OCTOBER TERM, 1999
Syllabus
GEIER ET AL.
v. AMERICAN HONDA MOTOR
CO., INC., ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No.98-1811. Argued December 7, 1999-Decided May 22, 2000
Pursuant to its authority under the National Traffic and Motor
Vehicle Safety Act of 1966, the Department of Transportation (DOT)
promulgated Federal Motor Vehicle Safety Standard (FMVSS) 208,
which required auto manufacturers to equip some but not all of
their 1987 vehicles with passive restraints. Petitioner Alexis
Geier was injured in an accident while driving a 1987 Honda Accord
that did not have such restraints. She and her parents, also
petitioners, sought damages under District of Columbia tort law,
claiming,
inter alia, that respondents (hereinafter American
Honda) were negligent in not equipping the Accord with a driver's
side airbag. Ruling that their claims were expressly pre-empted by
the Act, the District Court granted American Honda summary
judgment. In affirming, the Court of Appeals concluded that,
because petitioners' state tort claims posed an obstacle to the
accomplishment of the objectives of FMVSS 208, those claims
conflicted with that standard and that, under ordinary pre-emption
principles, the Act consequently pre-empted the lawsuit.
Held: Petitioners' "no airbag" lawsuit conflicts with the
objectives of FMVSS 208 and is therefore pre-empted by the Act. Pp.
867-886.
(a) The Act's pre-emption provision, 15 U. S. C. § 1392(d), does
not expressly pre-empt this lawsuit. The presence of a saving
clause, which says that "[c]ompliance with" a federal safety
standard "does not exempt any person from any liability under
common law," § 1397(k), requires that the pre-emption provision be
read narrowly to pre-empt only state statutes and regulations. The
saving clause assumes that there are a significant number of
common-law liability cases to save. And reading the express
pre-emption provision to exclude common-law tort actions gives
actual meaning to the saving clause's literal language, while
leaving adequate room for state tort law to operate where, for
example, federal law creates only a minimum safety standard. Pp.
867-868.
(b) However, the saving clause does
not bar the ordinary
working of conflict pre-emption principles. Nothing in that clause
suggests an intent to save state tort actions that conflict with
federal regulations. The words "[c]ompliance" and "does not exempt"
sound as if they simply
862
bar a defense that compliance with a federal standard
automatically exempts a defendant from state law, whether the
Federal Government meant that standard to be an absolute, or a
minimum, requirement. This interpretation does not conflict with
the purpose of the saving provision, for it preserves actions that
seek to establish greater safety than the minimum safety achieved
by a federal regulation intended to provide a floor. Moreover, this
Court has repeatedly declined to give broad effect to saving
clauses where doing so would upset the careful regulatory scheme
established by federal law, a concern applicable here. The
pre-emption provision and the saving provision, read together,
reflect a neutral policy, not a specially favorable or unfavorable
one, toward the application of ordinary conflict pre-emption. The
preemption provision itself favors pre-emption of state tort suits,
while the saving clause disfavors pre-emption at least some of the
time. However, there is nothing in any natural reading of the two
provisions that would favor one policy over the other where a
jury-imposed safety standard actually conflicts with a federal
safety standard. Pp.869-874.
(c) This lawsuit actually conflicts with FMVSS 208 and the Act
itself.
DOT saw FMVSS 208 not as a minimum standard, but as a way to
provide a manufacturer with a range of choices among different
passive restraint systems that would be gradually introduced,
thereby lowering costs, overcoming technical safety problems,
encouraging technological development, and winning widespread
consumer acceptance-all of which would promote FMVSS 208's safety
objectives. The standard's history helps explain why and how DOT
sought these objectives. DOT began instituting passive restraint
requirements in 1970, but it always permitted passive restraint
options. Public resistance to an ignition interlock device that in
effect forced occupants to buckle up their manual belts influenced
DOT's subsequent initiatives. The 1984 version of FMVSS 208
reflected several significant considerations regarding the
effectiveness of manual seatbelts and the likelihood that
passengers would leave their manual seatbelts unbuckled, the
advantages and disadvantages of passive restraints, and the
public's resistance to the installation or use of then-available
passive restraint devices. Most importantly, it deliberately sought
variety, rejecting an "all airbag" standard because perceived or
real safety concerns threatened a backlash more easily overcome
with a mix of several different devices. A mix would also help
develop data on comparative effectiveness, allow the industry time
to overcome safety problems and high production costs associated
with airbags, and facilitate the development of alternative,
cheaper, and safer passive restraint systems, thereby building
public confidence necessary to avoid an interlock-type fiasco. The
1984 standard also deliberately sought to gradually phase in
passive
863
restraints, starting with a 10% requirement in 1987 vehicles.
The requirement was also conditional and would stay in effect only
if twothirds of the States did not adopt mandatory buckle-up laws.
A rule of state tort law imposing a duty to install airbags in cars
such as petitioners' would have presented an obstacle to the
variety and mix of devices that the federal regulation sought and
to the phase-in that the federal regulation deliberately imposed.
It would also have made adoption of state mandatory seatbelt laws
less likely. This Court's pre-emption cases assume compliance with
the state law duty in question, and do not turn on such
compliance-related considerations as whether a private party would
ignore state legal obligations or how likely it is that state law
actually would be enforced. Finally, some weight is placed upon
DOT's interpretation of FMVSS 208's objectives and its conclusion
that a tort suit such as this one would stand as an obstacle to the
accomplishment and execution of those objectives. DOT is likely to
have a thorough understanding of its own regulation and its
objectives and is uniquely qualified to comprehend the likely
impact of state requirements. Because there is no reason to suspect
that the Solicitor General's representation of these views reflects
anything other than the agency's fair and considered judgment on
the matter, DOT's failure in promulgating FMVSS 208 to address
pre-emption explicitly is not determinative. Nor do the agency's
views, as presented here, lack coherence. Pp.874-886.
166 F.3d
1236, affirmed.
BREYER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which SOUTER, THOMAS,
and GINSBURG, JJ., joined,
post, p. 886.
Arthur H. Bryant argued the cause for petitioners. With
him on the briefs were
Leslie A. Brueckner and
Robert
M. N.
Palmer.
Malcolm E. Wheeler argued the cause for respondents.
With him on the brief were Benjamin S. Boyd, Mark A. Brooks, and
Brad
J. Safon.
Deputy Solicitor General Wallace argued the cause for the United
States as amicus curiae urging affirmance. With him on the brief
were Solicitor General Waxman, Acting Assistant Attorney General
Ogden, Matthew D. Roberts,
864
Douglas N. Letter, Kathleen Moriarty Mueller, Nancy E. McFadden,
Paul M. Geier, and Frank Seales, Jr.
*
JUSTICE BREYER delivered the opinion of the Court.
This case focuses on the 1984 version of a Federal Motor Vehicle
Safety Standard promulgated by the Department of Transportation
under the authority of the National Traffic and Motor Vehicle
Safety Act of 1966, 80 Stat. 718, 15 U. S. C. § 1381
et seq.
(1988 ed.). The standard, FMVSS 208, required auto manufacturers to
equip some but not all of their
*Briefs of
amici curiae urging reversal were filed for
the State of Missouri et al. by
Jeremiah W (Jay) Nixon,
Attorney General of Missouri,
James R. Layton, State
Solicitor,
Charles Hatfield, and
Barbara McDonnell,
Chief Deputy Attorney General of Colorado, and by the Attorneys
General for their respective States as follows:
Janet
Napolitano of Arizona,
Bill Lockyer of California,
M.
Jane Brady of Delaware,
Thomas J. Miller
of Iowa,
Carla J. Stovall of Kansas,
Joseph
P. Mazurek of Montana,
Philip T. McLaughlin of New
Hampshire,
Eliot Spitzer of New York,
W A. Drew
Edmondson of Oklahoma,
Hardy Myers of Oregon,
D.
Michael Fisher of Pennsylvania,
Sheldon Whitehouse of
Rhode Island,
William H. Sorrell of Vermont, and
Christine Q Gregoire of Washington; for the Association of
Trial Lawyers of America by
Jeffrey Robert White; for the
Attorneys Information Exchange Group by
Larry E. Coben; for
the N ational Conference of State Legislatures et al. by
Richard
Ruda and
James
Briefs of amici curiae urging affirmance were filed for the
Chamber of Commerce of the United States by Theodore B. Olson,
Theodore
J. Boutrous, Jr., Thomas G. Hungar, and Robin S.
Conrad; for the Alliance of Automobile Manufacturers et al. by
Thomas W Merrill, Gene C. Schaerr, Brett M. Kavanaugh, and Richard
A. Cordray; for the Blue Cross Blue Shield Association by Anthony
F. Shelley and Alan I. Horowitz; for the Defense Research Institute
by Kevin M. Reynolds, Robert L. Fanter, Richard
J.
Kirschman, Lloyd H. Milliken, Jr., Randall R. Riggs, and T. Joseph
Wendt; for General Motors Corp. by David M. Heilbron and Leslie G.
Landau; for the Product Liability Advisory Council, Inc., by
Kenneth S. Geller, Erika Z. Jones, and John
J. Sullivan; and
for the Washington Legal Foundation by Lawrence S. Ebner, Daniel
J. Popeo, and Richard A. Samp.
David Overlock Stewart and Thomas M. Susman filed a brief for
the Business Roundtable as amicus curiae.
865
1987 vehicles with passive restraints. We ask whether the Act
pre-empts a state common-law tort action in which the plaintiff
claims that the defendant auto manufacturer, who was in compliance
with the standard, should nonetheless have equipped a 1987
automobile with airbags. We conclude that the Act, taken together
with FMVSS 208, pre-empts the lawsuit.
I
In 1992, petitioner Alexis Geier, driving a 1987 Honda Accord,
collided with a tree and was seriously injured. The car was
equipped with manual shoulder and lap belts which Geier had buckled
up at the time. The car was not equipped with airbags or other
passive restraint devices.
Geier and her parents, also petitioners, sued the car's
manufacturer, American Honda Motor Company, Inc., and its
affiliates (hereinafter American Honda), under District of Columbia
tort law. They claimed, among other things, that American Honda had
designed its car negligently and defectively because it lacked a
driver's side airbag. App. 3. The District Court dismissed the
lawsuit. The court noted that FMVSS 208 gave car manufacturers a
choice as to whether to install airbags. And the court concluded
that petitioners' lawsuit, because it sought to establish a
different safety standard-i.
e., an airbag requirement-was
expressly preempted by a provision of the Act which pre-empts "any
safety standard" that is not identical to a federal safety standard
applicable to the same aspect of performance, 15 U. S. C. § 1392(d)
(1988 ed.); Civ. No. 95-CV-0064 (D. D.
C., Dec. 9, 1997),
App. 17. (We, like the courts below and the parties, refer to the
pre-1994 version of the statute throughout the opinion; it has been
recodified at 49 U. S. C. § 30101
et seq.)
The Court of Appeals agreed with the District Court's conclusion
but on somewhat different reasoning. It had doubts, given the
existence of the Act's "saving" clause, 15 U. S. C. § 1397(k) (1988
ed.), that petitioners' lawsuit involved the po-
866
tential creation of the kind of "safety standard" to which the
Safety Act's express pre-emption provision refers. But it declined
to resolve that question because it found that petitioners'
state-law tort claims posed an obstacle to the accomplishment of
FMVSS 208's objectives. For that reason, it found that those claims
conflicted with FMVSS 208, and that, under ordinary pre-emption
principles, the Act consequently pre-empted the lawsuit. The Court
of Appeals thus affirmed the District Court's dismissal.
166 F.3d
1236, 12381243
(CADC 1999).
Several state courts have held to the contrary, namely, that
neither the Act's express pre-emption nor FMVSS 208 preempts a "no
airbag" tort suit. See,
e. g., Drattel v.
Toyota Motor
Corp., 92 N. Y. 2d 35, 43-53, 699 N. E. 2d 376, 379-386
(1998); Minton v.
Honda of America Mfg., Inc.,
80 Ohio St. 3d 62, 70-79, 684 N. E. 2d 648, 655-661 (1997);
Munroe v.
Galati, 189 Ariz. 113, 115-119, 938 P. 2d
1114, 1116-1120
(1997); Wilson v.
Pleasant,
660 N. E. 2d 327, 330-339 (Ind.
1995); Tebbetts v.
Ford Motor Co., 140 N. H. 203, 206-207, 665 A. 2d 345,
347-348 (1995). All of the Federal Circuit Courts that have
considered the question, however, have found pre-emption. One
rested its conclusion on the Act's express pre-emption provision.
See,
e. g., Harris v.
