Amicus Curiae Brief — Williamson v. Mazda Motor of America, Inc. (No. 08-1314)

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AUG 6 - 2010

No. OS-1814 OFFICE OF rE CLERK

In the Supreme Court of the Cited States

DELBERT WILLIAMSON, ET AL., PETUPIONERS

v.

MAZDA MoOrok OF AMERICA, ING., ET AL.

ON WRIT OF CERTIORARI

TOTHE COURT OF APPEAL OF CALIFORNTA,

FOURTH APPELLATE DISTRICT, DIVISION THREE

BRIEF FOR THE UNTRPED STATES

AS AMICUS CURTIAE SUPPORTING PETEPIONERS

NEAL KUMAR KATYAIL.

ROBERT QO RIVKIN Acting Solicitor (reneral

(roneral Counsel Counsel of Record

; TONY WEST

PAUL M. Grikk - si west . : é

Assistant General Connsel Assintant Aterney iremenies

for Litigation MbWIN S. KNERDLER

Peven d. Phocks Deputy Solicitor General

Deputy Assistant General WiLLIAM M. JAY

Counsel for Litigation Assistant ta the Solicitor

Department of General

Tran sportal ton

. . DOUGLAS N. LETTER

Washington, ILC. 20590

HELEN L. GILBERT

O. KEVIN VINCENT Aftorueys

Chief Counsel Department of Justice

LLoypsS. GUERCI Washington, DC 20580-0001

Assistant Chief Counsel SupremeCtB riefs(@misdo). gov

Ne oe Se ‘ (202) 514-2217

PiMaorHiy H. GOODMAN

Senior Trial Attorney

Natroual Highway Traffic

Safety Administration

Washington, D.C. 20590

‘JOD YY

QUESTION PRESENTED

Pursuant to the National Traffic and Motor Vehicle

Safety Act of 1966, now codified at 49 U.S.C. 30101 ef

seqg., the National Highway Traffie Safety Administra-

tion has promulgated Iederal Motor Vehicle Safety

Standard (EEeMVSS) 208, 49 C.FLR. 571.208, which ad-

dresses crash protection. In 1998, that provision re

quired automobiles to have a ‘Type 1 (ap) or ‘Type 2

(lap/shoulder) seatbelt in rear non-outhoard seating po-

sitions. The question presented is:

Whether FMVSS 208 preempts a state common-law

tort claim that an automobile manufactured in 1993 was

defectively designed because it lacked a Type 2 (ap/

shoulder) seatbelt ina rear non-outboard seating: posi-

tion.

(T)

TABLE OF CONTENTS

1 iapre

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ee . cnnn ue kanye eee tb aaeeerekewe S

NS oak ie op ESS 44s as SERS aE RAS a eA peiess wens ‘

A. Under the Safety Aet, a common-law tort action

is saved from preemption unless it actually con

Nicts with a federal standard ..................... 10

Li. Astate-law requirement ordinarily is not. pre-

ecmpted merely because it exceeds a federal mini-

I <5 oases Sale ccs eas oa Sates a 12

(. The rear seatbelt rule did not affirmatively seck

to promote diverse seatbelt designs or to pre-

serve a role for Type t seathelts ..........0........ 14

D. ‘The rear seatbelt rule docs not cribody any pre-

ND Sie ho pasenkox cacecakeds Kru kes cabal 199

1. Respondents cannot sustain the state court's

ruling on grounds specific to aisle seating posi-

PE kthiadsw ib beee bee Seas ess eae eek 66 ee8

2. Respondents have not identified any federal

policy requiring that Type 1 seatbelts remain

SE Bos ce hn bla 0b650 545 46d sth dR OOS SERS 21

SS CI IID 5 oko ok dic Kevicte cesar eess ra |

b. Cost-bhenefit analysis ...............0e eee 22

Cw S| Seen RG ghey ere ny ee ie er 24

do Technical difficulties associated with aisle

Ce ea SN gree tet I Pe ee a are ae 27

Ie. This Court should pive weight to NITTSA’s ex-

pert conclusion that petitioners’ tort theory does

not conflict with FMVSS 208 ..0.0.0...0.0.0...0...-.. Pat

Re ee eer ea an ee Ere a eee $1

Appendix a PPP EEE TREE TCI ETS la

(IIL)

lV

TABLE OF AUTITORITLES

Cases: VPage

Altria Group, Tie. v. Good, 1295. Ct. 538 (2008) 0. 2

Arkansas Blec. Coop. Corp. v. Arkansas Pub Serv

Conon, 4GD US. 3875 (L983)

Bates v. Dow Agroscis., LUC, 644 US. 48h (2005) 22... 24)

Carden v. General Motors Corp, 509 b 38d 227

(Sth Cir. 2007,, cert. demed, L255. Cb. 2011

ah sg Gin a istaiek Gn Whee nd WS kate ie OF oles eee kes 7, 14, 28

Center for Auto Safety v. Peck, 751 F.2d 1356 (D.C.

> S) ONES TS A ame Wear ee

frevghtliner Corp. v. Myrick, 514 US. 280 (1995) oo... 30)

Greier vy, American Honda Motor.Co ,o20 US. 86

PECK RR CES SC eeSN SRC cee ee Se heeeueaseiees passim

Griffith v. General Motors, Corp., 808 Bid 1276

(iith Cir. 2002), cert. denied, 538 US. L025 (2008) 22. 21

Hines v. Davidowittz, 312 U.S. 62 (1941) ......0.....0.... Ll

Hurley v. Motor Coach Indus., Tine. 222 Vd 377

(7th Cir. 2000), cert. denied, 8b US. 1148

I cp w ci owls ace bese oS CLERER SERNA OO0be EON ET 21, 24

Machinists vo Wisconsin Banployment Relations

Ce A Ge Stes EE CU PUED oo vs vcs ecuweeb beeeween 1%)

Rice v. Santa Fe Blevator Corp, 331 US. 218 A047)... 11

Roland v. General Motors Corp., 88i N.B.2d 722 (nd.

Ct. App), transter denied, 898 Nobe2d 1218 (ind,

EN srg RPh nk kd cbd bees ke eRe Kee e eae 7

Sprichona sv. Mercury Marine, 537 US. 51

Sc eer eek eae es we 60 ad OR OK601 4 EEC RES 10), 233, 20

Wood v. General Motors Corp, 494 US. L065 C1990) 2... 30

Wyeth v. Levime, 1298. Ct. 1187 (2009) 2... 11,12, 20, 30

V

Statutes, revulations and rule: Page

Anton's Law § a, 49 U.S.C. 30127 mote ................. 4

hederal Boat Safety Act of 1971, 46 U.S.C. 45020001) 2. 25

National ‘Praffic and Motor Vehicle Safety Aet of

Oe he ee OP eee rears l

Op ea: OUR 6 a5 5k CaaS Relea naewen 2

SURO ME ook ick cle 2,8, 10,15

ar, os ak i ag ors oe ate ae 2

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ke ee ere ee reer ry ct 2,%

A I st as i A ena Se oe 2

49 C.F R.:

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a en a as he 4

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PNUD 25 406 chive ews ese eer ieekna passim

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ee ee Peer erererecre ere errr 4

SUI re NOE CED 0.6 606 n nec cb vcee¥eerduwsnes 4

ection i971 DOIS7.1.1.3) CAO) . we cece ee 27

POPRRE SUe Es nix eke wd veeessteabacckeeacue 3

og a Se rrr ee eee ee ee ee 21

Miscellaneous:

42 bed. Rep. 967»)

pp. 2408-242 | 2

eon es oe Se ee ee ek we ow ee ee oe ef he we on ae ie oe ok oe ee ow ke

MIN oon swe VEN Gakeeae pies on etn ae eis 3,14

Vi

Miscellaneous — Continued: Page

AY Fed, Reg. (1084):

etc Do 4s ca ah Raed de on eee wteN lf, 27

i) Es os orks eens aaa tae Sadana 14, 15, 25

ty ee res ood 5a Calatig ns Sa de eld seen (

RE ee ee ONO OS be ea ese Oe oe hee Ree ls

i rE Git <n ls Guedes have cemes bee eeee 13

ho bed. Reg. C1O88):

ee Es eae ee tren s&s BWA Me Kees RRR ES 14, 15, 22

i I 9s 8 old ede Nae Wee oe eke ae 2

i SE seed car ekGkss can endeaeeebwr’ ae

ee Sa ee ee: oe aes 15, 16, 22, 2h

Se IE 6c pes as bie eooRs ee eas ee eee

rea Det ce ie nn bss ee nice RANE ae 16

NE 5 es ease eee se URGES SEER ORES 17

NEN Fos A eho is We od Kewenon ek sebed eee caweal 28

RS occa ss ene wea ataeeke estes eos 25, 26

re err ae 16

D4 teed. Reg. (1080):

