# 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

FILED

Am )
No. eats NOV 19 Key

a
ee ee

OFFICE OF THE CLERK

In The SUPREME COURT, U.S,
Supreme Court of the United States
>

ALEXIS GEIER, et al.,

Petitioners,

AMERICAN HONDA MOTOR COMPANY, INC.,
Respondent.

+

On Writ Of Certiorari To The

United States Court Of Appeals
For The District Of Columbia Circuit

SI

BRIEF OF AMICUS CURIAE
GENERAL MOTORS CORPORATION
SUPPORTING RESPONDENT

¢

Davip M. Hersron

(Counsel of Record)

Lesur G. LANDAU

McCutcHen, Doyie, Brown &
ENERSEN, LLP

Three Embarcadero Center

San Francisco, California 94111

Telephone: (415) 393-2000

Attorneys for Amicus Curiae
General Motors Corporation

November 18, 1999

-——-——-

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE
SUMMARY OF ARGUMENT
ARGUMENT

A. FMVSS 208’s Options And The Safety Purposes
Behind Them

1. The Pre-1984 Option-Based Standards ......

2. DOT's 1984 Judgment That Options, Not A
Mandatory Airbag Rule, Best Served Safety

NHTSA’s Statements About FMVSS 208 Pre-
emption And Congress’ 1991 Action

B. “No Airbag” Claims Undermine FMVSS 208 And

Are Therefore Preempted

1. The Conflict
2. Petitioners’ Efforts To Avoid The Conflict ....

a. The Contention That Common Law Does
Not Regulate

The Contention That Common-Law Duties
Are “General” And So Cannot Conflict...

The Contention That Common-Law Rules
Cannot Conflict With Performance Stan-
The Contention That Claims Preempted In

1987 Are Un-Preempted In 1999

The Supremacy Clause Preempts “By Direct
Operation” This Conflicting State Law

TABLE OF CONTENTS - Continued

Page
a. Avoidance By Presumption............... 18
b. Avoidance By Abandonment.............. 19
i. The Proposal That “Impossibility” Be
TRO GREY FOUR ise cis ddd onane kee wean 20
ii. The Proposal That A Benign State Pur-
pose Eliminates Conflict ............. 20

iii. The Proposal That NHTSA Cannot Pre-
empt, Or Can Only Preempt Expressly .. 21

iv. The Proposal That Preemption Cannot

Take Away A Remedy............... 21
C. The Meaning Of Section 1397(k).............. 22
1. Section 1397(k), Fairly Read, Has Nothing To
OD Wee, FURR oo iii cndncc Soins nde 23
2. Even If Directed At Preemption, Section 1397(k)
Simply Negates Field Preemption............. 26
3. Even If Directed At Preemption, Section 1397(k)
Does Not Save Conflicting Claims............ 28
CONC EISEN 0 oo v'ncce'es ids copieeehtuchaniaacelinee 30

TABLE OF AUTHORITIES

Page
Cases
Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504
ets ee EE A Vane siveeecteses 12
Arbet v. Gussarson, 225 N.W.2d 431 (Wis. 1975) ...... 27

AT&T v. Central Office Tel., Inc., 524 U.S. 214 (1998). .23, 28
Baird v. General Motors Corp., 654 F. Supp. 28 (N.D.

ee Lee shies ed dt ebacogcbbkcbecesce 14
BMW of North Amer., Inc. v. Gore, 517 U.S. 559
RES ER RS ea ee 14
Boggs v. Boggs, 520 U.S. 833 (1997) .... 2.0... cece 18
Brown v. Hotel & Restaurant Employees and Bar-
tenders Int'l Union, 468 U.S. 491 (1984)............ 18
Buccery v. General Motors Corp., 60 Cal. App. 3d
Mee Lee ree ea Seles dabGies¥ecccccces 27
Buzzard v. Roadrunner Trucking, Inc., 466 F.2d 777
Mea ive ca bins cach oescanceeetececcsce 11
California Coastal Comm'n v. Granite Rock Co., 480
Le R bic Subipn 6ebboe ced cecerececese 18

Cannon v. University of Chicago, 441 U.S. 677 (1979) .... 29

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co.,
Ne Ts cu veceneretscsecnes passim

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)
RESP SS SES ES ERTS ES Peer TEE eee 12, 13, 15, 18

City of New York v. Federal Communications
ES ER Pe a 21

CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993)
etch Pee een Cees agedececdeecesees 13, 15, 18

iv

TABLE OF AUTHORITIES - Continued

Page
Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir.

SUES ~ onc bacsatededsdcncercabneie ntti tediie 27
DeCanas v. Bica, 424 U.S. 351 (1976)................ 19
Dorsey v. Honda Motor Co., 655 F.2d 650 (5th Cir.

1981), as modified, 670 F.2d 21, 673 F.2d 911

GOD owe ce pitabbawivinidededdcknd ceed shai e te ose 27
English v. General Electric Co., 496 U.S. 72 (1990) .... 13
Farmers Educ. & Coop. Union v. WDAY, Inc., 360

Daly Me POSS n cabo cdacioddbodues sé dhheracdcani 22
Felder v. Casey, 487 U.S. 131 (1988)................. 19
Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458

Gee SE SONGS banaue che ss svakvekskass Aneks 12, 21
Florida Lime & Avocado Growers, Inc. v. Paul, 373

A POU UE ndaes w\nbencs eens dae a koe 18, 19
Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir. 1978) .... 25
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) ..10, 20
Gade v. National Solid Wastes Management Assn.,

ee Wen PII 46 a oe cita witet au Rue he dade 15, 19
General Motors Corp. v. Edwards, 482 So. 2d 1176

(Ala. 1985), overruled on other grounds, 554 So.2d

Se Gi ED Wc bch 6snn bb ude ecb thasowecconcude 25
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)........ 19
Gills v. Ford Motor Co., 829 F. Supp. 894 (W.D. Ky.

SPUUn 605 « 505.05 64 ohdecs Stee bhdeeekeckiais toon eons 16
Goodyear Atomic Corp. v. Miller, 486 U.S. 174

Gee ait badt pinadsandubcedvidusasinichenscadauur 13, 29

TABLE OF AUTHORITIES — Continued

Page
Gracia v. Volvo Europa Truck, N.V., 112 F.3d 291 (7th

Cir. 1997), cert. denied, 118 S. Ct. 697 (1998) ...... 24
H.P. Hood & Sons, Inc. v. Ford Motor Co., 345

ee Ge GL, CUE voce cs ccess sonsnedeveecoes 25
INS v. Chadha, 462 U.S. 919 (1983) .... 2.0... 6c cence 5
International Paper Co. v. Ouellette, 479 U.S. 481

Pica vdeasdenesdurcasidctntvsdéabesabeseas passim
John Hancock Mutual Life Ins. Co. v. Harris Trust &

Sav. Bank, 510 U.S. 86 (1993) ...........050000- 28, 29
Kitts v. General Motors Corp., 875 F.2d 787 (10th

Cir. 1989), cert. denied, 494 U.S. 1065 (1990)........ ]
Knippen v. Ford Motor Co., 546 F.2d 993 (D.C. Cir.

PE. cwobdcdendedededecdss veudichsogeeesbotes ade 25
Larsen v. General Motors Corp., 391 F.2d 495 (8th

Ge SD Sedu deandee Fekudce todo dod0ndass <4¥secetees 27
Lincoln Sav. & Loan Ass'n v. Federal Home Bank Bd.,

O56 BBS USSR GAG. Cie. SGGOD occ csisicscccessces: 21
Maryland v. Louisiana, 451 U.S. 725 (1981)........... 19
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479

Ss ie daveb Sddbetdd webeseebcotedelalses paucehecs 29

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ...12, 15, 20
Morales v. Trans World Airlines, Inc., 504 U.S. 374

CO ik 0b adectbnabsh ibd becne daqucnecnes 15, 28, 29
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.
Bae. Co... SED DB. FO CIGESD occ ccccvccccsecccccccces 5

Napier v. Atlantic Coast Line R.R., 272 U.S. 605
ERED Ac Kn chicnbadblckégdecbasewetscéinevdeoseaconee 27

vi

TABLE OF AUTHORITIES — Continued

Page
Pacific Legal Found. v. Department of Transp., 593

F.2d 1338 (D.C. Cir.), cert. denied, 444 U.S. 830

CRP E a 0s cece s04000ss pended eeeenebesenis coaaves en's 6
Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1

CE er es Se a a ere 14
Pennsylvania R.R. Co. v. Puritan Coal Mining Co.,

Bae Die WR Meike ccddibkcaveeanedhesscisnasses 26
Pennsylvania v. Nelson, 350 U.S. 497 (1956) .......... 27
Pokorny v. Ford Motor Co., 902 F.2d at 1116 (3d

Cir.), cert. denied, 498 U.S. 853 (1990)...... 11, 24, 27
Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)..... 19

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .... 29

San Diego Bidg. Trades Council v. Garmon, 359 U.S.
BOR CHO até cic civatdcasatebehnetestnke 12, 13, 22

