William H. Rehnquist: We'll hear argument now in Number 94-286, Freightliner Corporation v. Ben Myrick. Mr. Fried.
Charles Fried: Thank you, Mr. Chief Justice, and may it please the Court: In these two consolidated cases, the Eleventh Circuit overruled its own prior decision in Taylor v. General Motors, an airbags case, to hold that conflict preemption may not be implied under the Safety Act. Thereby, it reversed grants of summary judgment in two district courts below and allowed the plaintiffs, the respondents here, to claim that under Georgia tort law it may be claimed to be a design defect for manufacturers not to incorporate antilock devices in their airbrake systems. Though the First, Third, and Tenth Circuits, like the Eleventh Circuit, had held previously that conflict preemption may be implied under the Safety Act, the Eleventh Circuit believed that this Court's decision in Cipollone v. Liggett Group required a different rule because there had been express attention to the subject of preemption in the act, thereby virtually foreclosing any further inquiry into implied or conflict preemption. We believe that is wrong, and that express preemption does not virtually foreclose inquiry into implied preemption. We also believe that it is wrong to say that section 39... 1397 saves inconsistent State law, including tort law. Before explaining why there is indeed an incompatibility here between allowing a Georgia jury to find a design defect and the Safety Act, I'd like to say just one very brief word about why the Eleventh Circuit rule is surely incorrect. If that rule were correct, then it would compel Congress, every time it legislates, to add a "we mean it" clause, a clause which says, and, of course, we preempt all inconsistent and incompatible State law. Such a boilerplate clause would add nothing to the Supremacy Clause, nor would it subtract anything from the burdens on this Court, the task of this Court, in determining what State laws are and are not incompatible.
Sandra Day O'Connor: Mr. Fried, even if we accept your position on that, we have here an express preemption clause, as I understand it, and it preempts State standards applicable to a particular aspect of performance addressed by a Federal standard that is in effect, and as I understand it, there is no Federal standard in effect now on antilock brakes, and how can there be express preemption? How do we even get that far?
Charles Fried: Well, there--
Sandra Day O'Connor: There just isn't a Federal standard.
Charles Fried: --That is the contention principally urged by the Solicitor General, and we believe that is incorrect. The case which most compelling is brought to mind was actually cited by respondents' amici ATLA. That's the Ilsa Petroleum case, in which this Court said that a preempted inference is not to be drawn by inaction alone, to be sure, but from inaction joined with action, and what I'd like to do is indicate to you that there was in this case both action and inaction, and that those two together in fact constitute a Federal determination that it is dangerous... not simply unwarranted, but dangerous, or potentially dangerous, to require the incorporation of antilock brakes in... antilock devices in airbrake systems.
Sandra Day O'Connor: Mr. Fried-- --Well, if the Federal Government had never had any regulation in effect at all dealing with antilock brakes, would there be any reason to think the express preemption clause is invoked here?
Charles Fried: There would not. That would not, but that--
Sandra Day O'Connor: And you rely on the history of what happened, I gather.
Charles Fried: --No. We rely on the history, but also on the text of the present standard 121. It's the Solicitor General who asks us to read 121 as if the subject of antilock devices had not been addressed, but that is simply wrong. The subject is addressed. It's addressed in two places in the present standard. It is addressed first--
Ruth Bader Ginsburg: Mr. Fried, why shouldn't we accept the administrator's determination of what the status of regulation is? If your reading is plausible, and their reading is plausible, and they are telling us that the expert administrator says, in effect, there is no Federal standard, why don't we owe that position deference?
Charles Fried: --the administrator is owed deference because of the administrator's expertise. The administrator has expertise in safety matters. That expertise led the administrator to conclude in 1978 and before, that it is safe and required... and appropriate to require antilock devices. That judgment was reversed. That judgment was rejected by the courts, and certiorari was granted here. I believe that at that point any deference due to the administrator was exhausted. The administrator--
Antonin Scalia: Mr. Fried, I just don't think that's true, that we only accord deference to agency officials in their areas of expertise. We certainly accord deference to an agency officer as to the meaning of that agency's regulation. Now, that's a preeminently lawyer's type question, what the text of a regulation means. It has nothing to do with being a... you know, an expert about technical safety matters. It's just what the meaning of the regulation is.
Charles Fried: --Well--
Antonin Scalia: We accord deference.
Charles Fried: --On that, let's turn to the meaning of the regulation, because there is... if there is deference to be paid, I think that deference cannot carry all the way to the conclusion which respondents and the Solicitor General seek, because in this case there was a federally mandated process, and the outcome of that process was the removal, and that removal is textual. It's not just a hole. It's not just like the air in the souffle. It's there. It's on page... I don't have the page, but it's S3 of the regulation. It says--
William H. Rehnquist: Where do we find that?
Charles Fried: --In the lodging, Your Honor. It's not... it was subsequently lodged with the Court to... it's referred to in the briefs, but the actual regulation we lodged subsequently with the Court, on page 377 of that lodging, but it simply says, and it is quoted in all the briefs, that notwithstanding the provisions which in effect, to use the Solicitor General's phrase, in effect impose an antilock device requirement, notwithstanding it, that requirement is removed. So that's there, in the text. Now, there is further addressing of anti--
John Paul Stevens: I still don't quite understand, Mr. Fried, just following up with... you were interrupted on... you were going to quote something that was in writing that was in place now, that preempts the State--
Charles Fried: --Yes, Your Honor.
John Paul Stevens: --Is that what you just referred to?
