive restraint systems, i.e., systems that require

no action by the occupant to make the system operational

after the ignition has been turned on. The authorized

types of passive restraint systems included both automatic

seat belts and airbags as well as other passive technologies.

Id. Standard 208 further required during this period that

manufacturers of passenger cars phase in progressively

higher percentages of cars having passive restraint systems.

Id. With respect to the 1987 model year, each manufac-

turer was required to install some form of passive restraint

in at least ten percent of its passenger cars. See id.,

$4.1.3.1 (1998).

The occupant restraint system built into petitioners’

1987 Honda, a manual three-point lap belt and shoulder

harness, is one of the systems explicitly authorized by

Standard 208 for vehicles manufactured at that time.

Thus, petitioners’ vehicle was manufactured in full com-

pliance with Standard 208 and in furtherance of the Secre-

tary’s policy to introduce passive restraints gradually.

If the District of Columbia attempted to enforce an

ordinance requiring airbags in all 1987 model year passen-

ger vehicles in the District, there is no question that such

an action would be preempted by Section 1392(d) and

5 The requirements of Standard 208 evolved over time, and even-

tually were replaced by a mandate requiring the installation of

airbags. All passenger cars manufactured after September 1, 1997,

must have “an inflatable restraint system at the driver’s and right

front passenger’s position,” which is the regulatory description of

an airbag. 49 C.F.R. § 571.208, S4.15.3. For a time, Congress

specifically prohibited NHTSA from requiring airbags to be in-

stalled without prior congressional review. See 15 U.S.C. § 1410b.

Now that airbags are mandatory, this provision has been repealed.

See Act of July 5, 1994, Pub. L. No. 103-272, § 7(b), 108 Stat. 745,

1379, 1385.

11

Standard 208. The analysis is straightforward. The “aspect

of performance” is whether an automobile must include

an occupant restraint system and, if so, whether it must

be of a particular kind. This aspect of performance is

expressly addressed by Standard 208, which for the year

in question allowed manufacturers to choose among differ-

ent restraint systems, including manual seat belts and air-

bags. The hypothesized rdinance, in contrast, would

compel manufacturers to install airbags in all vehicles.

Such a state standard clearly regulates the same “aspect of

performance,” but in a way that is plainly not “identical”

to Standard 208. As a result, the ordinance or regulation

would be preempted.

Note that the District of Columbia could not defend

such an ordinance on the ground that, since Standard 208

is elective and the local ordinance compulsory, it is “not

impossible” to comply with both. Cf. Pet. Br. 41-42. Nor

could such an enactment be sustained on the ground that

the federal standards should be construed as “minimum”

standards that States are free to supplement with higher

standards. Cf. Id. at 42-43. Section 1392(d) does not

preempt only state standards that are “impossible” to meet

consistent with the terms of the federal standard, nor does

it preempt only those state standards that fall “below” the

federal standard. It preempts any state standard that is

“not identical” to the federal standard.

Il. THE EXPRESS PREEMPTION OF “ANY SAFETY

STANDARD” NOT IDENTICAL TO A FEDERAL

STANDARD INCLUDES A SAFETY STANDARD

IMPOSED BY STATE COMMON LAW.

Given that Section 1392(d) expressly preempts any state

statute or regulation that would mandate the installation

of airbags in cars during years when Standard 208 gave

manufacturers the option to install airbags, the next ques-

tion is whether a different result should apply if the state

standard is adopted after-the-fact as a matter of state com-

12

mon law. Petitioners and their supporting amici advance

a number of arguments in an effort to cabin the uniformity

required by Section 1392(d) to the realm of positive regu-

lation, leaving common-law standards free to proliferate.

None of these arguments is persuasive in the context of

the Safety Act.

A. “Any Safety Standard” Is Not Limited To Positive

Regulations.

First, petitioners and their amici argue that the phrase

“any safety standard” in Section 1392(d) should be inter-

preted restrictively to mean only “state legislative and ad-

ministrative enactments.” See Pet. Br. 18-25. This posi-

tion—which would permit even a mandatory injunction

based on a common-law standard—is wrong, for several

mutually supporting reasons.

To begin with, the claim that “any safety standard”

refers only to positive enactments is contrary to this Court's

decisions construing other express preemption clauses.

