United States v. Chrysler Corp.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 1998 Decided October 30, 1998

No. 98-5047

United States of America,

Appellee

v.

Chrysler Corporation,

Appellant

Consolidated with

98-5069

Appeal from the United States District Court

for the District of Columbia

(No. 96cv01236)

John G. Roberts, Jr. argued the cause for appellant. With
him on the briefs were Gregory G. Garre and Erika Z. Jones.
Lawrence S. Robbins entered an appearance.

Irene M. Solet, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Frank W. Hunger, Assistant Attorney General, Wilma A.
Lewis, U.S. Attorney, Douglas N. Letter, Appellate Litigation

Counsel, U.S. Department of Justice, and Enid Rubenstein,
Attorney, National Highway Traffic Safety Administration.
Michael E. Robinson, Attorney, U.S. Department of Justice,
entered an appearance.

Andrew D. Koblenz, Charles H. Lockwood, Alan Charles
Raul and Thomas W. Merrill were on the brief for amici
curiae American Automobile Manufacturers, et al. Daniel J.
Popeo and Paul D. Kamenar entered appearances.

Before: Edwards, Chief Judge, Silberman and Randolph,
Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: Under the National Traffic and
Motor Vehicle Safety Act ("NTMVSA" or "Act"), the National
Highway Traffic Safety Administration ("NHTSA") may seek
the recall of a motor vehicle either when a vehicle has "a
defect related to motor vehicle safety" or when a vehicle
"does not comply with an applicable motor vehicle safety
standard." 49 U.S.C. s 30118(b) (1994). These provisions
are not mutually exclusive, nor are they coterminous. Thus,
an allegation of noncompliance may or may not include a
charge that a vehicle has a safety defect.

The instant case involves only an allegation of noncompli-
ance. There is no claim here that the vehicles in question
suffer from safety defects. The precise issue before the court
is whether NHTSA must provide notice of what is required
under a safety standard before seeking a recall under 49
U.S.C. s 30118 for noncompliance with that standard. We
find that, in light of both the requirements of 49 U.S.C.
ss 30112 and 30115 and the due process clause, notice is
required before a noncompliance recall may be ordered.
Because there was no notice here, we reverse the District
Court's recall order.

I. Background

On June 4, 1996, NHTSA filed this suit against Chrysler
seeking, inter alia, a recall of approximately 91,000 Model
Year 1995 Chrysler Cirrus and Dodge Stratus cars. NHTSA

alleged that the cars in question did not comply with Federal
Motor Vehicle Safety Standard 210 ("Standard 210"), which
regulates seat belt assembly anchorages. See 49 C.F.R.
s 571.210 (1997). On February 4, 1998, the District Court
granted NHTSA's request and ordered a recall. See United
States v. Chrysler Corp., 995 F. Supp. 150 (D.D.C. 1998).
Vehicles manufactured after May 15, 1995 were not made
subject to the recall, because "tapping plates" were added to
reinforce the anchorages in these vehicles. See id. at 153 n.5.

The promulgation of safety standards under the NTMVSA,
49 U.S.C. ss 30101-30169, has been delegated to NHTSA.
See 49 C.F.R. s 1.50(a) (1997). Pursuant to this authority,
NHTSA adopted Standard 210, which requires seat belt
assembly anchorages to withstand certain forces to ensure
that seat belts will remain attached to the vehicle in the event
of a crash. Anchorages must withstand two phases of a test
procedure: First, they must be able to withstand force as it is
increased to 3,000 pounds over thirty seconds. Second, after
3,000 pounds of force is reached, the anchorages must with-
stand that force for ten seconds. See 49 C.F.R. s 571.210
p S5.2. The test procedures require the use of a "pelvic body
block," an L-shaped metal block that represents a human
pelvis. The standard, however, does not specify the place-
ment of this block during testing. See id. pp S5, S5.2.

