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

Supreme Court briefMay 24, 2022

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No. 21-194

In the Supreme Court of the United States

CALIFORNIA TRUCKING ASSOCIATION, INC., ET AL.,

PETITIONERS

v.

ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

JOHN E. PUTNAM

General Counsel

PAUL M. GEIER

Assistant General Counsel

PETER J. PLOCKI

Deputy Assistant General

Counsel

CHARLES E. ENLOE

Senior Trial Attorney

Department of Transportation

EARL ADAMS, JR.

Chief Counsel

CHARLES J. FROMM

Deputy Chief Counsel

TRACY M. WHITE

Senior Attorney

Federal Motor Carrier

Safety Administration

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

SOPAN JOSHI

Assistant to the Solicitor

General

MARK B. STERN

JENNIFER L. UTRECHT

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a generally applicable California labor statute setting forth the conditions that must be satisfied to

classify a worker as an independent contractor (as opposed to an employee), when applied to trucking operations in the State, is “related to a price, route, or service

of any motor carrier,” 49 U.S.C. 14501(c)(1), and thus

preempted by federal law.

(I)

TABLE OF CONTENTS

Page

Statement ...................................................................................... 1

Discussion .................................................................................... 10

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

American Airlines, Inc. v. Wolens,

513 U.S. 219 (1995)............................................................ 5, 6

American Trucking Associations, Inc. v.

Los Angeles, 569 U.S. 641 (2013)....................................... 22

Bedoya v. American Eagle Express Inc.,

914 F.3d 812 (3d Cir.), cert. denied,

140 S. Ct. 102 (2019) ................................................. 9, 20, 21

California Trucking Association v. Su,

903 F.3d 953 (9th Cir. 2018), cert. denied,

139 S. Ct. 1331 (2019) ................................................... 18, 19

Chambers v. RDI Logistics, Inc.,

65 N.E.3d 1 (Mass. 2016) ................................................... 20

Community for Creative Non-Violence v. Reid,

490 U.S. 730 (1989)................................................................ 2

Costello v. BeavEx, Inc.,

810 F.3d 1045 (7th Cir. 2016), cert. denied,

137 S. Ct. 2289 (2017) ................................................... 20, 21

Dan’s City Used Cars, Inc. v. Pelkey,

569 U.S. 251 (2013).......................................................... 5, 12

Davis v. United States, 417 U.S. 333 (1974) ....................... 20

Dilts v. Penske Logistics, LLC,

769 F.3d 637 (9th Cir. 2014), cert. denied,

575 U.S. 996 (2015)........................................................ 16, 17

Dynamex Operations West, Inc. v. Superior Court,

416 P.3d 1 (Cal. 2018) ....................................................... 2, 3

(III)

IV

Cases—Continued:

Page

Estrada v. FedEx Ground Package System, Inc.,

154 Cal. App. 4th 1 (2007) .................................................. 13

Massachusetts Delivery Association v. Healey,

821 F.3d 187 (1st Cir. 2016) ............................................... 20

Miller v. C.H. Robinson Worldwide, Inc.,

976 F.3d 1016 (9th Cir. 2020), petition for cert.

pending, No. 20-1425 (filed Apr. 8, 2021) ................... 18, 19

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992)...........................................5, 6, 10, 11, 19

NLRB v. United Insurance Co.,

390 U.S. 254 (1968)................................................................ 2

Nationwide Mutual Insurance Co. v. Darden,

503 U.S. 318 (1992)................................................................ 1

Northwest, Inc. v. Ginsberg, 572 U.S. 273 (2014) ............... 21

People v. Superior Court,

57 Cal. App. 5th 619 (2020), cert. denied,

142 S. Ct. 76 (2021) ....................................................... 14, 16

Rowe v. New Hampshire Motor Transport

Association, 552 U.S. 364 (2008) .............................. passim

S.G. Borello & Sons, Inc. v. Department of

Industrial Relations, 769 P.2d 399 (Cal. 1989) ....... 2, 4, 14

Schwann v. FedEx Ground Package System, Inc.,

813 F.3d 429 (1st Cir. 2016) ..................................... 8, 20, 21

Singer Manufacturing Co. v. Rahn,

132 U.S. 518 (1889)................................................................ 2

United States v. Silk, 331 U.S. 704 (1947)............................. 2

Ward v. United Airlines, Inc.,

986 F.3d 1234 (9th Cir. 2021) ....................................... 18, 19

Wisniewski v. United States, 353 U.S. 901 (1957) ............. 19

Statutes and regulations:

