Amicus Curiae Brief — California Trucking Association, Inc., et al., Petitioners v. Rob Bonta, Attorney General of California, et al.

No. 21-194

IN THE

Supreme Court of the United States

_______________

CALIFORNIA TRUCKING ASSOCIATION, INC.; RAVINDER

SINGH; AND THOMAS ODOM,

Petitioners,

v.

ROBERT BONTA, IN HIS OFFICIAL CAPACITY AS THE

ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

ET AL,

_______________

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

_______________

BRIEF FOR AMERICAN TRUCKING

ASSOCIATIONS, INC. AND TRUCKLOAD

CARRIERS ASSOCIATION AS AMICI CURIAE

SUPPORTING PETITIONERS

_______________

RICHARD PIANKA

Counsel of Record

ATA Litigation Center

950 North Glebe Road

Arlington, VA 22203

(703) 838-1889

rpianka@trucking.org

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... ii

INTEREST OF THE AMICI CURIAE ......................1

INTRODUCTION AND

SUMMARY OF ARGUMENT ..................................2

REASONS FOR GRANTING THE PETITION ........4

I.

This Case Presents Issues of Exceptional

Importance to the Trucking Industry. ................4

A. The Independent Owner-Operator Model Is

an Important Component of the MarketDriven, Nationally Uniform Business

Practices Congress Sought to Promote with

the FAAAA. ......................................................5

B. The Ninth Circuit’s Holding Effectively

Insulates All Generally Applicable State

Laws from Preemption Under the FAAAA

and ADA. ........................................................12

II. The Ninth Circuit’s Serial Refusal to

Faithfully Apply This Court’s FAAAA

and ADA Precedents Further

Necessitates Review. .........................................13

III. This Case Presents an Ideal Opportunity for

the Court to Resolve These Recurring and

Important Issues................................................18

CONCLUSION .........................................................20

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Air Transp. Ass’n v. City &

County of San Francisco,

266 F.3d 1064 (9th Cir. 2001) .......................14, 15

Air Transp. Ass’n. v. Wash. Dep’t of Labor & Indus.,

2021 WL 3214549 (9th Cir. May 21, 2021) ........17

Am. Airlines v. Wolens,

513 U.S. 219 (1995) ................................... 5, 15, 16

Am. Trucking Ass’ns v. City of Los Angeles,

660 F.3d 384 (9th Cir. 2011) ................... 12, 15, 16

Bedoya v. Am. Eagle Express Inc.,

914 F.3d 812 (3d Cir. 2019) ..................................7

Bernstein v. Virgin Am., Inc.,

3 F.4th 1127 (9th Cir. 2021) ...............................17

California Trucking Ass’n v. Su,

903 F.3d 953 (9th Cir. 2018) .................................7

Carpet Remnant Warehouse, Inc. v. N.J.

Dep’t of Labor,

593 A.2d 1177 (N.J. 1991).....................................8

Dilts v. Penske Logistics, LLC,

769 F.3d 637 (9th Cir. 2014) ................... 16, 17, 18

Dynamex Operations W. v. Sup. Ct.,

416 P.3d 1 (Cal. 2018) .......................................6, 9

Ginsberg v. Northwest, Inc.,

695 F.3d 873 (9th Cir. 2012) ...............................15

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) ....................... 4, 13, 14, 16, 19

iii

TABLE OF AUTHORITIES—continued

Page(s)

N. Am. Van Lines, Inc. v. NLRB,

869 F.2d 596 (D.C. Cir. 1989) .............................10

N.H. Motor Transp. Ass’n v. Rowe,

448 F.3d 66 (1st Cir. 2006) .................................19

Northwest, Inc. v. Ginsberg,

572 U.S. 273 (2014) .............................................15

Ridgeway v. Walmart Inc.,

946 F.3d 1066 (9th Cir. 2020) .............................17

Rowe v. N.H. Motor Transp. Ass’n,

552 U.S. 364 (2008) .........................................5, 12

Schwann v. FedEx Ground Package Sys., Inc.,

813 F.3d 429 (1st Cir. 2016) ..................... 6, 18, 19

Ward v. United Airlines,

986 F.3d 1234 (9th Cir. 2021) .............................17

W. Ports Transp., Inc. v. Emp. Sec. Dep’t,

41 P.3d 510 (Wash. Ct. App. 2002) .....................10

Statutes and Regulations

21 Vt. Stat. Ann. § 1301(6)(B) ....................................7

21 Vt. Stat. Ann. § 341 ...............................................9

28 U.S.C. § 1254 .......................................................19

29 U.S.C. § 1144(a) ...................................................14

49 C.F.R. § 376.12(c)(1) ..............................................9

49 U.S.C. § 14102(a)(2) ..............................................9

49 U.S.C. § 14501(c)(1) ...........................................2, 4

iv

TABLE OF AUTHORITIES—continued

Page(s)