Charles Fried: No. I'm going to refer to another provision as well, which I'm frank to say we didn't focus on until late in the game, but the respondents cite it on page 9, footnote 8 of their briefs, and that is Standard S5.5.1 on page 383 of the lodging. Now, that standard--
William H. Rehnquist: That is footnote 8 on page 9 of the respondent's brief?
Charles Fried: --That is correct. That is correct. I hope I've got the... yes, that's right. That refers to S5.5.1, and what that standard says is that if you are going to put antilock devices in your airbrake systems, then they may not degrade the total performance of the system.
William H. Rehnquist: I find this quite unsatisfactory, Mr. Fried, that things that seem to be at the core of the case were either lodged or are in the footnote in someone else's brief.
Charles Fried: I wish it had been otherwise, Mr. Chief Justice.
Anthony M. Kennedy: Is it your position, Mr. Fried, that if a truck had airbrakes on it, and there was an accident, that the Federal standard could be used or argued to a jury as evidence that it was unsafe?
Charles Fried: It could be used if it violated 5.5.1 as set out by the respondents. That is to say, if the device--
Anthony M. Kennedy: Well, suppose it didn't?
Charles Fried: --Oh, if it did not, then that, too, would be preempted. Just like Georgia cannot say it is a design defect not to incorporate antilock devices, even though the basis of the Federal determination was that it is dangerous to have such a requirement, so Florida, let's say, to give an example, could not say it is a design defect for manufacturers to incorporate properly functioning antilock devices which nevertheless, because of driver error or maintenance problems, which are the two things that plague these devices, has led to an accident. Either way--
Anthony M. Kennedy: But it seems to me that indicates there's an absence of a safety standard. The act requires that there is preemption if there is a safety standard in place, but this is an absence of a standard.
Charles Fried: --There is... Standard 121, altogether, is a comprehensive design and performance standard. It is not just a performance standard. It has many elements of design, and altogether it says what constitutes minimally acceptable airbrake systems.
David H. Souter: Well, it is with respect to airbrake systems, but it's not comprehensive with respect to the vehicles upon which an airbrake system may be installed. There's nothing comprehensive... it is expressly noncomprehensive with respect to them, and it seems to me that's the point that we have to focus on.
Charles Fried: An antilock device becomes part of an airbrake system. It is integral to the airbrake system. It isn't--
David H. Souter: Well, it may do so, but the only word from the National Government with respect to them, by the National Government's own text, does not apply to trucks and trailers. I will stipulate to the comprehensiveness of the regulation with respect to those vehicles that it has application to, but the point that seems to be dispositive to me is, it doesn't apply to these vehicles, therefore there can't be express preemption, and I would suppose, a fortiori, there can't be implied preemption.
Charles Fried: --Oh, the difficulties that are being raised apply as well to implied preemption, that is correct, but what one has to do is consider what the Federal Government has done and why it has done it.
David H. Souter: No, but no matter how comprehensive the regulation may be with respect to those vehicles that it covers, it is neither comprehensive nor even, if you will, in existence with respect to those vehicles that it does not cover, so I'm missing your point here. I don't see the relevance of arguing the comprehensiveness of what it says when it applies to the question of whether it applies to these trucks and trailers, which by its express terms, it does not.
Charles Fried: Well, it does apply to all trucks and trailers, including those that incorporate antilock devices, because those antilock devices cannot, if they're functioning properly, bring... the malfunctions in them, rather than maintenance and driver mistakes, cannot bring the performance of the rest of the system below the prescribed minimum. So it addresses that.
David H. Souter: But I'm focusing on the text of the amendment. What was the text of the amendment?
Charles Fried: Well, the provision I've been citing to you is in the standard as it is now in operation, and the amendment withdrew the requirement of having that device in all airbrakes. Now, it seems to me important to ask, why did it withdraw that requirement, if the reason it was withdrawn has to do with the safety concerns of the act, not a concern for uniformity, not a concern simply that the agency hadn't done it's knitting right, hadn't produced the right evidence, but because the record compelled the conclusion that this requirement, as a requirement, is dangerous.
Ruth Bader Ginsburg: Mr. Fried, suppose one were to read this as the agency's responding not to its own better judgment, but to the compulsion of the Ninth Circuit? Forgetting about the deference point that I raised earlier, why isn't the most reasonable reading of what happened here is that the agency is now in the position of saying, well, we're not yet ready to promulgate a final rule on this point because the Ninth Circuit says we have to do a little more work? Why isn't that the most reasonable reading, that they have suspended their judgment. They have not made a judgment that this is unsafe, or that there should be an option, as they made in the case of the airbag/seatbelt regulation?
Charles Fried: Justice Ginsburg, you're quite right, the agency did not in its heart of hearts, expressed in its own news releases, accept the Ninth Circuit's determination. They said, the administrator said, we still think we're right, but the Ninth Circuit said that this thing which you still think is right is not just unwarranted, it is dangerous.
Anthony M. Kennedy: Well, let me get to Justice Ginsburg's point in just a slightly different way. Suppose the agency said, we do not... we have concluded, after looking at the Ninth Circuit opinion, that we do not have sufficient information to rule on this one way or the other. The matter... the estopping regulation is rescinded, the distance regulation is rescinded for trucks, and we are going to study the matter further. Would that be preemptive of the Georgia rule?
