Abstract
Introduction
On October 1, 2017, a lone gunman 1 on the 32nd floor of the Mandalay Bay Hotel fired over a thousand rounds into a large crowd of concertgoers at the nearby Route 91 Harvest music festival in Las Vegas. 2 Fifty-eight people died and over five hundred were injured. 3 It was the deadliest mass shooting to ever occur in the United States. 4
In the wake of the tragedy, hundreds of victims, across eight districts, sued Mandalay Bay, MGM Resorts Festival Grounds, and their parent companies (collectively, MGM). 5 The claims focus on MGM's alleged negligence. 6 According to the plaintiffs, MGM facilitated the massacre by “literally carrying the gunman's twenty-three semi-automatic assault weapons to his hand-selected, complimentary suite” and failing to investigate the gunman's suspicious activity leading up to the shooting. 7 The plaintiffs further allege that MGM missed an opportunity to investigate the gunman's room, right before the attack, because MGM employees failed to respond promptly to an alarm the gunman triggered by leaving his door open for a prolonged period. 8
In an attempt to shield itself from liability, MGM filed for declaratory relief in an action against more than a thousand victims of the attack. 9 Its complaint relied on a post-9/11 law called the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 10 (“SAFETY Act”). 11 The SAFETY Act is a tort-reform measure Congress implemented as part of the Homeland Security Act of 2002 12 to incentivize the development of anti-terrorism technologies by protecting sellers from liability. 13
MGM contends that the SAFETY Act shields it from liability arising out of the Las Vegas Shooting because the security company it hired for the festival was certified under the Act. 14 MGM's argument presents courts with the first opportunity to test the SAFETY Act's limits. 15 However, this article will demonstrate that recent increases in terrorist attacks, approved anti-terrorism technologies by the Department of Homeland Security (DHS), and public awareness of the SAFETY Act will likely result in it applying more frequently to future litigation.
There are two open questions about the SAFETY Act that this article will address. The first is whether the SAFETY Act is an exclusive cause of action or, in other words, whether the SAFETY Act prevents litigants from bringing parallel claims. The second question is whether its protections extend to third-party defendants who do not sell qualified anti-terrorism technology (QATT) but were somehow still involved in causing the harm the QATT at issue caused to the plaintiff(s). If courts find that the SAFETY Act prevents parallel claims and protects third parties, the Act will drastically interfere with victims' ability to seek relief.
This article will show that the SAFETY Act is an exclusive cause of action, but might not extend its protections to third-party defendants. If judges found the Act does not protect third parties, it would help resolve the tension between guaranteeing victim compensation under the SAFETY Act and encouraging the development of anti-terrorism technology, in a manner that remains true to the text of the Act.
Part I provides background information about the SAFETY Act as a cause of action and a tort-reform measure. It explains when a claim will fall under the Act's umbrella and how the Act's protections affect litigation. Part II then highlights areas of tension between the SAFETY Act statute and its regulations. After bringing attention to those problems, part II proceeds to explain why current trends make SAFETY Act litigation more likely in the near future. Finally, part III offers a solution for interpreting the Act that accords tools of statutory interpretation and addresses the unanswered questions about preemption that will plague the courts that are called upon to interpret the Act. Since there is tension between the statute and its regulations, the final section will perform a Chevron analysis to show why courts need not defer to DHS's interpretation of the statute.
I. The SAFETY Act
In the aftermath of the September 11 attacks and subsequent anthrax attacks, Congress created the Department of Homeland Security through the Homeland Security Act of 2002. 16 In addition to establishing the DHS, Congress also instituted a variety of programs aimed at increasing homeland security related capabilities. 17 The Science and Technology Directorate (S&T Directorate) launched the research and development arm of DHS to improve the country's knowledge and technology for national security purposes. 18 The SAFETY Act is part of the S&T Directorate's “Acquisition and Operations Support” program. 19 It was enacted to encourage the development of anti-terrorism technologies that can be deployed to prevent or respond to a terrorist attack. 20
To achieve its purpose, the SAFETY Act protects sellers of anti-terrorism by creating a cause of action that limits liability for defendants from “claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller.” 21 An event may qualify as an “act of terrorism” for purposes of the SAFETY Act if it “(i) is unlawful; (ii) causes harm to a person, property, or entity, in the United States … and (iii) uses or attempts to use … methods designed or intended to cause mass destruction, injury or other loss to citizens or institutions of the United States.” 22 The secretary of homeland security has full discretion to determine whether the event meets the statutory requirements and may also impose further requirements. 23
The SAFETY Act creates two classes of protections for QATTs: designation and certification. 24 If a QATT that has been designated by DHS is the basis of a lawsuit under the SAFETY Act, then the QATT's seller will be immune from joint and several liability, economic damages, and punitive damages under the Act. 25 Further, the seller can only be held liable for plaintiffs' physical harm, and damages cannot exceed the seller's liability coverage minus any collateral source compensation that the plaintiff received. 26
However, if a certified QATT is the basis of a lawsuit under the SAFETY Act, then the QATT's seller will receive all the protections mentioned above plus placement on an official DHS “Approved Product List” and the right to a rebuttable presumption that the government contractor defense applies. 27 Plaintiffs can overcome such presumption only if they provide evidence that the seller “acted fraudulently or with willful misconduct” when applying to DHS for certification. 28 If a plaintiff cannot overcome the presumption, then the government's sovereign immunity will extend to the QATT's seller. 29
When a QATT is considered for designation, the secretary of homeland security evaluates technology using seven criteria outlined in the SAFETY Act. 30 The secretary may also consider additional criteria at his or her discretion. 31
The procedure for certifying QATTs is the same, except for three additional factors that must be present. 32 Technology pursuing QATT certification must also perform as intended, conform to the seller's specifications, and prove safe for its intended use. 33
Importantly, two unclear aspects of the SAFETY Act are whether it precludes additional claims against the QATT's seller and whether it precludes claims against third parties otherwise involved with the technology. The statute is entirely silent on both matters. 34
II. Why the SAFETY Act is Problematic
This part explains why enforcing the SAFETY Act is problematic, and why there is an increasing need for clarity. Section II.A explains the differences between the statute and its regulations. Section II.B uses the Las Vegas Shooting litigation to illustrate the SAFETY Act's ambiguities. It also reveals the tension between the SAFETY Act statute and its regulations. Then, section II.C explains three current trends that are making SAFETY Act litigation more likely, which bolsters the need for a clear understanding of it.
A. The SAFETY Act regulations are much broader than the statute
There are notable differences between the SAFETY Act statute and its regulations. Where the statute creates a cause of action, it states:
There shall exist a Federal cause of action for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller. … Such Federal cause of action shall be brought only for claims for injuries that are proximately caused by sellers that provide qualified anti-terrorism technology to Federal and non-Federal government customers.
35
In relevant part, the corresponding section of the regulations states:
There shall exist only one cause of action for loss of property, personal injury, or death for performance or non-performance of the Seller's Qualified Anti-Terrorism Technology in relation to an Act of Terrorism. Such cause of action may be brought only against the Seller of the Qualified Anti-Terrorism Technology and may not be brought against the buyers, the buyers' contractors, or downstream users of the Technology, the Seller's suppliers or contractors, or any other person or entity. In addition, such cause of action must be brought in the appropriate district court of the United States.
36
The statute created a narrow cause of action. It unambiguously applies only when a QATT seller proximately causes harm, and only against that seller. It does not expressly foreclose other claims against the seller. And it does not protect other potential defendants.