Airline Deregulation Act of 1978,

Pub. L. No. 95-504, 92 Stat. 1705 ........................................ 5

V

Statutes and regulations—Continued:

Page

§ 3(a), 92 Stat. 1706 ........................................................... 5

Federal Aviation Administration Authorization Act

of 1994, Pub. L. No. 103-305, 108 Stat. 1569 ...................... 4

Motor Carrier Act of 1980,

Pub. L. No. 96-296, 94 Stat. 793 .......................................... 5

§ 2, 94 Stat. 793 .................................................................. 5

49 U.S.C. 14501(c)(1) ......................................................... 5, 10

49 U.S.C. 14102 ........................................................................ 4

49 U.S.C. 41713(b)(1) ............................................................... 5

Cal. Labor Code § 2775 et seq. (2020) .................................... 3

§ 226.2 (2015) .................................................................... 13

§ 2775(b) ............................................................................. 3

§ 2775(b)(1)(A)-(C) ............................................................ 3

§ 2775(b)(1)(B) ................................................................. 14

§ 2775(b)(3) ......................................................................... 4

§ 2776 .............................................................................. 3, 7

§§ 2776-2784 ....................................................................... 3

§ 2776(a) ........................................................................... 15

§ 2776(a)(1) ....................................................................... 15

§ 2776(a)(1)-(12) ........................................................... 3, 15

§ 2776(a)(2) ....................................................................... 15

§ 2776(a)(3) ....................................................................... 15

§ 2776(a)(4) ....................................................................... 15

§ 2776(a)(5) ....................................................................... 15

§ 2776(a)(6) ....................................................................... 15

§ 2776(a)(7) ....................................................................... 15

§ 2776(a)(8) ....................................................................... 15

§ 2776(a)(9) ....................................................................... 15

§ 2776(a)(10) ..................................................................... 15

§ 2776(a)(11) ..................................................................... 15

§ 2776(a)(12) ..................................................................... 15

VI

Statutes and regulations—Continued:

Page

A.B. 5, ch. 296 (Cal. 2019) ....................................................... 3

A.B. 2257, ch. 38 (Cal. 2020).................................................... 3

49 C.F.R.:

Section 376.11 .................................................................... 4

Section 376.12(c)(1) ........................................................... 4

Miscellaneous:

Jon O. Shimabukuro, Congressional Research

Service, R46765, Worker Classification: Employee

Status Under the National Labor Relations Act,

the Fair Labor Standards Act, and the ABC Test

(Apr. 20, 2021), go.usa.gov/xu5Ab ....................................... 3

In the Supreme Court of the United States

No. 21-194

CALIFORNIA TRUCKING ASSOCIATION, INC., ET AL.,

PETITIONERS

v.

ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the order of the

Court inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the petition for a writ of certiorari should be denied.

STATEMENT

Petitioners brought this suit seeking to preclude enforcement of a state statute setting forth the conditions

that must be satisfied to classify a worker as an independent contractor (as opposed to an employee), for

purposes of state law. The district court granted a preliminary injunction on the ground that the statute likely

was preempted by federal law. Pet. App. 51a-79a. The

court of appeals reversed. Id. at 1a-50a.