Those decisions hold that terms such as “requirement,”

“prohibition,” and “standard” in a preemption provision

do in fact encompass rules of decision established by

common-law damages actions. See Cipollone v. Liggett

Group, Inc., 505 U.S. 504, 520-24 (1992) (Stevens, J.,

plurality opinion); id. at 548-49 (Scalia, J., concurring

and dissenting in part); CSX Transp., Inc. v. Easterwood,

407 U.S. 658, 664 (1993); Medtronic, Inc. v. Lohr, 518

U.S. 470, 503-05 (1996) (Breyer, J., concurring); id. at

510-12 (O'Connor, J., concurring and dissenting in part).

The Court’s repeated holdings on this interpretive point

have been fully and deliberately considered and should be

adhered to as a matter of stare decisis.

Indeed, if any distinction is to be drawn between Cipol-

lone, CSX, and Medtronic and this case, it would favor a

finding that Section 1392(d) is more easily construed as

covering common-law standards of care. The word “re-

13

quirement,” which provided the focal point of the discus-

sion in Cipollone and Medtronic, denotes an “order,”

“command,” or “directive.” Random House Dictionary of

the English Language (Unabridged ed. 1966). The word

“standard,” in contrast, denotes a “rule or principle” that

is “used as a basis for judgment.” Jd. Although the com-

mon law sometimes adopts precise requirements (as in the

Rule Against Perpetuities), it more often employs general

standards. See, e.g., Isaac Ehrlich & Richard A. Posner,

An Economic Analysis of Legal Rulemaking, 3 J. Legal

Stud. 257, 261 (1974) (noting that “precise rules” are

most commonly associated with legislative decisionmaking

while “standards” are associated with judicial decision-

making). Thus, if anything, an express preemption clause

that refers to “any safety standard” is more naturally

construed as covering common-law rules of decision than

were the preemption clauses construed in Cipollone and

Medtronic.®

The conclusion that “any safety standard” includes

common-law duties of care is reinforced by the definitions

of the Safety Act. The Act does not specifically define

the phrase “any safety standard,” which necessarily refers

to a variety of possible state standards. But it does define

“motor vehicle safety standards,” which are the federal

standards to which state “safety standards” must be identi-

cal. That definition requires, among other things, that a

6 The Court has indicated in a variety of contexts that the term

“standards” refers to state common law as well as state positive

law. See, e.g., Atherton v. FDIC, 519 U.S. 213, 217-26 (1997)

(state common law may be taken as setting the “standard of con-

duct” and the “standard of care” that directors and officers owe to

a federally chartered financial institution); Asahi Metal Indus. Co.

v. Superior Court, 480 U.S. 102, 114-15 (1987) (referring to “safety

standards” set by California products liability law); United Gas

Improvement Co. v. Continental Oil Co., 381 U.S. 392, 400 (1965)

(referring to “common law standards”); Kermaree v. Compagnie

Generale Transatlantique, 358 U.S. 625, 630-31 (1959) (referring

to “standard[s] of care” imposed by common law).

14

motor vehicle safety standard must “meet the need for

motor vehicle safety.” 7

The Safety Act goes on to define “motor vehicle safety”

in a way that is highly significant in determining whether

common-law tort rules are included in the meaning of

“any safety standard.” That definition provides as follows:

“Motor vehicle safety” means the performance of

motor vehicles or motor vehicle equipment in such a

manner that the public is protected against unreason-

able risk of accidents occurring as a result of the

design, construction or performance of motor vehicles

and is also protected against unreasonable risk of

death or injury to persons in the event accidents do

occur, and includes nonoperational safety of such

vehicles.

15 U.S.C. § 1391(1). The highlighted phrases in this

definition—“unreasonable risk of accidents” and “unrea-

sonable risk of death or injury”—are of course identical

to the conventional formulation of the duty of care recog-

nized in the common law of torts. See, ¢.g., Restatement

(Second) of Torts § 282 (1965) (defining negligence as

“conduct which falls below the standard established by

law for the protection of others against unreasonable risk

of harm”); id. § 284 (defining negligent conduct as “an

7 The full definition is as follows:

“Motor vehicle safety standards” means a minimum standard

for motor vehicle performance, or motor vehicle equipment per-

formance, which is practicable, which meets the need for motor

vehicle safety and which provides objective criteria.