Contrastingly, the regulations apply any time there is “loss of property, personal injury, or death for performance or non-performance of the Seller's Qualified Anti-Terrorism Technology in relation to an Act of Terrorism,” 37 even if the seller itself did not proximately cause the harm. The regulations also expressly foreclose other claims against the seller by stating there shall exist “only one” cause of action. 38 And third parties—including “the buyers, the buyers' contractors, or downstream users of the Technology”—are completely immunized. 39
The next section will use the Las Vegas Shooting litigation to illustrate how the differences between the statute and its regulations can create controversy in litigation where the SAFETY Act is invoked. But in part III of this article, statutory interpretation tools will show why courts should not enforce the regulations' immunity for third parties.
B. MGM's argument as an example
The SAFETY Act statute creates a federal cause of action for claims arising out of an act of terrorism when QATT was deployed and such claims “result or may result” in loss to the seller of the technology. 40 The SAFETY Act regulations further add that “[t]here shall exist only one cause of action” when a QATT was deployed in conjunction with an act of terrorism and that “[s]uch cause of action may be brought only against the Seller of the [QATT] and may not be brought against the buyers, the buyers' contractors, or downstream users of the Technology, the Seller's suppliers or contractors, or any other person or entity.” 41 Therefore, according to MGM, the SAFETY Act “creates a single, exclusive federal cause of action” for any claims arising out of an act of terrorism when QATT was deployed. 42
MGM asserts that Contemporary Services Corporation (CSC) was employed as the security vendor for the Route 91 concert and deployed services that were certified as QATTs by the secretary of homeland security under the SAFETY Act.
43
MGM further asserts that, if the gunman's assault injured victims, they were “inevitably injured both because [the gunman] fired from his window and because they remained in the line of fire at the concert,” which necessarily implicates security at the concert and may result in loss to CSC.
44
Accordingly, it urges that any potential claims against MGM are subject to the SAFETY Act on the basis of three observations:
(a) such claims arise from and relate to an attack that meets the requirements for an “act of terrorism” under the SAFETY Act; (b) CSC provided security at the concert, deploying services certified by the Department of Homeland Security under the SAFETY Act, such as physical security, access control, and crowd management; and (c) the claims may therefore result in loss to CSC as the “Seller” of such certified services.
45
MGM's interpretation of the SAFETY Act is really a hybrid of provisions from both the statute and its regulations. MGM took this interpretive approach because the regulations explicitly preclude claims against downstream QATT users, like MGM, whereas the statute is entirely silent on the matter. 46
MGM's hybrid interpretation of the SAFETY Act would have far-reaching policy implications on victim compensation that must be considered. To highlight that point, if MGM's interpretation of the SAFETY Act succeeds in the Las Vegas Shooting case, then CSC would likely be sued instead because it was the seller of the QATT at Route 91. Under the SAFETY Act, a QATT seller is not required to obtain liability insurance over the amount “reasonably available from private sources on the world market at prices and terms that will not unreasonably distort the sales price of Seller's anti-terrorism technologies.” 47 In this case, DHS set CSC's insurance requirement at $25 million. 48 Thus, if MGM's argument is successful, victims of the Las Vegas Shooting will be capped at a $25 million recovery.
By the estimates of a leading expert on injury and violence incidence and consequences at the Pacific Institute for Research and Evaluation, the Las Vegas Shooting will likely cost “at least $600 million in medical bills, follow-up care, and value of the quality of life lost by those who died or will be permanently disabled.” 49 So, even if victims receive the entirety of CSC's liability coverage, MGM's interpretation of the SAFETY Act would drastically reduce their ability to recover damages.
Interested persons have made statements on both sides of MGM's argument that the SAFETY Act precludes claims against third parties. Plaintiffs' counsel in the Las Vegas Shooting litigation has vehemently challenged MGM's interpretation by insisting that the Act “was not created to shield a hotel from claims arising out of its own negligence … simply because a security company hired to work at a concert across the street from where the shooting occurred may have a DHS certification.” 50 The counsel's view is also shared by Jonathan Turley, a constitutional law expert at George Washington University who has worked on many national security and terrorism cases. 51 Professor Turley, who compared MGM's strategy to fitting “a square peg into a round hole,” believes that the SAFETY Act was only meant to protect CSC, as the QATT seller, from liability, not MGM. 52
However other experts, like former Assistant Secretary of Homeland Security and co-drafter of the SAFETY Act Dr. Parney Albright, disagree. 53 According to Dr. Albright, the law was intended to prevent precisely the type of third-party lawsuit that MGM is facing. 54 Regardless of the effect it would have on victim compensation, he deems it necessary to “weigh that outcome against the public good that comes from getting those antiterror technologies deployed.” 55 Finally, Alfred Yen, a professor at Boston College Law School, has expressed that the issue is simply one of an unclear law, and a court should take its time coming to a judgment. 56 Professor Yen predicts the matter could reach the U.S. Supreme Court if the parties cannot reach an agreement in mediation. 57
An additional unresolved point of contention from the Las Vegas Shooting litigation is whether a determination by the secretary of homeland security is necessary for the SAFETY Act to apply. 58 The secretary has not yet determined whether the Las Vegas Shooting was an “act of terrorism” for purposes of the SAFETY Act. 59 The Nevada plaintiffs' counsel argues that only the secretary, not a judge, has the authority to declare an “act of terrorism” for SAFETY Act purposes. 60 In support, plaintiffs' counsel points to the part of the SAFETY Act that allows the secretary to delegate all of her “responsibilities, powers, and functions under the SAFETY [A]ct, except the authority to declare that an act is an Act of Terrorism.” 61
MGM contends that federal jurisdiction does not hinge on the secretary's determination because the statute does not detail a formal process for making such a determination. 62 MGM supports its argument by contrasting the SAFETY Act with the Terrorism Risk Insurance Act (TRIA), which was signed into law just a day after the SAFETY Act. 63 Unlike the SAFETY Act, TRIA includes a highly detailed process for determining whether something is an “act of terrorism.” 64 At a hearing for the plaintiffs' motion to remand, Judge Richard F. Boulware seemed to agree with MGM, stating that he “[doesn't] think that there is sufficient structure identified in the statute and the regulations that would suggest that certification … is a necessary trigger for jurisdiction.” 65
Although plaintiffs' counsel did not make this argument, the SAFETY Act's procedure for declaring an “act of terrorism” can also be contrasted with the procedure included for declaring a “public health emergency” in the Public Readiness and Emergency Preparedness Act of 2005 (PREPA). 66 Under PREPA, when the secretary of health and human services “makes a determination that a disease or other health condition or other threat to health constitutes a public health emergency,” 67 the secretary may use his or her full discretion to declare complete tort immunity for a “qualified pandemic or epidemic product.” 68 PREPA further provides that such declaration is unreviewable by any court. 69 It is unclear whether the SAFETY Act grants comparable authority to the secretary of homeland security because the Act does not contain any language allowing judicial review or prohibiting it. 70
C. The likely increase in future SAFETY Act litigation
The need for clarity regarding the SAFETY Act is reinforced by three trends that are likely to increase its presence in federal courts: a rise in mass-casualty and terrorist events, more frequent DHS certifications, and increased SAFETY Act publicity.
Attacks that meet the SAFETY Act's underlying definition of an “act of terrorism” are increasing. There were more mass shootings in 2017 than in any other year in recorded history, 71 and the number of mass-casualty shootings in the past decade has increased 240% compared to the decade prior. 72 Further, from 2010 to 2016, terrorism in the United States increased 400%, and global terrorism increased by 279%. 73 The tragic increase of such events, unfortunately, contributes to the prediction that more “acts of terrorism” will be ripe for SAFETY Act applicability.