49 U.S.C. § 41713(b)(1) ..............................................4

49 U.S.C. § 41713(b)(4)(A)..........................................4

820 Ill. Comp. Stat. 115/2 ..........................................9

820 Ill. Comp. Stat. 405/212 ......................................6

820 Ill. Comp. Stat. 405/212.1 .................................11

Ala. Code § 25-5-1(4) ................................................11

Alaska Stat. § 23.20.525(a)(8) ....................................6

Cal. Lab. Code § 2775(b)(1) ........................................7

Cal. Lab. Code § 2775(b)(1)(B) ...................................6

Cal. Lab. Code § 2777–84 ...........................................9

Colo. Rev. Stat. § 8-40-301(5)...................................11

Colo. Rev. Stat. § 8-70-115 .........................................7

Conn. Gen. Stat. § 31-222(a)(1)(B).............................6

Del. Code Ann. tit. 19 § 3302(10)(K) ..........................6

Fla. Stat. § 440.02(15)(d)(4) .....................................11

Ga. Code Ann. § 34-8-35(f)(1) .....................................7

Ga. Code Ann. § 34-8-35(n)(17) ................................11

Ga. Code Ann. § 34-9-1(2) ........................................11

Ga. Code Ann. § 40-2-87(19) ....................................11

Haw. Rev. Stat. § 383-6 ..............................................6

Idaho Code Ann. § 72-1316(4) ....................................7

Ind. Code Ann. § 22-3-6-1(b)(8) ................................11

Ind. Code Ann. § 22-4-8-3.5......................................11

v

TABLE OF AUTHORITIES—continued

Page(s)

Iowa Code § 85.61(11)(c)(3) ......................................11

Kan. Stat. Ann. § 44-503c ........................................11

Kan. Stat. Ann. § 44-703(i)(4)(Y) .............................11

La. Rev. Stat. Ann. § 23:1021(10) ............................11

La. Rev. Stat. Ann. § 23:1472(12)(E) .........................7

Md. Code Ann., Lab. & Empl. § 3-902 .......................8

Md. Code Ann., Lab. & Empl. § 8-205(a)...................7

Md. Code Ann., Lab. & Empl. § 8-206(f)(2) .............11

Md. Code Ann., Lab. & Empl. § 9-218 .....................11

Me. Rev. Stat. Ann. tit. 26, § 1043(11)(F)(33) .........11

Minn. Stat. § 176.043 ...............................................11

Minn. Stat. § 268.035(25b) .......................................11

Mo. Rev. Stat. § 287.020(1) ......................................10

Mo. Rev. Stat. § 288.035 ..........................................10

Neb. Rev. Stat. § 48-604(5) ........................................7

Neb. Rev. Stat. § 48-604(6)(q) ..................................11

Nev. Rev. Stat. § 612.085 ...........................................7

N.D. Cent. Code § 65-01-03 ......................................11

N.H. Rev. Stat. Ann. § 282-A:9(III) ...........................7

N.J. Stat. Ann. § 34:20-4 ............................................8

N.J. Stat. Ann. § 43:21-19(i)(6) ..................................7

N.J. Stat. Ann. § 43:21-19(i)(7)(X) ...........................11

N.M. Stat. § 51-1-42(F)(5) ..........................................7

vi

TABLE OF AUTHORITIES—continued

Page(s)

N.Y. Lab. Law § 861-c(1)(a) .......................................8

Ohio Rev. Code Ann. § 4111.03(D)(3)(i) ...................11

Ohio Rev. Code Ann. § 4123.01(A)(1)(d) ..................11

Ohio Rev. Code Ann. § 4141.01(B)(2)(m) .................11

Okla. Stat. tit. 40, § 1-208.1 .....................................11

Okla. Stat. tit. 40, § 2.18(b)(9) .................................11

Or. Rev. Stat. § 656.027(15) .....................................11

Or. Rev. Stat. § 657.047(1)(b)...................................11

Or. Rev. Stat. § 670.600(2) .........................................7

Pa. Stat. Ann. tit. 43, § 753(l)(2)(B) ...........................7

Pa. Stat. Ann. tit. 43, § 933.3(a)(1) ............................8

S.C. Code Ann. § 42-1-360(9) ...................................11

S.D. Codified Laws § 61-1-11 .....................................7

S.D. Codified Laws § 62-1-10 ...................................11

S.D. Codified Laws § 62-1-11 ...................................11

Tenn. Code Ann. § 50-6-106(1)(A)............................11

Tenn. Code Ann. § 50-7-207(e)(1) ............................11

Tex. Lab. Code Ann. § 406.122(c) ............................11

Utah Code Ann. § 34A-2-104(5)(d)...........................11

Utah Code Ann. § 35A-4-204(3) .................................7

Va. Code Ann. § 60.2-212.1 ................................10, 11

Wash. Rev. Code § 50.04.140(1) .................................7

Wash. Rev. Code § 51.08.180 ...................................11

vii

TABLE OF AUTHORITIES—continued

Page(s)

W. Va. Code § 21A-1A-16(7) .......................................7

Wyo. Stat. Ann. § 27-3-108(a)(x) ..............................11

Wyo. Stat. Ann. § 27-14-102(a)(vii)(O) ....................11

Motor Carrier Act of 1980,

Pub. L. No. 96-296, 94 Stat. 793 ...........................4

Other Authorities

H.R. Conf. Rep. No. 103-677 (1994) .................2, 4, 12

U.S. Dep’t of Labor, Comparison of State Unemployment Insurance Laws (2019) ................................8

INTEREST OF THE AMICI CURIAE*

American Trucking Associations, Inc. (ATA), is the

national association of the trucking industry. Its direct membership includes approximately 1,800 trucking companies and in conjunction with 50 affiliated

state trucking organizations, it represents over 30,000

motor carriers of every size, type, and class of motor

carrier operation. The motor carriers represented by

ATA haul a significant portion of the freight transported by truck in the United States and virtually all

of them operate in interstate commerce among the

states. ATA regularly represents the common interests of the trucking industry in courts throughout the

nation, including this Court.