Chrysler tested the 1995 Cirrus and Stratus model designs
for compliance with Standard 210 on November 8, 1993, by
placing the pelvic body block against the seat back. Subse-
quently, in March 1995, Chrysler certified the 1995 Cirrus
and Stratus cars. In July 1995, NHTSA hired General
Testing Laboratories ("GTL") to conduct compliance testing
on a number of vehicles, including a 1995 Chrysler Cirrus.
When GTL performed the Standard 210 compliance test on
the 1995 Cirrus, it placed the pelvic body block away from the
rear seat back to prevent the seat buckles and webbing from
breaking during the test; this was done instead of replacing
the original belt webbing with wire rope, as Standard 210
allows. When testing was done with the pelvic body block
placed away from the rear seat back, the anchorage on one of

the rear seat belts failed after approximately 24 seconds with
2,829 pounds of applied force.

NHTSA notified Chrysler of the failure and requested that
Chrysler institute a recall. Chrysler performed its own tests
in August 1995, simulating the testing done by GTL, and its
results were similar to those of GTL, i.e., the anchorages
failed when the pelvic body block was placed forward of the
seat back. See Joint Appendix ("J.A.") 105. Thus, Chrysler
did not argue that GTL's test results were in error. Rather,
Chrysler claimed that GTL's decision to place the pelvic body
block forward of the seat back, rather than replace the seat
belt webbing, was the cause of the test failure. In other
words, Chrysler asserted that it had followed permissible test
procedures and had satisfied the requirements of Standard
210 using these procedures, so it did not matter whether GTL
reached different results using different test procedures.
Chrysler therefore refused to institute a recall.

In December 1995, NHTSA officials acknowledged that
neither Standard 210 nor the laboratory test procedures
developed by the Office of Vehicle Safety Compliance speci-
fied a position for the pelvic body block. See J.A. 129.
However, NHTSA asserted that, pursuant to a 1991 Federal
Register notice, manufacturers must pass the strength test
"with the safety belt and other vehicle features at any adjust-
ment" whenever a standard does not indicate the specific test
conditions. See 56 Fed. Reg. 63,676, 63,677 (1991). NHTSA
thus suggested that Chrysler was on notice that it might be
required to satisfy Standard 210 using the test procedures
employed by GTL.

After a notice of noncompliance and a public hearing,
NHTSA issued a final decision in June 1996. See 49 U.S.C.
s 30118(b). NHTSA ordered Chrysler to notify owners, pur-
chasers, and dealers of the noncompliance no later than July
8, 1996, and to provide a remedy without charge. Chrysler
refused and NHTSA filed this action, alleging that Chrysler
had violated ss 30112(a) and 30115 of the Act and requesting
that the District Court order a recall and award civil penal-
ties.

On cross-motions for summary judgment, the District
Court first sought to determine NHTSA's exact interpreta-
tion of Standard 210. This was no mean feat, because
NHTSA had articulated its interpretation "in different ways."
See United States v. Chrysler Corp., 995 F. Supp. at 155 &
n.8. The District Court finally concluded that "NHTSA's
interpretation of [Standard 210] is that vehicles must comply
with [Standard 210] when tested with the pelvic body block in
any position that would extend the lap belt to accommodate a
50th percentile 6-year-old to a 95th percentile adult male."
Id. at 155. The testing range cited by the District Court is
nowhere to be found in Standard 210; rather, it is taken from
Standard 208. See 49 C.F.R. s 571.208 p S7.1.1 (1997). In
any event, neither party disputes that the District Court's
statement is an accurate description of NHTSA's current
interpretation of Standard 210.

The District Court found that, because Chrysler had exer-
cised reasonable care, it had not violated s 30112(a) of the
Act, which prohibits the manufacture of a vehicle that does
not comply with the applicable standards. The trial court
also found that Chrysler had not violated s 30115, which
prohibits the certification of a vehicle that is not in compli-
ance with all applicable standards. Most importantly, the
District Court held that a manufacturer exercising reasonable
care would not have "been able to identify with ascertainable
certainty that vehicles must comply with [Standard 210] when
tested with the pelvic body block in any position that would
extend the lap belt to accommodate a 50th percentile 6-year-
old to a 95th percentile adult male, i.e., with the pelvic body
block positioned between 2 to 6.5 inches from the seat back."
See United States v. Chrysler Corp., 995 F. Supp. at 162.