Cp ’ 7) 9 | OTP e TEETER TEE eee i$

i aews 653506 basa see ek ssa a cen dae ewan eeanes 16

PE CV Sk 66 OR as 26d e OK Od KSO KES OOK OWE OEE EHAS 22

A ee 5 64 6 5.0 6.354 604 Om 0.65 OR CT APE ORE 16

i a Ws ahs na bbs cade gada sabaireanete 3,17

ME Ss Cans in ack oom pas 4 ab aD 16, 17, 20, 21, 27, 28

NN eee re ee ey re ere ee

et Rk Mec ge ee Dae PARA DR Part tenn 82 2h

Vii

Miscelancous—Continued: Pave

PR ec Fav eee c ee ches wan ee CUNT STN OCeNS Seah we 22

Perr ee Pern re eID Erie ee 26

eM | er er re rrr 26

ee UE, TUNE, SE GROD cover aceccweccenscousben 20

O69 bed. Rep. (2004):

Sh RT S's Go's Shas ae Sd aaa ele ee SONS Sate 22

ca ee ye wee eee oes recs 2

Department of Transp., NIPPSA, Child Passenger

Safety Resource Manual (AY92) 2.000 ee ee 26

S. Rep. No. 1301, 89th Cong., 2d Sess. (1966) .......... 25

Hn the Supreme Court of the Cuited States

No. OS-1314

DELBERT WILLIAMSON, ET AL., PETITIONERS

MAZDA Morok OF AMERICA, INGC., ET AL.

ON WRIT OF CRRTIORNARI

TOTHE COURT OF APPEAL OF CALIFORNTA,

FOURTH APPELLATE DISTRICT, DIVISION THRER

BRIEF FOR THE UNITED STATES

AS AMICUS CUREAE SUPPORTING PETITIONER KS

INTEREST OF THE UNITED STATES

The question presented in this case is whether l’ed-

eral Motor Vehicle Safety Standard (FMVSS) 208, 49

CLF LR. 571.208, issued pursuant to the National Traffic

and Motor Vehicle Safety Act of 1966 (Safety Act), 49

U.S.C. 80101 et seg., preempts a state common-law tort

claim that an automobile manufactured in 1998 was de-

fectively designed because it lacked a Type 2 (ap/ shoul-

der) seatbelt. in one of its seating positions. The Secre

tary of ‘Transportation is responsible for administering

the Safety Act, and the United States therefore has a

substantial interest in the preemptive effect of a safety

standard issued under that statute. At the Court’s in-

vitation, the United States filed a brief as amicus curiae

at the petition stage of this case.

(1)

STATEMENT

Petitioners are the estate and survivors of Thanh

Williamson, ‘They filed this action against respondents

Mazda Motor Corporation and Mazda Motor of America,

Inc., the manufacturers of their minivan, alleying that

respondents are liable under California common-law tort.

principles for Ms. Williamson’s death from injuries sus

tained in a car accident. The state trial court entered

judgment for respondents on the ground that petition-

ers’ state common-law tort suit is preempted by a fed-

eral reyulation, FMVSS 208. The Court of Appeal of

California affirmed, Pet. App. 1-27, and the Supreme

Court of California denied discretionary review, td. at

ol.

1. The Safety Act requires the Secretary of Trans-

portation to “prescribe motor vehicle safety standards,”

which are “minimum standard|[s| for motor vehicle

or motor vehicle equipment performance.” 49 ULS.C.

SOLO2Z(ajyC9), BOLT TGA); see 49 UL S CO. SOLOLGL). Phe See-

retary has delegated the authority to promulgate safety

standards to the National Highway Traffie Safety Ad-

ministration (NHTSA), an operating administration

in the Department of Transportation (DOT). See 49

CoRR. 1.50Ga).

The Safety Act includes a savings ¢lause., which pro

vides that “[cjomplianee with a motor vehicle safety

standard prescribed under this chapter does not ex-

empt a person from liability at common law.” 49 ULS.C.

S0103(e). Although the Safety Act also inchides an ex-

press preemption provision, which precludes a state or

local government from “preseribfing | or continu] ings] in

effect” its own standards if those standards differ from

an applicable FMVSS, 49 U.S.C. 30108(b)(1), this Court

has held that the savings clause removes common-law

tort actions from the scope of the express preemption

Clause. Geter v. American Honda Motor Co., 629 U.S.

“61, S68 (2000),

This case concerns FMVSS 208, 49 C.F.LR. 571.208,

which is entitled “Occupant crash protection” and which

“specifics performance requirements for the protection

of vehicle occupants in crashes.” 49 Co}. 571.20805 1).

NHTSA issued the original version of FMVSS 208 in

1967, as part of the initial motor vehicle safety standards

called for by the Safety Act. 32 Fed. Rep. 2408-2421

(1967). Sinee its inception, FMVSS 208 has included a

requirement to install seatbelts in passenper curs. See

id. at 2415.

ik MVSS 208 refers to two different types of seatbelts.

A T'vpe 1 seatbelt is a lap-only seatbelt, “for pelvic re-

straint.” 49 C.F_LR.571.209085). A Type 2 seatbelt is a

lap and shoulder belt, “a combination of pelvic and upper

torso restraints.” /bid. The first version of FMVSS 208

required that Type 2 seatbelts be installed for the

driver’s and right front passenper’s seats, and that ei-

ther Type 1 or Type 2 seatbelts be installed for all other

seats. See 32 Fed. Rep. at 2415.

NHTSA has amended kMVSS 208 several times

since 1967. At issue in this case is a 1989 modification to

the types of seatbelts required for rear seats. The 1989

amendments required manufacturers to install Type 2

(lap/shoulder) seatbelts in all “forward-facing rear out-

hoard designated seating positions,” but continued

to allow manufacturers to install cither Type 1 (lap-

only) seatbelts or Type 2 Cap/shoulder) seatbelts in

all non-outboard positions. 53 Fed. Rey. 47,982-47,993

(1988) (notice of proposed rulemaking); 54 Fed. Rep.

25,275-25,279 (1989) (final rule applicable to passenger

cars); 1d. at. 46,257-46,268 (1989) (final rule applicable to

4

other vehicles, including the multipurpose passenger

vehicle at issue here).

An “lojutboard designated seating position” was de-

fined as a seat less than 12 inches from the side interior

wall ofthe vehicle. 49 CLP. ATL30b) (1990). A “[rjear

outboard desipnated seating position,” in turn, was de-

fined as any such position “that is rearward of the front

seat(s),” unless it is “adjacent to a walkway located be-

tween the seat and the side of the vehicle, which walk-

way is designed to allow access to more rearward scat-

ing positions.” 49 CBR. 571.208054.2.4.1(b)) (standard

for light trucks and multipurpose passenger vehicles);

accord 49 C.F AR. 671.208(54.1.4.2(¢)) (same, for passen-

ger cars). Thus, under FMVSS 208 as amended in 1989,

Type 2 seatbelts were not required in rear seats adja-

cent to a walkway or in rear center seats. This case in-

volves a rear seat adjacent to a walkway.’

2. a. On August 14, 2002, the Williamson family,

consisting of father Delbert, mother Thanh, and daugh-

ter Alexa, was traveling in a 1993 Mazda MPV minivan,

which FMVSS 208 treats as a multipurpose passenger

vehicle. Pet. App. 3; see 49 CIR. 571.30) (1990). The

Mazda MPV has three rows of seats: the front row, with

physically separate seats for the driver and a front pas-

senger; the middle row bench, with two seats and an

aisle on the right-hand side that allows access to the last

row; and the last row bench, with three seats. Delbert

The standard at issue in this case is no lonyer in effect for new cars.

In response toa conyressional directive, sce Anton’s Law § 5,49 ULS.C.

30127 note, NH'PSA revised its rule to require all passenger cars and

nul purpose passenger vehicles with a poss vehicle weight rating of

10,000 pounds or less, if manufactured on or alter September 1, 2007,

tomeclide Type 2 seatbelts at all rear designated seating positions that

face forward. 49 CB LK 571.208(S4 1.5.5) and (S427 1)

was driving and wearing a Type 2 (ap/shoulder) seat

belt. Alexa was sitting: direetly behind him in the mid-

dle-row left outboard seat of the vehicle, also wearing a

Type 2 seatbelt. Thanh was sitting in the middle row to

Alexa’s right. Because that seat was adjacent to the

aisle, it was a “non-outboard rear seating position” un-

der FMVSS 208. Thanh wore the ‘Type t (lap-only) seat-

belt installed by Mazda in that seating position, as

I’ MVSS 208 permitted at the time, Pet. App. 3.