Schwartz v. American Honda Motor Co., 710 F.2d 378
Ce Gee | Cw 4.8 cecclkoans « ena odddecelckivenss us 25

Shipp v. General Motors Corp., 750 F.2d 418 (Sth Cir.
SE 3s xkctinkstdeunevaethahsedeteeuiaieleaaecsnt 25

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)
a ove buéecevekedekesavensiwbat odemes kannenns 13, 20, 21

Sours v. General Motors Corp., 717 F.2d 1511 (6th
Co Ge o cécu anv édns dette doonsebeee ies 27

State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474
(D.C. Cir. 1986), cert. denied, 480 U.S. 951 (1987) ..7, 16

Stonehocker v. General Motors Corp., 587 F.2d 151
COE GAR SINE dat wowecpncddscnasbhscatosstadneess 25

vii

TABLE OF AUTHORITIES - Continued

Page
Taylor v. General Motors Corp., 875 F.2d 816 (11th
Cir. 1989), cert. denied, 494 U.S. 1065 (1990)
pba cindeb Ate v ee cbbutesebOh deencbesedeeeed 1, 11, 12, 24
Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204
es SP SED ASa asec bkbsdadhus dee tanvedoa 20, 28, 29
United States v. Shimer, 367 U.S. 374 (1961).......... 21
Volkswagen of America, Inc. v. Young, 321 A.2d 737
SD ccdaebives 4s bbb OMMMEE ROA UANESS cones ceae 25
Welsh v. Century Prods., Inc., 745 F. Supp. 313 (D.
St) Gh is ane Oe chedaudame dc adbeaees cub eaves dpe 0 16
Wood v. General Motors Corp., 865 F.2d 395 (ist Cir.
1988), cert. denied, 494 U.S. 1065 (1990)....... passim
Statutes, REGULATIONS AND RuLEes
National Traffic and Motor Vehicle Safety Act, 49
U.S.C. § 30102 et seq. (formally codified at 15
es i PE Oe COD uw ches cicwacpecepawacusoss passim
Pn. Ich adet teed snskedddtabewkere cube 16
PP CUS EUid tid ceboasdbent ae badasceedeeseneeesns 16
DP, <cduvtasuietiindedaas adeeti'n benvae deahesae 22
i. id ahs da vcuenwiee (aiteedee CREE ea dees passim
DL SCLS Es a nadie ven cp besex haeKine havens vel 5, 15
SP cla d¢ ddbe sNoekedstebsnsuwbetascnubied 5, 16
SP | Dish ila betas vblew dees shed ye Une sehecauene 5
ee Fes PD nic debacadecke css ebb Rebecccusges 23

Pub. L. No. 102-240, § 2508(d), 105 Stat. 2086........ 10

viii

TABLE OF AUTHORITIES — Continued

Page
Pub. L. No. 95-335, § 317, 92 Stat. 450 (1978)......... 7
Pub. L. No. 96-131, § 317(a), 93 Stat. 1039 (1979)..... 7
Federal Motor Vehicle Safety Standard 208 (“FMVSS
208"), 4D CRR. | FTE BeBe cv ccvecsadcdscteccves passim
B SPE B BORD oc ctv ivcdtvncecccseurvicewesecsun 16
BS SPE Bs Teo vncsvevcuccevivabeviensibesesceawens 16
Supreme Court Rule 37.3(a) ........-. 660 ec cece e eee enes l
LecisLative AND Reoutatory History
112 Come. Res. 14230 (ISEB)... ccc sccccsssccccvsnens 26
112 Comm, Rec. ZIGG7 CIDSGE). 0c cccvcccescssvctccwns 24
112 Cong. Rec. 21490 (1966)............cccceeeeeeee: 24
120 Cong. Rec. 27816 (1974). ....... 2. cece cecesscveces 5
SD Wed. Bam: TGR TIGA «oo cv cict ees caveviesccttusten 6
es, 2 EB RT ere er 6
4A Tek, Game. BESS CIO oo ood cc ccccvicdsiscccssanyes 6
GB Fee, Tat: FEGE CAG C ee oe os évccwcvvadvevdtccceuepecs 6
GS FOG. Bags BEGSw CRP ED cov scccvevccsosecvcoune passim
GE FOR, Th, GOSS CORTE oc oc cpecccvcciccvacects passim
46 Fed. Reg. 12033 (1981)............-0eeeeeeees passim
46 Fed. Reg. BUITZ (IGSE) nnn... kde Shas cccsivocca passim
46 Fad. Baw, SEGID (IGSE) ccc c cc decege sieges ees passim

49 Fed. Reg. 28962 (1964). ..... 2... ccceeececcees passim

TABLE OF AUTHORITIES - Continued

Page
H.R. Rep. No. 102-404 (1991), reprinted in 1991
IE NOTE 9 Sead Bbc OCR A Rca vemeisddéssocens 10
H.R. Rep. No. 93-1452 (1974), reprinted in 1974
Se MUEIEE Wo Rone ss KCheaeendnbconeescecdees 5
es % @ Us Be, PePrrriv erie ert TTT ree ere 26
Secretary's Decision Concerning Vehicle Occupant
Crash Protection, D.O.T. (Dec. 6, 1976).............. 6
OTHER

Trial Lawyers for Public Justice 1984 Annual Report....

13

1
INTEREST OF AMICUS CURIAE

There are over 100 million vehicles without airbags on
U.S. roads, and petitioners’ “no airbag” claim would condemn
them as defective. Amicus Curiae General Motors Corpora-
tion (“GM”)! is the world’s largest automobile manufacturer,
and has the most cars on U.S. roads; accordingly, GM has a
unique and significant interest in a correct decision in this
case. Also, GM was a pioneer in airbag technology, and
participated in the rulemaking process for Federal Motor
Vehicle Safety Standard 208 (FMVSS 208), the occupant
restraint standard, from the beginning. GM has played a
central role in the development of the case law on the issue
here; it was a party in the first three circuit court decisions to
address the “airbag” preemption issue. Thus GM has signifi-
cant experience and knowledge regarding the applicable law
and relevant regulatory history. It submits this brief in support
of respondents.

SUMMARY OF ARGUMENT

FMVSS 208 granted manufacturers options to install in
1987 cars different restraint systems, including different pas-
sive restraint systems and manual seat belts. Transportation
Secretary Dole specifically “declined to mandate airbag
restraint systems in all vehicles,” as petitioners put it (P. Br.
at 9), because she judged that mandating airbags or any other
single passive restraint system “runs the risk of killing or
seriously retarding development of more effective, efficient
occupant protection systems,” 49 Fed. Reg. 28962,

' Under Rule 37.3(a), the parties have consented to the filing of this
amicus curiae brief. Letters evidencing that consent are on file in the
Clerk's office. This brief has been written only by counsel for GM, and GM
alone has provided the funds for its preparation and submission.

2 Taylor v. General Motors Corp., 875 F.2d 816 (1 1th Cir. 1989), cert.
denied, 494 U.S. 1065 (1990); Kitts v. General Motors Corp., 875 F.2d 787
(10th Cir. 1989), cert. denied, 494 U.S. 1065 (1990); Wood v. General
Motors Corp., 865 F.2d 395 (ist Cir. 1988), cert. denied, 494 U.S. 1065
(1990).

2

29001 (1984). That judgment was not novel. Options and the
flexibility that went with them had been at the heart of
FMVSS 208, indeed essential to its regulatory scheme, from
its beginning.

Petitioners’ no airbag claim, if allowed, would impose on
manufacturers a state-law duty to install airbags in all cars, or
impose tort damages on them if they did not. Accordingly, it
would in effect take away the manufacturer’s option to install
manual seat belts or other passive restraints, not airbags, in
cars, and punish the manufacturers, after the fact, for doing
exactly what federal law authorized, and encouraged, them to
do. Therefore, the overwhelming body of lower court author-
ity held that petitioners’ claim, if allowed, would “frustrate
the regulatory scheme,” “undermine the flexibility” essential
to it, and “flatly” conflict with it; so, DOT, NHTSA and the
Solicitor General explain, it would “disserve safety” and so
must be preempted.

Petitioners’ response proposes to abandon, or disregard,
100 years of settled Supreme Court preemption law. Thus
they posit that a presumption against preemption saves their
claim. But presumptions have no place here; state law that
conflicts with federal law is, in this Court’s words, “pre-
empted by direct operation of the Supremacy Clause,” “with-
out effect,” and “void.” Petitioners also posit that, contrary to
all other rules, state common-law rules that stand as an
obstacle to federal law are not preempted; but this Court has
repeatedly held that they are. Still, petitioners posit that their
common-law claim is saved because it would serve safety.
But NHTSA found that it would disserve safety. And even if
it served safety, this Court holds a “state law is also pre-
empted if it interferes with the methods by which Congress
intended to meet” its goal.