Charles Fried: It would be because the premise was not... and this is what I have to keep coming back to. the premise of the Ninth Circuit's decision was not, "Look, you don't have a sufficient basis for imposing this requirement. " rather, they went further. They say, "Imposing this requirement is dangerous". If they had said, imposing--
Anthony M. Kennedy: But it seems to me is what we're interested in is what the agency has done, not what the Ninth Circuit has said, and if the agency, in my hypothetical, has said, "We wish to study the matter further, we do not have information at this time sufficient to make up our mind one way or the other. " I find it very difficult to see that that is a safety standard that preempts the Georgia rule, and it seems to me that that is very close to what we have and what Justice Ginsburg was getting at in her question.
Charles Fried: --Again, that formulation assumes that the decision forced on a reluctant agency was a decision that what you've done here is simply not sufficiently justified, rather than a decision which was at the heart of the safety concerns... that is to say, what you have done here is dangerous, and the agency, of course, has had the matter under continual review ever since. Congress has urged it, in both 1988 and 1991, to hurry up its review. In 1992, they issued a notice of proposed rulemaking, but the agency record and the agency materials which are cited in our brief over and over again state that there are still grave problems about these devices, and these problems are not the problems of cost.
Anthony M. Kennedy: But that's not a standard.
Charles Fried: What is a standard is 121 as a whole, and 121 as a whole tells you what are minimally safe airbrake systems, and those minimally safe airbrake systems do not, cannot be compelled to include antilock devices because it is dangerous. That is our view of what the standard is at this moment.
John Paul Stevens: You're saying it's just as clear as if it in so many words said, you may not use antilock brakes.
Charles Fried: Oh, no, they do say you may use them.
John Paul Stevens: Oh.
Charles Fried: You may use them if, when properly functioning, they don't degrade the rest of the system. You may use them. There are three kinds of problems that were experienced with the antilock devices. One problem was electrical failures. For instance, you'd pass a radar, and the radar would cause this device, which is an electrical device, to put on the antilock brake when you don't want it, or perhaps to remove it. The second kind of failure was maintenance problems. The third was driver reactions, the same problem which caused the administrator just recently to withdraw notice of proposed rulemaking on automobile antilock brakes. Now--
John Paul Stevens: You're saying it's as though the statute said, or the regulation, you may not use them if they have this degrading consequence.
Charles Fried: --If they have this degrading consequence--
John Paul Stevens: --you may not use them.
Charles Fried: --You... I believe that--
John Paul Stevens: That's what they in effect said.
Charles Fried: --Oh, well they... it's not as if. It says that in so many words.
John Paul Stevens: But does it say they all have this consequence?
Charles Fried: No, they don't. They say, if they do.
John Paul Stevens: Well, what about the systems at issue in this case? Do they have that consequence?
Charles Fried: Well, there are no... these trucks, which were manufactured--
John Paul Stevens: Oh, they don't have--
Charles Fried: --They don't have... they do not have the devices. The point that I'm making--
Antonin Scalia: --If you could show that they would automatically have the consequence, you wouldn't have to reply upon this regulation anyway, because you would show that it's not negligence to have them. Yes. If they all have that consequence, it couldn't possibly be negligence, so--
Charles Fried: --Oh, we don't... we could not say that they do all have that consequence.
Antonin Scalia: --Well, if you can't say that, then you cannot say that this regulation in effect prohibits the use of antilock brakes.
Charles Fried: I mentioned the three kinds of difficulties, because 5.5.1 addresses only the first. The maintenance problems and the driver response problems, which are grave, and which the agency in its technical reports continuously refers to, those persist, and when I answered Justice--
John Paul Stevens: Yes, but if you have the driver response problem, wouldn't that apply to any system?
Charles Fried: --No. It's possible that one day there will be a system design such that drivers will respond properly.
John Paul Stevens: Well, what if the plaintiffs alleged in this case that such a system is now available, and you were negligent not to use it? Why is that preempted?
Charles Fried: That is preempted because the judgment that those systems are now available is a judgment which we believe is reserved to NHTSA, the correct place to make--
John Paul Stevens: What reserves that judgment to NHTSA?
Charles Fried: --121 as a whole reserves that judgment to NHTSA.
John Paul Stevens: And in fact prohibits any use of antilock devices until we say they're okay--
Charles Fried: No.
John Paul Stevens: --is that what you're saying?
Charles Fried: Leaves the option open, and forbids either Georgia or Florida to impose design-defect liability for having them or not having them. That it retain... in other words, you retain the option. The manufacturers retain the option to put well functioning devices on their trucks.
John Paul Stevens: How about devices that do not function well?
Charles Fried: Those are--
John Paul Stevens: Do they retain the option to use those?
Charles Fried: --No, they are not. Those are explicitly excluded, as respondents point out, by 5.5.1.
John Paul Stevens: And it's clear that that excludes only those identified in that--
Charles Fried: Electrical failure. It says, electrical failure, so maintenance problems, driver... inappropriate driver response can't be called electrical failure, that's correct, and so it's the actual functioning of the thing, since it is indeed an electrical device.
Ruth Bader Ginsburg: --But Mr. Fried, you concede that if all we ever had here was a notice of proposed rulemaking of the part of 121 that the Ninth Circuit rejected, if all we ever had was that, and the agency never made it a rule, then there would be no argument about preemption, that the States could have their tort law?
Charles Fried: They would not, because there would not have been any occasion for the Ninth Circuit to reach a conclusion on the record as part of the mandated process under the act that such a requirement is a dangerous requirement with which--
Ruth Bader Ginsburg: So everything really hinges... your argument hinges on the respect that we owe to that Ninth Circuit judgment?