The Truckload Carriers Association is the only national trade association whose sole focus is the truckload segment of the trucking industry. The association

represents dry van, refrigerated, flatbed, and rail intermodal carriers operating in the 48 contiguous U.S.

states, as well as Alaska, Mexico, and Canada. TCA

and its trucking company members regularly comment on matters affecting the national transportation

industry’s common interests.

Amici each have members who regularly contract

with independent owner-operators, and who regularly

* Counsel for petitioners and respondents received timely no-

tice of the intent to file this brief, and both parties have consented to its filing. See Rule 37.2(a). Pursuant to Rule 37.6,

amici state that no counsel for any party has authored this

brief in whole or in part, and no person or entity, other than

amici, their members, or their counsel has made any monetary contributions intended to fund the preparation or submission of this brief.

2

conduct operations in the state of California as well as

other states. Thus, they have an acute interest both in

the preservation of the independent owner-operator

model in the trucking industry, and in ensuring that

the congressional policy establishing a deregulated

trucking industry is not undermined by a patchwork

of state-level impediments to the safe and efficient

flow of commerce. Moreover, ATA has special familiarity with the issue of preemption under the Federal

Aviation Administration Authorization Act (FAAAA),

because it actively participated in the formulation of

federal motor carrier deregulation and preemption

policy in Congress. See, e.g., H.R. Conf. Rep. No. 103677, at 88 (1994). Since that time, ATA has been involved, either as a party or as an amicus, in many of

the cases before this Court and other courts interpreting and applying the FAAAA’s preemption provision

and the materially identical preemption provision of

the Airline Deregulation Act, as well as cases before

numerous courts concerning the use of independent

owner-operators in the trucking industry.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Federal Aviation Administration Authorization Act of 1994 (FAAAA) prohibits states from “enact[ing] or enforce[ing] a law, regulation, or other provision having the force and effect of law related to a

price, route, or service of any motor carrier … with respect to the transportation of property.” 49 U.S.C.

§ 14501(c)(1). In the decision below, a divided panel of

the Ninth Circuit held that the FAAAA’s preemption

provision did not preclude application of California’s

highly restrictive “ABC test” for worker classification

(enacted in 2019 by California’s Assembly Bill 5, or

3

AB-5) to the relationship between motor carriers and

owner-operators. The panel majority reached that

conclusion without regard to the actual effects of California’s test on motor carrier prices, routes, and services, instead concluding that state laws like AB-5 are

preempted only if they bind motor carriers to specific

prices, routes, or services. Petitioners have explained

in detail the split among the lower courts on the question presented, Pet. 15–23, and why the decision below is wrong, id. at 23–32.

Amici submit this brief to further explain how the

Ninth Circuit’s decision interferes with the Congressional policies embedded in the FAAAA’s preemption

provision. By effectively allowing California to prohibit motor carriers from using a widespread business

model that is permissible in every other state, the decision below creates precisely the kind of patchwork

interference with market-driven uniformity and efficiency in the trucking industry that Congress sought

to promote when it enacted the FAAAA. And by employing a test that effectively insulates whole categories of state laws from preemption under the FAAAA

(and the equivalent provision of the Airline Deregulation Act governing airlines) even when they significantly affect prices, routes, or services, the Ninth Circuit has created a massive exception that is nowhere

to be found in the text of the statutes or the Congressional policies behind them, and is foreclosed by this

Court’s cases. Moreover, this case represents an ideal

opportunity to address the Ninth Circuit’s serial refusal, in a long line of decisions, to give full effect to

these preemption statutes, and to faithfully apply this

Court’s precedents.

4

REASONS FOR GRANTING THE PETITION

I. THIS CASE PRESENTS ISSUES OF EXCEPTIONAL IMPORTANCE TO THE TRUCKING

INDUSTRY.

The FAAAA preempts any “law related to a price,

route, or service of any motor carrier … with respect

to the transportation of property” or any “air carrier

… transporting property … by motor vehicle.” 49

U.S.C. §§ 14501(c)(1), 41713(b)(4)(A). This broad

preemption provision was enacted in 1994 with the

goal of eliminating the patchwork of burdensome

state trucking regulations that had previously developed, and to ensure that state policies would not undo

the program of federal deregulation that began with

the Motor Carrier Act of 1980, Pub. L. No. 96-296, 94

Stat. 793. Specifically, Congress concluded that state

regulation “causes significant inefficiencies,” “increase[s] costs,” and “inhibit[s] … innovation and

technology.” H.R. Conf. Rep. No. 103-677 at 87. Indeed, despite deregulatory efforts at the federal level,

“[t]he sheer diversity of [state] regulatory schemes [remained] a huge problem for national and regional carriers attempting to conduct a standard way of doing business.” Ibid. (emphasis added).

To achieve its goal of preserving this kind of regulatory uniformity for the trucking industry, Congress

expressly adopted the preemptive language and effect

of the Airline Deregulation Act of 1978 (ADA), 49

U.S.C. § 41713(b)(1), as this Court had broadly interpreted it in Morales v. Trans World Airlines, Inc., 504

U.S. 374 (1992). H.R. Conf. Rep. No. 103-677 at 83. As

this Court has explained, that choice reflects “Congress’ major legislative effort to leave such decisions”

5

about prices, routes, or services, “where federally unregulated, to the competitive marketplace.” Rowe v.

