# Amicus Curiae Brief — Geier v. American Honda Motor Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0277%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 861 ## Text 4) — 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 >, 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0277%3A14. Public record. Not legal advice.