Argument recap: Shoulder belts are like airbags – or not?

At yesterday’s oral argument of the automobile preemption case, Williamson v. Mazda, the Court (with Justice Kagan recused), struggled with whether a two-part administrative record provided a sufficient basis to support preemption of state-law product liability claims.  At issue was whether a lack of shoulder belts at certain rear interior seats – permitted but not required by the 1989 version of Federal Motor Vehicle Standard 208 – could be a product defect under state law, without conflicting with the federal regulation.

The enabling statute only authorized “minimum” standards and contained a savings clause.  The regulation was the product of a balancing of feasibility and safety concerns.  The issue of child safety had been key in 1984, but technological advances reduced the salience of that issue by 1989.  Cost remained a primary concern, as did feasibility, given the difficulty of anchoring shoulder belts in middle seats in ways that did not obstruct passenger movement, particularly after an accident.  Before the accident, however, one manufacturer had begun installing shoulder strap seat belts in middle seats.

Crucial to the ultimate decision will be how today’s Court views the scope of a ten-year-old, five-four decision, Geier v. American Honda Motor Co. (2000), holding that an earlier version of FMVSS 208 preempted product liability claims relating to air bags.  In Geier, but not in Williamson, the United States government had supported preemption on the ground that allowing the state-law claims would conflict with agency objectives.

Thus, during Williamson, the United States, represented by Assistant Solicitor General William Jay, argued in support of petitioners that there was no preemption.  The Agency never “wished for the adoption of Type 2 seatbelts [those with shoulder straps] not to happen.”  While Chief Justice Roberts pointed out that the agency’s cost worries would be overridden or ignored by common-law juries, Mr. Jay argued that cost was only enough to avoid an immediate  regulatory mandate.

The government’s position and how much deference to afford it, was another central point.  The deference issue led to strange bedfellow arguments, with the petitioners relying on Geier and Mazda upon Wyeth v. Levine (2009), despite the adverse substantive result of both cases to their respective positions.  Justices Ginsburg and Sotomayor questioned whether there was anything in the administrative record, especially by 1989, indicating that something more than a non-preemptive “minimum” standard was intended.  Justice Breyer expressed frustration that the administrative record was silent on preemption.  Justice Sotomayor asked both sides what an administrative record should contain to support preemption.

Martin Buchanan, arguing for the petitioners (plaintiffs below) distinguished the outcome in Geier on the basis of the administrative record, arguing that Geier involved a conscious decision to give manufacturers a choice between specified options, establishing an affirmative governmental decision to encourage development of multiple systems.  The present record evidenced no such decision, and the government denied that there was one.

Mr. Buchanan’s answers to several questions posed by Justice Scalia made clear that the shoulder belt claim was unique to the car at issue.  Any other jury would be free to reach a different conclusion that a different restraint system should have been installed in some other vehicle.  Justice Kennedy drove the point home, obtaining Mr. Buchanan’s reluctant concession that other plaintiffs could bring diametrically opposed theories – that shoulder belts were defective because they were less safe in certain situations than lap belts.  Mr. Buchanan distinguished between conflicting verdicts and a conflict with the federal scheme.  Only the latter, he claimed was relevant to preemption.

Also in response to Justice Kennedy, Mr. Buchanan argued that intent controlled whether state-law foreclosure of a choice granted by a federal regulation was preempted.  This statute intentionally imposed only minimum standards, which were not preemptive even when a choice was foreclosed.  Prompted further by Justice Ginsburg, Buchanan argued that Geier did not involve a minimum standard, given the wording of that part of FMVSS 208 and its administrative history.  Further, a statutory savings clause meant that Congress had considered and discounted the possibility of conflicting jury verdicts.

After his own discussion of regulatory history, Justice Alito asked Mr. Jay whether Geier applied to anything other than the airbag claim the Court had decided in that case.  The government’s position was that Geier, while not “good for that day only,” represented an “extraordinary” and “exceptional” rulemaking, where compliance was deliberately phased.  No such exceptional circumstances were present in the case here.

Gregory Garre, of Latham & Watkins, argued on behalf of Mazda.  Justice Sotomayor immediately asked him to distinguish this case from any other minimum standard under the statute.  He responded that minimum standards only set performance levels and do not give options.  This case was different because the government twice conducted a risk-benefit analysis and declined to mandate shoulder belts.

Mr. Garre had to contend with the government’s position as well.  He argued that the Geier regulatory record was so clear that the agency’s position made no difference.  That triggered a response from Justice Breyer, the author of Geier.  The Justice countered that the Solicitor General, in regular communication with affected federal agencies, is more likely as a practical matter to understand what they really intend when, as here, the administrative record does not indicate that the government considered disparate tort obligations.

Questioning by Justices Sotomayor and Ginsburg touched off spirited debate with Mr. Garre over whether the regulatory “option” concerning shoulder strap seat belts differed from the statutory default of minimum standards, and how the administrative record was sufficient to support Mazda’s distinctions.  The Chief Justice helped out a bit by providing counsel with an opportunity to explain the precise nature of the regulation and the manner in which its accompanying administrative process established that more than a minimum performance standard was intended.

In rebuttal, Mr. Buchanan emphasized that state tort law provided an incentive to exceed what were minimum standards, and he argued that Wyeth v. Levine established that federal authority was not exclusive.  He emphasized that unlike Levine, the present statute specified “minimum” standards and contained an express saving clause.