15 U.S.C. §1391(2). Petitioners (at 23) and the Government (*t

13) stress that this definition requires that federal standards prv-

vide “objective criteria,” a characterization more appropriate for

positive regulation than common law. But the relevant statutory

term for preemption purposes is “any safety standard,” not “motor

vehicle safety standard.” The best indication of what is covered

by “any safety standard” is the definition of “motor vehicle safety,”

which demarcates the content, as opposed to the form, of the federal

15

et al., at 14, and hence as presenting no potential for

conflict.*

Finally, petitioners’ argument that common-law judg-

ments do not establish “standards” simply defies common

8 Petitioners argue that common-law claims regulate design rather

than performance and that performance alone is what the Safety

Act regulates. See Pet. Br. 21-24. But this is clearly untrue. The

Safety Act authorizes the Secretary to adopt standards. See 15

U.S.C. § 1392. The standards must “meet the need for motor vehicle

safety,” id., which is defined as “the performance of motor vehicles

or motor vehicle equipment” in a way that protects the public

against unreasonable risk of accidents occurring because of the

design, construction or performance of motor vehicles.” Id.

§ 1391(1) (emphasis added). The Safety Act thus authorizes the

agency to regulate the design, construction, and performance of

such equipment as a means of meeting the need for motor vehicle

16

sense. This Court has long recognized that “regulation

can be as effectively exerted through an award of damages

as through some form of preventive relief. The obligation

to pay compensation can be, indeed is designed to be, a

potent method of governing conduct and controlling policy.”

San Diego Bldg. Trades Council v. Garmon, 359 U.S.

236, 247 (1959). Justice Breyer made the point in Med-

tronic by alluding to a hypothetical federal regulation re-

quiring a 2-inch wire in a hearing aid component:

If the federal law, embodied in the “2-inch” . . . reg-

ulation, preempts the state “l-inch” agency regula-

tion, why would it not similarly preempt a state-law

tort action that premises liability upon the defendant

manufacturer’s failure to use a 1-inch wire (say, an

award by a jury persuaded by expert testimony that

use of a more than l-inch wire is negligent)? The

effects of the state agency regulation and the state

tort suit are identical.

Medtronic, 518 U.S. at 504 (Breyer, J., concurring in

judgment) (emphasis added).

Petitioners’ amici advance a variety of arguments in an

effort to show that positive regulation and common-law

liability are different. They are of course different in many

respects. But none of the amici denies that common-law

liability performs the important regulatory function of

forcing defendants to internalize the social costs of their

behavior.® Indeed, several of petitioners’ amici celebrate

9 The academic writings relied upon by petitioners’ amici are in

full agreement with the basic proposition that safety regulation and

common law liability are alternative means to the same end. See

Guido Calabresi, The Costs of Accidents, 68-129 (1970) (discussing

safety regulation (which he calls “specific deterrence”) and tort

liability (which he calls “general deterrence”) as alternative means

of reducing the sum of accident costs and accident prevention

costs); Stephen Breyer, Regulation and Its Reform, 177 (1982)

(noting that tort liability rules are, “in some instances, a possible

substitute for (or supplement to) a classical system of regulation” ) ;

Steven Shavell, Liability for Harm Versus Regulation of Safety,

13 J. Legal Stud. 357, 374 (1984) (noting that “the injunction and

17

this feature of the common law, and argue that it creates

more powerful incentives for safety than do federal safety

standards. See, e.g., Brief Amicus Curiae of The Associ-

ation of Trial Lawyers of America, at 11-12; Brief Amicus

Curiae of Robert E. Leflar, et al., at 17-19. Petitioners’

amici are of course free to espouse the superiority of

common-law liability as a mode of safety regulation. But

they cannot at the same time take the position that the

standards on which such liability is premised are not

“safety standards.” That, of course, is the only relevant

question to be answered in determining whether common-

ty usa of care come within the terms of Section

B. Common-Law Standards Are “Established” Or

“Continued In Effect” By A “State.”

Petitioners (Br. 23) and the Government (Br. 13)

further argue that Congress was concerned only with posi-

tive laws and regulations because it chose to describe the

preempted safety standards as ones that are “establish[ed]”

or “continue[d] in effect” by a “State or political subdivi-

sion of a State.” This language, they suggest, is more

apposite to standards adopted by legislative or regulatory

bodies than to the rules of decision adopted and applied

by courts.

Petitioners and the Government may be right that this

language is not what one would most naturally select if

one were drafting a preemption clause to apply only to

judicial standards. But Congress was writing broadly, and

wanted to cover nonidentical standards from all sources

of state and local authority, including, for example, coun-

ties and municipal governments. Naturally, it had to

safety regulation may be viewed as substitutes, but not perfect

ones, and similarly with the fine and liability”); Mary L. Lyndon,

Tort Law and Technology, 12 Yale J. on Reg. 137, 1483 (1995) (tort

law and safety regulation “can best be thought of as branches of

health and safety law, which provide different procedural options

or formats for addressing the social costs of technical change”).

18

choose language that is not precisely tailored to courts.