Petitioners go on to propose new rules, and quarrel with
the regulations they seek to undermine. Thus they propose
that the common law does not regulate, but this Court has
repeatedly held that it does. They propose that common-law
duties are, in some metaphysical sense, general, but this Court

3

has repeatedly held that, general or not, they impose “require-
ments and prohibitions,” and petitioners’ proposed airbag
requirement conflicts with federal law. Petitioners propose
that FMVSS set performance, not design, standards, and so
cannot conflict with common-law design standards. But Con-
gress and this Court have required FMVSS 208 to speak to
designs; it does; and petitioners’ common-law design standard
conflicts with it.

Petitioners propose, last, that the National Traffic and
Motor Vehicle Safety Act’s supposed savings clause saves
their claim from preemption. It does not. First, it speaks to a
defendant’s “compliance” with federal law. Compliance, a
merits defense, has nothing to do with preemption, and vice
versa: Federal law preempts or not, by operation of federal
law, regardless of compliance, and a private party by uni-
lateral private noncompliance cannot un-preempt. Therefore,
the “savings clause” has nothing to do with preemption on its
face, and the legislative history, petitioners’ own explication
of “axiomatic” common-law principles, and the eariy Safety
Act case law all demonstrate that the clause means exactly
what it says.

Second, even if directed at preemption, the “savings
clause” at most serves this traditional function: to make clear
Congress’ intent not to “occupy the field,” and thus to save all
claims that do not conflict with federal law, but not those that
do. Again, the first 20 years of Safety Act case law gave it
just that function.

Third, a general savings clause in no event saves a claim
that actually conflicts with the Act that contains the clause.
An unbroken chain of authority, 1907-1998, so holds, and
necessarily so. The Supremacy Clause preempts conflicting
state law. This Court has never assumed that Congress would
be so cavalier as to discard the Supremacy Clause, and so
accord conflicting state laws a free pass to undermine Con-
gress’ laws, all through a general savings clause that does not
address whatever future conflict came to be in issue, and in
the nature of things could not.

4

A state common-law claim that actually conflicts with an
FMVSS is, in the First Circuit’s words, a “rare event, indeed.”
This, as the overwhelming weight of lower court authority
holds, is that rare event. Therefore petitioners’ claim is pre-
empted.

ARGUMENT

Petitioners’ claim, if allowed, would conflict with
FMVSS 208 and the Safety Act, and so is preempted. Peti-
tioners* seek to avoid that truth by ignoring FMVSS 208’s
purpose, disregarding settled conflict preemption principles,
inventing new ones, and, finally, according this Act’s so-
called savings clause an effect no savings clause has ever
been accorded by this Court before.

We address FMVSS 208’s history and purpose first (Part
A); how plaintiffs’ claim would conflict with FMVSS 208 and
undermine its purpose, and so is preempted by it, next (Part
B); and, last, how the so-called savings clause does not and
could not save that undermining claim (Part C).4

3 We refer to the Brief for Petitioners as “P. Brief”; to the Brief of the
United States as Amicus Curiae Supporting Affirmance as “U.S. Br.”; and
to the briefs of the amici supporting petitioners by amici’s names as
follows: Attorneys Information Exchange Group brief (“AIEG Br.”);
Association Of Trial Lawyers Of America brief (“ATLA Br.”); National
Conference Of State Legislatures, Counsel Of State Governments, National
Association Of Counties, National League Of Cities, International City/
County Management Association And U.S. Conference Of Mayors brief
(“NCSL Br.”); States Of Missouri, Arizona, California, Colorado,
Connecticut, Delaware, lowa, Kansas, Montana, New Hampshire, New
York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont and
Washington brief (“Mo. Br.”); Robert B. Leflar, Robert S. Adler, Michael
Green, And Joseph A. Page Br. (“Leflar Br.”).

* The D.C. Circuit found implied preemption, and GM focuses on
why that was correct. Honda and other amici address express preemption,
and petitioners’ errors as to it.

5

A. FMVSS 208’s Options And The Safety Purposes
Behind Them.

Options and the flexibility that went with them have been
at the heart of FMVSS 208, indeed, essential to its regulatory
scheme, from its beginning. This is the regulation’s history.

1. The Pre-1984 Option-Based Standards.

Before 1972 FMVSS 208 accorded manufacturers the
option to install manual seat belts or various passive restraints
in cars. 32 Fed. Reg. 2415 (1967). “[T]he safety benefits of
wearing seatbelts are not in doubt. . . . ” Motor Vehicle Mfrs.
Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52
(1983). However, manual belts are “active restraints,”
because the occupant must act to use them, and many people
did not use them. So in 1972 the Department of Transporta-
tion (“DOT”) amended FMVSS 208 to require installation of
airbags or automatic belts — both passive restraints — in cars
built after August 15, 1975. DOT also required “vehicles built
between August 1973 and August 1975. . . to carry either
passive restraints or [manual] lap and shoulder belts coupled
with an ‘ignition interlock’ that would prevent starting the
vehicle if the belts were not connected.” Jd. at 35.

The ignition interlock rule caused a public outcry, and in
1974 Congress outlawed the “ignition interlock” standard,
mandated that manufacturers retain the option to install man-
ual belt systems, and prohibited DOT from requiring airbags
or any other nonbelt restraint system unless, among other
things, such a standard had been submitted first to both
houses of Congress and not disapproved by them. 15 U.S.C.
§ 1410b(b), (c). See H.R. Rep. No. 93-1452 (1974), reprinted
in 1974 U.S.C.C.A.N. 6084, 6108; 120 Cong. Rec. 27816,
27822 (1974).5

5 Even if the legislative veto aspect of § 1410b fails (see INS v.
Chadha, 462 U.S. 919 (1983)), Congress’ intent to mandate options,
including the manual belt option, is clear.

6

Accordingly, DOT deleted the ignition interlock require-
ment, 39 Fed. Reg. 38380 (1974), and amended FMVSS 208
to grant manufacturers the same options it provided before the
ignition interlock episode. Thereafter, FMVSS 208 granted
those same options, and rejected a mandatory passive restraint
rule, in every model year from 1976-1987. For very good
reasons:

In 1976, Secretary Coleman, after lengthy study, deter-
mined not to mandate passive restraints. 41 Fed. Reg. 24070
(1976); 41 Fed. Reg. 36494 (1976); see also 42 Fed. Reg.
5071 (1977). He reasoned that: (1) A policy “unacceptable” to
the public would contravene the “goal of safety,” and “every
sampling of public opinion” showed most Americans opposed
mandatory passive restraints. Secretary's Decision Concern-
ing Vehicle Occupant Crash Protection, D.O.T., at 6, 11, 32,
52-57 (Dec. 6, 1976). (2) More data was needed before
mandating passive restraints or any one of them. /d. at 9, 12,
27, 34, 57. (3) Increased manual belt use would make passive
restraints unnecessary; airbags gave no greater protection
than seat belts, when used. /d. at 7, 13, 29, 33. The Secretary
concluded the “cause of safety would not be served” by
mandating airbags or any passive restraints “at the present
time.” Jd. at 27, 30-31, 34, 36; see also 41 Fed. Reg. at
24070-71.

In 1977, Secretary Adams required some form of passive
restraints to be phased into cars beginning in model year
1982, but continued all FMVSS 208’s options until then. He
also granted manufacturers the option to choose which pas-
sive system to install before and after 1982, and so rejected an
airbag-only stancard at all times. See 42 Fed. Reg. 34289,
34290-96 (1977), 61468 (1977); 46 Fed. Reg. 53419, 53420
(1981); see also Pccific Legal Found. v. Department of
Transp., 593 F.2d 1338, 1348 (D.C. Cir.), cert. denied, 444
U.S. 830 (1979).

© That prospective mandatory passive restraint regulation was
submitted to Congress and not disapproved by it. But Congress declined
DOT funding “to implement or enforce any standard o« regulation which

7

In 1981, Secretary Lewis delayed Adams’ passive
restraint phase-in for one year, 46 Fed. Reg. 12033, 12034
(1981); 46 Fed. Reg. 21172, 21174-75 (1981), and then
rescinded it, noting, among other things, that increased man-
ual belt use would effect an “immediate impact
. . . Many times greater” than mandatory passive restraints. 46
Fed. Reg. at 53419-25. He concluded manufacturers should
“continue to have the current option.” /d. at 53419.

Upon review, this Court held that Secretary Lewis had
not sufficiently set forth his reasons for rescinding the passive
restraint requirement, or for not requiring airbags, and
remanded for consideration of those things. State Farm, 463
U.S. at 52-57.

2. DOT’s 1984 Judgment That Diversity, Not A
Mandatory Airbag Rule, Best Served Safety.

On remand, Secretary Dole undertook a comprehensive
review of all restraint systems, and propounded the rule at
issue here. It was challenged and upheld. See State Farm Mut.
Auto. Ins. Co. v. Dole, 802 F.2d 474, 489 (D.C. Cir. 1986),
cert. denied, 480 U.S. 951 (1987). The rule called for a
measured introduction of passive restraints (no one kind was
required), beginning with 10% of cars built in model year
1987 (the year at issue here), and ending with 100% of 1990
model year cars. 49 Fed. Reg. at 28999-29000.