Ford Motor Co., 110 F.3d
1410, 1413-1415
(CA9 1997). Others, such as the Court of
Appeals below, have instead found preemption under ordinary
pre-emption principles by virtue of the conflict such suits pose to
FMVSS 208's objectives, and thus to the Act itself. See,
e. g.,
Montag v.
Honda Motor Co., 75 F.3d
1414, 1417 (CAlO 1996);
Pokorny v.
Ford Motor
Co., 902 F.2d
1116, 1121-1125
(CA3 1990);
Taylor v.
General
Motors Corp., 875 F.2d
816, 825-827
(CAll 1989);
Wood v.
General
Motors Corp., 865 F.2d
395, 412-414
(CA1 1988). We granted certiorari to
resolve these differences. We now hold that this kind of "no
airbag" lawsuit conflicts with the objectives of FMVSS 208, a
standard authorized by the Act, and is therefore pre-empted by the
Act.
867
In reaching our conclusion, we consider three subsidiary
questions. First, does the Act's express pre-emption provision
pre-empt this lawsuit? We think not. Second, do ordinary
pre-emption principles nonetheless apply? We hold that they do.
Third, does this lawsuit actually conflict with FMVSS 208, hence
with the Act itself? We hold that it does.
II
We first ask whether the Safety Act's express pre-emption
provision pre-empts this tort action. The provision reads as
follows:
"Whenever a Federal motor vehicle safety standard established
under this subchapter is in effect, no State or political
subdivision of a State shall have any authority either to
establish, or to continue in effect, with respect to any motor
vehicle or item of motor vehicle equipmente,] any safety standard
applicable to the same aspect of performance of such vehicle or
item of equipment which is not identical to the Federal standard."
15 U. S. C. § 1392(d) (1988 ed.).
American Honda points out that a majority of this Court has said
that a somewhat similar statutory provision in a different federal
statute-a provision that uses the word "requirements" -may well
expressly pre-empt similar tort actions. See,
e. g.,
Medtronic, Inc. v.
Lohr, 518 U. S. 470, 502-504
(1996) (plurality opinion);
id., at 503-505 (BREYER, J.,
concurring in part and concurring in judgment);
id., at
509-512 (O'CONNOR, J., concurring in part and dissenting in part).
Petitioners reply that this statute speaks of pre-empting a
state-law "safety
standard," not a "requirement," and that a
tort action does not involve a safety
standard. Hence, they
conclude, the express pre-emption provision does not apply.
We need not determine the precise significance of the use of the
word "standard," rather than "requirement," however, for the Act
contains another provision, which resolves the
868
disagreement. That provision, a "saving" clause, says that
"[c]ompliance with" a federal safety standard "does not exempt any
person from any liability under common law." 15 U. S. C. § 1397(k)
(1988 ed.). The saving clause assumes that there are some
significant number of common-law liability cases to save. And a
reading of the express pre-emption provision that excludes
common-law tort actions gives actual meaning to the saving clause's
literal language, while leaving adequate room for state tort law to
operate-for example, where federal law creates only a floor, i.
e., a minimum safety standard. See,
e. g.,
Brief for United States as
Amicus Curiae 21 (explaining that
common-law claim that a vehicle is defectively designed because it
lacks antilock brakes would not be pre-empted by 49 CFR § 571.105
(1999), a safety standard establishing minimum requirements for
brake performance). Without the saving clause, a broad reading of
the express pre-emption provision arguably might pre-empt those
actions, for, as we have just mentioned, it is possible to read the
pre-emption provision, standing alone, as applying to standards
imposed in common-law tort actions, as well as standards contained
in state legislation or regulations. And if so, it would pre-empt
all nonidentical state standards established in tort actions
covering the same aspect of performance as an applicable federal
standard, even if the federal standard merely established a minimum
standard. On that broad reading of the pre-emption clause little,
if any, potential "liability at common law" would remain. And few,
if any, state tort actions would remain for the saving clause to
save. We have found no convincing indication that Congress wanted
to pre-empt, not only state statutes and regulations, but also
common-law tort actions, in such circumstances. Hence the broad
reading cannot be correct. The language of the pre-emption
provision permits a narrow reading that excludes common-law
actions. Given the presence of the saving clause, we conclude that
the pre-emption clause must be so read.
869
III
We have just said that the saving clause
at least removes
tort actions from the scope of the express pre-emption clause. Does
it do more? In particular, does it foreclose or limit the operation
of ordinary pre-emption principles insofar as those principles
instruct us to read statutes as preempting state laws (including
common-law rules) that "actually conflict" with the statute or
federal standards promulgated thereunder?
Fidelity Fed. Sav.
&
Loan Assn. v.
De la Cuesta, 458 U. S. 141, 153
(1982). Petitioners concede, as they must in light of
Freightliner Corp. v.
Myrick, 514 U. S. 280 (1995),
that the pre-emption provision, by itself, does not foreclose
(through negative implication) "any possibility of implied
[conflict] pre-emption,"
id., at 288 (discussing
Cipollone v.
Liggett Group, Inc., 505 U. S. 504, 517-518
(1992)). But they argue that the saving clause has that very
effect.
We recognize that, when this Court previously considered the
pre-emptive effect of the statute's language, it appeared to leave
open the question of how, or the extent to which, the saving clause
saves state-law tort actions that conflict with federal regulations
promulgated under the Act. See
Freightliner, supra, at 287,
n. 3 (declining to address whether the saving clause prevents a
manufacturer from "us[ing] a federal safety standard to immunize
itself from state common-law liability"). We now conclude that the
saving clause (like the express pre-emption provision) does
not bar the ordinary working of conflict pre-emption
principles.
Nothing in the language of the saving clause suggests an intent
to save state-law tort actions that conflict with federal
regulations. The words "[c]ompliance" and "does not exempt," 15 U.
S. C. § 1397(k) (1988 ed.), sound as if they simply bar a special
kind of defense, namely, a defense that compliance with a federal
standard automatically exempts a defendant from state law, whether
the Federal Government meant that standard to be an absolute
requirement or only a minimum one. See Restatement (Third) of
Torts: Products
870
Liability § 4(b), Comment
e (1997) (distinguishing
between state-law compliance defense and a federal claim of
preemption). It is difficult to understand why Congress would have
insisted on a compliance-with-federal-regulation precondition to
the provision's applicability had it wished the Act to "save" all
state-law tort actions, regardless of their potential threat to the
objectives of federal safety standards promulgated under that Act.
Nor does our interpretation conflict with the purpose of the saving
provision, say, by rendering it ineffectual. As we have previously
explained, the saving provision still makes clear that the express
pre-emption provision does not of its own force pre-empt common-law
tort actions. And it thereby preserves those actions that seek to
establish greater safety than the minimum safety achieved by a
federal regulation intended to provide a floor. See
supra,
at 867-868.
Moreover, this Court has repeatedly "decline[d] to give broad
effect to saving clauses where doing so would upset the careful
regulatory scheme established by federal law."
United States
v.
Locke, ante, at 106-107; see
American Telephone
&
Telegraph Co. v.
Central Office Telephone, Inc.,
524 U. S. 214, 227-228 (1998)
(AT&T); Texas &
Pacific R. Co. v.
Abilene Cotton Oil Co., 204 U. S. 426, 446
(1907). We find this concern applicable in the present case. And we
conclude that the saving clause foresees-it does not foreclosethe
possibility that a federal safety standard will pre-empt a state
common-law tort action with which it conflicts. We do not
understand the dissent to disagree, for it acknowledges that
ordinary pre-emption principles apply, at least sometimes.
Post, at 899-900 (opinion of STEVENS, J.).
Neither do we believe that the pre-emption provision, the saving
provision, or both together, create some kind of "special burden"
beyond that inherent in ordinary pre-emption principles-which
"special burden" would specially disfavor pre-emption here. Cf.
post, at 898-899. The two provisions, read together, reflect
a neutral policy, not a specially
871
favorable or unfavorable policy, toward the application of
ordinary conflict pre-emption principles. On the one hand, the
pre-emption provision itself reflects a desire to subject the
industry to a single, uniform set of federal safety standards. Its
pre-emption of
all state standards, even those that might
stand in harmony with federal law, suggests an intent to avoid the
conflict, uncertainty, cost, and occasional risk to safety itself
that too many different safety-standard cooks might otherwise
create. See H. R. Rep. No. 1776, 89th Cong., 2d Sess., 17 (1966)
("Basically, this preemption subsection is intended to result in
uniformity of standards so that the public as well as industry will
be guided by one set of criteria rather than by a multiplicity of
diverse standards"); S. Rep. No. 1301, 89th Cong., 2d Sess., 12
(1966). This policy by itself favors pre-emption of state tort
suits, for the rules of law that judges and juries create or apply
in such suits may themselves similarly create uncertainty and even
conflict, say, when different juries in different States reach
different decisions on similar facts.
On the other hand, the saving clause reflects a congressional
determination that occasional nonuniformity is a small price to pay
for a system in which juries not only create, but also enforce,
safety standards, while simultaneously providing necessary
compensation to victims. That policy by itself disfavors
pre-emption, at least some of the time. But we can find nothing in
any natural reading of the two provisions that would favor one set
of policies over the other where a jury-imposed safety standard
actually conflicts with a federal safety standard.
Why, in any event, would Congress not have wanted ordinary
pre-emption principles to apply where an actual conflict with a
federal objective is at stake? Some such principle is needed. In
its absence, state law could impose legal duties that would
conflict directly with federal regulatory mandates, say, by
premising liability upon the presence of the very windshield
retention requirements that federal law re-
872
quires. See,
e. g., 49 CFR § 571.212 (1999).
Insofar as petitioners' argument would permit common-law actions
that "actually conflict" with federal regulations, it would take
from those who would enforce a federal law the very ability to
achieve the law's congressionally mandated objectives that the
Constitution, through the operation of ordinary preemption
principles, seeks to protect. To the extent that such an
interpretation of the saving provision reads into a particular
federal law toleration of a conflict that those principles would
otherwise forbid, it permits that law to defeat its own objectives,
or potentially, as the Court has put it before, to "'destroy
itself.'"
AT&T, supra, at 228 (quoting
Abilene
Cotton, supra, at 446). We do not claim that Congress lacks the
constitutional power to write a statute that mandates such a
complex type of state/federal relationship. Cf.
post, at
900, n. 16. But there is no reason to believe Congress has done so
here.
The dissent, as we have said, contends nonetheless that the
express pre-emption and saving provisions here, taken together,
create a "special burden," which a court must impose "on a party"
who claims conflict pre-emption under those principles.
Post, at 898. But nothing in the Safety Act's language
refers to any "special burden." Nor can one find the basis for a
"special burden" in this Court's precedents. It is true that, in
Freightliner Corp. v.
Myrick, 514 U. S. 280 (1995),
the Court said, in the context of interpreting the Safety Act, that
"[aJt best" there is an "inference that an express
pre-emption clause forecloses implied pre-emption."
Id., at
289 (emphasis added). But the Court made this statement in the
course of
rejecting the more absolute argument that the
presence of the express pre-emption provision entirely foreclosed
the possibility of conflict pre-emption.
Id., at 288. The
statement, headed with the qualifier "[a]t best," and made in a
case where, without any need for inferences or "special burdens,"
state law obviously would survive, see
id., at 289-290,
simply preserves a legal possibility. This
873
Court did not hold that the Safety Act
does create a
"special burden," or still less that such a burden necessarily
arises from the limits of an express pre-emption provision. And
considerations of language, purpose, and administrative
workability, together with the principles underlying this Court's
pre-emption doctrine discussed above, make clear that the express
pre-emption provision imposes no unusual, "special burden" against
pre-emption. For similar reasons, we do not see the basis for
interpreting the saving clause to impose any such burden.
A "special burden" would also promise practical difficulty by
further complicating well-established pre-emption principles that
already are difficult to apply. The dissent does not contend that
this "special burden" would apply in a case in which state law
penalizes what federal law requires-i.
e., a case of
impossibility. See
post, at 892-893, n. 6, 900, n. 16. But
if it would not apply in such a case, then how, or when, would it
apply? This Court, when describing conflict preemption, has spoken
of pre-empting state law that "under the circumstances of thee]
particular case ... stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress"-whether
that "obstacle" goes by the name of "conflicting; contrary to; ...
repugnance; difference; irreconcilability; inconsistency;
violation; curtailment; ... interference," or the like.
Hines v.
Davidowitz, 312 U. S. 52, 67 (1941);
see
Jones v.