Once again, however, careful attention to the exact words

Congress used rebuts any notion that Section 1392(d)

does not apply to standards adopted by courts.

Consider, first, the use of the word “establish” to refer

to the prohibited safety standards. Although petitioners

and the government claim this word is not ordinarily used

to describe common-law rules of decision, this is in fact

untrue. This Court, for example, has referred to “common-

law rules established by the different States” precisely in

the context of discussing the scope of preemption of state

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

481, 496 (1987) (emphasis added). In any event, even

if there were something anomalous in speaking about

common-law rules being “established,” the statute speaks

in the alternative: States are forbidden “to establish, or to

continue in effect” nonidentical safety standards. There is

nothing anomalous about speaking of States “continuing

in effect” common-law standards. Indeed, in virtually

every State, the courts’ ultimate authority to apply com-

mon-law standards in resolving disputes rests on legislation

that “continues” the common law of England. See Ford

W. Hall, The Common Law: An Account of Its Reception

in the United States, 4 Vand. L. Rev. 791, 798-800

(1951).

Nor is there anything unusual in referring to common-

law standards as being established or continued in effect

by a “State.” In Medtronic, for example, the statute at

issue contained the same phrase—‘ ‘State or a political

subdivision’ ” found in Section 1392(d). Medtronic, 518

U.S. at 481. Yet a majority of the Court held that the

preemption clause in that case reached common-law claims.

Id. at 503-05 (Breyer, J., concurring); id. at 509-10

(O'Connor, J., concurring and dissenting in part).

Moreover, this Court has concluded in a variety of

contexts that common-law judgments rendered by state

19

courts are a form of state action. See, e.g., BMW of

N. Am., Inc. v. Gore, 517 U.S. 559, 572 n. 17 (1996)

(“State power may be exercised as much by a jury’s appli-

cation of a state rule of law in a civil lawsuit as by a

Statute.”); New York Times Co. v. Sullivan, 376 USS.

254, 265 (1964) (“It matters not that that law has been

applied in a civil action and that it is common law only,

though supplemented by statute.”); Shelley v. Kraemer,

334 US. 1, 19-20 (1948) (judicial enforcement of racially

restrictive covenant is state action). It is hard to imagine

a plausible argument that would reach the opposite con-

clusion. Not only are parties expected to comply with the

judgments of courts as a matter of direct legal obligation,

see, e.g., Cooper Vv. Aaron, 358 U.S. 1, 18 (1958), their

failure to comply with a judgment, even if only one for

the payment of damages, can bring down upon them the

coercive powers of the State in the form of execution

against their property or garnishment of their wages.

Petitioner’s argument that Congress differentiated be-

tween the standards adopted by courts and standards

adopted by the “State” is also at odds with Erie R.R. Co.

v. Tompkins, 304 U.S. 64 (1938). Erie of course held that

the “laws of the several states,” as that phrase is used in

the Rules of Decision Act, 28 U.S.C. § 1652, includes

common-law rules of decision. The Erie doctrine reflects

an important background principle of law, and it is un-

likely that Congress legislated based on a different under-

standing. See Cipollone, 505 U.S. at 522-23: see also id.

at 549 (Scalia, J., concurring and dissenting in part).

Accordingly, for all these reasons, Congress could not

have meant to exclude common-law standards and rules

when it extended the prohibition in Section 1392(d) to

all safety standards “estabilsh[ed] or . . . continue[d] in

effect” by a “State.”

20

C. Construing “Any State Standard” To Include

Common-Law Standards Does Not Preempt “Vir-

tually All” Common-Law Claims.

In a last-ditch effort to avoid the conclusion that Section

1392(d) includes common-law claims, petitioners argue

that the preemption clause must be limited to positive

regulation to avoid preempting “virtually a// common law

claims involving aspects of motor vehicle performance.”

Pet. Br. 24-25. In fact, reading the preemption clause to

include common-law standards would delineate only a

narrow scope of preemption: it would proscribe only those

common-law claims that adopt a safety standard with

respect to “the same aspect of performance” addressed by

a federal standard, and even then only insofar as the

common-law standard is “not identical to the Federal

standard.”