N.H. Motor Transp. Ass’n, 552 U.S. 364, 373 (2008).

The upshot is that “States may not seek to impose

their own public policies or theories of competition

or regulation on the operations of a[] … carrier.” Am.

Airlines v. Wolens, 513 U.S. 219, 229 n.5 (1995) (emphasis added, internal quotation marks omitted).

The decision below runs roughshod over those Congressional policies in multiple ways. Most immediately, it allows California to effectively prohibit an operational model that, in response to market forces,

plays a major role in the trucking industry (and, by

extension, the national supply chain). More broadly,

the Ninth Circuit’s holding amounts to a rule-swallowing exception that would allow states to impose

their policy preferences on the trucking industry—no

matter how great the impact of those policies on

prices, routes, or services—so long as they do so under

cover of a generally applicable law or regulation.

These interferences with Congressional policy urgently warrant this Court’s review.

A. The Independent Owner-Operator Model

Is an Important Component of the MarketDriven, Nationally Uniform Business

Practices Congress Sought to Promote

with the FAAAA.

Petitioners have explained the crucial role that independent owner-operators play in matching freighthauling capacity to the ever-shifting demands of the

national supply chain. Pet. 4–6. See also Br. of National Motor Freight Traffic Ass’n as Amicus Curiae

Supporting Petitioners at 6–12. The importance and

prevalence of the independent owner-operator model

are further reflected in the fact that, everywhere in

6

the nation outside of California, owner-operators and

motor carriers are permitted to enter into independent contracting relationships. Indeed, a majority of

states have indicated their embrace of independent

owner-operators by enacting express statutory provisions classifying owner-operators as independent contractors. And to amici’s knowledge, no other state has

erected the kind of barrier to independent contracting

relationships between owner-operators and motor carriers that California has—with the exception of Massachusetts, whose materially identical barrier the

First Circuit held was preempted under the FAAAA.

Schwann v. FedEx Ground Package Sys., Inc., 813

F.3d 429, 437 (1st Cir. 2016). To be sure, California is

by no means the only state to use some kind of ABC

test for some worker classification purposes. But nowhere else does a state’s worker classification law

compel motor carriers to provide services exclusively

with employee drivers, for a number of reasons.

1. First, the ABC test adopted by the California Supreme Court in Dynamex Operations W. v. Sup. Ct.,

416 P.3d 1 (Cal. 2018), and codified in AB-5, is far

more restrictive than the prevailing form of the test

as historically implemented elsewhere. Specifically,

while the (B) prong of California’s ABC test can only

be satisfied if the service performed is “outside the

usual course of the hiring entity’s business,” Cal. Lab.

Code § 2775(b)(1)(B), in most jurisdictions that prong

can be satisfied “by establishing either (1) that the

work provided is outside the usual course of the business for which the work is performed, or (2) that the

work performed is outside all the places of business of

the hiring entity.” Dynamex, 416 P.3d at 34 n.23. See,

e.g., Alaska Stat. § 23.20.525(a)(8); Conn. Gen. Stat.

§ 31-222(a)(1)(B); Del. Code Ann. tit. 19 § 3302(10)(K);

Haw. Rev. Stat. § 383-6; 820 Ill. Comp. Stat. 405/212;

7

La. Rev. Stat. Ann. § 23:1472(12)(E); Md. Code Ann.,

Lab. & Empl. § 8-205(a); Neb. Rev. Stat. § 48-604(5);

Nev. Rev. Stat. § 612.085; N.H. Rev. Stat. Ann. § 282A:9(III); N.J. Stat. Ann. § 43:21-19(i)(6); N.M. Stat.

§ 51-1-42(F)(5); 21 Vt. Stat. Ann. § 1301(6)(B); Wash.

Rev. Code § 50.04.140(1); W. Va. Code § 21A-1A16(7).1

This difference is crucial for worker classification

determinations in the trucking context. Because

owner-operators provide services that are within the

usual course of a motor carrier’s business, an owneroperator will never satisfy California’s version of the

(B) prong—as the Ninth Circuit itself recognized elsewhere. California Trucking Ass’n v. Su, 903 F.3d 953,

964 (9th Cir. 2018). By contrast, owner-operators typically do perform their work outside the hiring entity’s

places of business, and thus can meet the conditions

of the more common version of the test. See Bedoya v.

Am. Eagle Express Inc., 914 F.3d 812, 824 (3d Cir.

2019) (because New Jersey used the broad form of the

(B) prong in its ABC test, it—unlike the narrow form

in the Massachusetts ABC test—did not “categorically

prevent[] carriers from using independent contractors”).

2. Second, while California has adopted the ABC

test for purposes of the state’s employment laws generally, see Cal. Lab. Code § 2775(b)(1), other states

that have adopted an ABC test have typically done so

1 Some states have gone further and rejected the (B) prong

altogether, instead embracing an “AC” test that looks just to

the “control or direction” and “independently established

trade” criteria. See, e.g., Colo. Rev. Stat. § 8-70-115; Ga. Code

Ann. § 34-8-35(f)(1); Idaho Code Ann. § 72-1316(4); Pa. Stat.

Ann. tit. 43, § 753(l)(2)(B); Or. Rev. Stat. § 670.600(2); S.D.