The District Court then went on to hold that a recall could
be ordered without regard to whether Chrysler had reason-
able notice of the standard giving rise to the alleged noncom-
pliance. Because the 1995 cars here at issue did not comply
with NHTSA's current interpretation of Standard 210, the
District Court ordered Chrysler to notify owners, purchasers,
and dealers of the noncompliance by March 30, 1998, and to
provide a remedy without charge. See id. at 163-164; United

States v. Chrysler Corp., Civ. No. 96-1236 (EGS), Order
(D.D.C. Feb. 4, 1998), reprinted in J.A. 260-61. After a panel
of this court denied Chrysler's emergency motion to stay the
District Court's recall order, Chrysler initiated a recall pro-
cess by notifying owners, purchasers, and dealers of the
alleged noncompliance, offering to provide a remedy at no
charge, and submitting a "Noncompliance Information Re-
port" to NHTSA. Chrysler has not, however, completed all
that is required under the recall order.

II. Analysis

A. Mootness

The Government suggests that we need not reach the
merits of this case, because, in light of Chrysler's recall of
some of the cars at issue, the appeal is moot. Chrysler
responds that the appeal is not moot, because it has not
completed all that is required by the recall order. Chrysler
has the better of this argument. Given the present posture
of the case, it is clear that this appeal is not moot.

"[A]n appeal should ... be dismissed as moot when, by
virtue of an intervening event, a court of appeals cannot grant
'any effectual relief whatever' in favor of the appellant."
Calderon v. Moore, 518 U.S. 149, 150 (1996) (quoting Mills v.
Green, 159 U.S. 651, 653 (1895)). However, "even the avail-
ability of a 'partial remedy' is 'sufficient to prevent [a] case
from being moot.' " Id. (quoting Church of Scientology v.
United States, 506 U.S. 9, 13 (1992)). The question, then, is
whether this court can grant Chrysler any relief at all.

Chrysler points out that this court may grant relief be-
cause, even though we cannot "return the parties to the
status quo ante," see Church of Scientology, 506 U.S. at 12, a
ruling in Chrysler's favor would allow it to avoid the remain-
ing obligations under the District Court's order. In particu-
lar, Chrysler seeks to avoid fixing vehicles that have not yet
been repaired and submitting "Quarterly Reports" to NHTSA
regarding the progress of repairs. If Chrysler prevails on
the merits, it will avoid these obligations imposed by the

District Court, as well as any monetary penalties that might
be sought for the alleged violations of the Act. In other
words, Chrysler asserts that there is still substantial relief
that can be afforded by this court, thus defeating any sugges-
tion that the appeal is moot. We agree.

NHTSA argues that the decision in United States v. Ford
Motor Co., 574 F.2d 534 (D.C. Cir. 1978), requires a finding
that Chrysler's appeal was rendered moot as soon as the
company initiated a recall. In Ford, the manufacturer initi-
ated a recall when it could not agree with NHTSA on the
proper recall notice for car owners. See id. at 538. The
court then found that the appeal was moot, because Ford had
"unilaterally instituted a final recall." Id. at 539-40. The
present case is readily distinguishable in that Chrysler did
not undertake any recall action voluntarily, but rather was
ordered by the District Court (with a stay denied by this
court) to recall the cars. See 13A Charles Alan Wright et
al., Federal Practice and Procedure s 3533.2, at 250 (1984)
("An order that expressly controls future conduct is not
mooted by compliance during the period required to complete
an appeal...."). In any event, to the extent that our deci-
sion in Ford gives pause, the subsequent decisions by the
Supreme Court in Calderon and Church of Scientology are
controlling. The availability of a partial remedy for Chrysler
is sufficient to prevent this case from being moot.