The Williamsons’ vehicle collided with another vehi-

cle, and Thanh sustained fatal injuries. Pet. App. 3.

Petitioners allege that “the forces penerated by thle]

collision caused [‘Thanh’s} body to ‘jaekknife’ around her

defective lap] |belt, causing severe abdominal injuries

and internal bleeding.” /bed. (first and third brackets in

original); see J.A. 210, 216-217

b. Petitioners sued respondents in California state

court, asserting state common-law tort elaims. As rele-

vant here, they alleged that the 1905 Mazda MPV was

defective because respondents should have installed a

Type 2 seatbelt in Thanh’s seating position. J.A. 73, 216-

223. Respondents moved for judgment on the pleadings

on the pround that federal law preempted this tort

claim. J.A. 105-123.

The trial court sustained the preemption defense.

The court held that federal law precluded state-law tort

actions “to the extent those claims arise from an alleged

design defect or failure to warn og on the lack of a

lap-shoulder seat belt.” J.A. 234-2385; see J.-A. 194. The

court pave petitioners leave to ire amend their com-

plaint, J.A.195-196, 234-245, because its ruling: did not

preclude petitioners from stating a cause of action for

“nepligen|[ce| in how you hooked [the seatbelt] up or

negligen|ce] in how you design the seat that was poing

1)

to accommodate it, or any other tort theory.” JA. 652.

Petitioners stated to the trial court, however, that they

were “left with nothing” if federal law preempted their

challenge to the type of seatbelt respondents installed in

Thanh’s seating position. J.A. 362. The trial court

therefore sustained respondents’ demurrer to the re-

maining claims arising out of Thanh’s death. J.-A. 375.

The parties then stipulated to dismissal of petitioners’

remaining ¢laims with prejudice and entry of final judg

ment. JA. 877-3835.

4. The Court of Appeal of California affirmed. Pet.

App. 1-27. The appellate court’s analysis of the preemp-

tion of petiioners’ defective design claim focused on this

Court’s decision in Geter, supra. This Court held in

Geier that an earlier version of FMVSS 208 preempted

common-law tort claims that a manufacturer should

have equipped a vehicle with a driver’s-side airbap. At

issue was the 1984 amendment to FMVSS 208, see

49 ed. Reg. 28,962-20,010 (1984), which required manu-

facturers to equip some vehicles with passive restraints.

Passive restraints are devices—such as airbags or auto-

matic seatbelts the effectiveness of which does not de-

pend on any action by a vehicle occupant. The 1984 reg-

ulation provided that, after a phase in period, manufac-

turers could choose either to install airbags or to install

other forms of passive restraints.

This Court held in Geer that a common-law duty of

care requiring installation of airbags conflieted with

FMVSS 208 and, therefore, was preempted under ordi-

nary principles of conflict preemption. 520 U.S. at

874-886. The Court explained that DOT, in promulgat-

ing FMVSS 208, “deliberately sought variety—a mix of

several different passive restraint systems.” /d. at 878.

or local tort law to provide that a manufacturer’s

7

choice to install passive restraints other than airbags

amounted to negligence, the Court reasoned, “would

have presented an obstacle to the variety and mix of

devices that the federal regulation sought.” /d. vat SSL.

In this case, the state appellate court acknowledyed

that Gerer was “distinguishable because it deall with

passive restraints, not seatbelts.” Pet. App. 15; aecord

id. at 25. But the court found “persuasive” the reason-

ing of several lower-court decisions applying Geers

reasoning to cases involving Type | seatbelts. /d. at 24.

Those decisions concluded that FMVSS 208 reflected

“NHTSA’s deeision to allow car manufacturers the op

tion to install either lap-only or lap/shoulder seat belts”

at the relevant seating: positions—z.e., “the same policy

concerns . . . identifted in Geter.” Td. at 16, 18 (quot

ing Carden v. General Motors Corp., 509 F.8d 227, 251

(Sth Cir. 2007), cert. denied, 1285S. Ct. 2911 (2008), and

Roland v. General Motors Corp., S81 N.bke.2d 722, 727

(Ind. Ct. App.), transfer denied, 898 N.E.2d 1218 (ind.

2008) (Table)). Following the reasoning of those deci-

sions, the court of appeal held that accepting petitioners’

claim “would bar motor vehicle manufacturers from em-

ploying one of the passenger restraint options autho-

rized by FMVSS 208,” and that petitioners’ claim there-

fore is preempted as “an obstacle to the implementation

of the comprehensive safety scheme promulgated in

IF MVSS] 208.” /d. at 23 (citation omitted; brackets in

original).

5. The Supreme Court. of California denied petition-

ers’ petition for review. Pet. App. St.

6. This Court granted certiorari, limited to the ques-

Lion whether petitioners’ design-defect claim is preemp-

ted. See 1508. Ct. 8348 (2010); Pet. i.

S

SUMMARY OF ARGUMENT

The Satety Act directs the Secretary of ‘Vransporta-

lion to establish “minimum standard[s]” and provides

that compliance with those standards will not suffice to

excuse a manufacturer from liability under state com-

mon law. 49 USC. 301020a)¢9); see 49 USO. SOLO8(e),

SOLE (a). Accordingly, petitioners’ attempt to establish

that respondents had a duty under state common law to

install a ‘Type 2 seatbelt is not preempted, unless re

spondents can show that such a state-law duty actually

conflicts with the purposes and objectives of FMVSS 208

or the Safety Act. Geter v. American llonda Motor Co.,

529 US. S61, 869-870 (2000). Merely establishing that

the state common-law standard is higher than the fed-

eral minimum standard is not enough to establish such

a confiiet. Rather, a confliet results only when the

Satety Act (or regulations implementing the Safety Act)

does not just set out options for compliance, but also

provides that the regulated parties must remain free to

choose among those options.

‘The court of appeal erred in perceiving such a con-

flict between petitioners’ common-law tort action and

Lhe policies embodied in the 1989 amendment of FMVSS

208. Although NUPSA decided not to impose a federal

requirement to install Type 2 seatbelts in all rear pon

outboard seating positions, NHTPSA’s policy objectives

would have been fully met if manufacturers kad iniumedi

ately installed Pype 2 seatbelts tn those positions. By

contrast, the decision at issue in Geter to phase in a

mixture of airbags and other passive restraints over

lime- would have been frustrated if state conunon law

had forced all manufacturers to install airbags immedi

ately. The state tort duty in Gever therefore conflicted

with FMVSS 208; the state tort duty here does not.

In the 1989 rulemaking, NIPPSA made plain its in-

tention to retain Type 1 seatbelts as the minimum level

of salety, not part ofa required mix of devices. NHTSA

recoynized that Pype 2 seatbelts were more effective,

that rear-seat passengers were more likely to use them,

and therefore that replacing Type bt seatbelts with Type

2 seatbelts was likely to promote safety. [In center seats

and other non-outboard seating positions, the casts

of making that change would have been higher, and

NHTSA accordingly decided not to require such a

change as a matter of federal law. But NHTSA never

sugvested that it wanted manufacturers to retain Type

1 seatbelts; neither technical infeasibility, compatibility

with child-safety seats, safe passage through a vehicle’s

aisle, nor any other consideration supyested that Type

I seatbelts must remain in use.

This Court should sustain NH'TSA’s assessment that

petitioners’ tort action is consistent with the purposes

and objectives of the Safety Act and its implementing

repulations. The apency’s own understanding of the

repulatory framework that it implements and adminis-

ters is the best evidence that the common-law duty on

which petitioners rely will not pose an obstacle to the

full achievement of those federal purposes and objec.

Lives.

ARGUMENT

Ph MVSS 208 required manufacturers of vehicles for

the 1995 model year to install at least a ‘Type 1 seatbelt

at rear non-outboard seating positions, and permitted

them to installa Type 2 seatbelt. That mininnum stan-

dard requiring at least a Type 1 seatbelt does not pre-

empt a state common-law duty that requires manulac-

turers to install the sater Type 2 seatbelt. The court of

10

appeal, however, concluded that FMVSS 208 embodied

not just a minimum safety standard, but a policy judg-

ment by NHTSA that manufacturers must remain free,

unencumbered by external constraints, to choose either

Type 1 or Type 2 seatbelts for the relevant scating: posi-

tions. ‘Phat conclusion was incorrect: although NHTSA

In 1YS9 chose not to require the universal adoption of

Type 2 seatbelts, it had no objection to the immediate

installation of such belts in all rear seats, and it did not

adopt a provision seeking to ensure that manufacturers

would have an unencumbered and free choice to install

either Type | or Type 2 seatbelts. That sets this case

apart from Gerer v. American Honda Motor Co., 529

U.S. S61 (2000), in which the ayency affirmatively re-

jected, as counterproductive, any rule that would have

mandated the immediate and universal adoption of air-

bags Instead ofa gradually evolving mix of airbags and

other passive restraints. Beeause petitioners’ common

law fort action does not conflict with any federal goal

embodied in FMVSS 208 or the Safety Act, it is not pre

empted.