Petitioners and their amici repeatedly claim that an air-
bag system was DOT's preferred choice. See P. Br. at 2, 8,
10-11; AIEG Br. at 15; Leflar Br. at 3-4. It was not. In fact,
DOT found mandatory manual belt use laws (“MULs”)
“would more than match the safety benefits of [a passive

requires any motor vehicle to be equipped with an occupant restraint
system (other than a belt system).” Department of Transportation and
Related Agencies Appropriation Act, Pub. L. No. 95-335, § 317, 92 Stat.
450 (1978); Department of Transportation and Related Agencies
Appropriation Act, 1980, Pub. L. No. 96-131, § 317(a), 93 Stat. 1039
(1979).

restraint] rule,” and “will result in a more substantial reduc-
tion in deaths and injuries more quickly and at a lower cost
than any other practical alternative.” 49 Fed. Reg. at 28998.’
’ Secretary Dole summed it up: seat belts if used are “the
quickest, least expensive way by far to reduce fatalities and
injuries,” and “will provide the greatest benefits most
quickly.” 49 Fed. Reg. at 28962, 28997. Thus FMVSS 208
provided that the passive restraint phase-in was to be can-
celed if by 1987 states with two-thirds of the population
enacted MULs, and to cease after it began if enough states
enacted MULs between 1987 and 1989. /d. at 28963. Enough
complying MULs were not enacted, so the phase-in was
completed.

Airbags also were not DOT’s preferred choice among
passive restraints. Rather, the Secretary determined not to
mandate any particular form of passive restraint at any time,
before or after phase in. She found “disadvantages to each of
the automatic restraint systems,” (id. at 28998), and found
that “public acceptability” of mandatory passive restraints —
essential to their use and so their safety benefit — would be
enhanced by authorizing manufacturers to install different
restraint systems, so the public could choose among them. /d.
at 28997, 29001. The Secretary found a “number of reasons”
not to mandate airbags in particula, id. at 29000, including
these: (1) “An airbag alone is less effective” than three-point
belts when used, id. at 28986; (2) airbags are costly, espe-
cially to replace, id. at 29001; (3) airbags may not protect out-

? Thus the proposition that NHTSA wanted airbags in all cars
because that was “the safest option” is simply false. Indeed, the Secretary
noted that “estimating the effectiveness of [airbags] is very difficult,” and
“that airbags could range from being 46 percent more effective than the
manual belts as used in the same cars to 70 percent less effective.” 49 Fed.
Reg. at 28985. The Secretary judged that “an airbag alone is less effective
than a manual lap and shoulder belt or automatic belt, when those systems
are used” (id. at 28986), airbags provide no protection in side and rear
collisions, may injure out-of-position occupants, and provide only a
marginal increase in safety over belts even when used with belts. /d. at
28984-85.

9

of-place occupants and, in fact, might cause injuries, espe-
cially to children (unfortunately proved true), id. at 28992,
29001; (4) the public feared airbags and may not accept them,
id. at 29001; (5) more data as to their effectiveness needed to
be collected, id.; and (6) more time was needed to develop the
technology. /d. at 28992, 28996. Secretary Dole concluded
that mandating airbags or any other passive restraint “runs the
risk of killing or seriously retarding development of more
effective, efficient occupant protection systems.” /d. at
29001.* In particular, “an airbag only decision would unnec-
essarily stifle innovation in occupant protection systems,” and
would take away the “latitude” necessary for industry to
develop them. /d. at 28997.

In sum, from the beginning to the passive restraint phase-
in, FMVSS granted — and Congress mandated — the option to
install manual seat belts, or the manufacturers’ choice of
passive restraints, in cars. From the beginning, through the
phase-in and indeed up until the 1997 model year, FMVSS
208 granted manufacturers the option as to what passive
restraint to install in cars, and specifically rejected a rule
mandating airbags or any other single passive system.®

3. NHTSA’s Statements About FMVSS 208 Pre-
emption And Congress’ 1991 Action.

In 1990, the Solicitor General, joined by NHTSA and
DOT, opposed certiorari in Wood v. General Motors, the first

® Petitioners attribute to NHTSA a comment by personal injury
lawyer Steven Teret. See, e.g., Pet. Br. at 10. But NHTSA made clear it was
summarizing, not endorsing, comments: “Because of the large number of
public comments, we have provided a representative sample of the
comments made and the commenters who made them.” 49 Fed. Reg. at
28966. NHTSA has never welcomed “no airbag” claims as incentives; to
the contrary, it has made clear for 10 years that they are preempted. See pp.
9-10, below.

® Far from being the product of “political winds” (Leflar Br. at 13),
sn el ied ial by 6 straight administrations (C
and Republican).

10

circuit court to address (and find) “no airbag” claim preemp-
tion. Their brief said it would "disserve the safety purposes of
the Act” to allow “no airbag” claims. Brief for the United
States as Amicus Curiae, Wood v. General Motors Corp.,
No. 89-46 (filed Mar. 1990), at 15 (emphasis original).

In 1994, in Freightliner v. Myrick, NHTSA and DOT
contrasted brake standard cases, where the Agency believed
there was no preemption, with “no airbag” cases, where the
Agency was clear there was. Brief for the United States as
Amicus Curiae, Freightliner Corp. v. Myrick, No. 94-286
(filed Dec. 1994) at 28-29 & n.16. The Agency explained that
“common-law tort actions that imposed liability for failure to
install airbags” would “frustrate[ ] the Secretary's policy
judgment,” and would have “an adverse effect on safety.” /d.
at 28.

Petitioners’ amici advise that Congress would be puzzled
that the circuit court here ruled as it did. In fact, Congress
would be puzzied if it had not. In 1991 Congress was consid-
ering the law that eventually required NHTSA to mandate
airbags. NHTSA apprised Congress then that “most courts
that have considered the matter have ruled that [“no airbag”
claims} are preempted by the [Safety Act] and/or the safety
standards issued by NHTSA.” Letter to Congress from
NHTSA Administrator Jerry Curry, November 7, 1991; H.R.
Rep. No. 102-404 (1991), reprinted in 1991 U.S.C.C.A.N.
1679, 1783. NHTSA cautioned Congress that the proposed
law could call those preemption rulings into question. In
response, Congress specifically provided that the new law
was not to “be construed by any . . . court as indicating an
intention by Congress to affect, change, or modify in any way
the liability, if any, of a motor vehicle manufacturer under
applicable law relative to vehicles with or without inflatable
restraints.” Intermodal Surface Transportation Efficiency Act
of 1991, Pub. L. No. 102-240, § 2508(d), 105 Stat. 2086.

A ee la itis

I

B. “No Airbag” Claims Undermine FMVSS 208 And
Are Therefore Preempted.

The D.C. Circuit, joining five federal circuits, scores of
district courts, and 12 state appellate courts, correctly held
that “no airbag” claims directly undermine, and so conflict
with, the Safety Act, FMVSS 208 and the purposes behind
them.

1. The Conflict.

FMVSS 208 “was specifically designed to give auto-
mobile manufacturers a choice among several options when
providing restraint systems.” Pokorny v. Ford Motor Co., 902
F.2d at 1116, 1123 (3d Cir.), cert. denied, 498 U.S. 853
(1990). That flexibility — “latitude” — and those options are
“essential” to FMVSS 208 and to advance its safety goal.
Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777, 785 (3d
Cir. 1992). Indeed, taking those options away, and in particu-
lar mandating a single passive restraint choice like airbags,
would risk “killing or seriously retarding” development of the
best systems. 49 Fed. Reg. at 29001.

Petitioners’ no airbag claim, if allowed, would require
manufacturers to install airbags in all cars, or impose tort
damages on them if they did not. Accordingly, that claim
would in effect take the manufacturers’ option to install seat
belts, not airbags, away. It would also punish a manufacturer,
after the fact, for doing what FMVSS 208, in the interests of
safety, authorized. Consequently, that standard would, in the
Solicitor General's words, “disserve safety” (p. 10, above),
and so defeat Congress’ and DOT’s full and most basic
objectives. For a “state common law rule that would, in
effect, remove the element of choice authorized in [FMVSS
208] would frustrate the federal regulatory scheme.” Taylor,
875 F.2d at 827; Pokorny, 902 F.2d at 1125 (same); Buzzard,
966 F.2d at 783 (no airbag claims would “undermine the
flexibility that Congress and the DOT intended to give to
manufacturers in deciding whether to include air bags, auto-
matic or manual seat belts in their design.”).

12

Therefore, plaintiff's “no airbag” claim “flatly,” Wood,
865 F.2d at 401, and impermissibly, conflicts with FMVSS
208. Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S.
141, 155 (1982) (state action that punishes option granted by
federal regulation preempted). For a “state common law rule
cannot take away the flexibility provided by a federal regula-
tion,” “cannot prohibit the exercise of a federally granted
option,” and cannot impose damages for doing “what a fed-
eral act or regulation ‘authorized [one] to do.’ ” Taylor, 875
F.2d at 827 (quoting Chicago & N.W. Transp. Co. v. Kalo
Brick & Tile Co., 450 U.S. 311, 318 (1981), and holding de la
Cuesta “demonstrates the rule” and “governs this case”; also
citing Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 524
(1981)).