Charles Fried: --I believe it hinges more on the respect that the agency owed to that Ninth Circuit judgment. The agency has to operate lawfully, and the Ninth Circuit said it would be unlawful because it's dangerous to require this, and the agency reluctantly, to be sure, respected that judgment. It had no choice. So I say yes, it is the agency to which we point, a reluctant agency, but the agency nonetheless.
Antonin Scalia: Well, but the agency just... when you say respected it, just did the act that it required, but not for the reason that it stated, and it seems to me that it's important to your case to establish not just that the Ninth Circuit's judgment required the elimination of that regulation, but also that it established the reason for the elimination of the regulation, and that just doesn't track. To find the reason for it, we simply look to the Ninth Circuit judgment.
Charles Fried: And that reason is that this requirement--
Antonin Scalia: And that is the reason--
Charles Fried: --is dangerous.
Antonin Scalia: --And that is the reason the agency eliminated it? Nonsense. The agency eliminated it because it had to.
Charles Fried: But the agency is a law-abiding agency, and therefore it must act pursuant to a judgment of a court of law.
Antonin Scalia: It doesn't have to say something is true which it believes is false. You can comply with the judgment of the court even while thinking the court is wrong, can't you? I know a lot of people that lose here that think that. [Laughter] And they comply nonetheless.
Charles Fried: Well, it is quite interesting on this score that the agency consistently has been unable, and in its technical reports, has been unable to show that the Ninth Circuit was wrong. If I may, I'd like to reserve the balance of my time for rebuttal. Thank you.
William H. Rehnquist: Very well, Mr. Fried. Mr. Gottesman, we'll hear from you.
Michael H. Gottesman: Chief Justice, may it please the Court: It may be well to recall what this lawsuit in Georgia alleges. It alleges that these two trucks, the trucks that... one truck that killed Mrs. Lindsey, the other that maimed Mr. Myrick, these two trucks were not designed as safely as they might have been, and it alleges that by the time these two trucks were manufactured, which was many, many years after the record that the Ninth Circuit was reviewing, 7 years in the case of one truck and 12 years in the case of the other, that at that time there were available safe antilock brakes, and that those brakes would have been safer than the brake system that was chosen. Now, at the core of this case, and I think it is reflected by the discussion so far, is the question of whether there is any Federal determination with which this lawsuit, if it were won by the plaintiffs, would conflict, and recall, the plaintiffs haven't won this lawsuit yet. They are going to have to prove that in fact by 1982 or 1987 there were, in fact, safety devices that would have made this truck safer with an antilock device. So the preemption issue has to be considered on the hypothesis that such evidence could be presented. If it's not, the Georgia courts are obviously not going to find for the plaintiffs, and so we focus on that question first. Now, the jumping off point is a proposition that all the parties here, including the United States, agree on, and I'll give you the petitioner's formulation of that point, because I think it's one that we all agree on. Conflict preemption could not exist, of course, where there was no Federal determination on the specific subject, so that's the petitioner's formulation of what's involved here. And so the question we have is whether there is a Federal determination on the specific subject of whether antilock brakes are unsafe in cars. Now, there once was a specific judgment. Obviously, the initial regulation by the agency said, you must have them, because we believe they are safer. Plainly, if that regulation had remained in effect, this lawsuit would not be preempted. It would be entirely consistent with the Federal regulation.
William H. Rehnquist: Mr. Gottesman, strictly speaking, that isn't the question that we granted certiorari on. We granted certiorari on the question of whether, if there is express preemption, there can also be implied preemption. Is it your position that this is one of those anterior questions that has to first be decided before we get to that?
Michael H. Gottesman: We do, Your Honor, for two reasons. First of all, the question presented necessarily subsumes that. It says, whether the act preempts State common law standards that conflict with Federal standards. Implicit is that in the point that they have to, as part of that, demonstrate that there is a conflict. In the brief in opposition at page 26, we expressly pointed out to the Court that it is our contention that there is no conflict, and the proposition made on that point was made actually more broadly in the brief in opposition. Beginning on page 21 is the caption, "Respondent's Common Law Claims Do Not Conflict With the Safety Act, Nor With Standard 121. " and on page 26, the precise point that we're making here is made. That is, that the present status of the Federal regulations is that they don't preclude antilock brakes, but they impose no requirement one way or the other, that in that context, there is no conflict if Georgia says well, we encourage you, or at least we will award tort damages against you, if you don't have them. So the issue is properly preserved. It is a ground that would sustain the decision below, and I think really this point is also the point that goes to the question of express preemption. I think the two are really the same, and that is, whether there is, in fact, a conflict between what the State is doing and what the Federal regulations say. Is there a Federal regulation in effect that would be... would comprehend the point that the Georgia courts are being asked to decide in this case? And the regulation as it presently stands says that as to the aspects of performance which are involved here, the ability of a truck to stop within a certain distance at a certain speed, and the ability to do so without jackknifing or skidding, what is sometimes called vehicle stability, as to those aspects, those were dealt with in the original regulation, and each of the provisions that dealt with those aspects of performance is now declared not to be applicable to trucks and trailers, so the present state of the regulatory record is that there is no regulation that deals with those aspects of performance of trucks, the ones which the Ninth Circuit said effectively required antilock brakes. Now, the petitioners say, well, but that gives us an option. Well, of course it does. Whenever there's no regulation in effect, they... the Government has chosen not to regulate something, they enjoy the options that all citizens do, to do whatever is not regulated, but that hardly constitutes a Federal interest that Congress would have wanted to preempt, or