A. Under The Safety Act, A Common-Law ‘Tort Action Is

Saved From Preemption Unless It Actually Conflicts

With A Federal Standard

Under the Safety Act, a safety standard is a “mini-

mum standard for motor vehicle or motor vehicle equip

ment performance.” 49 U.S.C. 801024.09). And under

the Safety Act’s savings clause, compliance with such a

minimum standard docs not in itself “exempt a person

from liability at Common law.” 49 U.S.C. 80108(e).

Thus, petitioners’ cause of action is saved from preemp-

tion by the savings clause unless it actually conflicts

1]

with the purposes and objectives of FMVSS 208 or the

Safety Act. Gerer, 529 US. at S69-NS7O.

As this Court explained in Geier, Congress included

the savings clause to preserve a substantial role for

state tort law in compensating accident victims and pro

moting safety in automobile design. 520 US. at S71. Vo

be sare, the savings clause does not displace ordinary

principles of conflict preemption: state law is) pre-

empted if it conflicts with a federal standard. /d. at S60

S70. But the Court explainea that the application of

those conftlict-preemption principles will, in all likeli

hood, “leay[e] adequate room for state tort law to oper

ate” and allow a “significant number of common-law lia-

bility cases” to go forward. Jd. at SoS.

Under “ordinary pre-emption principles, grounded

in longstanding precedent,” Gerer, 520 U.S. at S74, state

law is preempted not only when it is “tumpossible’ for

private partics to comply with both state and federal

law,” ad. at 8738, but also when the state law “stands as

an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress,” ffines v.

Dovidowitz, 312 US. 52,67 A94D). Ina traditional field

of state regulation, this Court gencrally proceeds on the

“assumption” that a state law poses no such obstacle to

the accomplishment of a federal purpose. Wyeth v. Le

vine, L298. Ct. LIST, 1194-1195 (2009) (quoting Rice vy.

Santa ke levator Corp., 531 US. 218, 230 (1947). But

that assumption may be countered in a particular case

by a showing that, inter alia, “the state poliey may pro-

duce a result inconsistent with the objective of the fed

eral statute,” Rice, 531 US. at 250, or, as in Geter, with

the objective of an implementing regulation.

12

I. AState-Law Kequirement Ordinarily ts Not Peeempted

Merely Because It Exceeds A Federal Minimum Stan-

dard

This Court explained throughout tts opinion in Geter

that the paradivmatic example of a tort action that does

vot conflict with the Safety Act's purposes—-and thus is

not preempted —as a state liability rule that “seekis| to

establish greater safety than the minimum safety

achieved by a federal regulation welended to provide a

floor” 529 USS. at $70 (emphasis added). Thus, a “min-

imum safety standard” ordinarily will not: preempt a

state common-law rule of decision that imposes a higher

standard. Jd. at S68. bor that reason, this Court in Gei-

cr found implied preemption not simply because NHTSA

pehmitted more than one passive-restraint device to sat-

isfy its standards, but because NEUPSA affirmatively

and “deliberately sought variely—a nux of several die

ferent passive restraint systems,” 7d. at S78 —and “de-

bherately sought a gradwad phase-in of passive re-

straints,” ad. at) S79.

1. Inthe 1984 amendment to /MVSS 208, NHTSA

phascd in the passive-restraint requirement and deliber-

ately allowed manufacturers to choose among several

types of passive restraints, so that a variety of passive

restraints would be available on the market. NH'TSA

specifically had rejected a proposed “all airbag” stan-

dard because of sulety concerns, arising partly from the

potential for a public backlash to an airbag mandate.

Creier, 629 US, at 879. As this Court explained, NHTSA

concluded that allowing manufacturers to choose among

passive restraints “would help develop data on compara-

live effectiveness, would allow the industry time to over-

come the safety problems and the high production costs

associated with airbags, and would facilitate the devel-

1-5

opment of alternative, cheaper, and safer passive re-

straint systems. And it would thereby build public confi-

dence.” dbed. (citing 49 Fed. Rep. at 28,990, 29,001-

29,002); accord Wyeth, 1298. Ct. at 1205,

The Court in Geter contrasted that affirmative policy

choice with «a simple minimum standard. As the Court

noted, the yovernment had offered as an example the

safety standard that establishes minimum requirements

for brakes, which permits, but does not require, antilock

brakes. ‘That standard does not preempt a common-law

Claim contending that antilock brakes should have been

installed. 529 US. at S68 (citing 49 CORR, 571.105

(1999)). Indeed, ifa federal minimum standard, without

more, were enough to preempt any state law setting: a

hipher floor, every FMVSS would be preemptive, be-

cause every FMVSS promulgated under the Safety Act

is, by definition, “a minimum standard for motor vehicle

or motor vehicle equipment performance.” 49 U.S.C.

SOTO2ZG09). See also Wyeth, 129 8S. Ct. at 1202-1205

(contrasting the framework at issue in Geter, in which

the state-law mandate would have upset “the balance

INHTSA] had struck,” with one in which federal law set

“a floor upon which States could build”).

Respondents acknowledped at the petition stape

(Supp. Br. 2) that a minimum standard set out in the

KMVSS docs not by itself preempt strieter state com.

mon law as a basis for liability. Rather, like the court of

appeal, they contend that the safety standard at issue in

this case did more than just set a federal minimum stan-

dard requiring at least a Type t seatbelt. at all rear non-

outboard seating positions. The court of appeal conclud-

ed, and respondents urge, that NHTSA instead made a

“deliberate,” policy-driven “decision to allow manutac-

turers the opto of selecting between the twa seat belt

14

designs,” 7¢., to authorize manufacturers to choose ei-

ther one at will. Pet. App. 20 (quoting: Carden v. Gen-

eral Motors Corp., 509 F.8d 227, 252 (oth Cir. 2007),

cert. denied, 128% S. Ct. 2911 (2008)) (emphasis added).

The court of appeal’s decision, therefore, turned on its

erroneous view that the seatbelt standard embodied the

same sort of policy judgiment by NHTSA that underlay

the passive-restraint standard that this Court consid-

ered in Geter The court of appeal was mistaken, as

shown below.

C. The Rear Seatbelt Rule Did Not Affirmatively Seek To

Promote Diverse Seatbelt Designs Or To Preserve A Role

lor Type t Seatbelts

fn the passive-restraint rulemaking, NHTSA re-

jected the view that “the more airbags, and the sooner,

the better.” Gerer, 529 US. at S74. In the seatbelt rule-

tnaking, by contrast, NIUPSA made clear that it agreed

that installing more Type 2 seatbelts, and installing

them sooner, would be better, even though it stopped

short of mandating Type 2 seatbelts at. every possible

seating position. That difference in approach separates

this case from Gecer and defeats respondents’ claim of

preemption,

1. Between J967 and 1989, NHTSA did not require

Type Z seatbelts in any rear seating positions. The orig-

inal 1967 version of FMVSS 208 required manufacturers

to install either Type Lor Type 2 seatbelts for all rear

passenper seating positions. See 42 Fed. Rey. at 2415,

In 1984, NH PSA denied a petition for rulemaking to

require Type Z seatbelts for all passenger cars’ rear out-

board seating positions, 49 Fed. Rep. at 156,241-15,242;

see also 53 led. Rep. at 47,982. ‘That petition for rule-

makings had sought such a standard primarily to facili-

tate the use of a type of booster seat for children that

was held in place by Type 2 seatbelts (rather than by

tethers, which at the time were more widely used to se-

cure child restraints), although the petition also noted

that adult passengers could benefit from Type Z seat-

belts in rear outboard seating positions. 49 Fed. Reg.

at 15,241. Rejecting the proposal, NH'PSA) stated

that “child restraint systems and child booster seats

cquipped with tethers offer preater protection for chil

dren when those tethers are attached than when those

seats and systems are held in place by Type 2 belts.”

lied. Further, although NH'PSA agreed with the view

that “Type 2 belts in rear seats might give some added

depree of protection to adults,” the agency concluded

that “the benefits, ifany, lo be pained by replacing the

Type | belts with Type 2 belts for adults would not jus-

tify the additional cost.” /d. at 15,241-15,242.