The second pertinent factor is the recent rise in anti-terrorism technologies that DHS has approved under the SAFETY Act. After Congress enacted the law, DHS delayed implementing its final regulations for four years and had an application system that the agency admitted was “overly burdensome” and “bureaucratic.” 74 However, the Department has recently been approving more technologies and finally celebrated its thousandth approval last July. 75 Some of those approvals were notably for corporations that have been targeted for mass-casualty events in the past, such as Boeing, the National Football League (NFL), and college campuses around the country. 76 Thus, it is becoming increasingly likely that acts of terrorism will occur in locations with SAFETY Act approval.
Finally, the third factor to intensify the problems posed by an unclear SAFETY Act is its recent publicity. Since the Act was invoked in the Las Vegas Shooting litigation, there have been a number of articles suggesting that other companies could adopt MGM's strategy, including stadiums, office buildings, shopping centers, or any other gathering places that possess or employ certified QATTs. 77 In fact, commentators have already indicated that there has been an uptick in applications for QATT certification in direct response to MGM's argument. 78 Taken together, the increase in mass-casualty and terrorist events, the increase in SAFETY Act approvals, and the SAFETY Act's newfound publicity raise the Act's chances of applicability. Accordingly, clarity regarding the SAFETY Act is becoming increasingly important.
III. Resolving the Tensions between the SAFETY Act Statute and its Regulations
The landmark case about how much deference courts should give to an administering agency that has preempted state tort law is Wyeth v. Levine. 79 In Wyeth, the plaintiff lost her hand to gangrene after being injected with the defendant's medicine. 80 When she sued the defendant for mislabeling the product, relying on common-law negligence and strict-liability theories, the defendant argued that the Food and Drug Administration's (FDA's) labeling requirements preempted state law tort liability. 81 In relevant part, the defendant argued that recognizing the plaintiff's state tort action would create an “unacceptable ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” 82
The Court began analyzing the question of whether federal law preempted the plaintiff's claims with the “two cornerstones” of its preemption jurisprudence: (1) “the purpose of Congress is the ultimate touchstone in every pre-emption case” 83 and (2) “in all pre-emption cases, and particularly in those in which Congress has legislated … 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.” 84
The Court, in Wyeth, then disagreed with the defendant that Congress's purpose in giving FDA authority to approve labels was to entrust it with making drug labeling decisions, instead of the drug manufacturers. 85 Such an argument, the Court found, “relies on an untenable interpretation of congressional intent and an overbroad view of an agency's power to preempt state law.” 86
After contrasting FDA's legislative history with the defendant's argument to show why the defendant's argument must fail, the Court alternatively explained that, as a threshold matter, “agencies have no special authority to pronounce on preemption absent delegation by Congress.” 87 The Court conceded it had previously given “some weight” to an agency's view about how state tort law impacts federal objectives. 88 But the Court clarified that it has done so only when “the subject matter is technical and the relevant history and background are complex and extensive.” 89 Thus, it declined to recognize FDA's preemptive effect on state tort law.
In reaching its conclusion, the Court in Wyeth reviewed the statute's preemptive effect under a traditional preemption-analysis framework and then applied a deference doctrine to the relevant statement by the statute's implementing agency. This section will do the same for the SAFETY Act regulations at issue.
Before delving into a Chevron analysis, this part will identify the SAFETY Act's purposes and contemplate whether DHS's regulations were “reasonable” given the available information and directives the agency had.
Section III.A contextualizes the SAFETY Act so that its legislative history can be used in a preemption analysis. Next, section III.B conducts a preemption analysis and finds that Congress likely intended the Act to preempt additional claims against QATT sellers, but not claims against culpable third parties. Finally, section III.C will perform a Chevron analysis to address whether DHS's regulations are “reasonable” in light of those findings.
A. The SAFETY Act's legislative history
The analysis conducted by the Court in Wyeth relied heavily on legislative history to determine Congress's intent as it relates to preemption. This section will discuss the SAFETY Act's legislative history before performing a preemption analysis in the section to follow.
The SAFETY Act was not part of the Homeland Security Act of 2002 when Congress first introduced it. 90 It was added later without an identifiable sponsor, and support fell predictably along party lines in committee. 91 The Act also passed the House and Senate without a single hearing, so evidence of congressional intent is limited. 92
The four Democratic members on the House Committee on Homeland Security voted for an amendment that would have removed the SAFETY Act from the Homeland Security Act of 2002, but the five Republican members voted to keep it in. 93 The minority was concerned that the SAFETY Act “would bar access to state courts, eliminate punitive damages, cap liability, extend a form of immunity to sellers of potentially defective products, eliminate joint liability, and limit all forms of liability to the limits of ‘reasonably priced’ insurance. … ” 94 In short, the minority believed that the SAFETY Act “severely restricts the ability of claimants to recover for their injuries and fails to provide for any alternative form of compensation or indemnification. … ” 95
The Democratic members also expressed concerns about the SAFETY Act's mechanism for recovery, because it was substantially different from past attempts to limit seller liability in emergency circumstances. “For example,” the members elaborated, “the Air Transportation Safety and System [Stabilization] Act … imposed limits of liability … but also established an alternative victim's compensation fund. [Additionally], the Swine Flu Act of 1976 shielded manufacturers of the Swine Flu vaccine from liability, but preserved the right of victims to sue the federal government. … ” 96
Republican Representative Richard Armey was the chairman of the House Committee on Homeland Security at the time. 97 He also sponsored the Homeland Security Act of 2002. 98 In stark contrast with his Democratic colleagues, he praised the Act as a means for “ensur[ing] that U.S. companies will be able to develop and provide vital anti-terrorism technologies to help prevent or respond to terrorist attacks without the threat of crippling lawsuits.” 99 He reasoned that, without SAFETY Act protections, technology and defense companies would be too vulnerable and, therefore, unwilling and unable to research, develop, and deploy critical homeland security technology. 100 He also proclaimed the SAFETY Act struck a desirable balance between compensating victims and encouraging technological development by requiring technology companies to buy “the maximum amount of reasonably available insurance without incurring unreasonable premiums.” 101
In the Senate, an amendment to remove the SAFETY Act and six other provisions by Senators Daschle and Lieberman narrowly failed by a vote of fifty-two to forty-seven. 102 The Daschle-Lieberman amendment targeted the SAFETY Act for excessively limiting victims' ability to recover. 103 Senator Lieberman attacked the SAFETY Act for unjustly protecting defendants who “knowingly put anti-terrorism products on the market that they know won't work to keep people safe against an attack.” 104 He took greatest issue with the SAFETY Act's liability caps. 105 He explained that, because of those caps, “if injured people were lucky enough to get through the first hurdle and even hold a faulty seller liable, they still could go completely uncompensated even if a liable seller has more than enough money to compensate them.” 106
Senator John McCain, the Republican senator from Arizona, was chairman of the Commerce Committee when the SAFETY Act was in the legislative process. 107 Senator McCain believed that most of the provisions Senators Daschle and Lieberman were seeking to strike would have been rejected if Congress had voted on them individually. 108 However, “the Senate [was] being told that the House will effectively kill the entire bill if [the Senate] dare remove politically motivated riders.” 109 Senator Ted Kennedy also expressed those concerns when he said that the SAFETY Act “has nothing to do with bioterrorism preparedness or homeland security and everything to do with rewarding a large contributor to the Republican Party.” 110
When Senator McCain stood up against the Act, he reminded his colleagues that he was doing so from a different angle than the Democrats in Congress who instinctively object to liability limitations. 111 Indeed, he previously supported concepts very similar to those in the SAFETY Act, such as “the creation of a Federal cause of action, the prohibition on punitive damages, and the requirement for proportional liability for non-economic damages.” 112 But the senator explained that the SAFETY Act was different than the other tort reforms he had supported because it was “to[o] confused in its wording and concepts as to be almost incomprehensible.” 113
Senator McCain's greatest qualm with the SAFETY Act was that the government contractor's defense would extend to QATT sellers. On this matter, he posed the following hypothetical:
What happens if the Seller submits proper information to the Secretary, and the Secretary certifies a technology, such as a vaccine or chemical detection device, but a year later there is a gross defect in the manufacturing process, and as a result, the product doesn't work and Americans are injured or killed in a terrorist attack[?] The language in the bill suggests that the Seller still is not liable. But who is? Can the injured victim seek compensation under the Federal Tort Claims Act? The SAFETY Act does not say. Should they be able to? This is one of many questions affecting plaintiffs that does not seem to have been contemplated or considered when the SAFETY Act was included on the House bill.