that it did preempt on the face of this statute. Now, petitioner's argument ultimately depends on its trying to infuse the statement, there is no regulation applicable to trucks and trailers, with the Ninth Circuit's reasons for requiring that they suspend their earlier regulation. Now, the first proposition, of course, is that the Ninth Circuit doesn't have the power to preempt, only the agency does, and the agency has said there's no regulation in effect applicable to trucks and trailers, but the second point is, this is an overreading in any event of what the Ninth Circuit said. The Ninth Circuit said that it was convinced from the record that antilock brakes promised greater safety in trucks, and it said to a large degree, these devices were already perfected. It said, but there were some trucks, a substantial number, for which it was a potential hazard, and it said the reason this regulation, which required all trucks to have safety devices, was... had to be suspended is because it did not distinguish between those on which it was safe and those that were not. You can't have a regulation, said the Ninth Circuit, requiring that all trucks have antilock brakes if some trucks would be potentially dangerous. There had not actually been any injury with these, but there was the "potential" because some manufacturers were saying, "We're having problems". And again, from petitioners' brief, they say, uniform requirements on all trucks in all their variety of configurations is what the Ninth Circuit condemned. You can't have a uniform blanket requirement. So the Ninth Circuit didn't say that antilocks are unsafe on all trucks. It said, they're unsafe on some trucks, and some trucks based on a record that was made in 1975, long before these trucks were manufactured. Now, our lawsuit is not seeking a determination that all trucks must have antilocks. Our lawsuit contends that these two trucks would have been safer if they had antilocks. We have to prove that. What the Ninth Circuit said is not at all inconsistent with our proving that. First of all, they recognized even then that many trucks would be safe with antilocks. Secondly, this is 7 and 12 years later, and as everybody's briefs point out, there has been what is called a second generation of antilock devices which are safe. There has been a huge increase in the actual usage by manufacturers of antilock devices, even though they're not required to do so by the present regulation, and so nothing in the Ninth Circuit, even if you were to read the Ninth Circuit opinion as though it, in heightened verbal, appeared here as an explanation for the withdrawal of the regulation. That would suggest nothing that says the Ninth Circuit has any disposition not to recognize this lawsuit, or to find it inconsistent with the Federal interest, and, of course, the interested agencies are here. The interested agency, I should say, NHTSA, is here, telling you that there is no impeding of any kind. There's no express preemption, there's no implied preemption in this case, because there is no Federal interest with which this collides, and there is no regulation on this aspect of performance. We withdrew it. Now, petitioner says, but there's some other provision that says, if you choose antilock brakes, then you must have them conform electrically to what's required, so they say, see, there is some regulation of antilock brakes in this case. But the preemption provision of this statute doesn't say, if they regulate that item of equipment the States can't act. The preemption provision says, if they regulate an aspect of performance of an item of equipment, the State can't act, and in this case, the item of equipment is antilock brakes, and they have not regulated the performance standards that are at issue here. Now, we have not yet gotten to the question of whether the savings clause would in any event sustain this lawsuit even if there were some conflict, but we do want to point out to the Court that the savings clause in this case, by its terms, professed to save any common law liability that manufacturers had. Compliance with this act was not to remove any common law liability, and the legislative history that accompanies that confirms what it says. The legislative history said, now, we--
Sandra Day O'Connor: Well, so if there were a Federal performance standard applicable here, is it your position that the savings clause would still preserve this cause of action?
Michael H. Gottesman: --Well, we have three... yes. We have... well, if there were one applicable to this. We have two points. First, this... the tort lawsuit is not a safety standard within the meaning of the preemption clause. That's confirmed by the savings clause. That is, with the benefit of the savings clause, we know that's not what they meant by a safety standard, a tort judgment. But beyond that, we do have the savings clause itself which was put in there, and this is not like the Morales case, or the American Airlines case, where you were dealing with a statute that had had a savings clause way back when, when regulating airlines was the vogue, and Congress said, not only are we going to regulate it, but we want not to interfere with any State regulation of airlines, but then 20 years later, Congress came along and said, now we want to deregulate the airlines, and so we want to make it quite clear, we are now going to preempt State regulation, and those unhappy with that reached back to that earlier savings clause, which was not focused specifically on common law lawsuits. It said, all State law is preserved.
Anthony M. Kennedy: So if the Federal Government said, there may be no antilock braking system on a truck, everyone would agree that the State cannot have a regulation to the contrary, then?
Michael H. Gottesman: Absolutely.
Anthony M. Kennedy: Could a jury find there would be negligence for not having the antibrake system?
Michael H. Gottesman: Well, after first saying that's not this case, our strongest position would be yes. When I say strongest, our most--
Anthony M. Kennedy: Most extreme--
Michael H. Gottesman: --advanced position, yes, and it would be yes because that is what the plain language of the statute says.
Anthony M. Kennedy: --Well, that's what I wanted to focus on. It says that common law liability will exist, but that's different from saying that the State is free to set the standard for what the negligence is.
Michael H. Gottesman: Well, I think when you read the language, the language says, compliance will not exempt them from any common law liability, any common law liability, and you read the legislative history of the people who both wrote it and who were the conferees adopting it. What they have said is, we do not mean this to have any effect on tort liability.
Anthony M. Kennedy: But common law liability doesn't necessarily include the formulation of the standard of care.
Michael H. Gottesman: Well, Your Honor, I think it does--
Anthony M. Kennedy: This is the extreme that we're talking about.