2. In 1987, NHTSA decided that the time had come

lo propose a reversal of its earher decision and to re

quire Type 2 seatbelts in at least some rear seating posi-

lions. 58 Ped. Rey. at 47,982-47,998. The agency pro-

posed what would become the 1989 amendments to

I'MVSS 208, requiring Type 2 seatbelts in all rear out-

board seating positions in (inter alia) passenger ears and

multipurpose passenger vehicles such as petitioners’

minivan. Jd. at 47,982. In the 198% notice of proposed

rulemaking (NPRM) and the subsequent final rules,

NHTSA explained the main reasons for its change in

position since 1984. First, more people had begun to use

rear seatbelts, primarily because of new state seatbelt

laws. /d. at 47,985. Second, more people could be ex-

pected to wear lap-shoulder belts in rear seats because

of yreater familiarity with them as a result of using

them in front seats. /bid. Third, rear-seat Type 2 seat-

1G

belts were “even more effective” in reducing the risk of

death than Type Ll seathelts, and NHTSA expected that

yreater effectiveness to resull in “progressively greater

safety benefits” as more rear-seat occupants used their

seatbelts. 54 Fed. Reg. at 25,276 (final rule applicable

to passenger cars); 7d. at 46,257-46,258 (inal rule appli-

cable to other vehicles). Fourth, many manufacturers

had voluntarily installed Type 2 seatbelts in rear out-

board seats, and as a result, the cost of requiring all

manufacturers to do so had diminished substantially.

fd. av 46,258. Fifth, child restraint systems had shifted

away from those requiring a tether anchor. NHTSA

determined that Type 2 seatbelts would “offer benefits

for children riding in some types of booster seats, would

have no positive or negative effects on children riding in

most designs of car seats and children that are too small

to use shoulder belts, and would offer older children the

Same incremental safety protection” as adults. 63 Fed.

Reg. at 47,988-47, 980) see id. at 47,9838; 54 Fed. Rep. at

25,276.

The 1988 NPRM also explained why NHTSA had

decided not to propose requiring manufacturers to in-

stall Type 2 seatbelts for rear inboard seating positions.

The agency stated that there would be “more technical

difficulties” associated with installing ‘Type 2 seatbelts

in rear inboard seating positions than in rear outboard

seating positions. 55 Fed. Rep. at 47,084. Additionally,

reyardless of the technical difficulties, such a require-

ment would yicld “small safety benefits and substan-

tially greater costs.” /bid. The agency acknowledged

that “some aisle seatings positions,” such as the one at

issue in this case, “may not be covered by [the] proposed

requirement” to install Type 2 seatbelts, as “the seating

positions next to the aisle on the right hand side of many

17

passenger vans * * * may not be outboard seating: po-

sitions, because they may be more than 12 inches from

the inside of the vehiele.” Jd. at 47,985.

&. In adopting: its final rule amending FMVSS 208

for multipurpose passenger vehicles, NHTSA reempha-

sized its rationale for not requiring Type 2 seatbelts in

rear inboard seats. 54 Fed. Reg. at 46,257-46,268_. The

agency stated that no commenters had “presented any

new data that would cause the agency to change its ten-

tative conclusion,” cnuncated in the 1988 NVRM, that

requiring Type 2 seatbelts in rear inboard positions

would be “technical[ly} diffieah{]" and “would yield

small safety benefits and substantially greater costs,

given the lower center seat occupancy rate and the more

difficult engineering task.” /d. at 46,258.

NHTSA also stated when it promulgated its final

rule that it had decided not to require Type 2 seatbelts

for rear seating positions adjacent to an aisle, whether

or not those seats were technically “outboard” scats—

4.¢., less than 12 inches from the side wall of the vehicle.

54 bed. Reg. at 46,258. The apeney “did not mean to

suggest” that FMVSS 208 would require manufacturers

to install shoulder belts “at seating positions where they

would obstruct aun aisle designed to pive access to

rear seating positions.” /bid. Significantly, however,

NUTPTSA also stated that, “lo]f course, in those cases

where manufacturers are able to design and install lap/

shoulder belts at seating positions adjacent to aisleways

without interfering with the aisleway’s purpose of allow-

ings access to mere rearward seating positions, N//TSA

encourages the manufacturers to do so.” bid. (empha

sis added).

4, ‘Thus, in its final rule, NH'PSA was not secking to

encourage variety in seatbelt design or to foster a mnx of

1s

Type land ‘Type 2 seatbelts. To the contrary, NIVTSA

showed a clear preference for Type 2 seatbelts and even

encouraged manufacturers to install them for inboard

seating positions adjacent to an aisle (the type of seat at

issue in this case). The reasons why NHTSA did not

mandate Pype 2 seatbelts at those positions pertained to

its assessment at the time of the technological diffieul-

lies, costs, and benefits of such a requirement.

NHTSA’s contemporaneous explanation of its 1989

rear seatbelt amendments stands in sharp contrast to

the agency’s reasonmeg with respect to airbags and other

passive restraints, discussed in Gerer, There, the agen-

cy affirmatively explained in its rulemaking: notices that

it wished to provide for and encouraye the availability of

several options for passive restraints over a period of

time, to help achieve the ultimate purpose of the regu-

lation—the reduction of highway deaths and injuries.

That purpose of promoting safety by fostering a variety

of passive-restraint devices would have been frustrated

hy a state common-law duty to install airbags in all vehi

cles. Here, by contrast, NHTSA simply left in place a

minimum standard requiring at least Type | seatbelts

for rear inboard and aisle seats, based on its assessment.

at the time of technical feasibility and cost-benefit analy-

ses (which are common to virtually all NHTSA rule-

makings setting an FMVSS), while still encouraging

manufacturers bo install Type 2 seatbelts in those seats.

Thus, the existence of the purported “option” to install

either Type | or Type 2 seatbelts was not the result of a

NHTSA policy of affirmatively cneouraging diversity

and freedom of choice, as in Geter — a policy that would

be frustrated by a rule of liability based on the failure to

adopt a single course rather than diverse solutions.

Rather, it was simply the byproduct of NHTSA’s setting

Wy

ofa minimum standard that could be satisfied in more

than one way.

Manufacturers always have the “option” of exceeding

au minimum safety standard when NITSA has decided

to permit, not to mandate, a more stringent alternative

because of considerations of cost or feasibility as

NHTSA did in this ease and, indeed, often does in con-

sidering regulatory alternatives. But if such an “option”

alone were enough to tripper federal preemption under

Grerer, the Safety Act's savings clause would be greatly

undermined. Gezer does not mandate that result.

Ib. The Rear Seatbelt Rule Does Not Embody Any ’reemp-

tive Policy

The court of appeal was correct to observe that

NHTSA’s determination not to require Type 2 seatbelts

was reached through careful consideration and based on

sound reasons. But as this Court’s cases establish, a

determination that a federal agency's decision not to

impose a particular regulation was “intentional and

carefully considered” is not enough to show that the

agency also precluded the States from imposing the

same requirement. Sprietsmav. Mercury Marine, 537

U.S. 51,67 (2002). And here, the rear seatbelt rule does

not embody “an authoritative federal determination that

the Jissue of rear-seat shoulder belts] is best left anureg-

ulated,” td. at 66 (quoting Arkansas Flee. Coop. Corp. v.

Arkansas Pub. Serv. Comnin, 461 US. 3875, 384 (1983)).

Cf. Machinists vo. Wesconsen Kmployment Relations

Conimen, 427 US. 182, 148-151 (1976) (state law pre-

empted where federal law was intended to leave conduct

unregulated and subject to free play of economic forces).

In other words, the ayency did not “consider and reject”

20

any imposition of a higher satety standard. Wyeth, 129

Ss. Ot. at 1205 1.14.

!. Respondents cannot sustain the state court's ruling

on grounds specie to aisle seating pesitions

As an initial matter, respondents cannot properly

recast their preemption theory into one about aisle seat-

ings positions alone. In their supplemental brief at the

petition stage, respondents asserted for the first time

that their preemption defense is based on considerations

specitic to the particular type of non-outboard seating

position that Ms. Williamson occupied, 7e, a seating

position adjacent to an aisle. That contention was not

passed upon below and is not properly presented at this

stage of the case, which came to this Court as a preemp-

lion case involving: rear non-outboard seats generally.

ln any event, NHTSA made clear in adopting EMVSS

208 that it “encouraged” manufacturers to install the

safer Type 2 seatbelts at aisle positions if they could do

so without blocking access to rearward seats, 54 bed.