114
Senator McCain insisted that “at a minimum, the SAFETY Act must be rewritten to ensure that its language is consistent with … its intent.” 115 But the SAFETY Act was not rewritten. 116 It was voted on as a piece of the Homeland Security Act of 2002, which passed by a vote of 90 to zero. 117
Senator McCain may be correct that the SAFETY Act's authors failed to contemplate whether additional tort claims against QATT sellers would be preempted. However, it seems clear from the statements of other congressional members who discussed the SAFETY Act that they interpreted it to preempt such claims. For example, when the bill was going through committee in the House, the Democratic members objected to it because it does not provide any alternate means of recovery for victims, 118 which was the same reason the Republican chair praised it. 119 If the Act allowed for state tort claims, then there would be alternate means of recovery and the members would not have been concerned. Thus, from the evidence available regarding Congress's intent while enacting the SAFETY Act, it seems as though Congress voted for an Act that would preempt all other tort claims against QATT sellers.
Contrastingly, there is absolutely nothing in the Congressional Record indicating that Congress intended the SAFETY Act to protect downstream users of QATT and other third parties. The Republican members of Congress supported the Act because of its liability-limiting function, which is precisely why the Democratic members opposed it. If the members actually contemplated this feature of the Act, they undoubtedly would have used it as a point to bolster their arguments, both for and against the Act. The Democratic members would have used it to strengthen their case that the Act did too much to limit liability, and the Republican members would have used it to say that the Act was an even stronger tort reform measure.
Insight into Congress's intent while enacting the SAFETY Act is limited. However, a few conclusions can be drawn from the Homeland Security Act committee report, the Congressional Record, and statements added to the Extensions of Remarks. First, despite their opposing opinions on the Act, all members of Congress rooted their arguments in the presumption that the Act had sweeping liability protection for sellers. And second, the failure of any member to mention the SAFETY Act's power to preclude all claims against third parties indicates that they did not intend to bestow such power upon the Act.
B. Preemption analysis
As the Supreme Court explained in Wyeth, “courts begin analysis with the assumption that the historic police powers of the states are not to be superseded by the federal Act unless that was the clear and manifest purpose of Congress.” 120 Thus, this section will analyze whether Congress expressly or impliedly preempted state tort law when it wrote the SAFETY Act. It is necessary to determine the statute's power before analyzing whether the regulations reasonably interpreted it.
The Supreme Court recognizes three types of preemption by Congress: express, implied-conflict, and implied-field. 121 As it sounds, express preemption is when Congress explicitly indicates that a statute will preempt other laws, usually by including a preemption clause or similar provision within the statute. 122 Conflict preemption occurs when Congress imposes a federal restriction that takes precedence over incompatible state restrictions. 123 Field preemption is another form of implied preemption that occurs when a federal law or interest so comprehensively and pervasively occupies a “field” of regulation that states have no room to enforce supplementary legislation. 124
1. Express preemption under the SAFETY Act
Congress did not expressly preempt tort claims against any party under the SAFETY Act because it did not include a preemption clause or any other provision that could be interpreted to a similar effect. 125 One can debate whether Congress purposefully chose not to include the provision or whether Congress simply overlooked the matter. However, there is some evidence to support that Congress's decision to exclude the provision was intentional.
For instance, Congress included a preemption clause in two other post-9/11 laws but did not include one in the SAFETY Act. One of those laws, TRIA, was signed into law just one day after the SAFETY Act. 126 In the “litigation management” section of TRIA, Congress used language that was very similar to the language to that in the “litigation management” section of the SAFETY Act. 127 However, Congress added an explicit preemption provision in TRIA, despite being completely silent on the matter in the SAFETY Act. 128
Congress similarly included a preemption clause in another post-9/11 law called the Air Transportation Safety and System Stabilization Act 129 (ATSSSA). That Act limited the liability of air carriers, aircraft manufacturers, airport sponsors, persons with property interest in the World Trade Center, and the City of New York. 130 Like TRIA, ATSSSA also included a preemption provision that stated, in relevant part, “this cause of action shall be the exclusive remedy for damages arising out of the hijacking and subsequent crashes of such flights.” 131 The SAFETY Act's silence on preemption, when contrasted with the preemption clauses in the related laws, is strong evidence that Congress purposefully chose not to grant the Act preemptive authority.
Moreover, Congress also failed to expressly delegate preemptive authority to DHS. If Congress wanted the DHS to preempt state law, it could have defined the scope of DHS's authority to promulgate a preemption rule by enumerating specific factors for the agency to take into account. 132 In the case of the SAFETY Act, however, Congress simply wrote: “The Secretary may issue such regulations, after notice and comment in accordance with section 553 of title 5, United States Code, as may be necessary to carry out this subtitle.” 133 Accordingly, because Congress did not expressly provide for preemption or expressly delegate preemptive authority to DHS, further analysis into implied conflict preemption and field preemption is warranted.
2. Implied conflict preemption under the SAFETY Act
The Supreme Court has explained that conflict preemption exists when state and federal laws conflict, or when the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 134 Any evidence that Congress purposely chose not to preempt claims under the SAFETY Act should be balanced against any obstacles that those tort claims would present for the measures explicitly promulgated by the Act.
If plaintiffs are able to bring additional tort actions against QATT sellers who are already being sued under the SAFETY Act, then those sellers will no longer be protected by the Act. As previously addressed, Congress's goal when enacting the SAFETY Act was to protect QATT sellers from liability to encourage the development of new technologies. 135 Thus, exposing QATT sellers to additional liability creates serious obstacles for the SAFETY Act's goal of protecting those sellers from litigious expenses. Indeed, such liability could render the SAFETY Act's protections meaningless. Thus, it follows that, under an implied-conflict analysis, the SAFETY Act should be interpreted to preempt additional tort claims against QATT sellers.
In contrast, there is less of a chance that an implied-conflict will be present when claims are brought against third parties involved in the production or use of QATT. The SAFETY Act regulations prohibit claims against “buyers, the buyers' contractors, or downstream users of the Technology, the Seller's suppliers or contractors, or any other person or entity.” 136 Congress's goal when enacting the SAFETY Act, however, was to incentivize the development of anti-terrorism technologies. 137 It is not clear that immunizing third parties furthers that goal much, if at all.
To illustrate that point, if victims of the Las Vegas Shooting litigation were able to recover from MGM for its alleged negligence, MGM's loss would have little to no effect on CSC's ability to develop new technologies. One might argue that by exposing MGM, as the downstream user of CSC's technology, to liability, the SAFETY Act would be providing companies with a disincentive to use anti-terrorism technologies. That argument seems meritorious on its face. However, it is easily refuted when one considers the liability that MGM could have faced by not having a security company to provide physical security, access control, and crowd management.