Codified Laws § 61-1-11; Utah Code Ann. § 35A-4-204(3).

8

for narrow purposes (again, with the exception of Massachusetts’ preempted test). In particular, the ABC

test has been most widely adopted to provide state administrative agencies with criteria governing unemployment insurance (UI) programs, rather than the

full range of state wage and hour laws. See U.S. Dep’t

of Labor, Comparison of State Unemployment Insurance Laws (2019) at 1–4 (“[m]any of the states provide

criteria commonly called the ‘ABC’ test” to determine

whether a worker is an employee for unemployment

insurance purposes), available at https://oui.doleta.

gov/unemploy/pdf/uilawcompar/2019/complete.pdf.

See also, e.g., Carpet Remnant Warehouse, Inc. v. N.J.

Dep’t of Labor, 593 A.2d 1177, 1184 (N.J. 1991) (noting that “[a] minority of states adopted the federal

[common-law] definition of employee” for UI purposes,

but “a majority of states … use the ABC test”).

Beyond this, a handful of states have adopted ABC

tests to govern worker classification outside the administrative-program context. For example, some

states have adopted some form of ABC test in establishing penalties for misclassification, but limited to

certain specific industries where it presumably

deemed independent contracting to be especially problematic. See, e.g., Md. Code Ann., Lab. & Empl. §§ 3902 et seq. (enacting penalties for misclassification,

determined by narrow ABC test, in the construction

and landscaping industries); N.J. Stat. Ann. § 34:20-4

(adopting traditional ABC test for broad employment

law purposes in construction industry); N.Y. Lab. Law

§ 861-c(1)(a) (narrow ABC test for construction industry); Pa. Stat. Ann. tit. 43 § 933.3(a)(1) (modified ABC

test for construction industry). Others have adopted

the traditional form of the ABC test (whose (B) prong

can be satisfied if the services are performed outside

its places of business) to determine the applicability of

9

specific worker pay rules. See, e.g., 820 Ill. Comp. Stat.

115/2; 21 Vt. Stat. Ann. § 341. But to amici’s

knowledge, with the (preempted) exception of Massachusetts, no other state has done what California has

done: imposed the impossible-to-satisfy version of the

ABC test on the trucking industry for the full range of

state employment law, making it effectively impossible for motor carriers to contract with independent

owner-operators.

3. In fact, a majority of states have enacted express

statutory provisions excluding owner-operators from

the default test for employment, to ensure that they

are unambiguously treated as independent contractors—much as California did for a wide range of other

occupations when it enacted and amended AB-5. See

Cal. Lab. Code §§ 2777–84. These statutory owner-operator exceptions have the same virtues the California

Supreme Court saw in the ABC test: they provide “an

easily and consistently applied standard,” compared

to a multifactor test that “often leaves both businesses

and workers in the dark with respect to basic questions.” Dynamex, 416 P.3d at 33. The difference, of

course, is that these exceptions consistently promote

the independent owner-operator model rather than

prohibit it.2

2 That clarity can be particularly important in the trucking

industry, where federal law makes motor carriers just as responsible for the safety performance of independent owneroperators as they are for employee drivers, and charge the

carrier with ensuring the owner-operator’s adherence to the

federal motor carrier safety regulations. 49 U.S.C.

§ 14102(a)(2); 49 C.F.R. § 376.12(c)(1). While such government-mandated supervision does not, properly understood,

constitute the kind of “control” indicative of an employment

10

States have taken different approaches in formulating their exceptions. For some, the exception is categorical. For example, in both its workers’ compensation and UI statutes, Missouri excludes from the definition of “employee” any “individual who is the owner

… and operator of a motor vehicle which is leased or

contracted with a driver to a for-hire motor carrier.”

Mo. Rev. Stat. §§ 287.020(1), 288.035.

Other states condition their exception on specifically enumerated, objective criteria that are tailored

to the practicalities of motor carrier/owner-operator

relationships. For example, Virginia’s UI statute recognizes that “[i]n the trucking industry, an owner-operator or lessee of a vehicle which is licensed and registered as a truck, tractor, or truck-tractor … is an independent contractor, not an employee, while performing services in the operation of his truck,” provided that “[t]he individual owns the equipment or

holds it under a bona fide lease;” “is responsible for

the maintenance of the equipment;” “bears the principal burdens of the operating costs;” “is responsible for

supplying … personal services to operate the equipment;” is compensated “based on factors related to the

relationship, it is sometimes nevertheless so construed. Compare, e.g., N. Am. Van Lines, Inc. v. NLRB, 869 F.2d 596, 599

(D.C. Cir. 1989) (“employer efforts to ensure the worker’s compliance with government regulations, even when those efforts

restrict the manner and means of performance, do not weigh

in favor of employee status”) with W. Ports Transp., Inc. v.

Emp. Sec. Dep’t, 41 P.3d 510, 517 (Wash. Ct. App. 2002) (“federally mandated controls” can be considered as evidence of an

employment relationship). The statutory exceptions most

states have enacted ensure that the independent owner-operator model is protected against such misapplication of an abstract standard.

11

work performed … and not on the basis of … time expended;” “generally determines the details and means

of performing the services” while taking into account

“regulatory requirements, operating procedures of the

carrier and specifications of the shipper;” and “enters

into a contract that specifies the relationship to be

that of an independent contractor.” Va. Code Ann.