In the context of restraint systems, for example, the

Safety Act leaves the States free to enforce any standard

of care with regard to an aspect of vehicle safety that does

not involve “the same aspect of performance” covered by

a federal safety standard. Thus, Section 1392(d) and

Standard 208 do not preempt common-law claims that the

particular occupant restraint system selected by the man-

ufacturer, such as an airbag, was improperly designed or

was improperly manufactured. See, e.g., Perry v. Mer-

cedes Benz of N. Am., Inc., 957 F.2d 1257, 1265-66

(Sth Cir. 1992) (manufacturer that installs airbag may

be liable for defect in design or manufacture). For pur-

poses of this case, only the claim that a manufacturer

installed one rather than another of the authorized occu-

pant restraint systems (e.g., a “no-airbag” claim) is Cx-

pressly preempted.

In addition, under the second clause of Section 1392(d),

the States could enforce the “identical” standard em-

bodied in Standard 208 by allowing tort suits against any

manufacturer that did not install any of the occupant

21

restraint systems required by federal law during the rele-

vant period. Thus, now that airbags are required for the

driver and right front seating positions in all new vehicles,

state “no-airbag” claims no longer are preempted with

respect to such equipment in new vehicles because they

would impose the identical standard of care as is embodied

in the current version of Standard 208. See 49 C.F.R.

§ 571.208, S4.1.5.3 (1998). The scope of express pre-

emption is thus quite measured and sensible as a matter

of federal-state regulatory policy.

III. SECTION 1397(k) DOES NOT LIMIT OR QUALIFY

THE PREEMPTIVE FORCE OF SECTION 1392(d).

Petitioners and the Government also seek refuge in

what some have called the Safety Act’s “savings” clause,

which states 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.”

15 U.S.C. § 1397(k). They contend that this provision

overrides, limits, or qualifies the express preemption man-

dated by Section 1392(d), so that common-law claims are

placed entirely beyond the reach of Section 1392(d).

See Pet. Br. 25-28; U.S. Br. 13-15. This interpretation,

however, does not square with the Act’s text (including

the language of Section 1397(k) itself), or with its struc-

ture and context. Indeed, such an interpretation would

destroy the very uniformity of federal standards that the

Act was designed to create, in violation of the important

canon that savings provisions should not be construed so

that the Act “destroy[s] itself.” Texas & Pac. Ry. Co. v.

Abilene Cotton Oil Co., 204 U.S. 426, 445 (1907). Sec-

tions 1392(d) and 1397(k) can and should be harmo-

nized so that some common-law claims—those that defeat

the uniformity of federal standards—are preempted,

whereas other types of common-law claims are preserved.

22

A. The Language Of Section 1397(k) Does Not Limit

Or Qualify The Scope Of Section 1392(d).

Section 1397(k) does not by its terms limit or qualify

the scope of express preemption mandated by the preemp-

tion clause in Section 1392(d). In fact, when read closely

and in accordance with their plain meaning, the two provi

sions are not, as the Government assumes (Br. 15), even

in “tension” with each other.

Section 1397(k) speaks of an “exemption” from

“common-law liability.” A defendant who properly in-

vokes Section 1392(d) has no need for an “exemption”

because he is not subject to a duty the breach of which

could ever give rise to any liability. As one court of

appeals recently held in rejecting the very interpretation

advanced by petitioners here, “[t]o be ‘exempted’ from

liability [under Section 1397(k)], one must first be sub-

ject to it.” Harris v. Ford Motor Co., 110 F.3d 1410,

1415 (9th Cir. 1997).

It is axiomatic that “common-law liability” in tort can

arise only for breach of a duty or standard. See, e.g.,

Restatement (Second) of Torts, § 4(c) (1965). By de-

priving the States of “any authority either to establish, or

to continue in effect, . . . any safety standard” that is not

identical to the federal standard, Section 1392(d) deprives

the States of authority to create any such duties or stand-

ards with respect to the same “aspect of performance.”

Indeed, any attempt to impose such a duty or standard

would be “void” and “without effect.” Maryland v. Loui-

siana, 451 U.S. 725, 746, 747 (1981). Thus, no liability

for the breach of such a standard or duty could ever arise

in the first place, and Section 1397(k) simply would not

apply in that situation.

This conclusion is confirmed by the fact that Section

1397(k) is expressly triggered by a manufacturer’s “com-

pliance” with a federal safety standard. A defendant who

23

properly invokes 1392(d) does not need to be in com-

pliance with the federal standards for that provision to

preempt a non-identical state standard. By its terms, that

provision preempts a non-identical state safety standard of

its own force, regardless of the manufacturer's actions.

This too suggests that Section 1397(k) cannot reasonably

nary operation of Section 1392(d). If Section 1397(k)

had been intended to have that effect, Congress simply

would not have chosen the language it did.

B. Sections 1392(d) And 1397(k) Play Complemen

Roles In Determining Which digumntne Claas

Can Be Maintained.