To be sure, that argument does not apply equally to a QATT seller's suppliers. Suppliers usually will not be facing liability for failing to supply a QATT seller the way that users will face liability for failing to deploy that seller's technology. However, the argument that suppliers would not be incentivized to make parts for anti-terrorism technology is a weak one. While the lowered risk could lead to lower prices for their buyers, there is no reason to assume suppliers would stop contracting with QATT sellers if they did not have complete immunity if they cause harm. And since the presumption against preemption, that speculative argument is not enough to prove the SAFETY Act impliedly preempts claims against third parties.
Additionally, opening third parties—including suppliers—to litigation does not mean that they would be vulnerable to excessive penalties when something goes wrong with a QATT. QATT sellers cannot be held jointly and severally liable for injuries caused by QATT. 138 Thus, third parties are effectively free from the risk of being held accountable for a problem with QATT that was caused by the seller. Courts would merely hold the third party liable for its own culpability.
Further, if the SAFETY Act is interpreted to create immunity for downstream users of QATT and leave only the QATT sellers open to litigation, the Act could have the exact opposite effect on anti-terrorism innovation than that which Congress intended. If only QATT sellers are open to liability, even when their downstream users are to blame for its defects, they could face high legal and insurance costs. 139 Conclusively, the SAFETY Act does not preempt claims against third parties because of implied-conflict preemption.
3. Implied field preemption under the SAFETY Act
Courts will infer Congress's intent to preempt state tort claims when “federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” 140 The development of anti-terrorism technologies is inherently a matter of national security, and the federal government undoubtedly has a substantial interest in precluding the enforcement of state tort laws on the same subject. Accordingly, it follows that the regulations can properly preempt claims against QATT sellers because the SAFETY Act was explicitly created to protect them. 141 However, state tort actions against third parties exceed the scope of the protected field, because there is no evidence that Congress tried to regulate in that area.
The Supreme Court performed an implied-field-preemption analysis in the area of atomic energy that took similar considerations into account. 142 In that case, the Court analyzed the Atomic Energy Act of 1954 (AEA) 143 for its ability to preempt a state statute that conditioned the construction of nuclear power plants. 144 The Court explained that the AEA “grew out of Congress' determination that the national interest would be best served if the Government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes under a program of federal regulation and licensing.” 145 The Court further explained that under the AEA, Congress gave the Atomic Energy Commission “exclusive jurisdiction to license the transfer, delivery, receipt, acquisition, possession, and use of nuclear materials.” 146 Thus, the Court concluded that no role was left for the states to regulate in those areas. 147
A few years later, the Supreme Court applied that analysis to a question more similar to the question this section seeks to answer. 148 In English v. General Electric Co., a laboratory technician sued her former employer, a nuclear-fuels production facility, for emotional distress. 149 In response, the production facility argued that the technician's claim was preempted because it fell within the nuclear safety field. 150
The Court recognized that the AEA “obviously bears some relation to the field of nuclear safety.” 151 However, it was more concerned with the statute's “paramount” purpose: the protection of employees. 152 Accordingly, the Court found no basis to conclude that all state law claims arising from conduct covered by the AEA are “necessarily included” in the preempted field. 153 Thus, the Court allowed the technician's claim to go forward. 154
Like the AEA, the SAFETY Act “grew out of Congress' determination that the national interest would be best served” if the government encouraged the private sector to innovate new anti-terrorism technologies. 155 Indeed, the SAFETY Act itself reflects that determination when it includes as one of its factors for designation: “Substantial likelihood that such anti-terrorism technology will not be deployed unless protections under the system of risk management provided under this subtitle are extended.” 156
The Congressional Record also reflects that determination where it provides proof of legislative intent. For example, Chairman Armey argued the SAFETY Act “ensures that U.S. companies will be able to develop and provide vital anti-terrorism technologies.” 157 Even Senator McCain, who opposed the Act, made statements reflecting Congress's determination that the SAFETY Act would encourage innovation. Despite his objections to the SAFETY Act's sloppy wording, he acknowledged that Act was an attempt by Congress to “address the legitimate liability concerns that may be keeping protective technology off the market.” 158
Under the SAFETY Act, Congress gave DHS authority to approve anti-terrorism technologies that qualify for protection based upon their ability to meet the criteria put forth by Congress. 159 It therefore follows that there is no room for states to promulgate regulations relating to the punishment or protection of QATT sellers. Plaintiffs must be preempted from bringing state tort claims against QATT sellers.
The question of whether plaintiffs can bring state tort claims against third parties is not as easily answered because the SAFETY Act makes no mention of third parties. 160 Per the English court's instruction, an implied-field analysis must consider whether state tort law overlaps with the federal Act's “paramount” purpose. 161 As this section has shown, the SAFETY Act's paramount purpose is to encourage the development of anti-terrorism technologies to strengthen national security.
Permitting culpable third parties to escape liability when their conduct is harmful does not further the SAFETY Act's paramount purpose. The Act only protects sellers from liability because DHS extensively reviewed the sellers' technology before approving it. DHS does not review any of the sellers' suppliers or users, however. Thus, the judicial system offers the only incentive for third parties to cautiously handle the QATT. It therefore follows that tort actions against third parties are not only symbiotic with Congress's national security goals, they are also integral to them.
An implied-field preemption analysis of the SAFETY Act mirrors the conclusions of an implied-conflict analysis. While the Act impliedly preempts additional tort claims against QATT sellers, it does not impliedly preempt such actions against third parties.
C. Chevron analysis
There is an ongoing debate about the level of deference courts should give an administrative agency that is charged with administering a statute. 162 The highest level of deference is Chevron deference. 163 The lower level of deference is Skidmore deference. 164 And the Court has even once suggested that the question of whether a statute is preemptive should always be decided de novo by the courts. 165 In Wyeth, the Court applied Skidmore deference. 166 But it may have only done so because the FDA preamble, which the defendant claimed to be preemptive, did not have the force of law.
An analysis of the SAFETY Act regulations' preemptive power, however, would likely be subject to Chevron deference. In U.S. v. Mead Corp., the Court explained that “administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” 167
Courts can assume Congress contemplated administrative action with the force of law if Congress provided for “a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.” 168 The Court has recognized that a good indicator that Congress has delegated authority to the agency to make rules with the force of law is when Congress expressly delegated rulemaking authority to the agency. 169 Another good indicator is the existence of a notice-and-comment period when determining whether the agency acted with the force of law. 170
In this case, Congress expressly authorized DHS to administer the SAFETY Act when it wrote: “The Secretary may issue such regulations, after notice and comment in accordance with section 553 of title 5, United States Code, as may be necessary to carry out this subtitle [6 U.S.C. §§ 441 et seq.].” 171 And there was a notice-and-comment period while DHS was implementing the SAFETY Act regulations. 172 Therefore, this section will analyze the two pertinent instances where the regulations exceeded their statute—on the exclusivity of the SAFETY Act remedy and how third parties are affected by it—under the Chevron doctrine.
In Chevron, the Supreme Court held that a court may not substitute its construction of a statute for the reasonable interpretation of the administrative agency tasked with implementing regulations for the statute. 173 According to the Court, Congress's failure to explicitly delegate authority to an administrative agency on a particular issue does not necessarily signify that the agency does not have the authority to administer that issue. 174 Congress can also confer general authority to an agency with the expectation that the agency will fill spaces in the enacted law. 175 Thus, under Chevron, judges must defer to an agency when that agency has offered a reasonable interpretation of a statute it administers, unless Congress has clearly answered the question at issue. 176 The inquiry is a two-step analysis.
1. Chevron step one
Chevron step one asks “whether Congress has ‘directly spoken to the precise question at issue.’ If so, ‘that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’” 177 The Court has held that a step-two inquiry would be necessary “if the statute is silent … with respect to the specific issue.” 178 Thus, the first question here is whether Congress directly spoke on the two issues being considered—if the SAFETY Act is an exclusive cause of action preempting all other claims against QATT sellers, and if it protects third parties.