§ 60.2-212.1.3

Whatever the precise form of the exception, each

represents the decision of the respective state legislature to ensure that its general worker classification

tests do not inhibit the ability of motor carriers and

owner-operators to enter into independent contracting arrangements. Especially against the background

of this widespread embrace of the independent owneroperator model, AB-5 profoundly interferes with the

ability of motor carriers to “conduct a standard way of

doing business” throughout the nation, as Congress

3 See also Ala. Code § 25-5-1(4); Colo. Rev. Stat. § 8-40-301(5);

Fla. Stat. § 440.02(15)(d)(4); Ga. Code Ann. § 34-8-35(n)(17);

id. § 34-9-1(2); id. § 40-2-87(19); 820 Ill. Comp. Stat.

405/212.1; Ind. Code Ann. § 22-3-6-1(b)(8); id. § 22-4-8-3.5;

Iowa Code § 85.61(11)(c)(3); Kan. Stat. Ann. § 44-503c; id.

§ 44-703(i)(4)(Y); La. Rev. Stat. Ann. § 23:1021(10); Me. Rev.

Stat. Ann. tit. 26, § 1043(11)(F)(33); Md. Code Ann., Lab. &

Empl. § 8-206(f)(2); id. § 9-218; Minn. Stat. § 176.043; id.

§ 268.035(25b); Neb. Rev. Stat. § 48-604(6)(q); N.J. Stat. Ann.

§ 43:21-19(i)(7)(X); N.D. Cent. Code § 65-01-03; Ohio Rev.

Code Ann. § 4111.03(D)(3)(i); id. § 4123.01(A)(1)(d); id.

§ 4141.01(B)(2)(m); Okla. Stat. tit. 40, § 1-208.1; id.

§ 2.18(b)(9); Or. Rev. Stat. § 656.027(15); id. § 657.047(1)(b);

S.C. Code Ann. § 42-1-360(9); S.D. Codified Laws § 62-1-10;

id. § 62-1-11; Tenn. Code Ann. § 50-6-106(1)(A); id. § 50-7207(e)(1); Tex. Lab. Code Ann. § 406.122(c); Utah Code Ann.

§ 34A-2-104(5)(d); Wash. Rev. Code § 51.08.180; Wyo. Stat.

Ann. § 27-3-108(a)(x); id. § 27-14-102(a)(vii)(O).

12

intended when it enacted the FAAAA. H.R. Conf. Rep.

No. 103-677 at 87. And because owner-operators regularly engage in long-haul, interstate transportation,

even motor carriers and owner-operators based outside California will have to take heed of California’s

outlier policy preferences—rather than market demands—when they move freight to, from, or through

the state. The result is precisely the kind of state regulatory “patchwork” that Congress enacted the

FAAAA to preclude. Rowe, 552 U.S. at 373.

B. The Ninth Circuit’s Holding Effectively

Insulates All Generally Applicable State

Laws from Preemption Under the FAAAA

and ADA.

In reaching the conclusion that the FAAA does not

preempt AB-5, the Ninth Circuit did not undertake an

evaluation of AB-5 effects on motor carrier prices,

routes, or services—as both the text of the statute and

this Court’s precedents demand. Instead, it applied an

idiosyncratic, atextual test that it uses for state laws

and regulations of general applicability: whether the

challenged measure binds motor carriers to particular

prices, routes, or services. Pet. App. 19a.

That “binds to” test—which was outcome determinative in this case—for all practical purposes amounts

to a categorical exemption to the FAAAA (and ADA)

for generally applicable state laws and regulations.

The Ninth Circuit invokes its “binds to” test “when a

State does not directly regulate (or even specifically

reference) rates, routes, or services.” Am. Trucking

Ass’ns v. City of Los Angeles, 660 F.3d 384, 396–97

(9th Cir. 2011) (emphasis added), rev’d in part on

other grounds, 569 U.S. 641 (2013). While this test in

theory allows for the possibility of preempting a general law or regulation, it is difficult to imagine how a

13

law that does not so much as “specifically reference” a

motor carrier’s prices, routes, or services could nevertheless somehow bind the motor carrier to a particular price, route, or service.

The practical impossibility of satisfying the Ninth

Circuit’s test is illustrated by this very case. If any

general law could satisfy such a test, surely AB-5

would: as Judge Bennett explained in dissent below,

AB-5 does bind motor carrier to provide services to its

customers by means of a specific, state-favored model.

Pet. App. 38a. And the Ninth Circuit has never found

a law of general applicability that meets its “binds to”

test in any of its FAAAA or ADA cases.

The upshot is a categorical exclusion of general

laws from preemption under those statutes. As this

Court explained nearly thirty years ago, insulating

from preemption laws that do not “specifically address[]” carriers would “creat[e] an utterly irrational

loophole,” because “there is little reason why state impairment of the federal scheme should be deemed acceptable so long as it is effected by the particularized

application of a general statute.” Morales, 504 U.S. at

386. That is precisely what the Ninth Circuit’s “binds

to” test for general laws does, and this Court’s review

is necessary to correct the resulting impairment of the

federal scheme the FAAAA and ADA were designed to

protect.

II. THE NINTH CIRCUIT’S SERIAL REFUSAL

TO FAITHFULLY APPLY THIS COURT’S

FAAAA AND ADA PRECEDENTS FURTHER

NECESSITATES REVIEW.