1. a. Whether a worker is an employee or an independent contractor is an issue of importance in a variety

of areas of law. See, e.g., Nationwide Mutual Insur(1)

2

ance Co. v. Darden, 503 U.S. 318 (1992) (employee benefits); Community for Creative Non-Violence v. Reid,

490 U.S. 730 (1989) (copyright); NLRB v. United Insurance Co., 390 U.S. 254 (1968) (union representation);

United States v. Silk, 331 U.S. 704 (1947) (Social Security benefits); Singer Manufacturing Co. v. Rahn, 132

U.S. 518 (1889) (vicarious tort liability). If a worker is

an employee, the hiring business may bear many responsibilities, such as providing worker’s compensation

insurance and complying with various wage-and-hour

provisions of state law. See Dynamex Operations West,

Inc. v. Superior Court, 416 P.3d 1, 5 (Cal. 2018). By

contrast, “the business does not bear any of those costs

or responsibilities” with respect to an independent contractor. Ibid.

Like other jurisdictions, California has sought to define the circumstances in which a worker will be classified as an employee for certain state-law purposes notwithstanding the hiring entity’s desire to treat the

worker as an independent contractor. Until 2018, California classified workers for a variety of purposes based

on a common-law test that principally considered

“whether the person to whom service is rendered has

the right to control the manner and means of accomplishing the result desired.” S.G. Borello & Sons, Inc.

v. Department of Industrial Relations, 769 P.2d 399,

404 (Cal. 1989) (citation omitted). California also considered “several ‘secondary’ indicia of the nature of a

service relationship,” including “whether or not the

work is a part of the regular business of the principal.”

Ibid.

In its 2018 decision in Dynamex, the Supreme Court

of California adopted a new test—called the “ABC” test

(presumably because it has three principal elements)—

3

for classifying workers for purposes of California wageand-hour laws. 416 P.3d at 7. Under that test, a worker

is an independent contractor only if the hiring entity can

demonstrate that (A) “the worker is free from the control and direction of the hirer in connection with the

performance of the work, both under the contract for

the performance of such work and in fact”; (B) “the

worker performs work that is outside the usual course

of the hiring entity’s business”; and (C) “the worker is

customarily engaged in an independently established

trade, occupation, or business of the same nature as the

work performed for the hiring entity.” Ibid. As of April

2021, at least 20 States and the District of Columbia had

adopted the ABC test for at least some purposes.

Jon O. Shimabukuro, Congressional Research Service,

R46765, Worker Classification: Employee Status Under the National Labor Relations Act, the Fair Labor

Standards Act, and the ABC Test 9 (Apr. 20, 2021),

go.usa.gov/xu5Ab; see id. at 14-27 (listing state laws).

In 2019 and 2020, the California legislature codified

the ABC test in Assembly Bill 5 and Assembly Bill 2257,

respectively. Cal. Labor Code § 2775 et seq.; see

§ 2775(b)(1)(A)-(C) (2020) (codifying the three elements

of the ABC test). In its current form, the statute expands the applicability of the ABC test beyond the

wage-and-hour laws, see § 2775(b), while at the same

time exempting certain occupations and services from

its reach, see §§ 2776-2784. One of those exemptions

provides that the ABC test “do[es] not apply to a bona

fide business-to-business contracting relationship” if

certain conditions are satisfied. § 2776; see § 2776(a)(1)(12). In general, if the ABC test does not apply “to a

particular context,” the California statute provides that

“the determination of employee or independent con-

4

tractor status in that context shall instead be governed

by” the common-law test in Borello, supra. Cal. Labor

Code § 2775(b)(3) (2020).

b. This case involves the application of California’s

ABC test to independent owner-operators in the trucking industry. As the name implies, owner-operators are

drivers who own (or, sometimes, lease) and operate

their own trucks. See C.A. E.R. 202, 221-222. Owneroperators generally enter into contracts with motor carriers (i.e., trucking companies) both to lease the vehicle

to the motor carrier for transporting property and to

drive the truck for the duration of the lease. See ibid.

Under regulations issued by the Federal Motor Carrier

Safety Administration, if a licensed motor carrier uses

a leased truck, the motor carrier must “assume complete responsibility” for the truck’s operations and be

given “exclusive possession, control, and use” of the

truck for the duration of the lease.

49 C.F.R.

376.12(c)(1); see 49 U.S.C. 14102; 49 C.F.R. 376.11.