The above preemption analysis demonstrated that Congress impliedly preempted additional tort claims against QATT sellers. But it did not expressly do so. Accordingly, courts may go either way when deciding whether a Chevron step two analysis is needed for the respective regulatory provision. Of course, the regulatory provision preempting claims against third parties will certainly make it to Chevron step two because Congress did not expressly or impliedly empower the SAFETY Act to preempt those claims.
The following section will therefore analyze both regulatory provisions under Chevron step two, leaving open the possibility that a court only chooses to analyze the latter.
2. Chevron step two
In Chevron, the Court explained that courts must defer to an agency's “reasonable” resolution of ambiguity or silence within a statute it administers. 179 However, even under that deferential standard, “agencies must operate within the bounds of reasonable interpretation.” 180 The Court has clearly stated that regulations are not reasonable if they are “arbitrary, capricious, or manifestly contrary to the statute.” 181 An inquiry under Chevron step two is typically an “arbitrary and capricious” review, absent some statutory provision that the regulations offend. Since the statute is silent on whether the SAFETY Act preempts tort claims against third parties, the regulations cannot be manifestly contrary to it. Accordingly, this analysis will focus on whether the regulations are arbitrary and capricious.
Courts are reluctant to invalidate a regulatory provision at step two of a Chevron analysis. 182 As a result, case law does not provide an accepted uniform test for what constitutes a “reasonable” regulation that is not arbitrary or capricious. 183
The Court provided its most thorough explanation in State Farm. 184 There, the Court held that agency action is “arbitrary and capricious” if the agency cannot “‘articulate a satisfactory explanation’ for its action including a ‘rational connection between the facts found and the choice made.’” 185 Since the Court rarely strikes down a regulation at Chevron step two, 186 it has not yet provided clear guidance for determining what a “satisfactory explanation” is or what would qualify as a “rational connection.” One factor the Court considers is whether the provision adheres to Congress's expressed intent. 187
Here, Congress expressly included its intent to encourage the development of anti-terrorism technologies when it instructed DHS to consider for approval the “[s]ubstantial likelihood that such anti-terrorism technology will not be deployed unless protections under the system of risk management provided under this subtitle are extended.” 188
Congress's explicit desire to encourage the development of anti-terrorism technologies that would not otherwise be deployed overwhelmingly supports the reasonableness of DHS's regulatory provision preempting additional tort claims against QATT sellers. Without immunity from state tort law, the SAFETY Act would be rendered meaningless—QATT sellers would face the same massive liability the Act attempts to shield them from. And Congress has already found that it is important to shield QATT sellers from that liability to incentivize their development of new anti-terrorism technology.
However, it is unclear whether Congress's expressed intent supports a preemptive provision protecting third parties. Section III.B illustrated that downstream users have other incentives for deploying anti-terrorism technology—namely, avoiding the liability that could attach to deciding not to deploy such technology. It is difficult to imagine there would be a “substantial likelihood that anti-terrorism technology will not be deployed” unless those downstream users have full immunity for their wrongdoings. But that logic does not apply as forcefully to QATT sellers' suppliers. It would take a deeper inquiry to determine whether suppliers would still contribute to the deployment of SAFETY Act anti-terrorism technology if they knew they were unprotected from liability. In section III.B, that argument was not enough to prove the statute impliedly preempted claims against third parties because there is a presumption against preemption. Here, however, it likely supports the preemptive provision in the regulation because Chevron is a highly deferential doctrine.
The Court has also explained that regulations would not clear the “arbitrary and capricious” bar if the agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” 189 There is nothing in the record to indicate that the DHS relied on factors Congress had not intended it to consider or that the DHS entirely failed to consider an important aspect of the problem.
The DHS offered an explanation for its provision preempting additional state tort claims against QATT sellers, and it does not run counter to the evidence before it. The agency explained: “Congress would not have created in this Act a Federal cause of action to complement State law causes of action. Not only is the substantive law for decision in the Federal action derived from State law (and thus would be surplusage), but in creating the Act Congress plainly intended to limit rather than increase the liability exposure of Sellers.” 190
DHS's explanation matches Congress's intent as explained in section III.B. It supports a finding that its regulatory provision preempting additional state tort claims be upheld.
Additionally, during the notice-and-comment period, DHS offered an explanation for the regulations' preemptive authority for claims against third parties. 191 First, DHS reasoned that the SAFETY Act must preempt claims against third parties because “the Act unequivocally states that a “cause of action shall be brought only for claims for injuries that are proximately caused by sellers that provide qualified anti-terrorism technology.’” 192 DHS was correct here. However, this argument only explains why plaintiffs cannot sue third parties under the SAFETY Act; it does not explain why plaintiffs cannot sue them under other tort laws.
Second, DHS argued that “if the Seller of the [QATT] at issue was not the only defendant, would-be plaintiffs could, in an effort to circumvent the statute, bring claims … against arguably less culpable persons or entities.” 193 Thus, the DHS reasoned that “those persons or entities, in turn, would file a third-party action against the Seller. … [and] Congress did not intend through the Act to increase rather than decrease the amount of litigation arising out of or related to the deployment of [QATT].” 194 But that argument ignores situations where the third parties are more culpable than the QATT seller. In such cases, DHS would apparently leave plaintiffs with one limited avenue for recourse: sue the QATT seller under the SAFETY Act, and it will either only be held proportionally liable for noneconomic damages or completely immune from liability because of the government contractors' defense.
It is clear that DHS's provision preempting additional tort claims against QATT sellers should receive Chevron deference. It is less clear whether the provision immunizing third parties should receive the same deference. While DHS went beyond Congress's intent by immunizing third parties, courts can apply great deference under Chevron. For example, the Supreme Court once upheld a regulation under the Chevron step two inquiry because it “would further the purpose” of the statute, and that the agency “did not act irrationally.” 195 Although Congress did not set out to immunize third parties, that immunity could further the purpose of the statute by eliminating risk for suppliers and downstream users, thereby driving down both the cost of making and the cost of deploying anti-terrorism technologies.
The result of a Chevron step two analysis will come down to how much deference a reviewing court gives the DHS. While Chevron is the appropriate test, courts must be sure to remember the presumption against preemption and the ongoing legal debate over whether any deference is even appropriate when Congress has not delegated preemptive authority to an agency. Those considerations, coupled with congressional intent and the public policy concerns present, all call for an interpretation of the SAFETY Act regulations that rejects the provision immunizing third parties.
Conclusion
The Las Vegas Shooting litigation is the first controversy to breathe new life into the effectively dormant SAFETY Act. However, this post-9/11 law is likely to appear in court more frequently as more events occur that meet the SAFETY Act's definition as an “act of terrorism,” DHS approves more technologies under the Act, and the Las Vegas Shooting case continues to bring publicity to the Act's protections for sellers of anti-terrorism technology. Consequently, a clear understanding of what the SAFETY Act does is critical.
Although the rushed circumstances of the SAFETY Act's enactment are concerning, the available evidence of legislative intent helps reveal the Act's purposes. The SAFETY Act regulations exceeded the SAFETY Act statute when they promulgated preemption of claims against QATT sellers and third parties involved in the development and deployment of QATT. By using the frameworks that the Supreme Court has provided for issues of preemption and issues of an implementing agency's overreach, the part of the regulation that preempts additional tort claims against QATT sellers must be upheld. But the regulatory provision that effectively immunizes third parties—such as downstream users, contractors, and suppliers—will depend on how much deference a judge is willing to give DHS.