Resolving the lower-court split on an issue of such

importance is more than enough to warrant this

Court’s review. But review is all the more urgent in

14

light of the fact that the decision below is by no means

an isolated case. On the contrary, it is part of a long

line of decisions in which the Ninth Circuit has followed its atextual—and unsatisfiable—test for

preemption of generally applicable state laws and regulations, despite this Court’s repeated rejection of

such an approach. This case thus presents an opportunity to correct the Ninth Circuit’s steadfast refusal

to apply the preemption provisions of the FAAAA and

ADA in conformance with the text and with this

Court’s precedents.

1. The Ninth Circuit first articulated its “binds to”

analysis in the ADA preemption context, in Air

Transport Association of America v. City & County of

San Francisco, 266 F.3d 1064 (9th Cir. 2001). There,

in a challenge to a “generally applicable … Ordinance,” id. at 1074, the majority of a divided panel

looked to the Supreme Court’s cases involving ERISA,

which preempts state laws “insofar as they … relate

to any employee benefit plan” covered by the statute.

29 U.S.C. § 1144(a). The Air Transport majority concluded that the “ERISA cases suggest that in order for

the ‘effect’ of a state law to cause preemption, the state

law must compel or bind an ERISA plan administrator to a particular course of action with respect to the

ERISA plan.” 266 F.3d at 1071. As Petitioners explain, this conclusion rested on a misreading of the

ERISA decisions. Pet. 28–29. And in importing that

approach to the ADA context, the Air Transport Association majority ignored this Court’s express rejection

of the argument that it “only pre-empts the States

from actually prescribing rates, routes, or services,”

because such an approach “simply reads the words ‘relating to’ out of the statute.” Morales, 504 U.S. at 385.

15

2. The Ninth Circuit later invoked the “binds to”

formulation in a preemption challenge under the

FAAAA, in American Trucking Associations. There,

another divided panel held that in a so-called “borderline” case—i.e., “when a State does not directly regulate (or even specifically reference) rates, routes, or

services”—“the proper inquiry is whether the provision, directly or indirectly, ‘binds the … carrier to a

particular price, route or service.’” 630 F.3d at 396–97

(quoting Air Transport Ass’n, 266 F.3d at 1072) (emphasis added).

3. The Ninth Circuit applied effectively the same

standard in Ginsberg v. Northwest, Inc., 695 F.3d 873

(9th Cir. 2012), only to be reversed by this Court.

Ginsberg involved a common-law claim against an airline for breach of the implied covenant of good faith

and fair dealing in terminating the plaintiff from its

frequent-flier program. Relying on Air Transport Association, the Ninth Circuit held that the claim was

not preempted because the effect of “enforcement of

the covenant is not ‘to force the Airlines to adopt or

change their prices, routes or services—the prerequisite for ADA preemption.’” Id. at 880 (quoting Air

Transport Ass’n, 266 F.3d at 1074) (emphasis added).

But this Court unanimously rejected that approach. Northwest, Inc. v. Ginsberg, 572 U.S. 273

(2014). It began by specifically noting that the Ninth

Circuit’s decision had “[r]el[ied] on pre-Wolens Circuit

precedent” for the proposition that a state law is not

preempted if it “does not ‘force the Airlines to adopt or

change their prices, routes or services.’” Id. at 279

(quoting Ginsberg, 695 F.3d at 880) (emphasis added).

Instead, the Court explained, “[w]hat is important is

the effect of a state law, regulation, or provision, not

its form.” Id. at 283 (emphasis added). The Court held

16

that the proper inquiry to determine whether a particular state law “relates to” “rates, routes, or services” is whether “it has ‘a connection with, or reference to, airline’ prices, routes, or services.’” Id. at 284

(quoting Morales, 504 U.S. at 384). All nine Justices

agreed that a claim for breach of the implied covenant

of good faith and fair dealing necessarily had such a

connection and effect—despite the fact that the background law did not force the airline to do anything,

much less bind it to a particular price, route, or service—because it was invoked to apply “state policy”

preferences to a dispute about the terms of the airline’s frequent flyer program. Id. at 288. See also Am.

Airlines, Inc. v. Wolens, 513 U.S. 219, 228 (1995)

(holding that the ADA preempted claims under the

generally applicable Illinois Consumer Fraud Act).

4. Despite this Court’s rebuke in Ginsberg, the

Ninth Circuit returned to its “binds to” test in Dilts v.

Penske Logistics, LLC, 769 F.3d 637 (9th Cir. 2014),

when it held that the FAAAA did not preempt application of California’s meal- and rest-break rules to

commercial drivers. The Dilts panel acknowledged

that the state break rules would affect motor carriers

“when allocating resources and scheduling routes.” Id.

at 647. But instead of assessing the impact on carrier

prices, routes, or services, the Ninth Circuit treated

those effects as irrelevant, holding simply that that

the break rules were not preempted because they “do

not ‘bind’ motor carriers to specific prices, routes, or

services.” Ibid. (quoting Am. Trucking, 660 F. 3d at

397).

5. The decision below, in turn, relied on Dilts for

its holding that AB-5 is not preempted because it does

not “bind, compel, or otherwise freeze into place the

prices, routes, or services of motor carriers.” Pet.