Petitioners, a trade association that represents motor carriers and two individual owner-operators, sued

several California state officials (respondents here)

challenging application of the ABC test. Respondent

International Brotherhood of Teamsters intervened as

a defendant. As relevant here, petitioners argued that

application of the ABC test to motor carriers and the

owner-operators with whom they contract is preempted

by the Federal Aviation Administration Authorization

Act of 1994 (FAAAA), Pub. L. No. 103-305, 108 Stat.

1569.

The FAAAA provides as a general matter that “a

State * * * may not enact or enforce a law, regulation,

or other provision having the force and effect of law related to a price, route, or service of any motor carrier

5

* * * with respect to the transportation of property.”

49 U.S.C. 14501(c)(1). That language was borrowed directly from a provision in the Airline Deregulation Act

of 1978 (ADA), Pub. L. No. 95-504, 92 Stat. 1705, which

as amended preempts all state laws “related to a price,

route, or service of an air carrier.”

49 U.S.C.

41713(b)(1).

Those preemption provisions were part of federal deregulatory efforts. In the ADA, Congress “largely deregulated domestic air transport,” American Airlines,

Inc. v. Wolens, 513 U.S. 219, 222 (1995), replacing the

prior public-utility model for regulating commercial airlines with one favoring “maximum reliance on competitive market forces and on actual and potential competition,” ADA § 3(a), 92 Stat. 1706. Congress likewise deregulated trucking in the Motor Carrier Act of 1980,

Pub. L. No. 96-296, 94 Stat. 793, as “part of [its] continuing effort * * * to reduce unnecessary regulation by

the Federal Government.” § 2, 94 Stat. 793; see Rowe

v. New Hampshire Motor Transport Association, 552

U.S. 364, 368 (2008). The ADA’s broadly worded

preemption provision was intended “[t]o ensure that the

States would not undo federal deregulation with regulation of their own.” Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 378 (1992). “Congress similarly

sought to pre-empt state trucking regulation” in the

FAAAA, Rowe, 552 U.S. at 368, albeit only “with respect to the transportation of property,” 49 U.S.C.

14501(c)(1); see Dan’s City Used Cars, Inc. v. Pelkey,

569 U.S. 251, 261 (2013).

This Court has recognized that the identical language in the two preemption provisions—“related to a

price, route, or service”—should be interpreted identically. See Rowe, 552 U.S. at 370. The Court also has

6

explained that those provisions have an “expansive

sweep.” Morales, 504 U.S. at 384 (citation omitted).

They preempt not only those state laws that make “reference to” the prices, routes, or services of airlines and

motor carriers, but also those laws of general applicability that have a “significant impact” on prices, routes,

or services. Id. at 388, 390; see Rowe, 552 U.S. at 375;

Wolens, 513 U.S. at 224. The Court has emphasized,

however, that the statutes do not preempt generally applicable state laws that affect prices, routes, or services

in merely a “tenuous, remote, or peripheral” manner.

Morales, 504 U.S. at 390 (citation omitted).

2. The district court preliminarily enjoined application of the ABC test “as to any motor carrier operating

in California.” Pet. App. 78a; see id. 51a-79a. As relevant here, the court held that petitioners had raised at

least “serious questions” about whether the FAAAA

preempts application of California’s codification of the

ABC test to motor carriers operating in the State. Id.

at 62a (citation omitted); see id. at 62a-75a. The court

explained that “the FAAAA likely preempts ‘an all or

nothing’ state law * * * that categorically prevents motor carriers from exercising their freedom to choose between using independent contractors or employees.”

Id. at 66a-67a (citation omitted). The court found that

to be “precisely the case here” because “drivers who

may own and operate their own rigs will never be considered independent contractors under California law”

under the second element of the ABC test, given that

they “necessarily perform work within ‘the usual

course of the motor carrier hiring entity’s business.’ ”

Id. at 67a (brackets omitted).