B. The Requirement of "Fair Notice"

As noted above, under the Act, NHTSA may seek recall of
a motor vehicle, either when a vehicle has "a defect related to
motor vehicle safety" or when a vehicle "does not comply with
an applicable motor vehicle safety standard." 49 U.S.C.
s 30118(b). An allegation of noncompliance may or may not
include a charge that a vehicle has a safety defect. In this
case, the District Court's recall order was based solely on
NHTSA's claim that approximately 91,000 of Chrysler's vehi-
cles did not comply with Standard 210. NHTSA has never
contended that the Chrysler cars in question have a "defect
related to motor safety" that would warrant a recall. Indeed,
the Government does not even claim that Chrysler's alleged

breach of Standard 210 resulted in the manufacture of inher-
ently unsafe vehicles.

The principal issue before this court is whether NHTSA
must give reasonable notice of what is required by a safety
standard, such as Standard 210, before seeking a recall under
49 U.S.C. s 30118 on the ground that a manufacturer has
failed to comply with the standard. The simple answer to
this question, at least where there is no safety defect at issue,
is that a manufacturer cannot be found to be out of compli-
ance with a standard if NHTSA has failed to give fair notice
of what is required by the standard. And absent notice,
there can be no recall based solely on noncompliance.

In General Electric Co. v. EPA, 53 F.3d 1324, 1328, 1333
(D.C. Cir. 1995), we held that, because "[d]ue process re-
quires that parties receive fair notice before being deprived of
property," the Environmental Protection Agency ("EPA")
could not penalize General Electric for asserted regulatory
violations when General Electric lacked "fair warning of
[EPA's] interpretation of the regulations." We made it clear
that, "[i]n the absence of notice--for example, where the
regulation is not sufficiently clear to warn a party about what
is expected of it--an agency may not deprive a party of
property," particularly when "the interpretation is so far from
a reasonable person's understanding of the regulations that
they could not have fairly informed [the regulated party] of
the agency's perspective." Id. at 1328, 1330; see also Rollins
Envtl. Servs. Inc. v. EPA, 937 F.2d 649, 652 n.2 (D.C. Cir.
1991) ("[A] regulation carrying penal sanctions must give fair
warning of the conduct it prohibits or requires.") (citation
omitted); id. at 654 n.1 (Edwards, J., dissenting in part and
concurring in part) ("It is basic hornbook law in the adminis-
trative context that 'the application of a regulation in a
particular situation may be challenged on the ground that it
does not give fair warning that the allegedly violative conduct
was prohibited.' ") (citation omitted); Satellite Broad. Co. v.
FCC, 824 F.2d 1, 3 (D.C. Cir. 1987) ("Traditional concepts of
due process incorporated into administrative law preclude an
agency from penalizing a private party for violating a rule
without first providing adequate notice of the substance of the

rule."); Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C.
Cir. 1986) ("[T]he due process clause prevents ... the appli-
cation of a regulation that fails to give fair warning of the
conduct it prohibits or requires.").

NHTSA does not deny the viability of the "fair notice"
doctrine. Yet, the Government suggests that notice is not
required to compel compliance with standards under the Act.
We fail to comprehend this argument and the Government
offers no coherent defense of its position. The simple truth is
that there is no real difference between "violating" a regula-
tion, for which notice is required, and "not complying" with a
regulation, for which NHTSA argues notice is not required.
Thus, Chrysler cannot be required to recall cars for noncom-
pliance with Standard 210 if it had no notice of what NHTSA
now says is required under the standard.

NHTSA also argues that the recall order does not raise due
process concerns, because this court has only found due
process violations in those cases involving "explicit penalties
or actions that the Court described as punitive in some
manner." Brief for the Appellee at 57. But a recall, which
entails the expenditure of significant amounts of money,
deprives Chrysler of property no less than a fine. We have
little doubt that a recall is a "sufficiently grave sanction" such
that the duty to provide notice is triggered. See Satellite
Broad., 824 F.2d at 3.

