US Supremes Give Cold Shoulder to the Preemptive Effect of Lap Belts
In the wacky world that is Supreme Court preemption jurisprudence, I always liked Geier v. American Honda Motor Co., 529 U.S. 861 (2000). It was the decision holding that one could have implied conflict preemption, even in the face a savings clause. In Geier, the Department of Transportation had, in federal motor vehicle safety standard 208, preserved the ability of a manufacturer to choose whether to have seatbelts or airbags (or both). Geier held that a state common law claim that effectively removed that choice conflicted with the federal standard and thus was preempted.
So today, along comes Williamson v. Mazda Motor of America, Inc., 562 U.S. ___ (2011). It, too, involved manufacturer choice under a subsequent version of FMVSS 208, which left it to the manufacturer to decide whether to have merely lap belts or lap-and-shoulder belts for rear inner seats (i.e., seats that are not by the door). In a decision written by Justice Breyer, the Court held that, as in Geier, the express preemption provision prohibiting conflicting state safety standards did not preempt state common law claims. Slip op. at 4. It also held that, as in Geier, the presence of a savings clause ("compliance with" a federal safety standard "does not exempt any person from any liability under common law") did not necessarily preclude a finding of conflict preemption. Id. The issue, according to the Court, thus was "whether, in fact, the state tort action conflicts with the federal regulation." Slip op. at 5.
On this question, however, virtually the entire court differed with Geier. The Williamson majority found that preserving the choice between a lap belt and a lap-and-shoulder restraint was not a major policy of the DOT. It posited that the reason why FMVSS 208 gave the manfuacturer a choice was not to promote safety or the future development safety data; rather, it was simple economics and convenience:
We turn now to the present case. Like the regulation in Geier, the regulation here leaves the manufacturer with a choice. And, like the tort suit in Geier, the tort suit here would restrict that choice. But unlike Geier, we do not believe here that choice is a significant regulatory objective.
. . .
. . . But [DOT's] 1989 reasons for retaining that choice [in rear seat restraints] differed considerably from its 1984 reasons for permitting manufacturers choice in respect to airbags. DOT here was not concerned about consumer acceptance; it was convinced that lap-and-shoulder belts would increase safety; it did not fear additional safety risks arising from use of those belts; it had no interest in assuring a mix of devices; and, though it was concerned about additional costs, that concern was diminishing.
Slip op. at 8. The court concluded that although DOT had determined that it would be more expensive for manufacturers to include lap-and-shoulder seatbelts in the rear middle seats of their cars, the fact that DOT still allowed manufacturers to make the cheaper choice of lap belts did not mean that Congress had sought to preclude compensatory suits at common law. Simply put, according to the Court, there was no important governent policy being advanced that a state common law suit could conflict with.
Just a few interesting asides. First, this is a Breyer opinion. He clearly gives deference to the agency's position, which agreed with the plaintiffs. He also cites the legislative history.
Second, the majority opinion does not wield the "presumption against preemption" as justification for its position.
Third, Justice Sotomayor's concurrence, like her dissenting opinion yesterday in Bruesewitz, relies heavily on the savings clause to narrow the possible scope of preemption:
Geier does not stand . . . for the proposition that any time an agency gives manufacturers a choice between two or more options, a tort suit that imposes liability on the basis of one of the options is an obstacle to the achievement of a federal regulatory objective and may be preempted. . . . [C]ourts should only find preemption where evidence exists than an agency has a regulatory objective . . . whose achievement depends on manufacturers having a choice between options. A link between a regulatory objective and the need for manufacturer choice to achieve that objective is the lynchpin of implied preemption when there is a savings clause.
Sotomayor's Concurrence at 2.
Fourth, Justice Thomas stakes out his position that the Savings Clause answers the question definitively and Geier thus was wrongly decided:
. . . Read independently of the express preemption clause, the saving clause simply means what it says: FMVSS 208 does not preempt state common-law actions.
. . .
Purposes-and-objectives preemption -- which by design roams beyond statutory or regulatory text -- is thus wholly illegitimate. It instructs courts to preempt state laws based on judges' "conceptions of a policy which Congress has not expressed and which is not plainly to be inferred from the legislation which it has enacted." . . .
. . .
The dispositive difference between this case and Geier -- indeed, the only difference -- is the majority's "psychoanalysis" of the regulators.
Thomas's concurrence in the judgment at 4-5 (citations omitted).
Fifth, we still do not know what position Justice Kagan might take on these issues. Once again, she sat this one out.