The district court reasoned that the ABC test “determin[es] whether all of California employment laws

7

do or do not apply,” and thus is likely preempted as applied to motor carriers because “the combined effect of

all such laws has a significant impact on motor carriers’

prices, routes, or services.” Pet. App. 73a. The court

rejected respondents’ argument that petitioners and

other motor carriers and owner-operators could avail

themselves of the business-to-business exemption in the

statute, Cal. Labor Code § 2776 (2020), explaining that

respondents “ha[d] not shown how that is possible” and

that California officials had “not expressly concede[d]

that the exception would apply.” Pet. App. 74a; see id.

at 74a n.11.

3. A divided panel of the court of appeals reversed.

Pet. App. 1a-50a.

a. The court of appeals held that petitioners were

unlikely to succeed on the FAAAA preemption issue.

After reviewing relevant precedent, the court explained

that “a generally applicable state law is not ‘related to a

price, route, or service of any motor carrier’ for purposes of the F[AAA]A unless the state law ‘binds the

carrier to a particular price, route or service’ or otherwise freezes them into place or determines them to a

significant degree.” Pet. App. 19a (citation and emphasis omitted). The court further explained that the ABC

test “does not have the sort of binding or freezing effect

on prices, routes, or services that [is] preempted under

the F[AAA]A” because the ABC test affects only “a motor carrier’s relationship with its workforce,” not its

“relationship with consumers.” Id. at 20a-21a.

The court of appeals then turned to petitioners’ argument that application of the ABC test to motor carriers nevertheless would have an “impact [that] is so significant that it indirectly determines prices, routes, or

services.” Pet. App. 21a; see id. at 21a-24a. The court

8

observed that petitioners had alleged that application of

the ABC test would increase equipment and labor costs

“by as much as 150% or more,” which would cause carriers to reconfigure or eliminate some routes and potentially cease operating in the State altogether, leaving

the remaining carriers to offer only diminished services.

Id. at 22a. The court acknowledged that “a generally

applicable law could so significantly impact the employment relationship between motor carriers and their employees that it effectively binds motor carriers to specific prices, routes, or services at the consumer level.”

Id. at 24a. But the court observed that it had previously

rejected preemption claims based on predicted incidental effects similar to those posited by petitioners.

Id. at 22a-24a. The court also noted that petitioners’ allegations of increased costs relied heavily on their contention that motor carriers would be forced to buy a

fleet of trucks, but that petitioner California Trucking

Association had conceded that carriers could avoid

those costs by hiring drivers who own their own trucks,

rendering any impact on prices, routes, or services

speculative given the underdeveloped state of the record. Id. at 22a & n.11.

The court of appeals rejected petitioners’ reliance on

decisions from the First and Third Circuits. See Pet.

App. 29a-30a. In Schwann v. FedEx Ground Package

System, Inc., 813 F.3d 429 (2016), the First Circuit held

that the FAAAA preempts application of the second element of the ABC test as codified under Massachusetts

law. The court of appeals here explained that Schwann

found the second element of the ABC test preempted

“because interfering with the employer’s decision

whether to use an employee or an independent contractor could prevent a motor carrier from using its pre-

9

ferred methods of providing delivery services, raise the

motor carrier’s costs, and impact routes.” Pet. App.

30a. In Bedoya v. American Eagle Express Inc., 914

F.3d 812, cert. denied, 140 S. Ct. 102 (2019) (No. 181382), the Third Circuit held that the FAAAA does not

preempt application of the ABC test as codified under

New Jersey law. The court of appeals in this case observed, however, that Bedoya had “opin[ed] in dicta

that the F[AAA]A preempt[ed] Massachusetts’ ABC

test because it ‘mandates a particular course of action—

e.g., requiring carriers to use employees rather than independent contractors.’ ” Pet. App. 30a (brackets and

citation omitted). The court stated that the “language

relied upon” in Schwann and Bedoya “is contrary to

[Ninth Circuit] precedent” that had “concluded that

such indirect consequences have ‘only a tenuous, remote, or peripheral connection to rates, routes[,] or services.’ ” Ibid. (citation omitted).

b. Judge Bennett dissented. Pet. App. 33a-50a. In

his view, the majority “ignore[d] the possibility that a

state law might affect a motor carrier’s relationship

with its workforce and have a significant impact on that

motor carrier’s prices, routes, or services.” Id. at 36a.