Petitioners, joined by the Government, nevertheless

contend that unless all common-law standards are ex-

cluded from preemption under Section 1392(d), “there

would be no meaningful role for Section 1397(k).” US.

Br. 14. This is incorrect. When one carefully examines

the Act’s structure and makes a good-faith effort to con-

strue both provisions in tandem, it is apparent that both

Section 1392(d) and Section 1397(k) can each apply to

common-law actions, depending on the relationship of the

particular common-law claim to existing motor vehicle

safety standards. See, e.g., CSX Transp., Inc. v. Easter-

wood, 507 U.S. 658, 664 (1993) (in interpreting an

express preemption provision, “[e]vidence of pre-emptive

purpose is sought in the text and structure of the statute”):

Smith Vv. United Stat>>, 508 U.S. 223, 233 (1993) (pro-

visions should be construed in tandem, not in isolation).

Indeed, Section 1397(k) plays an important role in the

Statutory scheme, albeit one quite different from that

urged by petitioners and the Government. This is seen

from an examination of the four scenarios in which pre-

emption of common-law claims might be an issue.

1. The first is the situation presented by this case, i.e.,

where the proposed state safety standard applies to the

24

same “aspect of performance” as the federal standard, but

is not identical to it. As explained above, Section 1397(k)

does not, by its terms, apply in this situation, because

Section 1392(d) prevents the creation or retention of a

non-identical “safety standard”—common-law or other-

wise—on which liability could be based.

2. The second scenario is one in which a state safety

standard applies to the same aspect ct ;« sformance, but is

identical to it. Section 1397(k) has no role to play in

this scenario either because, as discussed above, the second

sentence of Section 1392(d) expressly allows states to

“enforce{] any safety standard which is identical to a

Federal safety standard.”

3. Section 1397(k), however, does play an important

role in the third scenario, one in which a state tort-law

standard allegedly governs an “aspect of performance”

that is not directly covered by a federal standard. That

would be the case, for example, if a plaintiff claimed that

a manufacturer, although installing an airbag in compli-

ance with Standard 208, nevertheless violated state tort

law by using a defective design. E.g., Perry, 957 F.2d

at 1265.

Absent Section 1397(k), as Honda, the Government,

and several other amici discuss at length, manufacturers

in these circumstances might have argued that the Safety

Act impliedly creates a federal-law “government stand-

ards” defense which shields them from tort liability as

long as they complied with all applicable standards. Sec-

tion 1397(k) makes clear that the Act does not create

such a defense or “exemption from liability,” and there-

fore does not preempt state-law rules foreclosing or refus-

ing to recognize such a defense. Thus, whenever there is

no federal standard with respect to the specific “aspect of

performance” at issue, it is up to the States to determine

what effect, if anv, a manufacturer’s compliance with any

or all of the extant federal standards have on its liability.

In addition, without Section 1397(k), manufacturers

could have argued that the Act should be construed to

occupy the entire field of motor vehicle safety standards.”

10 For example, one of the conferees, Senator Cotton stated :

The Senate conferees also yielded on a provision, inserted by

the House, declaring that compliance with any Federal stand-

ard does not exempt any person from liability under common

law. Nevertheless, it seems clear and was, I believe, the con-

sensus of the conferees on both sides, that proof of compliance

with Federal standards may be offered in any proceeding for

such relevance and weight as courts and juries may give it.

112 Cong. Ree. 21,490 (1966); accord id. at 21,487 (remarks of

Senator Magnuson, quoted in Pet. Br. 31-32). That is exactly

what Section 1397(k) did. It ensured that the fear of a broad

government standards” defense expressed by some congressional

witnesses would not materialize, and that states would therefore

have flexibility to decide whether and to what extent a party’s

compliance with federal standards exempts a manufacturer from

being subject to “any liability” under state tort law.

11 Some States recognize a rebuttable presumption that a product

which complies with federal standards is not defective. yh: Mich.