Rath Packing Co., 430 U. S. 519, 526
(1977). The Court has not previously driven a legal wedge-only a
terminological one-between "conflicts" that prevent or frustrate
the accomplishment of a federal objective and "conflicts" that make
it "impossible" for private parties to comply with both state and
federal law. Rather, it has said that both forms of conflicting
state law are "nullified" by the Supremacy Clause,
De la Cuesta,
458 U. S., at 152-153; see
Locke, ante, at 109;
English v.
General Elec. Co., 496 U. S. 72, 78-79
(1990), and it has assumed that Congress would not want either kind
of conflict. The Court
874
has thus refused to read general "saving" provisions to tolerate
actual conflict
both in cases involving impossibility, see,
e. g., AT&T, 524 U. S., at 228,
and in
"frustration-of-purpose" cases, see,
e. g., Locke, ante, at
103-112;
International Paper Co. v.
Ouellette,
479 U. S. 481,
493-494 (1987); see also
Chicago &
North Western
Transp. Co. v.
Kalo Brick &
Tile Co.,
450 U. S. 311,
328-331 (1981). We see no grounds, then, for attempting to
distinguish among types of federal-state conflict for purposes of
analyzing whether such a conflict warrants pre-emption in a
particular case. That kind of analysis, moreover, would engender
legal uncertainty with its inevitable systemwide costs
(e.
g., conflicts, delay, and expense) as courts tried sensibly to
distinguish among varieties of "conflict" (which often shade, one
into the other) when applying this complicated rule to the many
federal statutes that contain some form of an express pre-emption
provision, a saving provision, or as here, both. Nothing in the
statute suggests Congress wanted to complicate ordinary
experience-proved principles of conflict pre-emption with an added
"special burden." Indeed, the dissent's willingness to impose a
"special burden" here stems ultimately from its view that
"frustration-of-purpos[e]" conflict pre-emption is a freewheeling,
"inadequately considered" doctrine that might well be
"eliminate[d]."
Post, at 907-908, and n. 22. In a word,
ordinary pre-emption principles, grounded in longstanding
precedent,
Hines, supra, at 67, apply. We would not further
complicate the law with complex new doctrine.
IV
The basic question, then, is whether a common-law "no airbag"
action like the one before us actually conflicts with FMVSS 208. We
hold that it does.
In petitioners' and the dissent's view, FMVSS 208 sets a minimum
airbag standard. As far as FMVSS 208 is concerned, the more
airbags, and the sooner, the better. But that was not the
Secretary's view. The Department of
875
Transportation's (DOT's) comments, which accompanied the
promulgation of FMVSS 208, make clear that the standard
deliberately provided the manufacturer with a range of choices
among different passive restraint devices. Those choices would
bring about a mix of different devices introduced gradually over
time; and FMVSS 208 would thereby lower costs, overcome technical
safety problems, encourage technological development, and win
widespread consumer acceptance-all of which would promote FMVSS
208's safety objectives. See generally 49 Fed. Reg. 28962
(1984).
A
The history of FMVSS 208 helps explain why and how DOT sought
these objectives. See generally
Motor Vehicle Mfrs. Assn. of
United States, Inc. v.
State Farm Mut. Automobile Ins.
Co., 463 U. S.
29, 34-38 (1983). In 1967, DOT, understanding that seatbelts
would save many lives, required manufacturers to install manual
seatbelts in all automobiles. 32 Fed. Reg. 2408, 2415. It became
apparent, however, that most occupants simply would not buckle up
their belts. See 34 Fed. Reg. 11148 (1969). DOT then began to
investigate the feasibility of requiring "passive restraints," such
as airbags and automatic seatbelts.
Ibid. In 1970, it
amended FMVSS 208 to include some passive protection requirements,
35 Fed. Reg. 16927, while making clear that airbags were one of
several "equally acceptable" devices and that it neither" 'favored'
[n]or expected the introduction of airbag systems."
Ibid. In
1971, it added an express provision permitting compliance through
the use of nondetachable passive belts, 36 Fed. Reg. 12858, 12859,
and in 1972, it mandated full passive protection for all front seat
occupants for vehicles manufactured after August 15, 1975, 37 Fed.
Reg. 3911. Although the agency's focus was originally on airbags,
34 Fed. Reg. 11148 (1969) (notice of proposed rulemaking);
State
Farm, 463 U. S., at 35, n. 4; see also
id., at 46, n. 11
(noting view of commentators that, as of 1970, FMVSS
876
208 was "'a de facto airbag mandate'" because of the state of
passive restraint technology), at no point did FMVSS 208 formally
require the use of airbags. From the start, as in 1984, it
permitted passive restraint options.
DOT gave manufacturers a further choice for new vehicles
manufactured between 1972 and August 1975. Manufacturers could
either install a passive restraint device such as automatic
seatbelts or airbags or retain manual belts and add an "ignition
interlock" device that in effect forced occupants to buckle up by
preventing the ignition otherwise from turning on. 37 Fed. Reg.
3911 (1972). The interlock soon became popular with manufacturers.
And in 1974, when the agency approved the use of detachable
automatic seatbelts, it conditioned that approval by providing that
such systems must include an interlock system
and a
continuous warning buzzer to encourage reattachment of the belt. 39
Fed. Reg. 14593. But the interlock and buzzer devices were most
unpopular with the public. And Congress, responding to public
pressure, passed a law that forbade DOT from requiring, or
permitting compliance by means of, such devices. Motor Vehicle and
Schoolbus Safety Amendments of 1974, § 109,88 Stat. 1482
(previously codified at 15 U. S. C. § 1410b(b) (1988 ed.)).
That experience influenced DOT's subsequent passive restraint
initiatives. In 1976, DOT Secretary William T. Coleman, Jr.,
fearing continued public resistance, suspended the passive
restraint requirements. He sought to win public acceptance for a
variety of passive restraint devices through a demonstration
project that would involve about half a million new automobiles.
State Farm, supra, at 37. But his successor, Brock Adams,
canceled the project, instead amending FMVSS 208 to require passive
restraints, principally either airbags or passive seatbelts. 42
Fed. Reg. 34289 (1977).
Andrew Lewis, a new DOT Secretary in a new administration,
rescinded the Adams requirements, primarily because DOT learned
that the industry planned to satisfy those
877
requirements almost exclusively through the installation of
detachable automatic seatbelts. 46 Fed. Reg. 5341953420 (1981).
This Court held the rescission unlawful.
State Farm, supra,
at 34, 46. And the stage was set for then-DOT Secretary, Elizabeth
Dole, to amend FMVSS 208 once again, promulgating the version that
is now before us. 49 Fed. Reg. 28962 (1984).
B
Read in light of this history, DOT's own contemporaneous
explanation of FMVSS 208 makes clear that the 1984 version of FMVSS
208 reflected the following significant considerations. First,
buckled up seatbelts are a vital ingredient of automobile safety.
Id., at 29003;
State Farm, supra, at 52 ("We start
with the accepted ground that if used, seatbelts unquestionably
would save many thousands of lives and would prevent tens of
thousands of crippling injuries"). Second, despite the enormous and
unnecessary risks that a passenger runs by not buckling up manual
lap and shoulder belts, more than 80% of front seat passengers
would leave their manual seatbelts unbuckled. 49 Fed. Reg. 28983
(1984) (estimating that only 12.5% of front seat passengers buckled
up manual belts). Third, airbags could make up for the dangers
caused by unbuckled manual belts, but they could not make up for
them entirely.
Id., at 28986 (concluding that, although an
airbag plus a lap and shoulder belt was the most "effective"
system, airbags alone were
less effective than buckled up
manual lap and shoulder belts).
Fourth, passive restraint systems had their own disadvantages,
for example, the dangers associated with, intrusiveness of, and
corresponding public dislike for, nondetachable automatic belts.
Id., at 28992-28993. Fifth, airbags brought with them their
own special risks to safety, such as the risk of danger to
out-of-position occupants (usually children) in small cars.
Id., at 28992, 29001; see also 65 Fed. Reg. 30680,
30681-30682 (2000) (finding 158 confirmed airbag-induced fatalities
as of April 2000, and amending rule
878
to add new requirements, test procedures, and injury criteria to
ensure that "future air bags be designed to create less risk of
serious airbag-induced injuries than current air bags, particularly
for small women and young children"); U. S. Dept. of
Transportation, National Highway Traffic Safety Administration,
National Accident Sampling System Crashworthiness Data System
1991-1993, p. viii (Aug. 1995) (finding that airbags caused
approximately 54,000 injuries between 1991 and 1993).
Sixth, airbags were expected to be significantly more expensive
than other passive restraint devices, raising the average cost of a
vehicle price $320 for full frontal airbags over the cost of a car
with manual lap and shoulder seatbelts (and potentially much more
if production volumes were low). 49 Fed. Reg. 28990 (1984). And the
agency worried that the high replacement cost-estimated to be
$800-could lead car owners to refuse to replace them after
deployment.
Id., at 28990, 29000-29001; see also
id.,
at 28990 (estimating total investment costs for mandatory airbag
requirement at $1.3 billion compared to $500 million for automatic
seatbelts). Seventh, the public, for reasons of cost, fear, or
physical intrusiveness, might resist installation or use of any of
the then-available passive restraint devices,
id., at
2898728989-a particular concern with respect to airbags,
id., at 29001 (noting that "[a]irbags engendered the largest
quantity of, and most vociferously worded, comments").
FMVSS 208 reflected these considerations in several ways.
Most importantly, that standard deliberately sought variety-a
mix of several different passive restraint systems. It did so by
setting a performance requirement for passive restraint devices and
allowing manufacturers to choose among different passive restraint
mechanisms, such as airbags, automatic belts, or other passive
restraint technologies to satisfy that requirement.
Id., at
28996. And DOT explained why FMVSS 208 sought the mix of devices
that it expected its performance standard to produce.
Id.,
at
879
28997. DOT wrote that it had
rejected a proposed FMVSS
208 "all airbag" standard because of safety concerns (perceived or
real) associated with airbags, which concerns threatened a
"backlash" more easily overcome "if airbags" were "not the only way
of complying."
Id., at 29001. It added that a mix of devices
would help develop data on comparative effectiveness, would allow
the industry time to overcome the safety problems and the high
production costs associated with airbags, and would facilitate the
development of alternative, cheaper, and safer passive restraint
systems.
Id., at 29001-29002. And it would thereby build
public confidence,
id., at 29001-29002, necessary to avoid
another interlock-type fiasco.
The 1984 FMVSS 208 standard also deliberately sought a
gradual phase-in of passive restraints.
Id., at
28999-29000. It required the manufacturers to equip only 10% of
their car fleet manufactured after September 1, 1986, with passive
restraints.
Id., at 28999. It then increased the percentage
in three annual stages, up to 100% of the new car fleet for cars
manufactured after September 1, 1989.
Ibid. And it explained
that the phased-in requirement would allow more time for
manufacturers to develop airbags or other, better, safer passive
restraint systems. It would help develop information about the
comparative effectiveness of different systems, would lead to a mix
in which airbags and other nonseatbelt passive restraint systems
played a more prominent role than would otherwise result, and would
promote public acceptance.
Id., at 29000-29001.
Of course, as the dissent points out,
post, at 903, FMVSS
208 did not guarantee the mix by setting a ceiling for each
different passive restraint device. In fact, it provided a form of
extra credit for airbag installation (and other nonbelt passive
restraint devices) under which each airbag-installed vehicle
counted as 1.5 vehicles for purposes of meeting FMVSS 208's passive
restraint requirement. 49 CFR § 571.208, S4.1.3.4(a)(1) (1999); 49
Fed. Reg. 29000 (1984).
880
But why should DOT have bothered to impose an airbag ceiling
when the practical threat to the mix it desired arose from the
likelihood that manufacturers would install, not too many airbags
too quickly, but too few or none at all? After all, only a few
years earlier, Secretary Dole's predecessor had discovered that
manufacturers intended to meet the thencurrent passive restraint
requirement almost entirely (more than 99%) through the
installation of more affordable automatic belt systems. 46 Fed.
Reg. 53421 (1981);
State Farm, 463 U. S., at 38. The extra
credit, as DOT explained, was designed to "encourage manufacturers
to equip
at least some of their cars with airbags." 49 Fed.
Reg. 29001 (1984) (emphasis added) (responding to comment that
failure to mandate airbags might mean the "end of ... airbag
technology"); see also
id., at 29000 (explaining that the
extra credit for airbags "should promote the development of what
may be better alternatives to automatic belts
than would
otherwise be developed" (emphasis added)). The credit provision
reinforces the point that FMVSS 208 sought a gradually
developing mix of passive restraint devices; it does not show the
contrary.