Michael H. Gottesman: --Well, it is the... I don't... that was the Chief Justice's characterization.
Antonin Scalia: You're... I think you're saying it doesn't necessarily. Of course not, but the only reason to have this provision is to cover that element of the common law that does. I mean--
Michael H. Gottesman: Is to have which provision, the savings clause, or--
Antonin Scalia: --The common law liability provision.
Michael H. Gottesman: --Yes.
Antonin Scalia: Of course, common law liability includes a lot of things. It includes standards, it includes--
Michael H. Gottesman: Yes.
Antonin Scalia: --procedures, and all sorts of things.
Michael H. Gottesman: The standards of care are apart--
Antonin Scalia: But since we're dealing with a statute that issues standards, this thing must be addressing common law liability insofar as liability is based on standards, otherwise it's meaningless.
Michael H. Gottesman: --Well, that's right.
Antonin Scalia: It would be like saying, compliance with the motor vehicle safety standard will not permit a 10-person jury. It would make no sense. It must be addresses as standards, don't you think?
Michael H. Gottesman: Well, it isn't--
Antonin Scalia: So why is that an extreme position?
Michael H. Gottesman: --Well, as I say, that was not my characterization. I said it was our strongest-- [Laughter] --our most far-reaching characterization of the statute, and I want to... if you could just automatically assume at the end of every third sentence there is, this is not this case-- But the argument that is made by petitioners is that Congress can't have meant that. That would be absurd, to allow the States to compensate people on the theory that they obeyed a requirement of a Federal law, and there is, to be sure, an absurdity exception to the plain language reading of the statute, but I want to suggest that this is not absurd. This Court has repeatedly written opinions in which it has demonstrated an understanding that there is a difference between an actual prohibition on conduct and simply compensating people who are being hurt. In Silkwood, all nine justices... and there was no savings clause there, but all nine justices said, we start with the presumption that Congress doesn't mean to take away common law compensation if it doesn't provide any, and it's going to take heavy--
John Paul Stevens: Yes, but let me... can I just interrupt? It seems to me there's a vast difference between a regulation that sets a minimum standard on the one hand, and one can say, well, that doesn't preempt common law liability for imposing an even tough standard on the one, but if you had an express prohibition in a Federal statute or standard saying you can't use antilock brakes--
Michael H. Gottesman: --Well--
John Paul Stevens: --do you think a State could--
Michael H. Gottesman: --No, of course they can't have an express prohibition, but a tort action is not.
John Paul Stevens: --That's exactly what I thought Justice Kennedy gave you.
Michael H. Gottesman: Yes... oh, well, I'm sorry. The tort action is not an express prohibition.
John Paul Stevens: No, no, no. No, the express prohibition in the Federal statute saying you may not use antilock brakes. Do you think you could... Georgia could impose liability saying you were negligent because you did not violate the Federal statute?
Michael H. Gottesman: I think that is what the plain meaning of the statute says, and there is not an inconsistency. Georgia obviously can't tell them we're going to put you in jail.
John Paul Stevens: Sure there's an inconsistency. They're making a violation of... they're making people... requiring people to violate Federal law.
Michael H. Gottesman: No, they're not. People can't violate the Federal law. If they violate the Federal law, their trucks will be removed from the road, they will be hit with heavy civil penalties, and they'll have to recall every truck. That's what the statute says. They can't violate the Federal law. They must obey the Federal law.
William H. Rehnquist: But then--
Michael H. Gottesman: But then they have to compensate the people they hurt, that's all.
William H. Rehnquist: --Well, but it's just... in that case, it would be the jury setting up a standard that is totally in conflict with the Federal law. The Federal law says, antilock... you must have antilock brakes or you must not have them, and the jury is saying something different.
Michael H. Gottesman: Well, there would be a disagreement about standards, but there would not be a conflict in... there would be no threat to the Federal interest, which is what preemption is all about. Nobody is going to violate an absolute command of the Federal requirement. They're just going to have to compensate, that's all. And so it's not absurd, and it's indeed consistent with what this Court did both in Silkwood and in Goodyear Atomic v. Miller. It recognized the Congress may want to have exclusive regulation. You've got to do it our way, but we don't mind if the State compensates people.
David H. Souter: But you're inserting, that's not this case. [Laughter]
Michael H. Gottesman: Yes, repeatedly, every third sentence. [Laughter] It is our position that obviously that is not this case. There's no conflict at all.
Ruth Bader Ginsburg: Wouldn't it be--
Michael H. Gottesman: There's no express preemption. There's no... we don't need the savings clause in this case.
Ruth Bader Ginsburg: --But Mr. Gottesman, on the case that's not this case, wouldn't it be a powerful, strong defense on the part of the manufacturer to say, we had to have this device under Federal compulsion?
Michael H. Gottesman: Well, of course, no judge in any State in this Union would let that case get to a jury. Let's be clear about that. The test is whether the manufacturer behaved reasonably. That's the test under both causes of action in Georgia. That's the test for design defects in every State, and nobody... I think there's probably not a decided case in history that has held somebody to have behaved unreasonably because they obeyed a Federal statute.
Sandra Day O'Connor: I think I could find some.
Michael H. Gottesman: Yes? [Laughter] Well, I want to qualify what I just said. I hope not in Arizona, Your Honor.
Antonin Scalia: That's not this case. [Laughter]
Michael H. Gottesman: That's not this case, Your Honor. Thank you.