By rejecting the regulatory provision that immunizes culpable third parties, courts can strike the proper balance between compensating victims of terrorism and encouraging the development of anti-terrorism technologies. This article's solution honors the letter of the SAFETY Act, Congress's intent, and public policy concerns to outline an approach to interpreting the Act that is predictable and fair.
Footnotes
1
To avoid giving notoriety to the perpetrator of the Las Vegas Shooting, this article will not use the gunman's name.
2
3
4
Id.
5
In re Route 91 Harvest Festival Shootings in Las Vegas, Nev., on October 1, 2017, 2018 U.S. Dist. LEXIS 173830, *1 (JPML). As of October 26, 2018, however, MGM and the plaintiffs' attorneys agreed to stay the pending litigation to enter into mediation. MGM released a statement following that agreement stating, “While we continue to believe ultimately courts would find in MGM's favor, we hope that entering into mediation will allow the parties to work together toward a fair and timely resolution.” It will be interesting to see how the mediation plays out with so many parties and attorneys involved. And, if their efforts fail, courts will resume their challenge of deciding which interpretation of the SAFETY Act is correct. See Michael Goldstein, MGM Resorts and Las Vegas Shooting Survivors Move Toward Mediation, 
.
6
Plaintiffs' Motion to Remand, Sheppard et al. v. Mandalay Bay, LLC et al., No. 2:18-cv-01120, *3 (D. Nev. filed June 29, 2018).
7
Id. at *3–5.
8
Id.
9
Complaint for Declaratory Relief, MGM Resorts International et al. v. Aase et al., No. 2:18-cv-06113, *169 (C.D. Cal. filed July 13, 2018) [hereinafter MGM Complaint].
10
Pub. L. No. 107-296, Title VIII, Subtitle G, § 862, 116 Stat. 2238 (2002), codified at 6 U.S.C. §§ 441–44.
11
MGM Complaint, supra note 9, at *2.
12
Pub. L. No. 107-296, 116 Stat. 2135 (2002), codified at 6 U.S.C. §§ 101–1533.
13
“Substantial likelihood that such anti-terrorism technology will not be deployed unless protections under the system of risk management provided under this subtitle are extended” is among the several factors that the Secretary of Homeland Security may consider when qualifying anti-terrorism technologies for protection under the SAFETY Act. 6 U.S.C. § 441(b).
14
MGM Complaint, supra note 9, at *2.
15
Defendants' Opposition to Plaintiffs' Motion to Remand, Sheppard et al. v. Mandalay Bay, LLC et al., No 2:18-cv-01120, *10 (D. Nev. filed July 27, 2018) [hereinafter MGM Opposition to Remand].
16
6 U.S.C. § 111.
17
See 6 U.S.C. §§ 101–1533.
18
6 U.S.C. §§ 181–95f.
19
21
6 U.S.C. § 442(a)(1). The SAFETY Act defines “anti-terrorism technology” as “any product, equipment, service, … device, or technology … designed, developed, modified, or procured for the specific purpose of preventing, detecting, identifying, or deterring acts of terrorism or limiting the harm such acts might otherwise cause, that is designated as such by the Secretary [of Homeland Security].” 6 U.S.C. § 444(1).
22
6 U.S.C. § 444(2)(B).
23
6 U.S.C. § 444(2)(A).
24
6 U.S.C. §§ 441–44.
25
6 U.S.C. § 442(b)(2).
26
6 U.S.C. §§ 442–43.
27
6 U.S.C. § 442(d).
28
6 U.S.C. § 442(d).
29
Boyle v. United Technology, 487 U.S. 500, 512 (1987). Although the SAFETY Act statute does not explicitly state that the defense may only be invoked in design defect claims, some senators believed the limitation is implied. Then-Senator Chafee spoke on this issue and explained that, in Boyle, the Supreme Court “recognized that the government contractor defense offers relief to certain defendants from liability for design defects.” Accordingly, the Senator made clear his understanding of the SAFETY Act as applying “solely to the design defect claims, rather than offering blanket relief to any and all causes of action.” Senator Lott also agreed with that interpretation. Homeland Security Act of 2002, 2d Sess., in 148
30
6 U.S.C. § 441(b) (listing the following criteria):
Prior United States Government use or demonstrated substantial utility and effectiveness; Availability of the technology for immediate deployment in public and private settings; Existence of extraordinarily large or extraordinarily unquantifiable potential third party liability risk exposure to the Seller or other provider of such anti-terrorism technology; Substantial likelihood that such anti-terrorism technology will not be deployed unless protections under the system of risk management provided under this part are extended; Magnitude of risk exposure to the public if such anti-terrorism technology is not deployed; Evaluation of all scientific studies that can be feasibly conducted in order to assess the capability of the technology to substantially reduce risks of harm; and Anti-terrorism technology that would be effective in facilitating the defense against acts of terrorism, including technologies that prevent, defeat or respond to such acts.
31
6 U.S.C. § 441(b).
32
6 C.F.R. § 25.8.
33
6 C.F.R. § 25.8.
34
See 6 U.S.C. §§ 441–44.
35
6 U.S.C. § 442(a)(1).
36
6 C.F.R. § 25.7(d).
37
6 C.F.R. § 25.7(d).
38
6 C.F.R. § 25.7(d).
39
6 C.F.R. § 25.7(d).
40
6 U.S.C. § 442(a)(1) (emphasis added).
41
Regulations Implementing the Support Anti-terrorism by Fostering Effective Technologies Act of 2002, 71 Fed. Reg. 33150 (2006), codified at 6 C.F.R. § 25.7 [hereinafter SAFETY Act Regulations].
42
MGM Complaint, supra note 9, at *167.
43
Id. at *2.
44
Id. at *164.
45
Id.
46
See Section III.B.
47
6 U.S.C. § 443(a)(2).
48
MGM Opposition to Remand, supra note 15, at *9.
49
50
Minutes of Proceedings—Motion Hearing held on 9/21/2018 before the Honorable Richard F. Boulware, Sheppard et al. v. Mandalay Bay, LLC et al., No. 2:18-cv-01120, *71 (D. Nev. filed Sept. 26, 2018) [hereinafter MGM Hearing].
51
52
See id.
53
See id.
54
See id.
55
See Kovaleski and Oppel Jr., supra note 52.
56
57
See id.
58
MGM Opposition to Remand, supra note 15, at *17.
59
The Department of Homeland Security published the following statement. Department of Homeland Security, SAFETY Act, Special Announcements (2018), archived at Pursuant to 6 U.S.C. § 444(2), the Secretary of Homeland Security possesses the authority to determine whether an act was an “act of terrorism” for purposes of the SAFETY Act. To date, the Secretary of Homeland Security has not made any such determination regarding the Route 91 Harvest Festival mass shooting incident. The matter is currently under review within the Department of Homeland Security.:
60
Plaintiffs' Reply in Support of Motion to Remand, Sheppard et al. v. Mandalay Bay, LLC et al., No. 2:18-cv-01120, *2 (D. Nev. filed Aug. 1, 2018).
61
6 C.F.R. § 25.3 (emphasis added).
62
MGM Hearing, supra note 51, at *44.
63
Id.
64
Pub. L. No. 107-297, 116 Stat. 2322 (2002), codified at 15 U.S.C. § 6701, Sec. 102(1)(D): Not later than 9 months after the report required … the Terrorism Risk Insurance Program Reauthorization Act of 2015 is submitted … the Secretary shall issue final rules governing the certification process, including establishing a timeline for which an act is eligible for certification by the Secretary on whether an act is an act of terrorism under this paragraph.
65
MGM Hearing, supra note 51, at *44.
66
Pub. L. No. 109-417, 120 Stat. 2831, codified at 42 U.S.C. § 247d-6d(b)(1).