Furthermore, it is noteworthy that the Act itself provides
that, before a manufacturer can be found to have manufac-
tured a noncomplying vehicle, NHTSA must show that a
reasonable person, exercising reasonable care, would have
known that the vehicle did not comply with the applicable
standards. See 49 U.S.C. s 30112(b)(2)(A) (1994). Moreover,
a manufacturer does not violate s 30115 of the Act by certify-
ing a vehicle as complying with all applicable standards if it
had no reason to know, in exercising reasonable care, that the
vehicle did not comply with the applicable safety standards.
See 49 U.S.C. s 30115 (1994). These statutory provisions
merely reinforce the well-established rule in administrative
law that the application of a rule may be successfully chal-

lenged if it does not give fair warning that the allegedly
violative conduct was prohibited.

In light of both the notice requirements of ss 30112 and
30115 and the due process clause, we find that Chrysler was
owed fair notice before it could be ordered to recall vehicles
for alleged noncompliance with a standard under the Act.
The only remaining question is whether NHTSA provided
Chrysler with the requisite notice.

C. Notice of Pelvic Body Block Placement

The District Court concluded that "Chrysler was not pro-
vided sufficient notice of NHTSA's recently articulated inter-
pretation of [Standard 210]." United States v. Chrysler
Corp., 995 F. Supp. at 162. NHTSA argues, however, that
Chrysler should have known to place the pelvic body block
between 2 to 6.5 inches from the seat back when testing for
compliance under Standard 210.

NHTSA is free to dispute the District Court's finding on
notice without filing a cross-appeal. See United States v.
American Ry. Express Co., 265 U.S. 425, 435 (1924) ("[T]he
appellee may, without taking a cross-appeal, urge in support
of a decree any matter appearing in the record, although his
argument may involve an attack upon the reasoning of the
lower court or an insistence upon matter overlooked or
ignored by it."); Freeman v. B & B Assocs., 790 F.2d 145, 151
(D.C. Cir. 1986) ("An appellate court ... will freely consider
any argument by an appellee that supports the judgment of
the district court including arguments rejected by the district
court and even arguments contradicting the logic of the
district court. Only when an appellee attempts to overturn or
modify a district court's judgment must the appellee file a
cross-appeal."). So we will entertain the Government's argu-
ment that the District Court was in error in concluding that
Chrysler did not have fair notice.

We begin with the language of Standard 210 to determine
whether "a regulated party acting in good faith would be able
to identify, with 'ascertainable certainty,' the standards with
which the agency expect[ed] parties to conform." General

Elec., 53 F.3d at 1329. As noted above, NHTSA acknowl-
edged in a December 1995 letter to Chrysler that neither
Standard 210 nor the laboratory test procedures for Standard
210 indicate the proper placement of the pelvic body block
during compliance testing. See J.A. 129. However, NHTSA
relies on a 1991 Federal Register notice to support its claim
that Chrysler had fair notice. That 1991 notice provides, in
relevant part, that,

[a]s a general matter, when a standard does not specify a
particular test condition, there is a presumption that the
requirements of the standard must be met at all such
test conditions. This presumption that the standard
must be met at all positions of unspecified test conditions
may be rebutted if the language of the standard as a
whole or its purposes indicate an intention to limit un-
specified test conditions to a particular condition or
conditions.

In the case of the strength requirements in Standard
No. 210, nothing in the language of the standard sug-
gests that the strength requirements were only to be
measured with the safety belt or other vehicle features at
certain adjustment positions. Indeed, the purpose of the
standard is to reduce the likelihood that an anchorage
will fail in a crash. To serve this purpose, the anchorage
must be capable of meeting the strength requirements
with the safety belt and other vehicle features at any
adjustment, since those features could be at any adjust-
ment position during a crash.

56 Fed. Reg. 63,676, 63,677.

NHTSA asserts that it is irrelevant that the pelvic body
block placement was not discussed in the 1991 notice. Rath-
er, NHTSA argues that the 1991 notice reflects the agency's
general policy and the phrase "must be capable of meeting
the strength requirements with the safety belt and other
vehicle features at any adjustment" has a discernible bearing
on the placement of the pelvic body block during compliance
testing. Thus, according to NHTSA, Chrysler could have
determined what NHTSA now views as the proper placement

of the pelvic body block simply by applying this general policy
notice when it performed its Standard 210 compliance testing.