William H. Rehnquist: Thank you, Mr. Gottesman. Mr. Wolfson, we'll hear from you.
Paul R. Q. Wolfson: Mr. Chief Justice, and may it please the Court: On the implied preemption point, the Department of Transportation, the NHTSA, perceives no conflict between its own lack of regulation of antilock brakes, and the Georgia tort law that is relied on by respondents, and NHTSA does not construe its own Federal safety standards either in this case or generally as conferring this federally protected immunity from State tort judgments. On the express preemption case, NHTSA believes that, first, Congress did not intend the preemption clause of the saving act... of the Safety Act to reach tort liability and, second, that even if tort suits are covered, that Georgia law would not be preempted in this case because the law would not relate to an aspect of performance of the standard, covered by a standard that is in effect. Section 1397(k) makes clear that Congress did not intend the Safety Act's preemption clause to reach common law liability. Congress enacted that saving clause specifically to preclude the argument that compliance with Federal standards would provide a defense as a matter of Federal law to State common law liability, but that is essentially what the petitioners are asking for here, albeit in the guise of preemption, and Congress did draw a distinction between the State-imposed prescriptive standards, which were preempted, and the State-imposed tort liability, which was not. That is the best explanation for the enactment of the saving clause, and really, petitioners have offered no alternative explanation for why Congress would have enacted it, or any alternative interpretation of the saving clause. There is also what we conceive to be the narrower ground for why Georgia tort law would not be preempted in this case expressly, and that is, even the preemption clause applies only when there's a Federal standard in effect and when the State standard governs by the same aspect of performance that is regulated by that Federal standard. NHTSA does not have, in effect, any safety standard that either requires or prohibits the installation of antilock brakes in trucks, and it also does not have in effect any Federal standard that does the same thing indirectly, as was originally conceived, such as by regulating stopping distances or vehicle stability requirements in trucks. The petitioners' argument, which is essentially that what NHTSA has left unregulated is a form of regulation, is really quite inconsistent with the way that NHTSA perceives its role under the Safety Act. NHTSA's function under the Safety Act is to set minimum standards of performance, and generally speaking the regulatory scheme does not provide that anything that is not regulated is regulated, that there is this federally protected option to avoid further State regulation or State liability. In this particular case, in the area of antilock brakes, this is simply an area that, as of now, NHTSA has left unregulated, and until it does step in, the States are free to fill that regulatory gap either by prescriptive standards or by an enactment of State... or by the implementation of State tort liability, which is what the respondents are asking for here.
Antonin Scalia: Mr. Wolfson, I gather from what you've said that you do take the... or, the Government does take the extreme position that there could be a standard in effect, and nonetheless an individual could held liable at common law for not violating that standard for complying with the standard, is that right?
Paul R. Q. Wolfson: No, I don't think... I think we would take the position that that should be analyzed as a matter of implied preemption. That is, if the Federal Government had a standard that required a specific--
Antonin Scalia: Right.
Paul R. Q. Wolfson: --size headrest--
Antonin Scalia: Right.
Paul R. Q. Wolfson: --and the State standard of care... if the State sought to essentially premise liability on compliance with a Federal mandate, that would preemptive as a matter of implied conflict preemption.
Antonin Scalia: I see. Then what do you think the meaning of the exception for the common law is, for common law liability?
Paul R. Q. Wolfson: The exception for the common law reaches cases like this. I might say, I think in--
Antonin Scalia: They don't need that for cases like this. You're saying there's no standard. I assume that the exception applies only when there's a standard. You're telling us there's no standard.
Paul R. Q. Wolfson: --I think that the Congress put "the saving act" because it thought that with... the preemption clause standing by itself might be ambiguous on the point, and so the... and so--
Antonin Scalia: Might be ambiguous on the point of whether what?
Paul R. Q. Wolfson: --Tort... whether common law liability would be considered a standard and thus preempted under 1392, so the saving clause--
Antonin Scalia: But you say it is preempted. You say it is preempted impliedly.
Paul R. Q. Wolfson: --It... a standard... a State standard... a State standard when there is a Federal standard in effect, a State prescriptive standard issued by, say, the George Department of Motor Vehicles--
Antonin Scalia: Is preempted.
Paul R. Q. Wolfson: --Would be preempted. State tort liability that might achieve similar effect indirectly is not preempted.
Antonin Scalia: So your answer is, you can, indeed, be held liable in tort for refusing to violate a Federal standard.
Paul R. Q. Wolfson: As a matter of implied preemption, you cannot be held liable in tort if that liability is premised on compliance with a Federal mandate.
Antonin Scalia: So then you don't think this provision has any effect.
Paul R. Q. Wolfson: It... well, the provision says, compliance with Federal standard, but if there's a... will not provide a defense to State tort liability, but I think if there's a Federal standard that requires obedience to a specific mandate, like a headrest of a specific size, it isn't really--
Antonin Scalia: There cannot be common law liability.
Paul R. Q. Wolfson: --Right. It isn't really--
Antonin Scalia: Then I really don't know what that provision means. Maybe it means nothing.
Paul R. Q. Wolfson: --Well, it--
John Paul Stevens: Well, doesn't it apply in a case of minimum standards?
Paul R. Q. Wolfson: --Yes, exactly.
John Paul Stevens: A State standard, common law standard could be a little tougher. The antilock brake standard might require stopping in 10 feet, and they might say, well, you're negligent unless it could stop you in 5 feet.
Paul R. Q. Wolfson: NHTSA perceives no difficulty with that situation.