67
42 U.S.C. § 247d-6d(b)(1).
68
42 U.S.C. § 247d-6d(i)(1)(A).
69
42 U.S.C. § 247d-6d)(b)(7).
70
See 6 U.S.C. § 444.
71
72
Id. at *1.
73
74
Helping Business Protect the Homeland: Is the Department of Homeland Security Effectively Implementing the SAFETY Act?, Hearings on HR 1817 before the Subcommittee on Management, Integration, and Oversight and the Subcommittee on Emergency Preparedness, Science, and Technology of the House Committee on Homeland Security, 109th Cong., 2d Sess. 6 (2006) [hereinafter SAFETY Act Effectiveness Hearing] (statement of the Honorable Jay Cohen, Undersecretary for Science and Technology, U.S. Department of Homeland Security).
75
77
See, for example, Regina Garcia Cano, Hotel Security in Vegas, Elsewhere Hasn't Earned U.S. Backing.
78
79
555 U.S. 555 (2009).
80
Id. at 558.
81
Id. at 559.
82
Id. at 563–64 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
83
555 U.S. at 565 (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).
84
555 U.S. at 565 (quoting Meditronic, Inc., 518 U.S. at 485) (internal quotations omitted)).
85
555 U.S. at 573.
86
Id. at 573.
87
Id. at 576–77.
88
Id. at 576.
89
555 U.S. at 576 (quoting Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000)).
90
See Homeland Security Act of 2002, H.R. 5005, 107th Cong., 2d Sess. (June 24, 2002).
91
Homeland Security Act of 2002 Report,
92
Homeland Security Act of 2002 Hearing–Continued, 107th Cong., 2d Sess., in 148
93
94
Id.
95
Id.
96
Id.
97
98
Id.
99
Homeland Security Act of 2002, Extensions of Remarks, 107th Cong., 2d Sess. (Nov 13, 2002), in 148
100
Id. at E2080.
101
Id.
102
103
Homeland Security Act of 2002 Hearing—Resumed, 107th Cong., 2d Sess., in 148
104
Id.
105
Id.
106
Id.
107
Homeland Security Act of 2002, 107th Cong., 2d Sess., in 148
108
HSA Continued, 107th Cong., 2d Sess. at S11430, supra note 93.
109
Id.
110
Id. at S11419.
111
Id. at S11430.
112
HSA Continued, 107th Cong., 2d Sess. at S11430, supra note 93.
113
Id.
114
Id.
115
Id.
116
117
See id.
118
See text accompanying note 97.
119
See text accompanying note 100.
120
555 U.S. at 565 (quoting Meditronic, Inc., 518 U.S. at 485 (internal quotations omitted)); Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008).
121
Murphy v Nat'l Collegiate Athletic Association, 138 S. Ct. 1461, 1480 (2018).
122
Id.
123
Id.
124
Id., quoting RJ Reynolds Tobacco Co. v. Durham County, 479 U.S. 130, 140 (1986).
125
See 6 U.S.C. §§ 441–44.
126
107 Pub. L. No. 297, 116 Stat. 2322.
127
Compare 15 U.S.C. § 6701 Sec. 107(a)(1) (“[T]here shall exist a Federal cause of action for property damage, personal injury, or death arising out of or resulting from such act of terrorism. … ”), with 6 U.S.C. § 442(a)(1) (“There shall exist a Federal cause of action for claims arising out of, relating to, or resulting from an act of terrorism. … ”).
128
Contrast 15 U.S.C. § 6701 Sec. 107(a)(2) (“All State causes of action of any kind for property damage, personal injury, or death arising out of or resulting from an act of terrorism that are otherwise available under State law are hereby preempted, except as provided in subsection (b)”), with 6 U.S.C. § 442.
129
Pub. L. No. 107-42, 115 Stat. 230, codified at 49 U.S.C. §§ 40101, 44302–06 (2001).
130
49 U.S.C. § 40101 Sec. 408(a).
131
49 U.S.C. § 40101 Sec. 408(b)(1) (emphasis added).
132
See, for example, Hazardous Materials Transportation Authorization Act of 1994, Pub. L. No. 103-311, 108 Stat. 1673, codified at 49 U.S.C. § 5125.
133
6 U.S.C. § 441(c).
134
Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015).
135
See Part III.
136
6 C.F.R. § 25.7(d).
137
See Part III.
138
6 U.S.C. § 442(b)(2).
139
6 U.S.C. § 443(a). While the SAFETY Act regulates insurance costs for qualified anti-terrorism technology (QATT) sellers, it is unclear how litigation could affect these costs. The SAFETY Act provides: (1) (2)
140
Arizona v. U.S., 567 U.S. 387, 399 (2012), quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
141
See, for example, 6 U.S.C. § 442(d) (“This presumption of the government contractor defense shall apply regardless of whether the claim against the Seller arises from a sale of the product to Federal Government or non-Federal Government customers.”).
142
Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 206 (1983).
143
Pub. L. No. 83-703, 668 Stat. 919, codified at 42 U.S.C. § 2011 et seq.
144
Pac. Gas, 461 U.S. at 194.
145
Id. at 207.
146
Id., citing 42 U.S.C. §§ 2014(e), (z), (aa), 2061–64, 2071–78, 2091–99, 2111–14.
147
Id.
148
English v. General Electric Co., 496 U.S. 72, 80 (1990).
149
Id. at 77.
150
Id.
151
Id. at 83.
152
English, 496 U.S. at 83.
153
Id.
154
Id.
155
Pac. Gas, 461 U.S. at 207.
156
6 U.S.C. § 441(b)(4).
157
HSA Ext. of Remarks, 107th Cong., 2d Sess. at E2079, supra note 100.
158
HSA Continued, 107th Cong., 2d Sess. at S11431, supra note 93.
159
6 U.S.C. § 441(b).
160
See 6 U.S.C. §§ 441–44.
161
English, 496 U.S. at 83.
162
See Ashutosh Bhagwat, Wyeth v. Levine and Agency Preemption More Muddle or Creeping to Clarity?, 44
163
See Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984).
164
See Skidmore v. Swift, 323 U.S. 134 (1944).
165
Smiley v. Citibank, 517 U.S. 735, 744 (1996).
166
Wyeth, 555 at 576–77.
167
533 U.S. 218, 226–27 (2001).
168
Mead Corp., 533 U.S. at 230.
169
Id. at 229.
170
Id. at 229.
171
6 U.S.C. § 441(c).
172
Department of Homeland Security, Regulations Implementing the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 (the SAFETY Act), 68 Fed. Reg. 59684–98 (2003), implementing 6 C.F.R. § 25.
173
467 U.S. at 865.
174
Id. at 844.
175
Id.
176
Id. at 865–66.
177
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124–25 (2016) (citing Chevron, 467 U.S. at 844).
178
Chevron, 467 U.S. at 843.
179
Chevron, 467 U.S. at 842–43.
180
Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (quoting Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014)).
181
Chevron, 467 U.S. at 844.
182
Catherine M. Sharkey, Cutting in on the Chevron Two-Step, 86
183
Id. at 2384.
184
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
185
State Farm, 463 U.S. at 43 (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
186
Catherine M. Sharkey, Cutting in on the Chevron Two-Step, 86
187
INS v. Cardoza-Fonseca, 480 U.S. 421, 454 (1987).
188
6 U.S.C. § 441(b).
189
State Farm, 463 U.S. at 43.
190
SAFETY Act Regulations, supra note 41, at 33150.
191
68 Fed. Reg. 59694, supra note 173.
192
Id., quoting 6 U.S.C. § 442(a)(1).
193
Id.
194
Id.
195
Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 59–60 (2011).