2. Petitioners’ Efforts To Avoid The Conflict.

Petitioners try to avoid that flat conflict in various ways,
none sound.

a. The Contention That Common Law Does
Not Regulate.

Petitioners say the common law compensates plaintiffs,
but leaves defendants free to act as they will; defendants can
just keep on doing what they were found liable for, and keep
paying for doing it, petitioners advise. Thus, the argument
concludes, the common-law duty petitioners’ claim would
impose does not regulate and so cannot conflict with FMVSS
208. P. Br. at 47-48; AIEG Br. at 20; ATLA Br. at 15.

That argument disregards San Diego Bldg. Trades Coun-
cil v. Garmon, 359 U.S. 236 (1959), and the forty years of
authority following it: “[{State] regulation can be as effec-
tively exerted through an award of damages as through some
form of preemptive relief. The obligation to pay compensa-
tion can be, indeed is designed to be, a potent method of
governing conduct and controlling policy.” Jd. at 247. Accord
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521 (1992)
(plurality) (quoting and following Garmon); Medtronic, Inc.
v. Lohr, 518 U.S. 470, 504-05, 509-10 (1996) (quoting and

13

following Cipollone; opinions of five Justices); International
Paper Co. v. Ouellette, 479 U.S. 481, 495 (1987); CSX
Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 675 (1993).

Petitioners’ argument also disregards reality. As peti-
tioners’ brief euphemistically puts it, “the threat of future
liability imposed through the tort system” is intended as an
“incentive” to install airbags. P. Br. at 10. Indeed, petitioners
seek $20 million in compensatory and punitive damages,
quite an “incentive” by itself. And petitioners’ amici confess
that the “state law determination of whether a motor vehicle
is defectively designed has an objective very similar to
NHTSA’s goal.” Leflar Br. at 17; see also AIEG Br. at 4-5;
ATLA Br. at 11. Likewise, petitioners’ counsel confessed in
1984 that the purpose of “no airbag” claims was to “persuade
the auto companies . . . to install airbags in all cars,” exactly
what NHTSA judged ought not occur. Trial Lawyers for
Public Justice 1984 Annual Report.'°

Nevertheless, petitioners’ amici continue, regulations are
“prospective in nature,” and meant to prevent “socially harm-
ful activities.” (NCSL Br. at 14) The point is elusive. Perhaps
the idea is that tort claims compensate for injuries, regardless
whether the conduct causing them is “socially harmful” or
not, or, indeed, as Missouri puts it, “legal or illegal.” (Mo. Br.

1© Petitioners point to English v. General Electric Co., 496 U.S. 72,
85 (1990), Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185 (1988), and
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255 (1984). Each noted that
damage awards regulated less directly than “direct regulatory authority”
does. (E.g., Goodyear, 486 U.S. at 186) But none changes Garmon or its
progeny, much less suggests that common-law standards that conflict with
federal standards are not preempted. Nor would they, for neither conflict
preemption nor a conflicting common-law standard was in issue in any of
them: Goodyear merely held that the authority granted a state by Congress
to administer workers’ compensation claims on federal land included
authority to award supplemental sums for injuries resulting from violation
of state safety laws; English and Silkwood were field preemption cases; and
Silkwood made clear that “state standards” imposed “in a damages action”
would be preempted where they “frustrate{d] the objectives of the federal
law.” Id. at 256.

14

at 3) But of course that is wrong, as petitioners’ amici say
elsewhere; tort law compensates for “wrongful injury” (ATLA
Br. at 9), “unreasonably dangerous products” (id. 12), and
“socially unreasonable conduct.” Leflar Br. 7, 17.

But this excursion is ultimately off point. The issue is
whether petitioners’ common-law standard undermines the
federal standard. It does. Therefore, it is preempted, whatever
its purpose. Ouellette, 479 U.S. at 494 (state law sharing
federal law's “ultimate goal” is preempted if it “interferes
with the methods” Congress chose to achieve the goal).

In sum, petitioners’ contention that common-law damage
claims do not regulate is wrong as a matter of settled law,
and, indeed, common sense: If administrative standards
whose violation is punishable by thousand dollar fines regu-
late, multimillion dollar tort judgments do, and especially
here. For every frontal crash is a potential no-airbag claim;
“[iJn these circumstance,” were “no airbag” claims allowed,
manufacturer “choice to avoid modification of its design [to
include airbags] ‘seems akin to the free choice of coming up
for air after being under water.’” Wood, 865 F.2d at 411
(citation omitted). From the beginning, the overwhelming
body of no airbag authority so found. See, e.g., Baird v.
General Motors Corp., 654 F. Supp. 28, 32 (N.D. Ohio 1986)
(manufacturer would have “but one realistic choice”).''

b. The Contention That Common-Law
Duties Are “General” And So Cannot
Conflict.

Two of petitioners’ amici argue that common-law duties
are “general norms.” See Mo. Br. at 11; AIEG Br. at 14. A
third argues, contrarily, that “statutes and administrative regu-
lations are necessarily abstract and general,” but common-law

'! In fact, punitive damages — sought routinely, and here — are
expressly intended to “punish{ |” defendant's conduct and “deter{ }” its
repetition. BMW of North Amer., Inc. v. Gore, 517 U.S. 559, 568 (1996);
Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 19 (1991).

~The

15

liability is “particular.” (NCSL Br. at 12) Whoever is right,
the issue is beside the point.

Common-law damages actions “are premised on the exis-
tence of a legal duty.” Cipollone, 505 U.S. at 522 (plurality).
Indeed, the common law’s “essence” is to “enforce duties that
are either affirmative requirements or negative prohibitions.”
Id. (emphasis in original). The question in this conflict pre-
emption case is not whether this common-law duty is in some
metaphysical sense general or specific, but whether the stan-
dard it sets and the requirement it imposes undermine — and
so conflict with — federal regulations. See Gade v. National
Solid Wastes Management Assn., 505 U.S. 88, 105 (1992)
(look to “effects”). This proposed common-law duty would
undermine this regulatory structure. Pp. 11-12, above. There-
fore, this claim based upon that duty is preempted, and rightly
so; “there is little reason why state impairment of the federal
scheme should be deemed acceptable so long as it is effected
by the particularized application of a general [damages] stat-
ute,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 386
(1992), or by general common law. Medtronic, 518 U.S. at
504 (Breyer, J., concurring), 518 U.S. at 509 (O'Connor, J.,
opinion for four Justices, concurring and dissenting); East-
erwood, 507 U.S. at 664, 675.

c. The Contention That Common-Law Rules
Cannot Conflict With Performance Stan-
dards.

Petitioners say federal standards set performance, not
design, standards (see, e.g., P. Br. at 46; NCSL Br. at 25), and
that common-law actions do not establish “objective criteria.”
ATLA Br. at 3.

These propositions may, generally, be true, but are not
here. Section 1410b, unique in the Safety Act, speaks to
manual seat belts and passive restraints, both designs, and
mandates NHTSA to grant options to install them. P. 5, above.
FMVSS 208 in turn undertakes, among other things, to “spec-
ify[ ] equipment requirements for active and passive restraint

16

systems,” see 49 C.F.R. § 571.208, S2, speaks to particular
restraint systems and their design, and so, rare among NHTSA
regulations, has “elements of a design standard.” Wood, 865
F.2d at 417; see also Gills v. Ford Motor Co., 829 F. Supp.
894, 897 (W.D. Ky. 1993) (FMVSS 208 has “unique charac-
teristics”); Welsh v. Century Prods., Inc., 745 F. Supp. 313,
321 (D. Md. 1990) (FMVSS 208 is “unusual regulation”). See
AIEG Br. at 5 (the cases treat “‘no air bag claims’ as a
unique issue”).'? Pp. 8-9, above. FMVSS 208 also expressly
grants options — also unusual — to choose among those design
elements.!?

Petitioners’ common-law claim is likewise, by ATLA’s
measure, a rarity, for it specifies a very “objective criterion”:
a car without airbags is defective. Moreover, “airbag suits are
of the broadest general applicability — potentially affecting
every vehicle on the road — and thus are most similar to a
state regulation.” Wood, 865 F.2d at 418.

Thus the performance/design inquiry undermines peti-
tioners’ general thesis. For as the first 20 years of Safety Act
cases show (pp. 25, 27, below), a “direct conflict between a

12 Petitioners’ amici apparently suggest NHTSA cannot regulate
design. See, e.g., NCSL Br. at 25. That is certainly wrong. FMVSSs are to
“meet the need” for safety, 15 U.S.C. § 1392, and so protect the “public
against unreasonable risk of accidents occurring because of the design,
construction, or performance of a motor vehicle.” /d., § 1391(1)c(2)
(emphasis added). In fact, this Court remanded the 1977 version of FMVSS
208 so the Secretary could consider whether to mandate airbags — a design
(State Farm, 463 U.S. at 57) — and Congress ordered NHTSA to permit
seat belts (§ 1410(b)), and later to mandate airbags — both designs.