Finally, FMVSS 208's passive restraint requirement was
conditional. DOT believed that ordinary manual lap and shoulder
belts would produce about the same amount of safety as passive
restraints, and at significantly lower costs-if
only auto
occupants would buckle up. See
id., at 28997-28998.
Thus, FMVSS 208 provided for rescission of its passive restraint
requirement if, by September 1, 1989, two-thirds of the States had
laws in place that, like those of many other nations, required auto
occupants to buckle up (and which met other requirements specified
in the standard).
Id., at 28963, 28993-28994, 28997-28999.
The Secretary wrote that "coverage of a large percentage of the
American people by seatbelt laws that are enforced would largely
negate the incremental increase in safety to be expected from an
automatic protection requirement."
Id., at 28997.
881
In the end, two-thirds of the States did not enact mandatory
buckle-up laws, and the passive restraint requirement remained in
effect.
In sum, as DOT now tells us through the Solicitor General, the
1984 version of FMVSS 208 "embodies the Secretary's policy judgment
that safety would best be promoted if manufacturers installed
alternative protection systems in their fleets rather than
one particular system in every car." Brief for United States as
Amicus Curiae 25; see 49 Fed. Reg. 28997 (1984).
Petitioners' tort suit claims that the manufacturers of the 1987
Honda Accord "had a duty to design, manufacture, distribute and
sell a motor vehicle with an effective and safe passive restraint
system, including, but not limited to, airbags." App. 3 (Complaint,
~ 11).
In effect, petitioners' tort action depends upon its claim that
manufacturers had a duty to install an airbag when they
manufactured the 1987 Honda Accord. Such a state lawi.
e., a
rule of state tort law imposing such a duty-by its terms would have
required manufacturers of all similar cars to install airbags
rather than other passive restraint systems, such as automatic
belts or passive interiors. It thereby would have presented an
obstacle to the variety and mix of devices that the federal
regulation sought. It would have required all manufacturers to have
installed airbags in respect to the entire
District-of-Columbia-related portion of their 1987 new car fleet,
even though FMVSS 208 at that time required only that 10% of a
manufacturer's nationwide fleet be equipped with any passive
restraint device at all. It thereby also would have stood as an
obstacle to the gradual passive restraint phase-in that the federal
regulation deliberately imposed. In addition, it could have made
less likely the adoption of a state mandatory buckle-up law.
Because the rule of law for which petitioners contend would have
stood "as an obstacle to the accomplishment and execution of" the
important means-related federal objectives that we have just
discussed, it is pre-empted.
Hines, 312 U. S., at
882
67; see also
Ouellette, 479 U. S., at 493;
De la
Cuesta, 458 U. S., at 156 (finding conflict and pre-emption
where state law limited the availability of an option that the
federal agency considered essential to ensure its ultimate
objectives).
Petitioners ask this Court to calculate the precise size of the
"obstacle," with the aim of minimizing it, by considering the risk
of tort liability and a successful tort action's incentive-related
or timing-related compliance effects. See Brief for Petitioners
45-50. The dissent agrees.
Post, at 900-905. But this
Court's pre-emption cases do not ordinarily turn on such
compliance-related considerations as whether a private party in
practice would ignore state legal obligations-paying, say, a fine
instead-or how likely it is that state law actually would be
enforced. Rather, this Court's pre-emption cases ordinarily
assume compliance with the state-law duty in question. The
Court has on occasion suggested that tort law may be somewhat
different, and that related considerations-for example, the ability
to pay damages instead of modifying one's behavior-may be relevant
for pre-emption purposes. See
Goodyear Atomic Corp. v.
Miller, 486 U.
S. 174, 185 (1988);
Cipollone, 505 U. S., at 536-539
(Blackmun, J., concurring in part, concurring in judgment in part,
and dissenting in part); see also
English, 496 U. S., at 86;
Silkwood v.
Kerr-McGee Corp., 464 U. S. 238, 256
(1984). In other cases, the Court has found tort law to conflict
with federal law without engaging in that kind of an analysis. See,
e. g., Ouellette, supra, at 494-497;
Kalo Brick, 450
U. S., at 324-332. We need not try to resolve these differences
here, however, for the incentive or compliance considerations upon
which the dissent relies cannot, by themselves, change the legal
result. Some of those considerations rest on speculation, see,
e. g., post, at 901 (predicting risk of "no airbag"
liability and manufacturers' likely response to such liability);
some rest in critical part upon the dissenters' own view of FMVSS
208's basic purposes-a view
883
which we reject, see,
e. g., post, at 901-904 (suggesting
that pre-existing risk of "no airbag" liability would have made
FMVSS 208 unnecessary); and others, if we understand them
correctly, seem less than persuasive, see,
e. g., post, at
902 (suggesting that manufacturers could have complied with a
mandatory state airbag duty by installing a
different kind
of passive restraint device). And in so concluding, we do not "put
the burden" of proving pre-emption on petitioners.
Post, at
907. We simply find unpersuasive their arguments attempting to
undermine the Government's demonstration of actual conflict.
One final point: We place some weight upon DOT's interpretation
of FMVSS 208's objectives and its conclusion, as set forth in the
Government's brief, that a tort suit such as this one would"
'stan[d] as an obstacle to the accomplishment and execution'" of
those objectives. Brief for United States as
Amicus Curiae
25-26 (quoting
Hines, supra, at 67). Congress has delegated
to DOT authority to implement the statute; the subject matter is
technical; and the relevant history and background are complex and
extensive. The agency is likely to have a thorough understanding of
its own regulation and its objectives and is "uniquely qualified"
to comprehend the likely impact of state requirements.
Medtronic, 518 U. S., at 496; see
id., at 506
(BREYER, J., concurring in part and concurring in judgment). And
DOT has explained FMVSS 208's objectives, and the interference that
"no airbag" suits pose thereto, consistently over time. Brief for
United States as
Amicus Curiae in
Freightliner Corp.
v.
Myrick, O. T. 1994, No. 94-286, pp. 28-29; Brief for
United States as
Amicus Curiae in
Wood v.
General
Motors Corp., O. T. 1989, No. 89-46, pp. 7, 11-16. In these
circumstances, the agency's own views should make a difference. See
City of New York v.
FCC, 486 U. S. 57, 64 (1988);
Hillsborough County v.
Automated Medical Laboratories,
Inc., 471 U. S.
707, 714, 721 (1985);
De la Cuesta, supra, at 158;
Blum v.
Bacon, 457 U. S. 132, 141
(1982);
Kalo Brick, supra, at 321.
884
We have no reason to suspect that the Solicitor General's
representation of DOT's views reflects anything other than "the
agency's fair and considered judgment on the matter."
Auer
v.
Robbins, 519 U. S. 452, 461-462
(1997); cf.
Hillsborough County, supra, at 721 (expressing
reluctance, in the absence of strong evidence, to find an actual
conflict between state law and federal regulation where agency that
promulgated the regulation had not, at the time the regulation was
promulgated
or subsequently, concluded that such a conflict
existed). The failure of the Federal Register to address
pre-emption explicitly is thus not determinative.
The dissent would require a formal agency statement of
pre-emptive intent as a prerequisite to concluding that a conflict
exists. It relies on cases, or portions thereof, that did not
involve conflict pre-emption. See
post, at 908-909;
California Coastal Comm'n v.
Granite Rock Co.,
480 U. S. 572,
583 (1987);
Hillsborough, supra, at 718. And conflict
preemption is different in that it turns on the identification of
"actual conflict," and not on an express statement of preemptive
intent.
English, supra, at 78-79; see
Hillsborough,
supra, at 720-721;
Jones, 430 U. S., at 540-543. While
"[p]re-emption fundamentally is a question of congressional
intent,"
English, supra, at 78, this Court traditionally
distinguishes between "express" and "implied" pre-emptive intent,
and treats "conflict" pre-emption as an instance of the latter.
See,
e. g., Freightliner, 514 U. S., at 287;
English,
supra, at 78-79; see also
Cipollone, supra, at
545,547-548 (SCALIA, J., concurring in judgment in part and
dissenting in part). And though the Court has looked for a specific
statement of preemptive intent where it is claimed that the mere
"volume and complexity" of agency regulations demonstrate an
implicit intent to displace
all state law in a particular
area,
Hillsborough, supra, at 717; see
post, at
908-909, n. 23so-called "field pre-emption"-the Court has never
before required a specific, formal agency statement identifying
conflict in order to conclude that such a conflict in fact
exists.
885
Indeed, one can assume that Congress or an agency ordinarily
would not intend to permit a significant conflict. While we
certainly accept the dissent's basic position that a court should
not find pre-emption too readily in the absence of clear evidence
of a conflict,
English, supra, at 90, for the reasons set
out above we find such evidence here. To insist on a specific
expression of agency intent to pre-empt, made after
notice-and-comment rulemaking, would be in certain cases to
tolerate conflicts that an agency, and therefore Congress, is most
unlikely to have intended. The dissent, as we have said, apparently
welcomes that result, at least where "frustration-of-purpos[e]"
pre-emption by agency regulation is at issue.
Post, at
907-908, and n. 22. We do not.
Nor do we agree with the dissent that the agency's views, as
presented here, lack coherence.
Post, at 904-905. The
dissent points,
ibid., to language in the Government's brief
stating that
"a claim that a manufacturer should have chosen to install
airbags rather than another type of passive restraint in a certain
model of car because of other design features particular to that
car ... would not necessarily frustrate Standard 208's
purposes." Brief for United States as Amicus Curiae 26, n.
23 (emphasis added).
And the dissent says that these words amount to a concession
that there is no conflict in this very case.
Post, at 905.
But that is not what the words say. Rather, as the italicized
phrase emphasizes, they simply leave open the question whether
FMVSS 208 would pre-empt a different kind of tort case-one
not at issue here. It is possible that some special
design-related circumstance concerning a particular kind of car
might require airbags, rather than automatic belts, and that a suit
seeking to impose that requirement could escape pre-emption-say,
because it would affect so few cars that its rule of law would not
create a legal "obstacle" to 208's mixed-fleet, gradual objective.
But that is not what peti-
886
tioners claimed. They have argued generally that, to be safe, a
car must have an airbag. See App. 4.
Regardless, the language of FMVSS 208 and the contemporaneous
1984 DOT explanation is clear enough-even without giving DOT's own
view special weight. FMVSS 208 sought a gradually developing mix of
alternative passive restraint devices for safety-related reasons.
The rule of state tort law for which petitioners argue would stand
as an "obstacle" to the accomplishment of that objective. And the
statute foresees the application of ordinary principles of
pre-emption in cases of actual conflict. Hence, the tort action is
pre-empted.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE THOMAS, and
JUSTICE GINSBURG join, dissenting.
Airbag technology has been available to automobile manufacturers
for over 30 years. There is now general agreement on the
proposition "that, to be safe, a car must have an airbag."
Ante this page. Indeed, current federal law imposes that
requirement on all automobile manufacturers. See 49 U. S. C. §
30127; 49 CFR § 571.208, S4.1.5.3 (1998). The question raised by
petitioners' common-law tort action is whether that proposition was
sufficiently obvious when Honda's 1987 Accord was manufactured to
make the failure to install such a safety feature actionable under
theories of negligence or defective design. The Court holds that an
interim regulation motivated by the Secretary of Transportation's
desire to foster gradual development of a variety of passive
restraint devices deprives state courts of jurisdiction to answer
that question. I respectfully dissent from that holding, and
especially from the Court's unprecedented extension of the doctrine
of pre-emption. As a preface to an explanation of my understanding
of the statute and the regulation, these preliminary observations
seem appropriate.
887
"This is a case about federalism,"
Coleman v.
Thompson, 501
U. S. 722, 726 (1991), that is, about respect for "the
constitutional role of the States as sovereign entities."
Alden v.
Maine, 527 U. S. 706, 713
(1999). It raises important questions concerning the way in which
the Federal Government may exercise its undoubted power to oust
state courts of their traditional jurisdiction over common-law tort
actions. The rule the Court enforces today was not enacted by
Congress and is not to be found in the text of any Executive Order
or regulation. It has a unique origin: It is the product of the
Court's interpretation of the final commentary accompanying an
interim administrative regulation and the history of airbag
regulation generally. Like many other judge-made rules, its
contours are not precisely defined. I believe, however, that it is
fair to state that if it had been expressly adopted by the
Secretary of Transportation, it would have read as follows:
"No state court shall entertain a common-law tort action based
on a claim that an automobile was negligently or defectively
designed because it was not equipped with an airbag;
"Provided, however, that this rule shall not apply to cars
manufactured before September 1, 1986, or after such time as the
Secretary may require the installation of airbags in all new cars;
and
"Provided further, that this rule shall not preclude a claim by
a driver who was not wearing her seatbelt that an automobile was
negligently or defectively designed because it was not equipped
with any passive restraint whatsoever, or a claim that an
automobile with particular design features was negligently or
defectively designed because it was equipped with one type of
passive restraint instead of another."