In Judge Bennett’s view, the California law “will ‘categorically prevent motor carriers from exercising their

freedom to choose between using independent contractors or employees,’ ” and therefore “will significantly

impact motor carriers’ services by mandating the

means by which they are provided.” Id. at 40a (brackets

and citation omitted). Specifically, he stated that application of the ABC test to motor carriers under California law will “diminish[] the specialized transportation

services that motor carriers are able to provide through

independent contractor drivers” and “eliminate motor

10

carriers’ flexibility to accommodate fluctuations in supply and demand.” Id. at 40a-41a.

c. The court of appeals stayed issuance of the mandate pending disposition of the petition for a writ of certiorari. Pet. App. 82a-83a.

DISCUSSION

The petition for a writ of certiorari should be denied.

The court of appeals correctly determined that petitioners were unlikely to succeed on their claim that the

FAAAA preempts applying the ABC test as codified under California law to owner-operators, and the court’s

decision does not conflict with any decision of this

Court. Although the circuits have reached differing

outcomes with respect to FAAAA preemption of the

ABC test as codified under the laws of various States,

those case-specific decisions do not create a conflict

warranting this Court’s review. Moreover, the interlocutory posture of this case and the need to resolve a

threshold issue of state law—namely, whether motor

carriers and owner-operators may fall within the

business-to-business exemption under California law—

make this case a poor vehicle in which to address the

question presented. Further review is unwarranted.

1. a. To be preempted under the FAAAA, a claim

must seek to enforce a state law “related to a price,

route, or service of any motor carrier.” 49 U.S.C.

14501(c)(1). This Court has provided important guidance on the meaning of that language in Morales v.

Trans World Airlines, Inc., 504 U.S. 374 (1992), and

Rowe v. New Hampshire Motor Transport Association,

552 U.S. 364 (2008).

In Morales, the Court concluded that the phrase

“relat[ed] to” in the ADA’s similarly worded preemption provision reflects a broad and deliberately expan-

11

sive preemptive purpose, and that the ADA thus

preempts state-law claims “having a connection with, or

reference to, airline ‘rates, routes, or services.’ ” 504

U.S. at 383-384 (citation omitted). The Court held in

Morales that a state law “may ‘relate to’ ” a price, route,

or service even if it is not specifically addressed to the

airline industry or the effect is “only indirect.” Id. at

386 (citation omitted). At the same time, the Court recognized that “ ‘some state actions may affect airline

fares in too tenuous, remote, or peripheral a manner’ to

have pre-emptive effect.” Id. at 390 (brackets and citation omitted). The Court had no occasion in Morales to

define “ ‘where it would be appropriate to draw the

line,’ ” because the state provisions at issue there—

guidelines interpreting general consumer-protection

laws in a way that restricted airlines’ advertising of

their fares—plainly related to (indeed, expressly referred to) airline fares and had a “significant impact” on

them. Id. at 389-390 (citation omitted).

In Rowe, the Court held that the same principles

govern the preemptive scope of the FAAAA. Applying

those standards, the Court held that the FAAAA

preempted a Maine statute forbidding licensed tobacco

retailers from employing a “delivery service” unless

that service followed a particular set of prescribed delivery procedures. 552 U.S. at 371 (citation omitted);

see id. at 370-372. The Court emphasized that the

Maine statute directly focused on motor-carrier services and would require carriers “to offer tobacco delivery services that differ significantly from those that, in

the absence of the regulation, the market might dictate.” Id. at 372. The Court concluded that “[t]he Maine

law thereby produce[d] the very effect that the federal

law sought to avoid, namely, a State’s direct substitu-

12

tion of its own governmental commands for ‘competitive

market forces’ in determining (to a significant degree)

the services that motor carriers will provide.” Ibid. (citation omitted).

The Court in Rowe noted, however, that the FAAAA

does not preempt laws of general applicability that only

incidentally affect motor carriers. Citing Morales, the

Court stressed that “the state laws whose ‘effect’ is ‘forbidden’ under federal law are those with a ‘significant

impact’ on carrier rates, routes, or services,” and not

laws that apply to carriers only in their capacity as

members of the general public. Rowe, 552 U.S. at 375

(citation omitted); see Dan’s City Used Cars, Inc. v.