Comp. Laws Ann. § 600.2946(4) (West 1999); Kan. Stat. Ann. § 60-

3304(a) (1999). Others hold compliance with federal standards is

relevant to whether there is a defect, but not conclusive, ¢.g.,

Wagner v. Clark Equip. Co., 700 A.2d 38, 49-60 (Conn. 1997);

Brooks v. Beech Aircraft Corp., 902 P.2d 54, 63 (NM. 1995), while

some States hold generally that compliance conclusively negates any

ry ty hg Beatty Vv. Trailmaster Prods., 625 A.2d 1005, 1013-

Such an argument would have been highly plausible in

1966. At that time, it had been only ten years since

this Court, in Pennsylvania v. Nelson, 350 U.S. 497

(1956), held that a congressional

the

Safety Act—the statute created a pervasive federal regu-

latory scheme, was based on a perceived need for national

uniformity, and there existed a danger of conflict be-

tween state laws and the administration of the federal

ing Trades Council v. Garmon, 359 U.S. 236 (1959),

that the National Labor Relations Act (“NLRA”) com-

pletely occupied the field of labor-management relations,

so as to preclude a state-law tort action for damages

occasioned by union picketing—even where no provision

of the NLRA dealt with that issue. Jd. at 241-43, 245."

In the wake of Nelson and Garmon, it would only have

been prudent for Congress to insert a provision making

clear that the Safety Act did not completely occupy the

field of motor vehicle safety standards, and therefore that

common-law actions would be permitted to enforce state

standards dealing with “aspects of performance” not cov-

ered by a federal standard, even if the manufacturer was

otherwise complying fully with all federal standards. See

Gracia v. Volvo Europa Truck, N.V., 112 F.3d 291,

state-law standards that are not identical to an applicable federal

standard, and therefore does not by itself foreclose the field occupa-

tion argument discussed in the text.

13 Even today, the argument would have force given that NHTSA

has promulgated comprehensive regulations governing motor vehicle

safety. See 49 C_F.R. $§ 571.101-.500 (1998). “Where a multiplicity

of federal . . . regulations govern and densely criss-cross a given

field, the pervasiveness of such federal laws will help to sustain a

conclusion that Congress intended to exercise exclusive control over

the subject matter.” Laurence H. Tribe, American Constitutional

Law § 6-31, at 1206-07 (3d ed. 1999).

27

298 (7th Cir. 1997), cert. denied, 118 S. Ct. 697 (1998).

pirates other things, is exactly what it did in Section

4. Section 1397(k) would also play an important role

in a fourth scenario as well. That is where a federal

safety standard is in effect with regard to a particular

aspect of performance or “item of equipment” within the

meaning of Section 1392(d), but the plaintiff claims that

the manufacturer's actions with respect to that aspect or

item violate a body of common law that is unrelated to

safety—specifically, contract law.

For example, suppose that, during the time Standard

208 allowed manufacturers the option of installing airbags

or other occupant restraint devices, a manufacturer signed

a contract to provide to a rental company a fleet of

vehicles equipped with airbags. In a breach-of-contract

action secking to enforce that promise, Section 1397(k)

makes clear that the manufacturer could not invoke its

compliance with federal safety standards to block the

claim. Cf. American Airlines, Inc. v. Wolens, 513 U.S.

219, 228-33 (1995) (express preemption clause did not

protect airline from “alleged breach of its own, self-

imposed undertakings”).

In other words, Section 1397(k) makes clear that state

common-law actions can be maintained to enforce the

manufacturer's own commercial contracts, even if the

standard the manufacturer agrees to by contract is not

one the State could otherwise impose consistent with Sec-

tion 1392(d), and even if the manufacturer is complying

with the applicable federal standard. This view of Section

1397(k) likewise finds support in the legislative history.™*

14It is, for example, consistent with Representative Dingell’s

statement during the floor debates that in the Safety Act, “we have

28

In short, properly construed, Section 1392(d) and Sec-

tion 1397(k) each play important roles in determining

which common-law claims may go forward, and in what

circumstances. In contrast, petitioners’ sweeping interpre-

tation of Section 1397(k) deprives Section 1392(d) of

any meaning in the context of common-law standards,

Such a result would be contrary not only to the language

and structure of the Act, but also to its legislative history,

which clearly indicates an awareness that Section 1392(d)

would sometimes preempt common-law tort actions not-

withstanding Section 1397(k).%

C. Section 1397(k) Should Not Be Interpreted To De-

stroy The Uniformity Of Safety Standards.

This reading of the interplay between Sections 1392(d)

and 1397(k) is also most consistent with the underlying

purposes of the Safety Act. As explained above (supra at

7-8), Congress wanted not only to promote safety, but

common law which are afforded to the purchaser, remain in the

buyer, and they can be exercised against the manufacturer.” 112

Cong. Rec. 19,663 (1996) (quoted in Pet. Br. 30-31). As explained

above, Sections 1392(d) and 1397(k) can easily be read as preserv-

ing all common-law “remedies” and “devices,” including commercial

contract actions. The statements from the House Committee Report,

cited by the petitioners (Br. 30), and the statement by Senator

Magnuson, cited by the petitioners (id. at 28-29), are likewise con-

sistent with this reading.