Perhaps such a rule would be a wise component of a legislative
reform of our tort system. I express no opinion about
888
that possibility. It is, however, quite clear to me that
Congress neither enacted any such rule itself nor authorized the
Secretary of Transportation to do so. It is equally clear to me
that the objectives that the Secretary intended to achieve through
the adoption of Federal Motor Vehicle Safety Standard 208 would not
be frustrated one whit by allowing state courts to determine
whether in 1987 the lifesaving advantages of airbags had become
sufficiently obvious that their omission might constitute a design
defect in some new cars. Finally, I submit that the Court is quite
wrong to characterize its rejection of the presumption against
pre-emption, and its reliance on history and regulatory commentary
rather than either statutory or regulatory text, as "ordinary
experience-proved principles of conflict pre-emption."
Ante,
at 874.
I
The question presented is whether either the National Traffic
and Motor Vehicle Safety Act of 1966 (Safety Act or Act), 80 Stat.
718, 15 U. S. C. § 1381
et seq. (1988 ed.),l or the version
of Standard 208 promulgated by the Secretary of Transportation in
1984, 49 CFR § 571.208, S4.1.3-S4.1.4 (1998), pre-empts common-law
tort claims that an automobile manufactured in 1987 was negligently
and defectively designed because it lacked "an effective and safe
passive restraint system, including, but not limited to, airbags."
App. 3. In
Motor Vehicle Mfrs. Assn. of United States, Inc.
v.
State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 34-38
(1983), we reviewed the first chapters of the "complex and
convoluted history" of Standard 208. It was the "unacceptably high"
rate of deaths and injuries caused by automobile accidents that led
to the enactment of the Safety Act in 1966.
Id., at 33. The
purpose of the Act, as stated by Congress,
1 In 1994, the Safety Act was recodified at 49 U. S. C. § 30101
et seq.
Because the changes made to the Act as part of the
recodification process were not intended to be substantive,
throughout this opinion I shall refer to the pre-1994 version of
the statute, as did the Court of Appeals.
889
was "to reduce traffic accidents and deaths and injuries to
persons resulting from traffic accidents." 15 U. S. C. § 1381. The
Act directed the Secretary of Transportation or his delegate to
issue motor vehicle safety standards that "shall be practicable,
shall meet the need for motor vehicle safety, and shall be stated
in objective terms." § 1392(a). The Act defines the term "safety
standard" as a "minimum standard for motor vehicle performance, or
motor vehicle equipment performance." § 1391(2).
Standard 208 covers "[o]ccupant crash protection." Its purpose
"is to reduce the number of deaths of vehicle occupants, and the
severity of injuries, by specifying vehicle crashworthiness
requirements ... [and] equipment requirements for active and
passive restraint systems." 49 CFR § 571.208, S2 (1998). The first
version of that standard, issued in 1967, simply required the
installation of manual seatbelts in all automobiles. Two years
later the Secretary formally proposed a revision that would require
the installation of "passive occupant restraint systems," that is
to say, devices that do not depend for their effectiveness on any
action by the vehicle occupant. The airbag is one such system.2 The
Secretary's proposal led to a series of amendments to Standard 208
that imposed various passive restraint requirements, culminating in
a 1977 regulation that mandated such restraints in all cars by the
model year 1984. The two commercially available restraints that
could satisfy this mandate
2 "The airbag is an inflatable device concealed in the dashboard
and steering column. It automatically inflates when a sensor
indicates that deceleration forces from an accident have exceeded a
preset minimum, then rapidly deflates to dissipate those forces.
The lifesaving potential of these devices was immediately
recognized, and in 1977, after substantial on-the-road experience
with both devices, it was estimated by [the National Highway
Traffic Safety Administration (NHTSA)] that passive restraints
could prevent approximately 12,000 deaths and over 100,000 serious
injuries annually. 42 Fed. Reg. 34298."
Motor Vehicle Mfrs.
Assn. of United States, Inc. v.
State Farm Mut. Automobile
Ins. Co., 463 U.
S. 29, 35 (1983).
890
were airbags and automatic seatbelts; the regulation allowed
each vehicle manufacturer to choose which restraint to install. In
1981, however, following a change of administration, the new
Secretary first extended the deadline for compliance and then
rescinded the passive restraint requirement altogether. In
Motor
Vehicle Mfrs. Assn., we affirmed a decision by the Court of
Appeals holding that this rescission was arbitrary. On remand,
Secretary Elizabeth Dole promulgated the version of Standard 208
that is at issue in this case.
The 1984 standard provided for a phase-in of passive restraint
requirements beginning with the 1987 model year. In that year,
vehicle manufacturers were required to equip a minimum of 10% of
their new passenger cars with such restraints. While the 1987 Honda
Accord driven by Ms. Geier was not so equipped, it is undisputed
that Honda complied with the 10% minimum by installing passive
restraints in certain other 1987 models. This minimum passive
restraint requirement increased to 25% of 1988 models and 40% of
1989 models; the standard also mandated that "after September 1,
1989, all new cars must have automatic occupant crash protection."
49 Fed. Reg. 28999 (1984); see 49 CFR § 571.208, S4.1.3-S4.1.4
(1998). In response to a 1991 amendment to the Safety Act, the
Secretary amended the standard to require that, beginning in the
1998 model year, all new cars have an airbag at both the driver's
and right front passenger's positions.3
Given that Secretary Dole promulgated the 1984 standard in
response to our opinion invalidating her predecessor's rescission
of the 1977 passive restraint requirement, she provided a full
explanation for her decision not to require air-
3 See 49 U. S. C. § 30127; 49 CFR § 571.208, S4.1.5.3 (1998).
Congress stated that it did not intend its amendment or the
Secretary's consequent alteration of Standard 208 to affect the
potential liability of vehicle manufacturers under applicable law
related to vehicles with or without airbags. 49 U. S. C. §
30127(f)(2).
891
bags in all cars and to phase in the new requirements. The
initial3-year delay was designed to give vehicle manufacturers
adequate time for compliance. The decision to give manufacturers a
choice between airbags and a different form of passive restraint,
such as an automatic seatbelt, was motivated in part by safety
concerns and in part by a desire not to retard the development of
more effective systems. 49 Fed. Reg. 29000-29001 (1984). An
important safety concern was the fear of a "public backlash" to an
airbag mandate that consumers might not fully understand. The
Secretary believed, however, that the use of airbags would avoid
possible public objections to automatic seatbelts and that many of
the public concerns regarding airbags were unfounded.
Id.,
at 28991.
Although the standard did not require airbags in all cars, it is
clear that the Secretary did intend to encourage wider use of
airbags. One of her basic conclusions was that "[a]utomatic
occupant protection systems that do not totally rely upon belts,
such as airbags ... , offer significant additional potential for
preventing fatalities and injuries, at least in part because the
American public is likely to find them less intrusive; their
development and availability should be encouraged through
appropriate incentives."
Id., at 28963; see also
id.,
at 28966, 28986 (noting conclusion of both Secretary and
manufacturers that airbags used in conjunction with manual lap and
shoulder belts would be "the most effective system of all" for
preventing fatalities and injuries). The Secretary therefore
included a phase-in period in order to encourage manufacturers to
comply with the standard by installing airbags and other (perhaps
more effective) nonbelt technologies that they might develop,
rather than by installing less expensive automatic seatbelts.4 As a
further incen-
4 "If the Department had required full compliance by September
1, 1987, it is very likely all of the manufacturers would have had
to comply through the use of automatic belts. Thus, by phasing-in
the requirement, the Department makes it easier for manufacturers
to use other, perhaps better,
892
tive for the use of such technologies, the standard provided
that a vehicle equipped with an airbag or other nonbelt system
would count as 1.5 vehicles for the purpose of determining
compliance with the required 10, 25, or 40% minimum passive
restraint requirement during the phase-in period. 49 CFR § 571.208,
S4.1.3.4(a)(1) (1998). With one oblique exception,5 there is no
mention, either in the text of the final standard or in the
accompanying comments, of the possibility that the risk of
potential tort liability would provide an incentive for
manufacturers to install airbags. Nor is there any other specific
evidence of an intent to preclude commonlaw tort actions.
II
Before discussing the pre-emption issue, it is appropriate to
note that there is a vast difference between a rejection of Honda's
threshold arguments in favor of federal pre-emption and a
conclusion that petitioners ultimately would prevail on their
common-law tort claims. I express no opinion on the possible merit,
or lack of merit, of those claims. I do observe, however, that even
though good-faith compliance with the minimum requirements of
Standard 208 would not provide Honda with a complete defense on the
merits,6 I as-
systems such as airbags and passive interiors." 49 Fed. Reg.
29000 (1984).
5 In response to a comment that the manufacturers were likely to
use the cheapest system to comply with the new standard, the
Secretary stated that she believed "that competition, potential
liability for any deficient systems[,] and pride in one's product
would prevent this."
Ibid.
6 Wood v.
General Motors Corp., 865 F.2d
395, 417
(CA1 1988) (collecting cases). The result would
be different, of course, if petitioners had brought common-law tort
claims challenging Honda's compliance with a mandatory minimum
federal standard--e.
g., claims that a 1999 Honda was
negligently and defectively designed
because it was equipped
with airbags as required by the current version of Standard 208.
Restatement (Third) of Torts: General Principles § 14(b), and
Comment
g (Discussion Draft, Apr. 5, 1999) ("If the actor's
adoption [or rejection] of a precaution would require the actor to
violate a statute, the actor cannot be found negligent for failing
to adopt [or reject] that precaution"); cf.
ante, at 871-872
(dis-
893
sume that such compliance would be admissible evidence tending
to negate charges of negligent and defective design.7 In addition,
if Honda were ultimately found liable, such compliance would
presumably weigh against an award of punitive damages.
Silkwood v.
Kerr-McGee Corp., 485 F. Supp. 566,
583-584 (WD Okla. 1979) (concluding that substantial compliance
with regulatory scheme did not bar award of punitive damages, but
noting that "[g]ood faith belief in, and efforts to comply with,
all government regulations would be evidence of conduct
inconsistent with the mental state requisite for punitive damages"
under state law).8
The parties have not called our attention to any appellate court
opinions discussing the merits of similar no-airbag claims despite
the fact that airbag technology was available for many years before
the promulgation of the 1984 standard-a standard that is not
applicable to any automobiles manufactured before September 1,
1986. Given that an arguable basis for a pre-emption defense did
not exist until that standard was promulgated, it is reasonable to
infer that the manufacturers' assessment of their potential
liability for compensatory and punitive damages on such
claims-even
cussing problem of basing state tort liability upon compliance
with mandatory federal regulatory requirement as question of
pre-emption rather than of liability on the merits);
Florida
Lime &
Avocado Growers, Inc. v.
Paul,
373 U. S. 132,
142-143 (1963) ("A holding offederal exclusion of state law is
inescapable and requires no inquiry into congressional design where
compliance with both federal [regulations and state tort law] is a
physical impossibility ... ").
7 Restatement (Third) of Torts: Products Liability § 4(b), and
Comment
e (1997); Contini v.
Hyundai Motor Co., 840
F. Supp. 22, 23-24 (SDNY 1993). See also Restatement (Second) of
Torts §
288C, and Comment
a (1964) (negligence);
McNeil Pharmaceutical v.
Hawkins, 686 A. 2d 567,
577-579 (D. C. 1996) (strict liability).
8 The subsequent history of
Silkwood does not cast doubt
on this premise. See
Silkwood v.
Kerr-McGee Corp.,
667 F.2d
908, 921-923 (CAlO 1981) (reversing on ground that federal law
pre-empts award of punitive damages), rev'd and remanded,
464 U. S. 238 (1984), on
remand,
769 F.2d
1451, 1457-1458 (CAlO 1985).
894
without any pre-emption defense-did not provide them with a
sufficient incentive to engage in widespread installation of
airbags.
Turning to the subject of pre-emption, Honda contends that the
Safety Act's pre-emption provision, 15 U. S. C. § 1392(d),
expressly pre-empts petitioners' common-law noairbag claims. It
also argues that the claims are in any event impliedly pre-empted
because the imposition of liability in cases such as this would
frustrate the purposes of Standard 208. I discuss these alternative
arguments in turn.
