By Annie Decker, Visiting Assistant Professor, Benjamin H. Cardozo School of Law.
On November 3, the Supreme Court heard oral argument in Williamson v. Mazda Motor of America. This case ties another important knot in the string of cases addressing when state tort claims can survive federal preemption challenges.
1. What Question for Preemption Doctrine Does Williamson Pose?
The overarching - and unresolved - preemption question that emerged from the pack on Wednesday was whether and when an agency's decision to give manufacturers a choice between two or more options means that the agency intended to preserve manufacturers' freedom of choice to the extent that manufacturers had immunity from state tort claims challenging whatever choice the manufacturers ended up making. On the other hand, when does an agency's decision to establish minimum standards in the form of options not signal its intent to preempt subsequent state tort claims arguing that manufacturers made the unreasonable choice among those options?
2. The Facts
The potentially preemptive federal law here is a 1989 regulation that the National Highway Traffic Safety Administration promulgated as a "minimum standard" pursuant to the National Traffic and Motor Vehicle Safety Act of 1966. Instead of setting a single standard, the NHTSA gave car manufacturers two options for installing seatbelts in certain specified positions: The first option was to install a lap-only belt, and the second was to install a full lap and shoulder belt assembly.
Mazda chose to put only a lap belt in the minivan seat occupied by Thanh Williamson, who died of internal injuries after jackknifing over the belt during a head-on collision. Her husband and daughter - who were in the car in seats that had shoulder belts -survived and sued Mazda on her behalf. They asserted that Mazda should have installed the shoulder/lap belt combination, primarily alleging defective design but attaching associated claims, such as failure to warn.
Martin Buchanan, a San Diego attorney, argued for the Petitioners, the Williamsons. William Jay argued on behalf of the U.S. Solicitor General as amicus curiae in support of the Williamsons. Gregory G. Garre, a partner at Latham & Watkins, argued for Mazda, the Respondent.
3. What Type of Preemption Is Mazda Arguing Applies Here?
Preemption doctrine is generally broken into two categories: express and implied. Mazda cannot argue that the Motor Vehicle Safety Act or its regulations expressly preempt the Williamsons' litigation. While the Act has an express preemption clause, it also contains a strong so-called savings clause that preserves state tort claims: "Compliance with a motor vehicle safety standard prescribed under this chapter," Congress mandated, "does not exempt a person from liability at common law."
Seeking to go beyond the reach of that savings clause, Mazda therefore is relying on implied preemption doctrine to argue that the Williamsons' tort claim is barred. Among the various types of implied preemption, Mazda is relying on the strand known as "obstacle preemption." Obstacle preemption lets federal statutes and regulations trump state or local acts that obstruct the accomplishment of important federal objectives. This strand led Honda to victory in the Supreme Court decision most relevant here, Geier v. American Honda Motor Company, as discussed more below.
4. Into the Oral Argument Weeds
The broad question outlined above provoked the Justices to tussle with the several interrelated questions.
a. What Federal Objectives Are at Stake?
The first major question was what federal objectives would suffer an actual conflict if the Williamsons' tort claim went ahead.
Garre argued for Mazda that the NHTSA's 1989 regulation had the overarching objective of giving manufacturers "flexibility." Concerned about the costs and feasibility of mandating shoulder belts at the time, he asserted, the agency had created a scheme resembling for all intents and purposes the scheme that the Court held had preemptive force in Geier. In Geier, the Court agreed with the NHTSA that its 1984 regulations governing "passive restraints"- such as airbags and automatic seatbelts - sought to preserve manufacturers' options to choose from various types of restraints and to protect them from common law liability for choosing one option over another, with the longer term goals of encouraging innovation and phasing in change slowly.
Justice Ginsburg pushed back: "there is no such statement" in the record that the agency intended to preserve flexibility, she observed. Similarly, Jay asserted that, unlike in Geier, "in this case NHTSA would have been perfectly happy if every manufacturer had installed Type 2 seatbelts the day after the 1989 rulemaking." (And, as Buchanan had noted, many of the feasibility arguments that the Respondent made related more to liability issues - which a jury could decide - than to the preemption question.)
Justice Roberts repeatedly named cost containment as the NHTSA's major objective in refusing to mandate shoulder belts for all seat positions. Garre strengthened that position by linking cost savings to the agency's safety objectives: "requiring these kind[s] of overly costly measures created a lost opportunity to improve safety through other means." Jay responded to the costs arguments by noting that deciding not to mandate a given technology for cost reasons did not equal preemption. More generally, the NHTSA's regulatory choices did not reflect any federal objective that a state tort suit would obstruct. The Respondents "must show that, as Geier makes clear, . . . the State law rule of decision would pose a conflict with an articulable Federal policy. They haven't shown that here." Justice Ginsburg made the same point several times. And Justice Breyer agreed that he could not find anything in the record that "says that the agency really wanted a mix of options."
b. How Do We Know the Difference Between Preemptive and Non-Preemptive Options?