NHTSA also argues that Chrysler should have known that
the compliance test must be performed with the pelvic body
block in any position that would extend the lap belt to
accommodate a 50th percentile six-year-old and a 95th per-
centile adult male. The notice for this testing requirement,
claims NHTSA, is readily apparent from another safety stan-
dard, Standard 208.

On the record at hand, we disagree with the Government's
claim that Chrysler should have been able to discern what
NHTSA now says is the correct pelvic body block placement
for Standard 210 compliance testing. The 1991 notice did not
even discuss pelvic body block placement. Moreover, the
language of the 1991 notice that NHTSA relies on is far too
general to suggest that Chrysler should have looked to anoth-
er standard, Standard 208, in order to determine the proper
placement under Standard 210. Before Chrysler could be
required to perform Standard 210 compliance testing with the
pelvic body block in any position that would accommodate a
50th percentile six-year-old and a 95th percentile adult male,
NHTSA must have either put this language into Standard 210
itself, or at least referenced this language in Standard 210.

In addition, NHTSA's own test schematic for Standard 210,
entitled "Typical FMVSS 210 Anchorage Pull Test Setup,"
shows the pelvic body block against the seat back, not for-
ward of it. See J.A. 141, 156. And as the District Court
found, NHTSA itself had tested for compliance with Standard
210 with the pelvic body block against the seat back. See
United States v. Chrysler Corp., 995 F. Supp at 162 n.20.
NHTSA's only response is that manufacturers may not rely
on NHTSA's own test procedures and practices to ensure
compliance with a standard. However, an agency is hard
pressed to show fair notice when the agency itself has taken
action in the past that conflicts with its current interpretation
of a regulation. Cf. General Elec., 53 F.3d at 1332 ("While we
accept EPA's argument that the regional office interpretation
was wrong, confusion at the regional level is yet more evi-

dence that the agency's interpretation of its own regulation
could not possibly have provided fair notice.").

Furthermore, the Standard 210 test procedures allow con-
tractors to replace the seat buckles if there is a risk of
breakage. See Laboratory Test Procedure for FMVSS No.
210, at 19, reprinted in J.A. 55; 49 C.F.R. s 571.210 p S5. As
the District Court pointed out, "the risk of seat belt buckle
breakage occurs if a test vehicle's original seat belts are used
and the pelvic body block is placed directly against the seat
back," and, thus, "[a]t the very least, [paragraph S5 and the
test procedures] suggest that testing with the pelvic body
block against the seat back is within the permissible range of
positions." United States v. Chrysler Corp., 995 F. Supp. at
162.

Finally, it should be noted that NHTSA's most recent
interpretation of Standard 210, regarding the positioning of
the pelvic body block, no more simulates the real world
conditions of a vehicle crash than does placing the block
against the seat back as Chrysler did. In fact, the positioning
of the pelvic body block during the GTL testing did not even
fall within the Standard 208 range that NHTSA now argues
governs pelvic body block placement for Standard 210 compli-
ance testing. The GTL testing only fell within the belt length
payout (the position on the seat forward of the seat back)
called for by the Standard 208 range, but not the correspond-
ing height and angle. NHTSA's response is that "[t]o have
tested with the body block in the forward and raised position
... would have required additional test equipment not con-
templated by Standard 210." Brief for the Appellee at 37
n.11. In other words, according to NHTSA, Chrysler not
only should have known that it must look to Standard 208 for
the proper pelvic body block range, it also should have known
to use only one of the dimensions specified in that range when
performing Standard 210 compliance testing. Chrysler might
have satisfied NHTSA with the exercise of extraordinary
intuition or with the aid of a psychic, but these possibilities
are more than the law requires.

Because we find that NHTSA failed to provide adequate
notice of what it now believes is the appropriate pelvic body
block placement when testing for compliance under Standard
210, Chrysler cannot be compelled to recall its 1995 Cirrus
and Stratus cars.

III. Conclusion

For the reasons set forth above, the judgment of the
District Court is reversed.

So ordered.