III
When a state statute, administrative rule, or common-law cause
of action conflicts with a federal statute, it is axiomatic that
the state law is without effect. U. S. Const., Art. VI, cl. 2;
Cipollone v.
Liggett Group, Inc., 505 U. S. 504, 516
(1992). On the other hand, it is equally clear that the Supremacy
Clause does not give unelected federal judges
carte blanche
to use federal law as a means of imposing their own ideas of tort
reform on the States.9 Because of the role of States as separate
sovereigns in our federal system, we have long presumed that state
laws-particularly those, such as the provision of tort remedies to
compensate for personal injuries, that are within the scope of the
States' historic police powers-are not to be pre-empted by a
federal statute unless it is the clear and manifest purpose of
Congress to do so.
Medtronic, Inc. v.
Lohr, 518 U. S. 470, 485
(1996);
Gade v.
National Solid Wastes Management
Assn., 505 U. S.
88, 116-117 (1992) (SOUTER, J., dissenting) ("If the [federal]
statute's terms can be read sensibly not to have a pre-emptive
effect, the presumption controls and no pre-emption may be
inferred").
9 Regrettably, the Court has not always honored the latter
proposition as scrupulously as the former. See,
e. g., Boyle
v.
United Technologies Corp.,
487 U. S. 500 (1988).
895
When a federal statute contains an express pre-emption
provision, "the task of statutory construction must in the first
instance focus on the plain wording of [that provision], which
necessarily contains the best evidence of Congress' pre-emptive
intent."
CSX Transp., Inc. v.
Easterwood, 507 U. S.
658, 664 (1993). The Safety Act contains both an express
pre-emption provision, 15 U. S. C. § 1392(d), and a saving clause
that expressly preserves common-law claims, § 1397(k). The relevant
part of the former provides:
"Whenever a Federal motor vehicle safety standard established
under this subchapter is in effect, no State or political
subdivision of a State shall have any authority either to
establish, or to continue in effect, with respect to any motor
vehicle or item of motor vehicle equipmente,] any safety standard
applicable to the same aspect of performance of such vehicle or
item of equipment which is not identical to the Federal standard."
10
The latter states:
"Compliance with any Federal motor vehicle safety standard
issued under this subchapter does not exempt any person from any
liability under common law." 11
10 This provision is now codified at 49 U. S. C. § 30103(b)(1).
Because both federal and state opinions construing this provision
have consistently referred to it as "§ 1392(d)," I shall follow
that practice. Section 1392(d) contains these additional sentences:
"Nothing in this section shall be construed as preventing any State
from enforcing any safety standard which is identical to a Federal
safety standard. Nothing in this section shall be construed to
prevent the Federal Government or the government of any State or
political subdivision thereof from establishing a safety
requirement applicable to motor vehicles or motor vehicle equipment
procured for its own use if such requirement imposes a higher
standard of performance than that required to comply with the
otherwise applicable Federal standard."
11 This provision is now codified at 49 U. S. C. §30103(e). See
nn. 1 and
10, supra.
896
Relying on § 1392(d) and legislative history discussing
Congress' desire for uniform national safety standards,12 Honda
argues that petitioners' common-law no-airbag claims are expressly
pre-empted because success on those claims would necessarily
establish a state "safety standard" not identical to Standard 208.
It is perfectly clear, however, that the term "safety standard" as
used in these two sections refers to an objective rule prescribed
by a legislature or an administrative agency and does not encompass
case-specific decisions by judges and juries that resolve
common-law claims. That term is used three times in these sections;
presumably it is used consistently.
Gustafson v.
Alloyd
Co., 513 U. S.
561, 570 (1995). The two references to a federal safety
standard are necessarily describing an objective administrative
rule. 15 U. S. C. § 1392(a). When the pre-emption provision refers
to a safety standard established by a "State or political
subdivision of a State," therefore, it is most naturally read to
convey a similar meaning. In addition, when the two sections are
read together, they provide compelling evidence of an intent to
distinguish between legislative and administrative rulemaking, on
the one hand, and commonlaw liability, on the other. This
distinction was certainly a rational one for Congress to draw in
the Safety Act given that common-law liability-unlike most
legislative or administrative rulemaking-necessarily performs an
important remedial role in compensating accident victims. Cf.
Silkwood
It is true that in three recent cases we concluded that broadly
phrased pre-emptive commands encompassed common-law claims. In
Cipollone v.
Liggett Group, Inc., while we thought it
clear that the pre-emption provision in the 1965 Federal Cigarette
Labeling and Advertising Act applied only to "rulemaking bodies,"
505 U. S., at 518, we concluded that the broad command in the
subsequent 1969
12 S. Rep. No. 1301, 89th Cong., 2d Sess., 2 (1966); H. R. Rep.
No. 1776, 89th Cong., 2d Sess., 17 (1966).
897
amendment that "[n]o requirement or prohibition ... shall be
imposed under State law" did include certain common-law claims.
Id., at 548-549 (SCALIA, J., concurring in judgment in part
and dissenting in part).13 In
CSX Transp., Inc. v.
Easterwood, where the pre-emption clause of the Federal
Railroad Safety Act of 1970 expressly provided that federal
railroad safety regulations would pre-empt any incompatible state
"'law, rule, regulation, order, or standard relating to railroad
safety,'" 14 we held that a federal regulation governing maximum
train speed pre-empted a negligence claim that a speed under the
federal maximum was excessive. And in
Medtronic, Inc. v.
Lohr, we recognized that the statutory reference to "any
requirement" imposed by a State or its political subdivisions may
include common-law duties. 518 U. S., at 502-503 (plurality
opinion);
id., at 503-505 (BREYER, J., concurring in part
and concurring in judgment);
id., at 509-512 (O'CONNOR, J.,
concurring in part and dissenting in part).
The statutes construed in those cases differed from the Safety
Act in two significant respects. First, the language in each of
those pre-emption provisions was significantly broader than the
text of § 1392(d). Unlike the broader language of those provisions,
the ordinary meaning of the term "safety standard" includes
positive enactments, but does not include judicial decisions in
common-law tort cases.
Second, the statutes at issue in
Cipollone, CSX, and
Medtronic did not contain a saving clause expressly
preserving common-law remedies. The saving clause in the Safety
Act
13 The full text of the 1969 provision read: "'No requirement or
prohibition based on smoking and health shall be imposed under
State law with respect to the advertising or promotion of any
cigarettes the packages of which are labeled in conformity with the
provisions of this Act.''' 505 U. S., at 515 (quoting Public Health
Cigarette Smoking Act of 1969, 84 Stat. 88).
14507 U. S., at 664 (quoting § 205, 84 Stat. 972, as amended, 45
U. S. C. § 434 (1988 ed. and Supp. II)).
898
unambiguously expresses a decision by Congress that compliance
with a federal safety standard does not exempt a manufacturer from
any common-law liability. In light of this reference to
common-law liability in the saving clause, Congress surely would
have included a similar reference in § 1392(d) if it had intended
to pre-empt such liability.
Chicago v.
Environmental Defense Fund, 511 U. S. 328, 338 (1994)
(noting presumption that Congress acts intentionally when it
includes particular language in one section of a statute but omits
it in another).
The Court does not disagree with this interpretation of the term
"safety standard" in § 1392(d). Because the meaning of that term as
used by Congress in this statute is clear, the text of § 1392(d) is
itself sufficient to establish that the Safety Act does not
expressly pre-empt common-law claims. In order to avoid the
conclusion that the saving clause is superfluous, therefore, it
must follow that it has a different purpose: to limit, or possibly
to foreclose entirely, the possible pre-emptive effect of safety
standards promulgated by the Secretary. The Court's approach to the
case has the practical effect of reading the saving clause out of
the statute altogether. 15
Given the cumulative force of the fact that § 1392(d) does not
expressly pre-empt common-law claims and the fact that § 1397(k)
was obviously intended to limit the pre-emptive effect of the
Secretary's safety standards, it is quite wrong for the Court to
assume that a possible implicit conflict with the purposes to be
achieved by such a standard should have the same pre-emptive
effect" 'as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.'"
Ante, at 873.
Properly construed, the Safety Act imposes a special burden on a
party relying on an arguable, implicit conflict with a temporary
regulatory policy-
15 The Court surely cannot believe that Congress included that
clause in the statute just to avoid the danger that we would
otherwise fail to give the term "safety standard" its ordinary
meaning.
899
rather than a conflict with congressional policy or with the
text of any regulation-to demonstrate that a common-law claim has
been pre-empted.
IV
Even though the Safety Act does not expressly pre-empt
common-law claims, Honda contends that Standard 208-of its own
force-implicitly pre-empts the claims in this case.
"We have recognized that a federal statute implicitly overrides
state law either when the scope of a statute indicates that
Congress intended federal law to occupy a field exclusively,
English v. General Elec. Co., 496 U. S. 72, 78-79
(1990), or when state law is in actual conflict with federal law.
We have found implied conflict preemption where it is 'impossible
for a private party to comply with both state and federal
requirements,' id., at 79, or where state law 'stands as an
obstacle to the accomplishment and execution of the full purposes
and objectives of Congress.' Hines v. Davidowitz,
312 U. S. 52, 67
(1941)." Freightliner Corp. v. Myrick, 514 U. S. 280, 287
(1995).
In addition, we have concluded that regulations "intended to
pre-empt state law" that are promulgated by an agency acting
nonarbitrarily and within its congressionally delegated authority
may also have pre-emptive force.
Fidelity Fed. Sav. &
Loan Assn. v.
De la Cuesta, 458 U. S. 141, 153-154
(1982). In this case, Honda relies on the last of the implied
pre-emption principles stated in
Freightliner, arguing that
the imposition of common-law liability for failure to install an
airbag would frustrate the purposes and objectives of Standard
208.
Both the text of the statute and the text of the standard
provide persuasive reasons for rejecting this argument. The saving
clause of the Safety Act arguably denies the Secretary the
authority to promulgate standards that would
900
pre-empt common-law remedies.16 Moreover, the text of Standard
208 says nothing about pre-emption, and I am not persuaded that
Honda has overcome our traditional presumption that it lacks any
implicit pre-emptive effect.
Honda argues, and the Court now agrees, that the risk of
liability presented by common-law claims that vehicles without
airbags are negligently and defectively designed would frustrate
the policy decision that the Secretary made in promulgating
Standard 208. This decision, in their view, was that
safety-including a desire to encourage "public acceptance of the
airbag technology and experimentation with better passive restraint
systems" 17-would best be promoted
16 The Court contends, in essence, that a saving clause cannot
foreclose
implied conflict pre-emption.
Ante, at
873-874. The cases it cites to support that point, however, merely
interpreted the language of the particular saving clauses at issue
and concluded that those clauses did not foreclose implied
pre-emption; they do not establish that a saving clause in a given
statute cannot foreclose implied pre-emption based on frustration
of that statute's purposes, or even (more importantly for our
present purposes) that a saving clause in a given statute cannot
deprive a
regulation issued pursuant to that statute of any
implicit pre-emptive effect. See
United States v.
Locke,
ante, at 104-107;
International Paper Co. v.
Ouellette, 479
U. S. 481, 493 (1987) ("Given that the Act itself does not
speak directly to the issue, the Court must be guided by the goals
and policies of the Act in determining whether it in fact pre-empts
an action");
Chicago &
North Western Transp. Co.
v.
Kalo Brick &
Tile Co., 450 U. S. 311, 328, 331
(1981). As stated in the text, I believe the language of this
particular saving clause unquestionably limits, and possibly
forecloses entirely, the pre-emptive effect that safety standards
promulgated by the Secretary have on common-law remedies. See
Louisiana Pub. Servo Comm'n V.
FCC, 476 U. S. 355, 374
(1986). Under that interpretation, there is by definition no
frustration of federal purposes-that is, no "tolerat[ion of] actual
conflict,"
ante, at 874-when tort suits are allowed to go
forward. Thus, because there is a textual basis for concluding that
Congress intended to preserve the state law at issue, I think it
entirely appropriate for the party favoring pre-emption to bear a
special burden in attempting to show that valid federal purposes
would be frustrated if that state law were not pre-empted.
17166 F.3d 1236, 1243 (CADC 1999).
901
through gradual implementation of a passive restraint
requirement making airbags only one of a variety of systems that a
manufacturer could install in order to comply, rather than through
a requirement mandating the use of one particular system in every
vehicle. In its brief supporting Honda, the United States agreed
with this submission. It argued that if the manufacturers had known
in 1984 that they might later be held liable for failure to install
airbags, that risk "would likely have led them to install airbags
in all cars," thereby frustrating the Secretary's safety goals and
interfering with the methods designed to achieve them. Brief for
United States as
Amicus Curiae 25.