Reg. at 46,258; plainly, therefore, the agency saw no

insurmountable safety obstacle to installing Type 2 seat-

belts in seating positions next to an atsle.

Petitioners framed their preemption question to ap-

ply to all rear seating positions. See, eg, Pet. 18. As

the government noted at the petition stage, respondents

did not suggest in their brief in opposition that the pre-

emption analysis should differ based on whether the

accident victim was ina “true” center seat or in an aisle

seat. U.S. Invitation Br. 19n.3.* Only in a sapplemental

Nor did respondents make such an argument below. See, eg,

Keep. CLA. Br. 138 center rear seating positions’; “middle row center

sear pa at 16 Call rear row center seating positions”); 1d. at 26 Crear

center seating: position”).

24

brief, filed after the fovernment filed its amicus bricf

recommending: that certiorarl be pranted, did respon-

dents suggest that this case could be resolved on consid

erations “unique” to aisle seats. Supp. Br. 7. Accord.

ingly, respondents should not now be heard to argue

that seatbelt claims involving aosle seats are preempted

even if seatbelt claims involving: center seats are not.

see Sup. Ct. R. 15.2.

In any event, NH'TSA’s decision to treat aisle seats

as inboard seating positions for purposes of the seatbelt

standard offers respondents no help. NEPSA’s decision

did not rest on any desire to ensure the continued avail-

ability of Type 1 seatbelts in aisle seats, or on any eon-

eern that Type 2 seatbelts would necessarily be unsate

in that position. To the contrary: as noted above,

NIPSA affirmatively “encourageld]” the installation of

Type 2 seatbelts, even in rear aisle seating positions, 54

Ked. Reg. at 46,258. See also pp. 27-29, cefra.

2. Respondents have not identified any federal policy

requiring that Type 1 seatbelts remain available

Respondents, and various lower courts, have sug-

vested that NHTSA wished to puarantee the continued

availability of Type 1 seatbelts based on various consid-

erations of cost, child safety, and seatbelt promotion.

Those contentions lack merit.

a. Seatbelt utilization. Some courts have surmised

that NHTSA sought affirmatively to puarantee that

inanufacturers could continue to install Type | seatbelts

as a way of promoting seatbelt usage. See, e.g., Pet.

App. 1&8; Griffith vo General Motors Corp., 803° F.3d

1276, L281-1282 (Lith Cir. 2002) (citing flierley v. Motor

Coach Indas., Ine., 222 F.8d 377, 382 (7th Cir. 2000),

cert. denied, 551 U.S. 1148 (2001)), cert. denied, 538 U.S.

Lo

1023 (2003). NUPSA certainly did seek to promote

safety by increasing the rate of seatbelt usage. See, eg,

Geer, b29 US. at 877. But it sought to do so by encour-

aping the switch to Type 2 seatbelts, not by retaining

‘Type 1 seatbelts.

As the apency explained in its L9S8 NVRM, seatbelt

use was much higher in front seats, where ‘Type 2

seatbelts were required, than in rear seats. As a result,

when passengers “plot| into the habit” of wearing a seat.

belt, it was a Type 2 seatbelt. 53 Fed. Reg. at 47,083.

“Thus,” the ageney concluded, “the presence of lap/

shoulder belts in the rear seat should result in an in-

crease in rear seat belt use,” not a decrease. /d. at

47,983-47,984.* See also id. at 47,982, 47,983 (NH TSA’s

conclusion that Type 2 seatbelts were more effective

than ‘Type 1 seatbelts); 54 Ped. Rep. at 46,257 (same).

Because Type 2 seatbelts were both more popular and

more effective, there is no reason to think that NHTSA

would have wanted to promote Type 1 seatbelts to cater

to consumer preference. And indeed, the agency en-

couraged manufacturers to implement the switch to

Type 2 as quickly as possible. See id. at 46,265 (allowing

some lead time before implementation, but noting: that

“lefarher comphance is also permitted and encour-

apeed”).

b. Cost-benefit analysis. Respondents have empha-

sized that NHTSA referred to cost-benefit concerns

when it decided not to mandate Type 2 seatbelts at rear

' Griffith invalved a tort claim based on the failure to install Type z

seatbelts in the from center seat of a piekup truck.

' “That conclusion has since been confirmed empirically. Sec 64 Fed,

Keg 70,905 (2004) (reporting that a 199 NILPSA study found that

seatbelt use was seven to ten percent higher in rear outboard seating

positions with a Type 2 seatbelt)

ra

non-outboard seating positions. See, e.g., Pet. Stage

Supp. Br. 7. Some lower courts have likewise contended

that NHTSA’s cost-benefit calculus represents a federal

policy with which state tort law may not interfere. Sec,

e.g., Carden, 509 F.8d at 232. Buta determination that

mandating a particular safety standard is not economi

cally justified ander a specific federal statutory frame-

work ata particular point in time is not enough to estab

lish imphed contlict preemption.

The Court made that point clear in its unanimous

decision in Sprietsnea. The Coast Guard has authority

to promulpate “minimum safety standards” under the

Federal Boat Safety Act of 1971 (Boat Safety Act), 46

USC. 4502(ac1). The agency decided not to invoke that

authority to require boats to install propeller guards, in

part because “the question of retrofitting millions of

boats would certainly be a major economic consider

ation.” Sprietsmea, 537 U.S. at 66; sec ed. at GO-61. As

this Court explained, that cost-benelt consideration

reflected only the Boat Satety Act’s “‘stringent’ criteria

for federal reyulation”; it did not represent a judgment

that no State or locality could impose a propeller- guard

requirement. /d. at 66-07,

So too here. The Safety Act requires NHTSA to con-

sider “whether a proposed standard is reasonable, prae-

ticable, and appropriate,” among other factors. 49

USC. 301110b)03). “This qualifying language was add

ed to ensure that NEUPSA would ‘consider reasonable-

ness of cost, feasibility and adequate lead time’” ALy.,

Counter for Auto Safety ve Peek, Tol F.2d 1556, 1348

(D.C. Cir, 1985) (Sealia, J.) (quoting S. Rep. No. 1301,

S9th Cong., 2d Sess. 6 (1966)). Bat in considering those

factors in administering the federal statute, NHTSA

docs net purport to set national policy that would super

24

sede the ability of a state court, in applying the distinet

body of state common-law tort principles, to assess costs

und benefits for itself. See penerally, eg., élartey, 222

bosd at 3880-581 (noting that Tlinois products-liability

law requires proof of an alternative, economical desipn).

In Gerer, this Court listed the high cost of airbags

amony the seven “stpnificant considerations” that mott-

vated NHTSA to adopt its gradual phase-in of airbaps as

part of a mixture of passive restraints. 529 US. at 877.

But the cost factor had a direct impact on safety: an

airbag must be replaced each time it deploys, and driv-

ers might balk at the replacement cost and choose in

stead to drive without the protection of any passive re-

straint. 7d at 878. By contrast, NHTSA gave no indica

Lion that it thought the cost of installing Type 2 seat-

belts would deter passengers from using them, to the

contrary, NHTSA thought that replacing Type 1 with

‘ype 2 seatbelts would actually excomrage seatbelt use.

see pp. 21-22, supra.

¢. Child safety. Respondents tave previously ar

gued that NHTSA did not mandate Type 2 seatbelts for

rear inboard seating positions in the tinal rule because

of agency concerns about the seatbelts’ compatibility

with child restraint systems. See, eg, Pet. Stage Supp.

Br. 4,5, 7-8. Such a rationale for allowing Type 1 seat-

belts in rear non-outboard seating positions, however,

does not appear anywhere in either the L988 NPRM or

the final 19S9 amendment of FMVSS 208. Both the

NPRM and final rule discuss the compatibility of child

restraint systems with Type 2 seatbelts penerally—cc.,

at any rear seating position, not just in the non-outboard

seats involved in this case. Nor did NH'PSA sugpest

that compatibility with child restraints was a reason te

keep Type bseatbelts available at certain seating post-

tions —inboard or otherwise.

In 1984, NH PSA declined to require Type 2 seatbelts

Indawy rear seating position because, it concluded at the

time, neither chill safety nor adult safety would justify

such a requirement. NIPPSA believed that tether sys-

tems, then in common use, were preferable to Pype 2

seatbelts as a means of securing child seats. NHTSA

also determined at the time that child seats without

tethers worked better with Pype Lb seatbelts. And adults

used seatbelts in rear seats so rarely that the incremen

tal safety benefit would not justily the considerable

cost. 49 Fed. Reg. at 15,241-15,242; see 53 ked. Rep. at

AT, YS2-47, 983.