17

App. 2a (citing Dilts, 769 F.3d at 647). And in a series

of subsequent decisions, the Ninth Circuit has routinely applied its “binds to” test as a categorical rule

that is dispositive in FAAAA and ADA preemption

challenges to generally applicable laws, without consideration of the actual effects of those laws on carrier

prices, routes, or services. See Bernstein v. Virgin Am.,

Inc., 3 F.4th 1127, 1141 (9th Cir. 2021) (relying on

Dilts to hold that ADA did not preempt application of

California break rules to flight attendants, without

consideration of their actual effect on airline prices,

routes, or services), petition for cert. pending sub nom.

Virgin Am., Inc. v. Bernstein, No. 21-260 (filed Aug.

19, 2021); Air Transp. Ass’n of Am. v. Wash. Dep’t of

Labor & Indus., 2021 WL 3214549, *2 (9th Cir. May

21, 2021) (relying on Dilts and Bernstein to hold that

“generally applicable labor regulations are too tenuously related to airlines’ services to be preempted” as

a category, and that the “proper inquiry” is the “binds

to” test); Ward v. United Airlines, 986 F.3d 1234, 1243

(9th Cir. 2021) (holding that ADA does not preempt

application of California Labor Code § 226 to pilots

and flight attendants “for the same reasons” the break

laws at issue in Dilts were not preempted: they were

general laws that “did not bind motor carriers to specific prices, routes, or services” and “[t]hus were not

the sorts of laws that the FAAAA or ADA preempt”);

Ridgeway v. Walmart Inc., 946 F.3d 1066, 1083 (9th

Cir. 2020) (relying on Dilts to “quickly dispense” with

the argument that the FAAAA preempted California

law regarding driver layovers, because they “‘do not

set prices, mandate or prohibit certain routes, or tell

motor carriers what services that they may or may not

provide’” (quoting Dilts, 769. F.3d at 647)).

In short, the Ninth Circuit’s refusal to give full effect to the broad preemption provisions of the FAAAA

18

and the ADA is a frequently recurring problem that

has gone on long enough. The Court should take this

opportunity put an end to it, and reaffirm the important Congressional policies that the Ninth Circuit’s approach undermines.

III. THIS CASE PRESENTS AN IDEAL OPPORTUNITY FOR THE COURT TO RESOLVE

THESE RECURRING AND IMPORTANT ISSUES.

This case presents an ideal vehicle for resolution of

the issues it presents, for several reasons.

1. First, the conflict among the lower courts created by the decision below is indisputable. The majority below expressly acknowledged as much, when it

characterized the First Circuit’s holding in Schwann

and the Third Circuit’s analysis in Bedoya as “contrary to our precedent.” Pet. App. 29a–30a. The panel

majority recognized that the Massachusetts ABC test

was “identical” in relevant respects to AB-5’s test, but

rejected the outcome in Schwann as inconsistent with

the holding in Dilts that generally applicable laws like

AB-5 are, as a category, insufficiently connected to

rates, routes, or services to warrant preemption under

the FAAAA. Pet. App. 30a (citing Dilts, 769 F.3d at

643). And, as Petitioners explain, the split among the

lower courts goes much further than that. See Pet. 15–

23.

2. Second, the case comes to the Court with a welldeveloped evidentiary record, reflecting the realworld effects of AB-5 on motor carrier prices, routes,

and services. Courts do not require “the presentation

of empirical evidence” to find a state measure

preempted under the FAAAA, and instead regularly

look to “the logical effect that a particular scheme

19

has.” N.H. Motor Transp. Ass’n v. Rowe, 448 F.3d 66,

82 n.14 (1st Cir. 2006), aff’d 552 U.S. 364. And as the

First Circuit concluded with respect to Massachusetts’

equivalent ABC test, the logical effects on prices,

routes, and services of an effective prohibition on independent contractor owner-operators are significant

enough that “this impact need not be proven by empirical evidence.” Schwann, 813 F.3d at 435. The same

is true with respect to California’s ABC test, but the

evidence submitted below makes this all the more

clear by concretely illustrating AB-5’s logical effects.

See Pet. 10–12.

3. Lastly, because this case arises from a federal

court of appeals, there is no question of the Court’s jurisdiction to review under 28 U.S.C. § 1254. Moreover,

as a practical matter, the substance of the Ninth Circuit’s holding would render any further proceedings

below a waste of judicial and party resources. The

Ninth Circuit reversed the district court’s grant of a

preliminary injunction not because Petitioners failed

to make a sufficient factual showing of their likelihood

of success, but because it held, as a matter of law, that

“AB-5 … is not preempted by the F4A.” Pet. App. 2a.

Thus, there is no possibility of a different outcome after a fully developed record and trial, and further proceedings would not assist this Court in reviewing the

Ninth Circuit’s unequivocal holding. Given the urgency of the issues presented here to motor carriers—

who currently face major business-model and investment decisions that turn on whether or not California

is permitted to prohibit independent owner-operators—this Court should not wait any longer to vindicate the “broad pre-emptive purpose” that Congress

expressed in the FAAAA. Morales, 804 U.S. at 383.

20

CONCLUSION

For the foregoing reasons, and those stated in the

petition for writ of certiorari, the petition should be

granted.

Respectfully submitted.

RICHARD PIANKA

Counsel of Record

ATA Litigation Center

950 North Glebe Road

Arlington, VA 22203

(703) 838-1889

rpianka@trucking.org

Counsel for Amici Curiae

September 10, 2021