There are at least three flaws in this argument that provide
sufficient grounds for rejecting it. First, the entire argument is
based on an unrealistic factual predicate. Whatever the risk of
liability on a no-airbag claim may have been prior to the
promulgation of the 1984 version of Standard 208, that risk did not
lead any manufacturer to install airbags in even a substantial
portion of its cars. If there had been a realistic likelihood that
the risk of tort liability would have that consequence, there would
have been no need for Standard 208. The promulgation of that
standard certainly did not
increase the pre-existing risk of
liability. Even if the standard did not create a previously
unavailable pre-emption defense, it likely
reduced the
manufacturers' risk of liability by enabling them to point to the
regulation and their compliance therewith as evidence tending to
negate charges of negligent and defective design. See Part II,
supra. Given that the pre-1984 risk of liability did not
lead to widespread airbag installation, this reduced risk of
liability was hardly likely to compel manufacturers to install
airbags in all carsor even to compel them to comply with Standard
208 during the phase-in period by installing airbags
exclusively.
Second, even if the manufacturers' assessment of their risk of
liability ultimately proved to be wrong, the purposes of Standard
208 would not be frustrated. In light of the inevi-
902
table time interval between the eventual filing of a tort action
alleging that the failure to install an airbag is a design defect
and the possible resolution of such a claim against a manufacturer,
as well as the additional interval between such a resolution (if
any) and manufacturers' "compliance with the state-law duty in
question,"
ante, at 882, by modifying their designs to avoid
such liability in the future, it is obvious that the phase-in
period would have ended long before its purposes could have been
frustrated by the specter of tort liability. Thus, even without
pre-emption, the public would have been given the time that the
Secretary deemed necessary to gradually adjust to the increasing
use of airbag technology and allay their unfounded concerns about
it. Moreover, even if any no-airbag suits were ultimately resolved
against manufacturers, the resulting incentive to modify their
designs would have been quite different from a decision by the
Secretary to mandate the use of airbags in every vehicle. For
example, if the extra credit provided for the use of nonbelt
passive restraint technologies during the phase-in period had (as
the Secretary hoped) ultimately encouraged manufacturers to develop
a nonbelt system more effective than the airbag, manufacturers held
liable for failing to install passive restraints would have been
free to respond by modifying their designs to include such a system
instead of an airbag.18 It seems clear, therefore, that
any
18 The Court's failure to "understand [this point] correctly,"
ante, at 883, is directly attributable to its fundamental
misconception of the nature of duties imposed by tort law. A
general verdict of liability in a case seeking damages for
negligent and defective design of a vehicle that (like Ms. Geier's)
lacked any passive restraints does not amount to an immutable,
mandatory "rule of state tort law imposing ... a duty [to install
an airbag]."
Ante, at 881; see also
ante, at 871
(referring to verdict in commonlaw tort suit as a "jury-imposed
safety standard"). Rather, that verdict merely reflects the jury's
judgment that the manufacturer of a vehicle without any passive
restraint system breached its duty of due care by designing a
product that was not reasonably safe because a reasonable
alternative design-"including, but not limited to, airbags," App.
3-could
903
potential tort liability would not frustrate the Secretary's
desire to encourage both experimentation with better passive
restraint systems and public acceptance of airbags.
Third, despite its acknowledgment that the saving clause
"preserves those actions that seek to establish greater safety than
the minimum safety achieved by a federal regulation intended to
provide a floor,"
ante, at 870, the Court completely ignores
the important fact that by definition all of the standards
established under the Safety Act-like the British regulations that
governed the number and capacity of lifeboats aboard the
Titanic 19-impose minimum, rather than fixed or maximum,
requirements. 15 U. S. C. § 1391(2); see
Norfolk Southern R.
Co. v.
Shanklin, ante, at 359 (BREYER, J., concurring)
("[F]ederal
minimum safety standards should not pre-empt a
state tort action");
Hillsborough County v.
Automated
Medical Laboratories, Inc., 471 U. S. 707, 721
(1985). The phase-in program authorized by Standard 208 thus set
minimum percentage requirements for the installation of passive
restraints, increasing in annual stages of 10, 25, 40, and 100%.
Those requirements were not ceilings, and it is obvious that the
Secretary favored a more rapid increase. The possibility that
exposure to potential tort lia-
have reduced the foreseeable risks of harm posed by the product.
See Restatement (Third) of Torts: Products Liability § 2(b), and
Comment
d (1997); id., § 1, Comment
a (noting
that § 2(b) is rooted in concepts of both negligence and strict
liability). Such a verdict obviously does not foreclose the
possibility that more than one alternative design exists the use of
which would render the vehicle reasonably safe and satisfy the
manufacturer's duty of due care. Thus, the Court is quite wrong to
suggest that, as a consequence of such a verdict, only the
installation of airbags would enable manufacturers to avoid
liability in the future.
19Statutory Rules and Orders 1018-1021, 1033 (1908). See Nader
& Page, Automobile-Design Liability and Compliance with Federal
Standards, 64 Geo. Wash. L. Rev. 415, 459 (1996) (noting that the
Titanic "complied with British governmental regulations
setting minimum requirements for lifeboats when it left port on its
final, fateful voyage with boats capable of carrying only about
[half] of the people on board"); W. Wade, The
Titanic: End
of a Dream 68 (1986).
904
bility might accelerate the rate of increase would actually
further the only goal explicitly mentioned in the standard itself:
reducing the number of deaths and severity of injuries of vehicle
occupants. Had gradualism been independently important as a method
of achieving the Secretary's safety goals, presumably the Secretary
would have put a ceiling as well as a floor on each annual increase
in the required percentage of new passive restraint installations.
For similar reasons, it is evident that variety was not a matter of
independent importance to the Secretary. Although the standard
allowed manufacturers to comply with the minimum percentage
requirements by installing passive restraint systems other than
airbags (such as automatic seatbelts), it encouraged them to
install airbags and other nonbelt systems that might be developed
in the future. The Secretary did not act to ensure the use of a
variety of passive restraints by placing ceilings on the number of
airbags that could be used in complying with the minimum
requirements.20 Moreover, even if variety and gradualism had been
independently important to the Secretary, there is nothing in the
standard, the accompanying commentary, or the history of airbag
regulation to support the notion that the Secretary intended to
advance those purposes at all costs, without regard to the
detrimental consequences that pre-emption of tort liability could
have for the achievement of her avowed purpose of reducing
vehicular injuries. See
Silkwood v.
Kerr-McGee Corp.,
464 U. S., at 257.
My disagreement with Honda and the Government runs deeper than
these flaws, however. In its brief, the Government concedes that
"[a] claim that a manufacturer should have chosen to install
airbags rather than another type of
20 Of course, allowing a suit like petitioners' to proceed
against a manufacturer that had installed no passive restraint
system in a particular vehicle would not even arguably pose an
"obstacle" to the auto manufacturers' freedom to choose among
several different passive restraint device options. Cf.
ante, at 878, 881.
905
passive restraint in a certain model of car because of other
design features particular to that car ... would not necessarily
frustrate Standard 208's purposes." Brief for United States as
Amicus Curiae 26, n. 23.21 Petitioners' claims here are
quite similar to the claim described by the Government: their
complaint discusses other design features particular to the 1987
Accord (such as the driver's seat) that allegedly rendered it
unreasonably dangerous to operate without an airbag. App. 4-5. The
only distinction is that in this case, the particular 1987 Accord
driven by Ms. Geier included no passive restraint of any kind
because Honda chose to comply with Standard 208's 10% minimum
requirement by installing passive restraints in other 1987 models.
I fail to see how this distinction makes a difference to the
purposes of Standard 208, however. If anything, the type of claim
favored by the Government-e.
g., that a particular model of
car should have contained an airbag instead of an automatic
seatbelt-would seem to trench even more severely upon the purposes
that the Government and Honda contend were behind the promulgation
of Standard 208: that having a variety of passive restraints,
rather than only airbags, was necessary to promote safety. Thus, I
conclude that the Government, on the Secretary's behalf, has failed
to articulate a coherent view of the policies behind Standard 208
that would be frustrated by petitioners' claims.
v
For these reasons, it is evident that Honda has not crossed the
high threshold established by our decisions regarding
21 Compare
ante, at 881 (disagreeing with Government's
view by concluding that tort-law duty "requir[ing] manufacturers of
all similar cars to install airbags rather than other passive
restraint systems ... would [present] an obstacle to the variety
and mix of devices that the federal regulation sought"), with
ante, at 883, 885 (noting that "the agency's own views
should make a difference," but contending that the above-quoted
Government view is
"not at issue here").
906
pre-emption of state laws that allegedly frustrate federal
purposes: it has not demonstrated that allowing a commonlaw
no-airbag claim to go forward would impose an obligation on
manufacturers that directly and irreconcilably contradicts any
primary objective that the Secretary set forth with clarity in
Standard 208.
Gade v.
National Solid Wastes Management
Assn., 505 U. S., at 110 (KENNEDY, J., concurring in part and
concurring in judgment);
id., at 111 ("A freewheeling
judicial inquiry into whether [state law] is in tension with
federal objectives would undercut the principle that it is Congress
[and federal agencies,] rather than the courts[,] that pre-emp[t]
state law"). Furthermore, it is important to note that the text of
Standard 208 (which the Court does not even bother to quote in its
opinion), unlike the regulation we reviewed in
Fidelity Fed.
Sav. &
Loan Assn. v.
De la Cuesta, 458 U. S.,
at 158, does not contain any expression of an intent to displace
state law. Given our repeated emphasis on the importance of the
presumption against pre-emption, see,
e. g., CSX Transp.,
Inc. v.
Easterwood, 507 U. S., at 663-664;
Rice
v.
Santa Fe Elevator Corp., 331 U. S. 218, 230
(1947), this silence lends additional support to the conclusion
that the continuation of whatever common-law liability may exist in
a case like this poses no danger of frustrating any of the
Secretary's primary purposes in promulgating Standard 208. See
Hillsborough County v.
Automated Medical Laboratories,
Inc., 471 U. S., at 721;
Silkwood v.
Kerr-McGee
Corp., 464 U. S., at 251 ("It is difficult to believe that [the
Secretary] would, without comment, remove all means of judicial
recourse for those injured by illegal conduct").
The Court apparently views the question of pre-emption in this
case as a close one.
Ante, at 883 (relying on Secretary's
interpretation of Standard 208's objectives to bolster its finding
of pre-emption). Under "ordinary experienceproved principles of
conflict pre-emption,"
ante, at 874, therefore, the
presumption against pre-emption should control. Instead, the Court
simply ignores the presumption,
907
preferring instead to put the burden on petitioners to show that
their tort claim would not frustrate the Secretary's purposes.
Ante, at 882 (noting that petitioners' arguments "cannot, by
themselves, change the legal result"). In view of the important
principles upon which the presumption is founded, however,
rejecting it in this manner is profoundly unwise.
Our presumption against pre-emption is rooted in the concept of
federalism. It recognizes that when Congress legislates "in a field
which the States have traditionally occupied ... [,] we start with
the assumption that the historic police powers of the States were
not to be superseded by the Federal Act unless that was the clear
and manifest purpose of Congress."
Rice v.
Santa Fe
Elevator Corp., 331 U. S., at 230; see
Jones v.
Rath
Packing Co., 430
U. S. 519, 525 (1977). The signal virtues of this presumption
are its placement of the power of pre-emption squarely in the hands
of Congress, which is far more suited than the Judiciary to strike
the appropriate state/federal balance (particularly in areas of
traditional state regulation), and its requirement that Congress
speak clearly when exercising that power. In this way, the
structural safeguards inherent in the normal operation of the
legislative process operate to defend state interests from undue
infringement.
Garcia v.
San Antonio Metropolitan Transit
Authority, 469 U.
S. 528, 552 (1985); see
United States v.
Morrison,
ante, at 660-663 (BREYER, J., dissenting);
Kimel v.
Florida Bd. of Regents, 528 U. S. 62, 93-94 (2000)
(STEVENS, J., dissenting);
Allied-Bruce Terminix Coso v.
Dobson, 513 U.
S. 265, 292-293 (1995) (THOMAS, J., dissenting);
Gregory
v.
Ashcroft, 501 U. S. 452, 460-464
(1991). In addition, the presumption serves as a limiting principle
that prevents federal judges from running amok with our potentially
boundless (and perhaps inadequately considered) doctrine of implied
conflict pre-emption based on frustration of purposes-i.
e.,
that state law is pre-empted if it "stands as an obstacle to the
accomplishment and execu-
908
tion of the full purposes and objectives of Congress."