13 Petitioners say other regulations grant options. P. Br. at 46.
Whether or not that is so, FMVSS 208 is unique. Congress specifically
endorsed its options in § 1410b; Congress has not endorsed options for any
other federal standard. FMVSS 208 granted options for safety reasons over
many years; no other standard shares that history. Moreover, it makes no
difference whether other standards provide options. If the same
considerations and analysis applicable to FMVSS 208 apply to those other
standards, they do. If they do not, they do not. They do apply to FMVSS
208.

17

common-law design standard and a Safety Act performance
standard” is a “rare event indeed.” Wood, 865 F.2d at 402 n.9.
This, however, is that rare event.

d. The Contention That Claims Preempted
In 1987 Are Un-Preempted in 1999.

Petitioners note that Congress enacted legislation in 1991
requiring airbags in all cars beginning in 1997. P. Br. at 45.
Therefore, petitioners say, an award rendered in 1992 requir-
ing airbags in all cars would not frustrate FMVSS 208’s
policy determination not to require airbags in all cars, and
instead provide options, in 1984-91. Consequently, petitioners
posit, while a state standard requiring airbags in all cars may
have been preempted from 1984-91, it was retroactively un-
preempted by 1992. This car was built in 1987, but this crash
occurred in 1992. Therefore, petitioners conclude, Honda had
a retroactively un-preempted state-law duty in 1992 to install
an airbag in this car in 1987, although, since any state stan-
dard imposing such a duty was preempted in 1987, Honda
could not have had any such duty then.

Petitioners cite no authority to support that, if we may
say so, outlandish theory, and we know of none. How could
there be? The State could not punish the manufacturer in 1987
for not installing airbags in 1987. Punishing the manufacturer
five years after the fact for not discharging a duty it didn’t
have five years before and couldn’t discharge five years later
just makes the punishment immoral as well as illegal. In any
case, the 1991 legislation petitioners argue changed the law
expressly did not, much less retroactively. Congress specified
that its 1991 legislation prospectively requiring airbags
“shall” not be construed to affect the preexisting preemption
law in any way. Pp. 10-11, above.

In sum, petitioners’ proposed state common-law rule
requiring airbags would “disserve safety” and undermine the
regulatory scheme, and so conflict with federal law.

3. The Supremacy Clause Preempts “By Direct
Operation” This Conflicting State Law.

“Conventional conflict pre-emption principles require
pre-emption where compliance with both federal and state
regulations [1] is a physical impossibility, . . . or [2] where
State law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.”
Boggs v. Boggs, 520 U.S. 833, 844 (1997) (internal quotation
marks and citation omitted) (emphasis added). Where either is
found, preemption is “require{d].” Jd. at 844. Here, there is an
actual conflict, so preemption is required.

Petitioners and their amici try to avoid that time-honored
rule by presumption and abandonment. Neither works.

a. Avoidance By Presumption.

Petitioners and their amici repeatedly invoke the so-
called presumption against preemption. This Court has cer-
tainly recited there is such a presumption, and has used it in
unclear cases to reject express or field preemption arguments.
See, e.g., CSX Transp., Inc. v. Easterwood, 507 U.S. 658,
664-65, 668 (1993) (express); Cipollone v. Liggett Group,
Inc., 505 U.S. 504, 518 (1992) (express); Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146-152 (1963)
(field). Thus, ATLA notes that “the scope of express preemp-
tion is to be narrowly construed consistent with the strong
presumption against preemption.” ATLA Br. at 10.

Where state law actually conflicts with federal law, how-
ever, the case is clear, and there is no room for presumptions.
State law that conflicts with federal law “is pre-empted by
direct operation of the Supremacy Clause.” Brown v. Hotel &
Restaurant Employees and Bartenders Int'l Union, 468 U.S.
491, 501 (1984); California Coastal Comm'n v. Granite Rock
Co., 480 U.S. 572, 594 (1987) (“traditional pre-emption anal-
ysis . . . requires an actual conflict between state and federal
law, or a congressional expression of intent to pre-empt”)
(emphasis added). See also Cipollone, 505 U.S. at 516 (state
law that conflicts with federal law “is ‘without effect.’ ”)
(citation omitted); Ouellette, 479 U.S. at 491 (state law

19

“invalid to the extent that it ‘actually conflicts with... a
federal statute’ ”); Maryland v. Louisiana, 451 U.S. 725, 747
(1981) (“a state statute is void to the extent it conflicts with a
federal statute”); Kalo, 450 U.S. at 317 (“a court must find
local law pre-empted by federal regulation whenever the chal-
lenged state statute stands as an obstacle to the accomplish-
ment and execution of the full purposes and objectives of
Congress”) (citation and quotation marks omitted); Ray v.
Atlantic Richfield Co., 435 U.S. 151, 158 (1978) (“a state
statute is void to the extent that it actually conflicts with a
valid federal statute”); Florida Lime & Avocado Growers, Inc.
v. Paul, 373 U.S. 132, 141, 146-47 (1963) (only after deter-
mining no conflict exists does court “turn to the question
whether Congress has nevertheless ordained that the state
regulation shall yield”).

Petitioners protest that tort law is important to the states.
But “ ‘[t}he relative importance to the State of its own law is
not material when there is a conflict with a valid federal law,’
for ‘any state law, however clearly within a State’s acknowl-
edged power, which interferes with or is contrary to federal
law, must yield.’ ” Felder v. Casey, 487 U.S. 131, 138 (1988)
(quoting Free v. Bland, 369 U.S. at 666). That rule is nearly
as old as the republic. Gibbons v. Ogden, 22 U.S. (9 Wheat.)
1, 210 (1824). Accord Gade v. National Solid Waste Mgt.
Ass'n, 505 U.S. 88, 108 (1992) (“under the Supremacy
Clause, from which our pre-emption doctrine is derived, any
state law, however clearly within a State’s acknowledged
power, which interferes with or is contrary to federal law,
must yield”) (internal quotation marks omitted); DeCanas v.
Bica, 424 U.S. 351, 357 (1976): (“[E]ven state regulation
designed to protect vital state interests must give way to
paramount federal legislation.”).

Petitioners cannot avoid conflict preemption by presump-
tion.

b. Avoidance by Abandonment.

Next, petitioners propose that the settled law be aban-
doned, or disregarded, in these ways:

20

i. The Proposal That “Impossibility” Be
The Only Test.

Petitioners and their amici propose that “ ‘obstacle’ pre-
emption is not appropriate to deny tort remedies traditionally
available under state law”; only impossibilit, is. ATLA Br. at
26; Mo. Br. at 19-20; AIEG Br. at 11.

But the Court has repeatedly held that the obstacle pre-
emption test applies to state common law as to any other. See,
e.g., Medtronic, 518 U.S. at 496; Freightliner Corp. v. My-
rick, 514 U.S. 280, 289 (1995); Ouellette, 479 U.S. at 493-94;
Silkwood, 464 U.S. at 248; Kalo, 450 U.S. at 317; Texas &
Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 446-47
(1907). If anything, the test applies a fortiori to common law:

The effects of the state agency regulation and the

State tort suit are identical. To distinguish between

[them] for pre-emption purposes would grant

greater power to a single state jury than to state

officials acting through state administrative or leg-
islative lawmaking processes.
Medtronic, 518 U.S. at 504 (Breyer, J., concurring).'4

ii. The Proposal That A Benign State
Purpose Eliminates Conflict.

Petitioners argue that their proposed state common-law
duty to install airbags would serve safety. But NHTSA and
DOT disagree: They concluded that mandating airbags or any
other passive restraint would “disserve safety.” In any case,
“it is not enough to say that the ultimate goal of both federal
and state law is [the same]. A state law also is pre-empted if it
interferes with the methods by which Congress intended to
meet [its goal].” Ouellette, 479 U.S. at 494; p. 14, above.

'4 Indeed, petitioners’ amici disprove petitioners’ remove-one-test
theory. They concede that an injunction requiring airbags, although based
on common-law, “would clearly be preempted.” ATLA Br. at 6. That
injunction, however, would not make it impossible to comply with both
federal and state law, but, like petitioners’ damage claim, would
necessarily be preempted under the (supposedly removed) obstacle test.

Stee ee eee

a

21

iii. The Proposal That NHTSA Cannot
Preempt, Or Can Only Preempt
Expressly.

Petitioners and their amici argue that NHTSA had no
power to preempt, or at the least, that a preempting agency
standard must state on its face the agency's intent to preempt.
Of course, then the standard would expressly, not impliedly,
preempt. There is no rule that federal regulations cannot
impliedly preempt. To the contrary. An agency exercising its
delegated authority has the same preemptive power as Con-
gress. City of New York v. Federal Communications Comm'n,
486 U.S. 57, 63-64 (1988). Moreover, the preemptive “force”
of an agency's regulations “does not depend on express con-
gressional authorization to displace state law.” /d. at 64 (quot-
ing de la Cuesta, 458 U.S. at 154). That force comes from the
Supremacy Clause. /d.; Lincoln Sav. & Loan Ass'n v. Federal
Home Bank Bd., 856 F.2d 1558, 1560 (D.C. Cir. 1988)
(agency “regulations will preempt inconsistent state [law] by
the simple operation of the Supremacy Clause.”).