By the time of the LOSS NPRM, the agency ex-

plained, those considerations were no longer controlling.

More adults were buckling up in the back seat, so the

benefit of installing Type 2 scatbelts in those positions

wis Increasing. And tethered child seats were no longer

in widespread use. 535 Ped. Reg. at 47,083.

Significantly, moreover, NH PSA determined that

Type 2 seatbelts were compatible with ehild safety seats

In response to some concerns, NHTSA had specifically

solicited Comments on that issue. 53 Fed. Rew. at

47,988.” And in the final rule, NHTSA coneluded that

Type 2 seatbelts could sately and tightly secure a child

safety seat. 54 Ped. Rep. at 46,262.

As part ofits request for commentin the NPRM, NELPSA tnquired

whether Type 2 seatbelts might be too short to fit around a child satety

seat. &8 Ped. Kee. at 479s. ‘Phat concern did mot occasion further

discussion in the final rule,

One amicus supyrested otherwise in Che courts below. See Alliance

of Auto. Mfrs. (LA) Amicus Bro 18 m8, 19) ‘The 1992 source that the

anicus cited, however, confirms that Type 2 seatbelts were adequate to

2b

NIVESA did receive comments regarding: the posst-

bility that seatbelts (whether Type lL oor Type 2)

equipped with a particular type of retractor would be

uns titable for use with child restraint systems such as

car sents. 53 hed. Reg. at 47,988. limergency locking

retractors GE LRs) make seatbelts more comfortable for

adults, because they allow the seatbelt strap to spool out

under normal conditions, but lock tightly in an emer-

rency suchas a sudden stop. A car seat secured by a

seatbelt with an JL therefore could move around

somewhat, and some commenters expressed con-

cern that Ghat movernent might make the car seat unsta-

ble orunrehable. shed; 54 led. Rep. at 46,261-46,262.

NIPPSA accordingly decided to modify the standards for

seatbelts with ELRKs—both Type 1 and Type 2 scat-

bhelte- to ensure that the lap portion of the belt could be

locked to hold a child seat sceurely. Jd. at 46,261] -46,26%,

46,2600; sce alse ob Fed. Keg 65,914 C1991) Csupplemen

tal notice of proposed rulemaking on this subyeetyy 5S

hed. Key. 62,922 (1998) Cinal rule).

Thus, NUPSA’s repulatory response ensured that

Type? seatbelts would be just as efficacious as ‘Vype |

seatbelts in securing child seats. NHTSA certainly did

not endorse the notion that child safety depended on the

continued avathatality of Pype | seatbelts whether in

rear non outboard seating: pocitions or anywhere else.

— —— te

secure child safety seats. Department of Transp, NIPPSA, Child Pas-

senger Safety Resource Mannal 87 1992) (child safety seats “ean be

Hood wath lg/shoulder belts as well? as with lap belts); ed at SS C'The

conten rear seating: position offen has a belt (hat is ghtened by hand

wod therelore ueually poses fewer compatibility probleris. DP there bs

noconber pear scaling position or if yottare transporting: raore than one

chal the child safety seat ean be inotatled in another loeation with a lap

or lap/Shoulder belt’)

4

a

Indeed, in non-outboard seating positions such as the

one abissue inthis ease, Ee I.Rs were not required at all,

see 49 C.F LR. 571.208087.1.1.3) (1990), and NHTSA’s

discussions of child safety in proposing and finally pro-

intilpating the rule did not discuss outhourd versus in-

board seating positions.

NHUPSA thus did not rely on Compatibility with child

restraint systems in deciding not to require Type 2

seatbelts in rear inboard seating positions. At most,

that concern contributed to NHTSA’s 1984 decision not

to require ‘Type 2 seatbelts in avy rear seating positions,

see 49 Fed. Reg. at 15,241; pp. 14-16, supra, a decision

substantially reversed by the rulemaking at issue in this

case. And although the question of how best to use

Seatbelts to secure child satety seats persisted, the ques-

tion of whether to continue to permit Type | seatbelts at

inboard seating positions was settled with the adoption

of the final rule in LYS.

do Technrcal difficultees associated with aisle seats.

NIPPSA offered two principal reasons for exempting

aisle seating: positions. First, NHTSA acknowledged

that if the shoulder belt were anchored on the side wall

of the vehicle, then the shoulder belt strap would have to

extend aeross the aisle and might “cause entry and exit

probleme” for passengers using the aisle to reach the

rearmost seats. 54 Ped. Rep. at 46,258. The apeney

stated that it did not wish to impose a safety standard

that would cause shoulder belts to “obstruct an aisle.”

lhid, But, NHTSA explained, this was a “practical dif-

ficult}y),? rather than an insuperable technical obstacle:

“Itjo avoid such difficulties,” the shoulder belt could be

anchored on the roof instead of the side wall. /bid.

Second, leaving the aisle clear by instaltinge a roof

anchorage would require structural modifications to the

2s

root, which the apency agreed “would tnpose dispropor-

tionately high costs” relative to the anticipated safety

benefits. 54 Fed. Rey. at 46,258. The agency aceord-

ingly decided not to mandate that step as a matter of

federal law. “Of course,” the agency added, “in those

causes where manufacturers arc able to design and install

lap/shoulder belts at seating positions adjacent to

aisleways Without interfering with * * * access to [the

rearmost seats], NHTSA encourages the manufacturers

todos.” Lbhed.

Under the regulatory framework of the Safety Act,

the “practical? and “techmeal difficulties” that NHTSA

identified were sufficiently significant to justify keeping

Type | seatbelts as the minimum level of crash protec-

tion in aisle seats and not mandating Type 2 seatbelts

for those seats us a matter of federal law. But NHTSA

did not suggest that those difficulties could not safely be

overcome, mdecd, throughout the rule, NHTSA acknow-

ledged that some of the safety steps that it ded mandate

would be technically difficult, but expressed confidence

that manufacturers could meet the challenge.’ And in

fact, manufacturers voluntarily installed Type 2 seat-

belts in aisle seats as early as 1991, resolvingg some of

these practical difficulties by making the seatbelt an-

chorayre detachable. See 69 bled. Reg. T0909 (2004 ).

Furthermore, as explained above, pp. 22-24, supra,

NH'TSA’s deterinination that these stractural chanyes

were too costly to justify NH TSA’s requiring them as a

matter of federal preseriptive law was not a determina-

lor iostance, applying the new ‘Type 2 seatbelt requirement to

minivans and other multipurpose passenger vehicles required

“structural changes” and posed some teechmeal “citfieulues,” but

“NHPESA hald] no reason to beheve that these difticulttes |coutd not | be

overcome.” 53 Fed. Rep. at 47,986

2)

tion that they were also too costly to be installed at all,

or to be required for compliance with a duty under a

particular State’s common law of torts.

kk. This Court Should Give Weight To NITPSA’s Expert

Conclusion That Petitioners’ Tort Theory Does Not Con-

flict With FMVSS 208

‘The povernment has consistently maintained that a

mininum safety standard provided ina FMVSS, without

more, does not conflict with a stricter state requirement.

As this Court explained in Gerer, because the agency has

a “thorough understanding of its own regulation and its

objectives” and a “uniquel]” perspective on whether

state requirements conflict with federal standards, “the

apeney’s own views should make a difference” in the

confliet-preemption analysis. 529 U.S. at &SS (citation

omitted); accord, eg, Wyeth, 1298. Ct. at 1201 (noting

that ayencies “have a unique understanding of the stat

utes they administer and an attendant ability to make

Informed determinations about how state requirements

may pose an ‘obstacle’ ”); Spreetsiea, 537 US. at 67-68;

see also Bates vy. Dow Agrosces. LLC, 544 US. 481, 455

(2005) (Breyer, J.. concurring).

Although the Court has noted that an apency’s view

that a state law as preempted is not dispositive, Wyeth,

19S. Chl. at 1201, in tmplied-preemption cases the

Court has given considerable weight to the responsible

federal ayency’s representation that a state law does wot

interfere with the policies or objectives of the federal

statute and repyulations the agency administers. See,

eg., Altria Group, Ine. ve Good, 129.8. Ct. 538%, 549

(2008); Sprietsma, 557 US. at 67-68. That is particu-

larly so where, us here, the agency has spoken with a

50

consistent voice fora lengthy period of time. Wyeth, 129

S.Ct. at 1201.