Hines
While the presumption is important in assessing the preemptive
reach of federal statutes, it becomes crucial when the pre-emptive
effect of an administrative regulation is at issue. Unlike
Congress, administrative agencies are clearly not designed to
represent the interests of States, yet with relative ease they can
promulgate comprehensive and detailed regulations that have broad
pre-emption ramifications for state law. We have addressed the
heightened federalism and nondelegation concerns that agency
pre-emption raises by using the presumption to build a procedural
bridge across the political accountability gap between States and
administrative agencies. Thus, even in cases where implied
regulatory pre-emption is at issue, we generally "expect an
administrative regulation to declare any intention to pre-empt
state law with some specificity." 23
California Coastal
22 Recently, one commentator has argued that our doctrine of
frustration-of-purposes (or "obstacle") pre-emption is not
supported by the text or history of the Supremacy Clause, and has
suggested that we attempt to bring a measure of rationality to our
pre-emption jurisprudence by eliminating it. Nelson, Preemption, 86
Va. L. Rev. 225, 231-232 (2000) ("Under the Supremacy Clause,
preemption occurs if and only if state law contradicts a valid rule
established by federal law, and the mere fact that the federal law
serves certain purposes does not automatically mean that it
contradicts everything that might get in the way of those
purposes"). Obviously, if we were to do so, there would be much
less need for the presumption against pre-emption (which the
commentator also criticizes). As matters now stand, however, the
presumption reduces the risk that federal judges will draw too
deeply on malleable and politically unaccountable sources such as
regulatory history in finding pre-emption based on frustration of
purposes.
23 The Court brushes aside our specificity requirement on the
ground that the cases in which we relied upon it were not cases of
implied conflict pre-emption.
Ante, at 884. The Court is
quite correct that
Hillsborough County v.
Automated
Medical Laboratories, Inc., 471 U. S. 707 (1985), and
California Coastal Comm'n v.
Granite Rock Co.,
480 U. S. 572
(1987), are cases in which field pre-emption, rather than conflict
pre-emption, was at issue. This distinction, however, does not take
the Court as far as it
909
Comm'n v.
Granite Rock Co., 480 U. S. 572, 583
(1987); see
Hillsborough County v.
Automated Medical
Laboratories, Inc., 471 U. S., at 717-718 (noting that too
easily implying pre-emption "would be inconsistent with the
federal-state balance embodied in our Supremacy Clause
jurisprudence," and stating that "because agencies normally address
problems in a detailed manner and can speak through a variety of
means, including regulations, preambles, interpretive statements,
and responses to comments, we can expect that they will make their
intentions clear if they intend for their regulations to be
exclusive");
Fidelity Fed. Sav. &
Loan Assn. v.
De la Cuesta, 458 U. S., at 154 (noting that preemption
inquiry is initiated "[w]hen the administrator promulgates
regulations intended to pre-empt state law"). This expectation,
which is shared by the Executive Branch,24 serves to ensure that
States will be able to have a dialog
would like. Our cases firmly establish that conflict and field
pre-emption are alike in that both are instances of implied
pre-emption that by definition do "not [turn] on an express
statement of pre-emptive intent."
Ante, at 884; see,
e.
g., Freightliner Corp. v.
Myrick, 514 U. S. 280, 287 (1995)
(quoted
supra, at 899);
English v.
General Elec.
Co., 496 U. S.
72, 79-80, and n. 5 (1990) (noting that field pre-emption rests
on an inference of congressional intent to exclude state regulation
and that it "may be understood as a species of conflict
pre-emption");
Fidelity Fed. Sav. & Loan
Assn. v.
De la Cuesta, 458 U. S. 141, 153
(1982). Given that our specificity requirement was adopted in cases
involving implied preemption, the Court cannot persuasively claim
that the requirement is incompatible with our implied pre-emption
jurisprudence in the federal regulatory context.
24See Exec. Order No. 12612, §4(e), 3 CFR 252, 255 (1988) ("When
an Executive department or agency proposes to act through
adjudication or rule-making to preempt State law, the department or
agency shall provide all affected States notice and an opportunity
for appropriate participation in the proceedings"); Exec. Order No.
13132, §4(e), 64 Fed. Reg. 43255, 43257 (1999) (same); cf.
Medtronic, Inc. v.
Lohr, 518 U. S. 470, 496 (1996)
(discussing 21 CFR § 808.5 (1995), an FDA regulation allowing a
State to request an advisory opinion regarding whether a particular
state-law requirement is pre-empted, or exempt from pre-emption,
under the Medical Device Amendments of 1976).
910
with agencies regarding pre-emption decisions
ex ante
through the normal notice-and-comment procedures of the
Administrative Procedure Act (APA), 5 U. S. C. § 553.
When the presumption and its underpinnings are properly
understood, it is plain that Honda has not overcome the presumption
in this case. Neither Standard 208 nor its accompanying commentary
includes the slightest specific indication of an intent to pre-empt
common-law no-airbag suits. Indeed, the only mention of such suits
in the commentary tends to suggest that they would not be
pre-empted. See n. 5,
supra. In the Court's view, however,
"[t]he failure of the Federal Register to address pre-emption
explicitly is ... not determinative,"
ante, at 884, because
the Secretary's consistent litigating position since 1989, the
history of airbag regulation, and the commentary accompanying the
final version of Standard 208 reveal purposes and objectives of the
Secretary that would be frustrated by no-airbag suits. Preempting
on these three bases blatantly contradicts the presumption against
pre-emption. When the 1984 version of Standard 208 was under
consideration, the States obviously were not afforded any notice
that purposes might someday be discerned in the history of airbag
regulation that would support pre-emption. Nor does the Court claim
that the notice of proposed rulemaking that led to Standard 208
provided the States with notice either that the final version of
the standard might contain an express pre-emption provision or that
the commentary accompanying it might contain a statement of
purposes with arguable pre-emptive effect. Finally, the States
plainly had no opportunity to comment upon either the commentary
accompanying the final version of the standard or the Secretary's
ex post litigating position that the standard had implicit
pre-emptive effect.
Furthermore, the Court identifies no case in which we have
upheld a regulatory claim of frustration-of-purposes implied
conflict pre-emption based on nothing more than an
ex post
administrative litigating position and inferences from
911
regulatory history and final commentary. The latter two sources
are even more malleable than legislative history. Thus, when
snippets from them are combined with the Court's broad conception
of a doctrine of frustration-ofpurposes pre-emption untempered by
the presumption, a vast, undefined area of state law becomes
vulnerable to preemption by any related federal law or regulation.
In my view, however, "preemption analysis is, or at least should
be, a matter of precise statutory [or regulatory] construction
rather than an exercise in free-form judicial policymaking." 1 L.
Tribe, American Constitutional Law § 6-28, p. 1177 (3d
ed.2000).
As to the Secretary's litigating position, it is clear that "an
interpretation contained in a [legal brief], not one arrived at
after, for example, a formal adjudication or notice-andcomment
rulemaking[,] ... do[es] not warrant
Chevron-style
deference."
Christensen v.
Harris County, ante, at
587. Moreover, our pre-emption precedents and the AP A establish
that even if the Secretary's litigating position were coherent, the
lesser deference paid to it by the Court today would be
inappropriate. Given the Secretary's contention that he has the
authority to promulgate safety standards that pre-empt state law
and the fact that he could promulgate a standard such as the one
quoted
supra, at 887, with relative ease, we should be quite
reluctant to find preemption based only on the Secretary's informal
effort to recast the 1984 version of Standard 208 into a
pre-emptive mold.25 See
Hillsborough County v.
Automated
Medical
25 The cases cited by the Court,
ante, at 883, are not to
the contrary. In
City of New York v.
FCC, 486 U. S. 57 (1988), for
example, we were faced with Federal Communications Commission
regulations that explicitly "reaffirmed the Commission's
established policy of pre-empting local regulation of technical
signal quality standards for cable television."
Id., at 62,
65. It was only in determining whether the issuance of such
regulations was a proper exercise of the authority delegated to the
agency by Congress that we afforded a measure of deference to the
agency's interpretation of that authority, as
formally
expressed through its explicitly pre-
912
Laboratories, Inc., 471 U. S., at 721; cf.
Medtronic,
Inc. v.
Lohr, 518 U. S., at 512 (O'CONNOR, J.,
concurring in part and dissenting in part) ("It is not certain that
an agency regulation determining the pre-emptive effect of
any federal statute is entitled to deference");
Smiley v.
Citibank (South Dakota), N.
A.,
517 U. S. 735,
743-744 (1996). Requiring the Secretary to put his pre-emptive
position through formal notice-and-comment rulemaking-whether
contemporaneously with the promulgation of the allegedly
pre-emptive regulation or at any later time that the need for
pre-emption becomes apparent 26-respects both the federalism and
nondelegation principles that underlie the presumption against
pre-emption in the regulatory context and the AP A's requirement of
new rulemaking when an agency substantially modifies its
interpretation of a regulation. 5 U. S. C. § 551(5);
Paralyzed
Veterans of America v.
D. C.
Arena L. P.,
117 F.3d
579, 586
(CADC 1997);
National Family Planning
&
Reproductive Health Assn. v.
Sullivan, 979 F.
2d 227, 240
(CADC 1992).
***
Because neither the text of the statute nor the text of the
regulation contains any indication of an intent to pre-empt
emptive regulations.
Id., at 64; see also
Capital
Cities Cable, Inc. v.
Crisp, 467 U. S. 691, 700-705
(1984) (regulation);
Fidelity Fed. Sav. &
Loan
Assn. v.
De la Cuesta, 458 U. S., at 158-159
(regulation);
Blum v.
Bacon, 457 U. S. 132, 141-142
(1982) (Action Transmittal by Social Security Administration);
Chicago &
North Western Transp. Co. v.
Kalo
Brick &
Tile Co., 450 U. S., at 327 (order of
Interstate Commerce Commission);
United States v.
Shimer, 367 U.
S. 374,377 (1961) (regulation). I express no opinion on whether
any deference would be appropriate in any of these situations, but
merely observe that such situations are not presented here.
26 Hillsborough County v.
Automated Medical
Laboratories, Inc., 471 U. S., at 721 (noting that agency "can
be expected to monitor, on a continuing basis, the effects on the
federal program of local requirements" and to promulgate
regulations pre-empting local law that imperils the goals of that
program).
913
petitioners' cause of action, and because I cannot agree with
the Court's unprecedented use of inferences from regulatory history
and commentary as a basis for implied pre-emption, I am convinced
that Honda has not overcome the presumption against pre-emption in
this case. I therefore respectfully dissent.
914
The next page is purposely numbered 1001. The numbers between
913 and 1001 were intentionally omitted, in order to make it
possible to publish the orders with
permanent page numbers,
thus making the official citations available upon publication of
the preliminary prints of the United States Reports.
915
MARCH 1,2000 Dismissal Under Rule 46
No. 99-423. ALSBROOK
V. ARKANSAS ET AL. C. A. 8th Cir.
[Certiorari granted, 528 U. S. 1146.] Writ of certiorari dismissed
under this Court's Rule 46.1.
Miscellaneous Orders
No. 99-1240. BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA ET
AL.
V. GARRETT ET AL. C. A. 11th Cir. Joint motion of the
parties to expedite consideration of petition for writ of
certiorari denied.
No. 99-8449 (99A696). IN RE BARNES. Application for stay of
execution of sentence of death, presented to JUSTICE SCALIA, and by
him referred to the Court, denied. Petition for writ of habeas
corpus denied.
MARCH 2, 2000
Miscellaneous Order
No. 99-8473 (99A711). IN RE WRIGHT. Application for stay of
execution of sentence of death, presented to JUSTICE KENNEDY, and
by him referred to the Court, denied. Petition for writ of habeas
corpus denied. JUSTICE STEVENS, JUSTICE SOUTER, JusTICE GINSBURG,
and JUSTICE BREYER would grant the application for stay of
execution and set the case for oral argument.
Certiorari Denied
No. 99-8472 (99A710). WRIGHT
V. ALABAMA. Sup. Ct.
Ala.
Application for stay of execution of sentence of death,
presented to JUSTICE KENNEDY, and by him referred to the Court,
denied. Certiorari denied. Reported below: 766 So. 2d 215.
MARCH 6, 2000
Certiorari Dismissed
No. 99-7695. ASHIEGBU
V. PURVIANCE ET AL. C. A. 6th
Cir.
Motion of petitioner for leave to proceed
in forma
pauperis de1001
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