Petitioners complain that NHTSA gave no notice that
FMVSS 208 might preempt conflicting state law. P. Br. at 40.
But the Supremacy Clause gives notice that federal law pre-
empts conflicting state law. See, e.g., United States v. Shimer,
367 U.S. 374, 381-82 (1961) (no express agency intent to

preempt; preemption found).

iv. The Proposal That Preemption Can-
not Take Away A Remedy.

Petitioners and their amici complain that preemption of
“no airbag” claims would leave them “without a remedy for
injuries caused by the automaker's unreasonable behavior,”
NCSL Br. at 12-13. But a manufacturer who does what federal
law authorizes and encourages does not behave unreasonably.
Thus, petitioners are not complaining that they have no rem-
edy; they are complaining that as a matter of federal policy
there is no wrong. Nor does Silkwood help; there was no
conflict between federal and state law there.

22

Petitioners in fact had a remedy,'* but it would not be
unique if they were left without one. Every time a conflicting
state-law claim is preempted, plaintiff necessarily is left with-
out the remedy the preempted law provided. That is what
preemption means. See, e.g., Farmers Educ. & Coop. Union v.
WDAY, Inc., 360 U.S. 525, 535 (1959); Ouellette, 479 U.S. at
497 (Clean Water Act preempts non-source-state common-law
remedies and all common-law remedies where source state
provides none); Garmon, 359 U.S. at 246-47 (National Labor
Relations Act preempts damage claim even when NLRB
declines jurisdiction over the matter).

In sum, petitioners’ claim conflicts with federal law and
is preempted by direct operation of the Supremacy Clause.

C. The Meaning Of Section 1397(k).

Petitioners argue that § 1397(k), the supposed “savings
clause,” “saves all common law claims,” including claims -
like theirs — that conflict with federal law. P. Br. 34, 39
(emphasis added). That is an extreme contention. In all of
U.S. history this Court has never held that any savings clause
— even one clearly directed at preemption — preserves claims
that actually conflict with the statute that contains the clause.
To the contrary, this Court has held exactly the opposite for
almost a century. Pp. 28-30, below.'® Congress could not have
intended to give states unlimited power to adopt common-law

'S Federal law expressly does not preempt state-law claims
implementing the federal standards, 15 U.S.C. § 1392(d), and does not
impliedly preempt non-conflicting claims. As ATLA points out, plaintiffs
had a claim they could have made; “according to the complaint, . . . the seat
itself broke away from its moorings due to inadequate design.” ATLA Br.
at 8. Plaintiffs cannot invoke a claim federal law prohibits because they
waived a claim that federal law allows.

© Indeed, the thesis unwinds on itself. For as petitioners’ amici
admit, § 1397(k) could not save a state claim where it would be impossible
to comply with both federal law and the common-law standard the claim
seeks to enforce. AIEG Br. at 11; Leflar Br. at 14. Thus they agree that

§ 1397(k) really doe: sot and cannot bar implied preemption.

23

rules that directly conflict with the Safety Act, the regulations
under it, and the safety purposes those regulations serve — and
so invite the chaos the Act was meant to avoid.

Section 1397(k) really has nothing to do with preemp-
tion, Part 1, below; at most serves to negate federal occupa-
tion of the field, Part 2, below; and certainly does not save
claims that actually conflict with the Act that contains the
clause, Part 3, below.

1. Section 1397(k), Fairly Read, Has Nothing To
Do With Preemption.

Section 1397(k) provides that “compliance” with federal
standards “does not exempt a person from liability at common
law.” 49 U.S.C. § 30103(e). Compliance has nothing to do
with preemption, and vice versa: Federal law preempts or not,
by operation of federal law, regardless of compliance, and
non-compliance cannot by private unilateral action un-pre-
empt. See AT&T v. Central Office Tel., Inc., 524 U.S. 214
(1998) (“It is the Communications Act that renders the prom-
ises of preferences unenforceable”; thus private action in a
tariff “cannot be construed to do what the parties have no
power to do” under the Act).

Compliance with standards is a defense or not to a tort
claim, as the substantive tort law provides. Petitioners’ amici
prove the point. “It is a widely accepted principle of tort law,”
they say — not preemption law — “that ‘Compliance with a
legislative enactment or an administrative regulation does not
prevent a finding of negligence when a reasonable person
would take additional precautions.’ " ATLA Br. at 13; see Mo.
Br. at 16, n.5 (“For a hundred years courts have considered
axiomatic the principle that, against possible liability in tort,
a defendant's compliance with governmental statutes and reg-
ulations is admissible only as evidence of the defendant's
exercise of due care,” not a complete defense.). As ATLA
says, when Congress enacted the Safety Act, “Congress may
be assumed to be familiar with these common-law principles
of ordinary tort litigation.” ATLA Br. at 13.

24

Thus § 1397(k)’s plain language (and structure, see Brief
of Respondent American Honda Motor Co.; Brief of Amicus
Curiae Product Liability Advisory Council), axiomatic tort law
principles, and Congress’ knowledge of them show the way to
Congress’ intent: to preserve state substantive state tort rules
regarding the effect of compliance with federal standards as a
defense on the merits to state tort claims, “not to preserve
common law claims when they conflict with NHTSA stan-
dards.” Gracia v. Volvo Europa Truck, N.V., 112 F.3d 291, 298
(7th Cir. 1997), cert. denied, 118 S. Ct. 697 (1998).

The legislative history is in accord. Petitioners and their
amici cite no legislative statement that even suggests Con-
gress intended by § 1397(k) to save conflicting state claims.
And in fact, the history does not “specifically address[ } the
status of conflicting design standards established through the
mechanism of common law [design] suits... . ” Wood, 865
F.2d at 406. See Pokorny, 902 F.2d at 1123-25; Taylor, 875
F.2d at 826-27.

To the contrary, the legislative history — like the clause’s
express terms — does not speak to preemption at all, but
simply opposes federalizing substantive tort principles. For
example, the history recites that “[n]o rules of evidence are
intended to be altered by this provision,” and 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. Rec. 21487, 21490 (1966) (emphasis
added). Preemption is not a matter of “rules of evidence” or
“relevance and weight”; a tort-law compliance defense is. See
Leflar Br. at 6 (“the comment of Congress assumed the
continued existence of state tort law, including the traditional
doctrine that compliance with government safety standards
constitutes nonconclusive evidence of due care.”).'’

'7 Mr. Triplett (a personal injury lawyer, not a legislator), whose
testimony petitioners and their amici embrace (see, ¢.g., P. Br. at 29, AIEG
Br. at 12-14; ATLA Br. at 22), is also in accord. See Brief of Respondent.
Petitioners also quote Congressman Dingell's statement that the Safety Act
“preserved every single common-law remedy.” P. Br. at 30-31. But in

;
;

25

But, petitioners complain, that “it would have made no
sense for Congress to . . . negat[e) the state law defense of
compliance with federal safety standards [because] . . . it was
already the law in every state that compliance with a federal
regulation is not an absolute defense. .. . ” P. Br. at 27, n.11.
Petitioners’ amici prove that false: “Some jurisdictions go
further and mandate that compliance with such standards is a
conclusive defense to tort liability; establishes a rebuttable
presumption of non-negligence; or bars punitive damages.”
St. Br. at 16 (footnotes omitted); Leflar Br. at 20-21. Anyway
the argument misses the point: Congress wanted to make clear
that the states’ rules on the compliance defense — whatever
they were, uniform or not — were unaffected.

Petitioners’ early Safety Act cases also are in accord.
Petitioners say those cases speak to preemption and find none,
but they do not; “the issue of implied preemption was never
argued or addressed” in them. Wood, 865 F.2d at 417. Rather,
those cases give § 1397(k) exactly the tort-law significance
its language, structure and history counsel: to negate a federal
compliance “defense on the merits,” a “distinct” and “entirely
different” issue from preemption. /d. at 417. See Shipp v.
General Motors Corp., 750 F.2d 418, 421 (Sth Cir. 1985);
Schwartz v. American Honda Motor Co., 710 F.2d 378, 383
(7th Cir. 1983); Stonehocker v. General Motors Corp., 587
F.2d 151, 156-57 (4th Cir. 1978); Fox v. Ford Motor Co., 575
F.2d 774, 784-85 (10th Cir. 1978); Knippen v. Ford Motor
Co., 546 F.2d 993, 1000 (D.C. Cir. 1976); General Motors
Corp. v. Edwards, 482 So. 2d 1176, 1198 (Ala. 1985), over-
ruled on other grounds, 554 So.2d 927 (Ala. 1989); Volks-
wagen of America, Inc. v. Young, 321 A.2d 737, 746 (Md.
1974); H.P. Hood & Sons, Inc. v. Ford Motor Co., 345 N.E.2d
683, 688 (Mass. 1976).'*

context, “Dingell’s remarks refer to state tort suits which enforce federal
standards, not to suits which would create different standards.” Wood, 865
F.2d at 407 n.14.