The United States has taken the position set out

above inaseries of bnefs dating back to 1990. In each,

the United States has consistently maintained to this

Court that a FMVSS permitting a manufacturer to

choose among: different options consistent with a mini

mum standard does not alone preempt state common-

law tort claims secking to impose liability for selecting

one option instead of another.

In its amicus briefin Wood v. General Motors Corp.,

AVF US. 1065 (1990), submitted at this Court’s invita

tion, the United States stated that “the mere fact that

manufacturers may Comply with federal law by install-

ings one of several types of occupant restraint systems

does not mean, standing alone, that a state law tort. ac-

tion seeking: to impose liability for failing to install air-

bays is preempted.” ULS. Amicus Bro at lb, Wood, sapere

(No. 89-46). The United States reiterated that position

In its amicus briefin Freightlhiuer Corp vo Myrick, 514

U.S. 280 (1995), which stated that the government did

“not agree” with the “broader theory of implied preemp

tion” that some lower courts had advanced —“ve., that

the existence of ‘options’ to comply with [FMVSS] 208 in

itself precludes state-court judgements based on the fail-

ure to install one particular option.” U.S. Amicus Br. at

2On 16, Mreaghtliner Corp , supra (No. 94-286), And the

United States’ amicus brief in Geter itself echoed that

position: “We therefore apree with petitioners that

their claims are not preempted merely because the See-

retary made airbays one of several desivn options that

manufacturers could choose.” U.S. Amicus Br. at 2]

n.1&, Geer, supra (No. 98-1811). See also Geter, 529

US. at 8&3 (“DOT has explained FMVSS 2088's objec-

1

lives, and the interference that ‘no airbag’ suits pose

thereto, consistently over time.”).

That principle is dispositive here. Under the 1989

amendments to FMVSS 208, Type 1 seatbelts remained

only a minimum standard for passenger safety in rear

non-outboard seats. Thus, under the Safety Act's sav-

ings Clause as construed in Geter, maintenance of that

Iniinuin standard as a matter of federal prescriptive

law does not preempt a state common-law cause of ac-

tion based ona duty to install more stringent safety pro

tection in the form of Type 2 seatbelts.

CONCLUSION

The judgement of the Court of Appeal of California

should be reversed.

Respectfully submitted,

NEAL KUMAR KATYAL

Acting Solicitor General

TONY West

RonmeKD NS. Rivkin

Cicneral Conmusel

PAUL M.Ghikk

Assistant General Counsel

for Litigation

Preriek J VLOCKE

Deputy Assistant General

Counsel for Litigation

Departareut of

Tranvsportatiou

QO. KEVIN VINCEN'

Chief Connsel

Lovie S Gubnkel

Assistant Chief Counsel

TIMOTHY Hl. GOODMAN

Senior Trial Attorney

Natiowal Highway Traffre

Safety Administration

AUGUST ZOLO

Assestant Attorney General

LDWINS. KNEEDLER

Deputy Solicitor General

Wiiw.taAm M..AY

Assistant to the Solicitor

General

DovGLtas No Leven

Heeen L. Gibbet

Attorucips

APPENDIX

1. 49 USC. 80101 provides:

Purpose and poltey

‘The purpose of this chapter is to reduce trathie acer

dents and deaths aid injuries resulting from traffie acei

dents. Therefore it is necessary—

(1) to prescribe motor vehicle safety standaras

for motor vehicles and motor vehicle equipment im

Interstate Commerce; and

(2) to carry out needed safety research and de-

velopment.

2. 49 USC. 80102 provides in pertinent part:

Definitions

(a) GENERAL DERINIRIONS.—--In this chiapter—

* * 4» + 9

(9) “motor vehicle safety standard” means a mune

mum standard for motor vehicle or motor vehicle equip-

ment performance.

(li)

>,

wel

3 49 U.S.C. 50108 provides in pertinent part:

Relationship to other laws

(fe) COMMON LAW LIABILIPY. -Comphance with a

motor vehicle safety standard preseribed under this

Chapter does not exempt a person from lability at com

mon baw.

4. AU SACL S011) provides in pertinent part:

Standards

(a) GENERAL REQUIREMENTS.—‘The Secretary of

Transportation shall prescribe imetor vehicle safety

standards. Mach standard shall be practicable, meet the

need for motor vehicle safety, and be stated in obyective

terms.

(bh) CONSIDERATIONS AND CONSULTATION. When

preseribing a motor vehicle safety standard under this

chapter, the Secretary shall

(1) consider relevant available motor vehicle sate

ty information;

(2) consult with the agency established under the

Act of Aupust 20, 1998 (Public Law 85-684, 72 Stat.

635), and other appropriate State or interstate au-

therities Gncluding legislative committees);

(3) consider whether a proposed standard is rea-

sonable, practicable, and appropriate for the particu

lar type of motor vehicle or motor vehicle equipment

for which it is prescribed; and

(4) consider the extent to which the standard will

carry out section SOLOL of this title.

& 49 COC PAR 571.8 (1990) provided in pertinent part:

Definitions

(by) Other definitions. As used in this chapter

” t ! 4

Outboard designated seating position means a desiv

nated seating position where a lonpitudinal vertical

plane tangent to the outboard side of the seat cushion is

less than 12 inehes from the innermost point on the in-

side surface of the vehicle at a height between the seat-

nye reference point and the shoulder reference point Cas

shown in fig. }oof Federal Motor Vehicle Safety Stan

dard No. 210) and longitudinally between the front and

rear edges of the seat cushion.

. 2 2 Be

6. 40 CPR. S7L20S provides in pertinent part:

Standard No. 208; Occupant crash protection.

Sl. Scope. This standard specifies performance re-

quirements for the protection of vehiele occupants in

crashes.

S2. Purpose. The purpose of this standard is to re-

duce the number of deaths of velicle oecupants, and the

Aa

severity of inguries, by specifying vehicle crashworthi

hess requirements im terms of forces and accelerations

measured on anthropomorphic dummics in test crashes,

and by specifying: cquipment requirements for active

and passive restraint systems.

+ "i ; t

S414. General requirements.

Ss. b.4.2. wa

(bd) fe xcept as provided in S4.1.4.2.1 and S4.1.4.2.2,

each passenper car, other than a convertible, manutac

tured on or after September 1, 1990 and each convert-

ible passenger car manufactured on or after September

1, 1991 shall be equipped with an integral Pype 2 seat

bell assembly at every forward-facings rear onthoara

desiynated seating position. Pype 2 seat belt assemblies

installed in Compliance with this requirement shall com-

ply with Standard No. 209 (49 CER 571.209) and with

S7. band S7.2 of this standard.

(co) As used in this section, “rear outboard desi

nated seating position” means any “outboard desipnated

seating® position” (as that term is defined at 4o CER

571.3) Chat is rearward of the front seats), except any

designated seating position adjacent to a walkway that

is located between the seat and the near side of the vetu-

cle and is designed to allow access to more rearward

seatings positions.

t 4

S4.2.4. Rear outboard seating positions wn tracks

and multipurpose passenger vehicles manufactured on

or after September 1, 1991 wnth a GVWR of 10,000

ul

pounds or less. Exeept as provided in S4.2.4.2 and

$4.2.4.4, each truck and each multipurpose passenger

vehicle, other than a motor home, manufactured on or

after September 1, 199] that has a gross vehicle weight

rating: Of 10,000 pounds or less shall be equipped with an

integral Type 2 seat belt assembly at every for-

ward facing rear outboard designated seating position,

Type 2 seat belt assemblies installed in complranee with

this requirement shall comply with Standard No. 200 (49

Chk 571.209) and with S7.) and S7.2 of this standard. If

a ‘Type 2 seat belt assembly installed in complance with

this requirement incorporates any webbing tension. re-

heving device, the vehicle owner’s manual shall include

the information specified in 37.4.2 bh) of this standard for

the tension reheving device, and the vehicle shall comply

With S7.4.206¢) of this standard,

S4.2.4.1. As used in this seetion—

+ +4 - +

(b) Rear outboard designated seating position

means any “outboard designated seating: postition” Gas

that term is defined at 49 CER 571.3) that is rearward

of the front seat(s), except any designated seating: posi-

tions adjacent to a walkway located between the ‘seat

and the side of the vehicle, which walkway is designed to

allow access Lo more rearward seating: positions.

4 * 4 x

Bye

6. 49 C.F RO 571.209 provides in pertinent part:

Standard No. 20%: Seat belt assemblies.

S3. Definitions. * * *

t + » * 2

Type tl seat belt assembly is a lap belt for pelvic re-

straint.

Type x seat belt assembly is a comtination of pelvic

and upper torse restraints

‘ ‘ > * *