David H. Souter: And I suppose it would apply in the case of an expressly provided option. You may have it or not have it. An express option, as distinct from an option by silence. I suppose it would apply then.
Paul R. Q. Wolfson: Only... there would only be a Federal conflict, a conflict with a Federal... an implied preemption situation if the reason why the option were provided was, as in the airbag case, to preserve a diversity of approaches because NHTSA believed the Safety Act required that. If NHTSA simply says, we're not regulating... we're not requiring you to have this option, we think it might be a good idea, but you go ahead and decide and there are three ways you might accomplish something, that's not really a conflict situation. It's an area that NHTSA has left unregulated, and here, NHTSA has left open to truck manufacturers in some sense the option to install antilock brakes or not to. NHTSA--
David H. Souter: This is slightly different from the example you just gave, because here, your position, I take it, is what the agency has done is the equivalent of agency silence.
Paul R. Q. Wolfson: --Yes. There is a regulatory gap here.
David H. Souter: You're expressly saying nothing, if you will.
Paul R. Q. Wolfson: That's correct, and I might add, I don't think that that silence takes on a different character just because the standard was vacated in response to the Ninth Circuit's decision in--
Stephen G. Breyer: Suppose... sorry. Suppose it were just what they say it is, which I think it isn't, but suppose it were, that the agency said, we've studied this for 4 years. We're not going to tell you you can't have the brakes. We think maybe you shouldn't. They're very dangerous. We regulate every aspect of this problem but that because we think they're so dangerous, and that's what they say, and that's the rule. Under those circumstances, could juries all over the country say that these things, which NHTSA found very dangerous and therefore left them out, say you have to have them? As I say, I don't know that that is this case, but I think they'd like to make it--
Paul R. Q. Wolfson: --I don't think it is this case, but I think even there the tort suit could go forward.
Stephen G. Breyer: --It could go forward. Then why has Congress created an act that's supposed to have safety as its objective if, in fact, the agency specifically defined that this thing is very dangerous, nonetheless the truckers all over the country would have to have them?
Paul R. Q. Wolfson: In that situation, if the evidence on the rulemaking record was so compelling that NHTSA could have only concluded that the device, the antilock brake device, should be prohibited, then perhaps NHTSA should have issued a standard that prohibited antilock brakes, but--
Antonin Scalia: Maybe Congress doesn't trust State regulators. Maybe Congress thinks State regulators are too much under the thumb of automobile manufacturers or some other lobby group, and therefore is unwilling to have its standards preempted by State regulators, but trusts the courts, and thinks that perhaps if a State court as a common law matter wants to set aside a standard, that's another matter. That's a conceivable--
Paul R. Q. Wolfson: --I think there are a number of--
Antonin Scalia: --attitude, isn't it?
Paul R. Q. Wolfson: --I think there are a number of reasonable explanations why Congress drew the distinction between State prescriptive standards and common law liability. Congress might have believed that preempting common law liability would be a greater intrusion under Federalism and State sovereignty because the common law had been in operation for a long period of time.
Antonin Scalia: Or that the manufacturers who lost the battle at the Federal regulatory agency will simply go out and fight it State-by-State before the State regulators and get it reversed, and they didn't want that to happen, but they're not worried about the common law reversing it.
Paul R. Q. Wolfson: That's... it's a plausible reason for why Congress might have done it, but--
William H. Rehnquist: Thank you, Mr. Wolfson. Mr. Fried, you have 4 minutes remaining.
Charles Fried: Mr. Chief Justice, it is entirely correct that we sort certiorari in this Court on the Eleventh Circuit's rule about implied preemption and that was the only matter as to which there was a conflict between the circuits. Now, the brief in opposition raises the 26 simply by a casual... or I... drop the casual, simply by the statement that since the Federal regulations did not forbid antilock devices, there can be no conflict. Of course, that's not our position. It was not the position of the dissenting judge, it was not the position of the court of appeals, which found there was a conflict, or the district courts. Nevertheless, this is not a case like the one you handed down yesterday. This is not one governed by your Rule 14.1, which deals with the cert position. It's 15.1 and, of course, the Court is entirely free to proceed to the no-conflict point if it chooses. Now, it's important to see that the courts, the three courts below did decide this in terms of implied preemption, and did indeed find a conflict. The implied preemption perhaps has some more force to it than the express preemption, because the conflict is with what we insist is a total Federal determination, and that is how this Court had looked at the Ilsa Petroleum case although reaching a difference conclusion, but by language, which supports us and the Atlantic Richfield case, which we cite in our brief, as well. Finally, I should point out that it's not quite accurate to say that NHTSA has said we're not ready yet, not quite yet, but everybody has these. In these... these trucks were manufactured in '82 and '87. They only began to be offered as... antilock devices only began to be offered as options after the later truck was manufactured, and presumably because the manufacturers did not believe they could comply until then with 5.5.1, and what's important to see is that NHTSA has continuously, at the highest levels, sought to impose this requirement and continuously been compelled by its own technical people in reports which we cite to you to say that the evidence shows that the problems have not yet been solved. If there are no further questions I thank the Court.
John Paul Stevens: I have just one question, Mr. Fried. You cited a case in your first presentation, cited in one of your opponents amicus briefs, and I didn't get the citation.
Charles Fried: Ilsa Petroleum. It's cited in the ATLA brief. That's the case in which the Court spoke of the preemptive smile cannot be there if there is no cat left, but we say there's a cat. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Fried. The case is submitted.