Second, the Justices struggled with the question of how courts are supposed to know whether an agency merely is identifying non-preemptive manufacturing options as minimal standards or instead is seeking to create a flexible scheme that preempts state tort claims.
Justice Sotomayor probed Garre's suggestion that, by not mandating anything other than two options, the NHTSA sought to preclude any such mandate obtained through a tort suit. "[B]ut that's always the case when the agency sets a minimum," she responded: "I'm still not sure why creating an option is any different than the minimum." Justice Roberts switched sympathies at this point, asking Garre, "how do you tell whether an agency is giving options" (presumably meaning ones with preemptive force) "or simply setting a minimum?" "Because a minimum," he continued, "of course, always gives you options" too. Garre responded that, first, one looks to see if the agency provided an express option for design (which he acknowledged will be rare), and if so, then you look to the agency's statements and commentary.
Justice Breyer expressed his frustration that agencies did not state their intent more clearly: "It's so easy [for agencies] to say that, but I haven't found agencies saying it. I don't know why." He similarly noted that, while tort suits are "a huge problem for manufacturers," "[i]f the agency wants to displace those tort suits[,] often, all they have to do is say that the purpose is something like [what Garre was] saying and that they are intended to be displaced."
c. What Degree of Deference Is Due to the NHTSA Here?
Third, the Justices asked what kind of deference, if any, they should give to the agency's litigation position here, as argued by the SG, that it did not intend to preempt tort suits such as the Williamsons'.
The NHTSA is taking a strong position in Williamson that it did not intend to immunize manufacturers when it crafted minimum standards in the form of choices. This position completes a 180-degree turn from its pro-preemption stance in Geier. Justice Ginsburg stated during argument that the Court should give the same weight to the agency's position here that it did in Geier. Justice Breyer agreed, correcting Garre's assertion that in Geier the agency opinion did not make a difference. "Who is most likely to know what 40,000 pages of agency record actually mean and say?" Justice Breyer asked. "People in the agency. And the second most likely is the SG's office." Garre's fallback response received no reply, which was that the Court does not always agree with the agency, as Wyeth v. Levine showed.
Justice Alito was the only one to question the agency's litigation position. He asked why the NHTSA had been silent for a decade while the lower courts had applied Geier in a manner inconsistent with the agency's position. Jay responded that the agency did not typically participate in private litigation involving state common law claims unless invited to give an opinion. Justice Alito exhibited further skepticism by asking whether the agency position was truly principled - would it instead argue that a suit based on an injury under a Type 2 (shoulder/lap) belt would be preempted, unlike an injury such as the one to Thanh Williamson that was linked to a lap-only belt? Jay answered that the agency would reach the same non-preemption conclusion. No other Justices followed up on Mazda's argument in its briefs that the NHTSA had changed its position because of "shifting political tides."
5. Counting Justices
The Court's preemption decisions are notable for not always fracturing predictably along political lines. For example, federalism concerns might sway certain Justices against preemption, while business uniformity considerations might urge the same Justices toward preemption. After oral argument, Prof. William Funk's prediction on this blog still seems reasonable: The outcome might split 5-3 in favor of the Williamsons, limiting Geier to its facts, with Justices Breyer, Ginsburg, Kennedy, Sotomayor, and Thomas voting against preemption and Chief Justice Roberts and Justices Alito and Scalia voting for it. (Justice Kagan is recused because she participated in the SG's amicus brief.)
But the Justices' questions at oral argument could, if anything, suggest an even broader spread. While Justice Alito challenged the SG on its silence over the past decade, perhaps indicating an inclination to give less deference to the agency's anti-preemption litigation position here, his questions were not otherwise terribly hostile to the Petitioners' case. Justice Scalia's questions might have contained an anti-tort-lawyer barb (he was asking why Congress would have preempted state regulation but not state tort suits, and then supplied his own answer: that "lawyers bring suits before - before juries, maybe"), but his questions posed to each side ranged from the sympathetic to the unsympathetic. Justice Kennedy, however, might not fall on the side that Funk predicted; Kennedy targeted Buchanan for questions, primarily pushing on the consistency of the Petitioners' preemption theory and on the implications of the agency giving manufacturers a choice of options.