15 Referring to Section 1297(k), Senator Magnuson noted to his

Senate colleagues that it simply “makes explicit, in the bill, a princi-

ple developed in the Senate report.” 112 Cong. Rec. 21,487 (1966).

But the “principle developed in the Senate report” to which Senator

Magnuson referred is that federal safety standards “need not be

interpreted as restricting State common law standards of care,”

and that “[c]ompliance with such standards would thus not neces-

sarily shield any person from product liability at common law.”

8. Rep. No. 89-1301, at 12 (1966), reprinted in 1966 U.S.C.C.A.N.

2709, 2720 (emphasis added). By negative implication, these state-

ments clearly evince an understanding that, in some circumstances,

the Safety Act would restrict the range of permissible common-law

product liability actions.

29

also to preserve a single market for the production and

distribution of automobiles, Petitioners’ extreme reading

of Section 1397(k), however, would destroy the uni-

formity that Congress sought to create. Petitioners’ inter-

pretation therefore runs headlong into the fundamental

axiom of statutory construction that so-called “savings

clauses” should not be interpreted so as to destroy the

fundamental policies of the statute in which they appear.

The principle was first stated almost a century ago in

Texas & Pacific Railway Co, vy. Abilene Cotton Oil Co.,

204 U.S. 426, 446 (1907). There, a federal act contained

a broad savings clause that purported to save “the remedies

now existing at common law or by statute.” /d. In spite

of that savings clause, the Court held that an existing but

conflicting common-law claim was preempted because a

savings clause “cannot in reason be construed as contin-

uing . . . a common-law right, the continued existence of

which would be absolutely inconsistent with the provisions

of the act. In other words, the act cannot be held to

destroy itself.” Id.

The Abilene Cotton holding is a settled principle of

Statutory construction that has been consistently applied

in a variety of contexts. Thus, where necessary, the Court

has given savings clauses an appropriately narrow reading

sO as not to impair the preemptive thrust of the statute as

a whole.”®

16 See, e.g., AT&T Co. v. Central Office Tel., Inc., 118 S. Ct. 1956,

1965 (1998) (savings clause “preserves only those rights that are

not inconsistent with” the statute’s requirements); American Air-

lines, Inc. vy. Wolens, 513 U.S. 219, 222 (1995) (state fraud suit

expressly preempted notwithstanding savings clause providing that

statute does not “ ‘abridge or alter the remedies now existing at

common law or by statute’); Jnternational Paper Co. y. Ouellette,

479 U.S. 481, 485-97 (1987) (state common-law claims impliedly

preempted because they conflicted with the method chosen by federal

law to implement the statutory goals, despite broad savings clause) ;

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51-52 (1987) (savings

30

Moreover, the Abilene Cotton canon is not limited to

cases involving implied preemption claims. In Morales v.

Trans World Airlines, Inc., 504 U.S. 374 (1992), for

example, the Court implicitly recognized this principle

when it held that a “general ‘remedies’ saving clause can-

not be allowed to supersede the specific substantive pre-

emption provision.” /d. at 385.

Indeed, if a saving provision generally cannot be con-

strued to negate a conclusion of implied preemption,

a fortiori a savings provision ought not be construed to

negate an express preemption clause. A statute should not

be held “to destroy itself,” Abilene Cotton, 204 U.S. at

446, whether that destruction occurs because of a conflict

with an implied feature of the federal scheme, or, as

here, because of a conflict with an express congres-

sional command that federal and state safety standards

must be uniform whenever they govern the same aspect of

performance.

CONCLUSION

For the foregoing reasons, as well as those set forth in

respondents’ brief, the decision below should be affirmed.

clause given narrow reading after the Court looked “to the provi-

sions of the whole law, and to its object and policy”) (internal

quotation marks omitted); Chicago & Northwest Transp. Co. V.

Kalo Brick & Tile Co., 450 U.S. 311, 328-31 (1981) (same).

Brett M. KAVANAUGH

RICHARD A. CORDRAY

KIRKLAND & ELLIs

655 15th Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 879-5000

Respectfully submitted,

THOMAS W. MERRILL *

NORTHWESTERN UNIVERSITY

SCHOOL or LAW

GENE C. SCHAERR

JOHN E. FEE

SHONA M. MACINTYRE

SIDLEY & AUSTIN

Bank One Plaza

10 South Dearborn Street

Chicago, IL 60603

(312) 853-7000

Counsel for Amici Curiae

November 19, 1999

* Counsel of Record