'® Those cases also answer petitioners’ protest that “there could be no
affirmative defense of compliance with a federal standard that” is not on

26

In sum, § 1397(k) preserves state-law rules regarding
compliance as a defense. It does not speak to preemption,
much less save conflicting state common-law claims from
preemption.

2. Even If Directed At Preemption, Section
1397(k) Simply Negates Field Preemption.

“Savings clauses” directed at preemption traditionally
serve a special function: to make clear Congress’ intent not to
“occupy the field,” and thus to save all claims that do not
conflict with federal law, but not those that do. Ouellette, 479
U.S. at 492 (“the saving clause negates the inference that
Congress ‘left no room’ for state causes of action”); Kalo,
450 U.S. at 328 (savings clause included because without it,
“it might have been claimed that, Congress having entered the
field, the whole subject . . . had been withdrawn from the
jurisdiction of the si:ate courts”) (quotation marks omitted);
Pennsylvania R.R. Co. v. Puritan Coal Mining Co., 237 U.S.
121, 129 (1915) (savings clause included “to preserve all
existing rights which were not inconsistent with those created
by the statute”). If directed at preemption at all, § 1397(k)
serves that function.

Thus the legislative history shows that Congress did not
intend to shield manufacturers from “broad” liability, and that
compliance with federal standards would “not necessarily
shield any person from product liability at common law.” See
P. Br. at 29 (citing and quoting 112 Cong. Rec. 14230 (1966)
and S. Rep. No. 89-1301 at 12 (1966)); AIEG Br. at 12. Those
Statements, if addressed to preemption at all, comport with
Congress’ usual intent in enacting general savings clauses: to
make clear that an Act does not occupy the field — does not
“necessarily” preempt “broad” common-law liability. They do

point, so § 1397(k) could not apply in that setting. Pet. Br., p. 26. But in all
those cases, there was no on-point federal standard, and the courts found
that § 1397(k) applied. Also, there being no on-point standard, there was no
conflict; that is why preemption was not in issue.

27

not speak to conflicting state claims at all, much less reflect
some extraordinary intent to preserve them.

The “traditional purpose” reading is likewise supported
by petitioners’ other Safety Act cases. They found that
§ 1397(k) made clear that the automotive safety standards
field was not occupied. Buccery v. General Motors Corp., 60
Cal. App. 3d 533, 540-41 (1976); Larsen v. General Motors
Corp., 391 F.2d 495, 506 (8th Cir. 1968); Arbet v. Gussarson,
225 N.W.2d 431, 438 (Wis. 1975); Dawson v. Chrysler Corp.,
630 F.2d 950, 957-58 (3d Cir. 1980); Dorsey v. Honda Motor
Co., 655 F.2d 650, 654, 656 (Sth Cir. 1981), as modified, 670
F.2d 21, 673 F.2d 911 (1982); Sours v. General Motors Corp.,
717 F.2d 1511, 1516-17 (6th Cir. 1983). The Third Circuit had
no difficulty harmonizing its decision in Dawson (giving the
savings clause that reading) with its decision in Pokorny, 902
F.2d at 1121 (finding “no airbag” claims conflicting and so
preempted). Indeed, petitioners’ amici, citing those cases,
note that before the “no airbag” litigation, “not one appellate
court .. . had ever entertained the notion that Congress chose
to preempt common law liability in the field of motor vehicle
product design.” AIEG Br. at 4 (emphasis added).

But, petitioners continue, the “preemption provision can-
not be read to give rise to any broader ‘field’ preemption of
matters not regulated by the federal agency. Accordingly,
there would be no reason for the savings clause to . . . af-
firmatively negate . . . broader field preemption.” P. Br. at 28.
Petitioners mistake the law. Field preemption turns on the
Act’s subject matter, purpose, and pervasiveness, not just a
provision’s words. See Pennsylvania v. Neilson, 350 U.S. 497,
504 (1956); Napier v. Atlantic Coast Line R.R., 272 U.S. 605,
612-13 (1926). Petitioners also prove too much. If the pre-
emption clause clearly excludes from preemption matters not
covered by it, and, as petitioners argue, clearly excludes
common-law claims, then § 1397(k) is redundant if it is read
to address preemption ar all.

In any case, it certainly does not save state claims that
actually conflict with federal law. We turn to that.

28

3. Even If Directed At Preemption, Section
1397(k) Does Not Save Conflicting Claims.

This Court has never read a general savings clause to
preserve claims that actually conflici with the Act that con-
tains the clause. To the contrary, even when an Act has no
preemption clause, a general savings clause cannot save state
law that conflicts with the Act. Abilene, 204 U.S. at 446, lays
down the principle. There, a general savings clause purported
to save “the remedies now existing at common law or by
statute.” Nonetheless, this Court held an existing but conflict-
ing common-law claim preempted, because a savings clause
“cannot in reason be construed as continuing . . . a common
law right . . . absolutely inconsistent with the provisions of
the act.” AT&T, 524 U.S. at 227-28 (savings clause “pre-
served only those rights that are not inconsistent with the
statutory filed-tariff requirements,” citing Abilene); Morales,
504 U.S. at 384-85 (clause saved “the remedies now existing
at common law or statute”; a “general ‘remedies’ savings
clause cannot be allowed to supersede the specific substantive
pre-emption provisions,” and “we do not believe Congress
intended to undermine this carefully drawn statute through a
general saving clause”) (citation and quotation marks omit-
ted); Ouellette, 479 U.S. at 493-94, 505 (savings clause pro-
vided “[njothing in this section shall restrict any right which
any person ... may have under any statute or common law”;
Senate Report said “[c]ompliance with . . . Act would not be a
defense to a common law action for . . . damages”; conflicting
common-law claims preempted because Congress could not
have “intended to undermine . . . [the Act] through a general
savings clause”); Kalo, 450 U.S. at 328 (clause providing
nothing in Act “shall in any way abridge or alter the remedies
existing at common law or by statute” did not save conflicting
common-law damage claim); see also John Hancock Mutual
Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 99
(1993) (saved state law “generally is not displaced,” but is
“ “where [it] stands as an obstacle to the accomplishment of
the full purposes and objectives of Congress.’ ”).

29

The rule also makes good practical sense. Congress can-
not foresee all the ways that state law might some day conflict
with Congress’ purposes. Accord, AIEG Br. at 18. Nothing
permits one to assume that Congress would be so rash or
cavalier as to discard the Supremacy Clause, and so accord
conflicting state laws carte blanche to undermine Congress’
legislation, all through a general savings clause that does not
and cannot take into account whatever future conflicts may
come to be. In fact, the law assumes the opposite. Congress’
“purpose” to preempt is “evidenced,” among other ways, by
the mere fact that “state policy may produce a result inconsis-
tent with the objective of the federal statute.” Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947).

But, petitioners argue, “Section 1397(k) is not a ‘general
savings clause.’ It specifically addresses and preserves from
federal preemption one aspect of state law: common law
liability.” P. Br. at 27. That, with respect, is a word game. A
general savings clause is “general” because it generally saves
claims in some field — say common law, or insurance law —
but does not speak to specific laws within the field that may
conflict with federal law some day; Congress will not be
understood to have saved a specific conflicting law that it did
not address. Thus in John Hancock, the saved field was very
narrow: “any law . . . which regulates insurance, banking, or
securities.” Nevertheless, the Court held that conflicting state
laws within the field were not saved. 510 U.S. at 99. See also
Morales, 504 U.S. at 384-85 (applying Abilene principle to
ERISA savings clause).

Indeed, petitioners’ specific/general dichotomy reduces
to absurdity. The notion is that the broader the savings clause,
the less it saves, and the narrower the clause, the more it
saves. Why would that be?

The Abilene principle has been the law throughout this
century, and Congress is presumed to know about it and
legislate in light of it. See McNary v. Haitian Refugee Ctr.,
Inc., 498 U.S. 479, 496 (1991); Goodyear Atomic Corp. v.
Miller, 486 U.S. 174, 185 (1988); Cannon v. University of
Chicago, 441 U.S. 677, 699 (1979). Reading this clause in
light of that principle, and assuming the clause is directed at

30

preemption, it saves all claims that do not conflict with the
Safety Act and the regulations under it, but not those that do.
Accordingly, § 1397(k) would save all claims that do not
conflict with an FMVSS: claims based on manufacturing
defects; claims based on state standards concerning aspects of
performance not covered by federal standards; and claims
based on state standards concerning aspects of performance
that are covered by federal standards, but do not conflict with
those federal standards. That is most claims.

But claims that actually conflict with federal law, though
rare, are not saved. This is that rare claim. It is preempted.

CONCLUSION

The Court should affirm the decision of the District of
Columbia Circuit.

DATED: November 18, 1999.
Respectfully submitted,

Davip M. Hersron

(Counsel of Record)

Lesure G. LANpau

McCutcuen, Doyie, Brown &
Enersen, LLP

Three Embarcadero Center

San Francisco, California 94111

Telephone: (415) 393-2000

Attorneys for Amicus Curiae
General Motors Corporation

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0277%3A20. Public record. Not legal advice.