Pelkey, 569 U.S. 251, 260-261 (2013).

b. Under those principles, the court of appeals correctly concluded that petitioners were not likely to succeed on the merits of their preemption argument. The

court agreed with petitioners that the FAAAA would

preempt a generally applicable state labor law whose

“impact is so significant that it indirectly determines

price, routes, or services.” Pet. App. 21a. The court also

assumed that the ABC test would “require[] that motor

carriers use employees rather than independent contractors as drivers.” Ibid. But on the present record,

the court rejected petitioners’ conclusion that applying

the ABC test would necessarily result in a significant

impact on prices, routes, or services.

Petitioners had contended that the ABC test would

increase carriers’ costs “by as much as 150% or more”

as a result of having to use employees instead of independent contractors as drivers. Pet. App. 22a. But as

the court of appeals observed, that contention “rel[ied]

heavily on [the] claim that motor carriers w[ould] be

forced to buy a fleet of trucks,” notwithstanding peti-

13

tioners’ acknowledgment that carriers “could avoid incurring such costs by hiring owner-operators (i.e., drivers who own their own trucks) as employees.” Id. at 22a

n.11; see Estrada v. FedEx Ground Package System,

Inc., 154 Cal. App. 4th 1, 25 (2007) (explaining that under California law, “an employer may require its employees to provide their own trucks” as long as the employer reimburses the employee for operating expenses). Moreover, California law does not require motor carriers to hire drivers as full-time employees, and

California generally allows piece-rate compensation for

part-time or seasonal employees as long as the compensation results in payment of at least a minimum wage,

taking into account rest and recovery breaks. See Cal.

Labor Code § 226.2 (2015). Contrary to petitioners’

suggestion (Pet. 27), therefore, carriers would retain

the flexibility to engage owner-operators as needed to

provide “specialized trucking services” or “increased

service in times of peak demand.” The court of appeals

thus was correct to conclude that petitioners’ claimed

impacts on prices, routes, or services due to increased

costs were “merely speculative” given “the undeveloped

record in the district court.” Pet. App. 22a n.11. Petitioners provide no sound basis for this Court to secondguess those factbound determinations, especially at this

interlocutory stage of the proceedings.

Furthermore, petitioners’ assertions concerning

substantially increased costs, leading in turn to a significant impact on prices, routes, or services, implicitly

rely on the premise that applying the new California

statute will require widespread reclassification of drivers. But petitioners have not established that premise

for two reasons.

14

First, petitioners principally focus on the second

element of the ABC test, which requires that the worker

“perform[] work that is outside the usual course

of the hiring entity’s business.” Cal. Labor Code

§ 2775(b)(1)(B) (2020). But whether “the work is a part

of the regular business of the principal” also is a consideration (even if not a mandatory element) under the

common-law test that would apply if the ABC test were

inapplicable. S.G. Borello & Sons, Inc. v. Department

of Industrial Relations, 769 P.2d 399, 404 (Cal. 1989).

And the common-law test, like the first element of the

ABC test, places great weight on whether the hirer exercises control and direction over the worker. Given

those considerations, petitioners have not established

that owner-operators necessarily would be properly

classified as independent contractors under the commonlaw test. Cf. People v. Superior Court, 57 Cal. App. 5th

619, 625 (2020) (Cal Cartage) (documenting the California legislature’s recent findings that “two-thirds of California port drayage drivers” were “misclassified as independent contractors when they in fact work as employees under California and federal labor laws,” and

that “rampant misclassification of drivers contributes

to wage theft and leaves drivers in a cycle of poverty”)

(citation omitted), cert. denied, 142 S. Ct. 76 (2021) (No.

20-1453); Teamsters Br. in Opp. 18. If most owneroperators should be classified as employees even under

the common-law test, application of the ABC test would

not result in any widespread reclassification from a

prior lawful status, and thus would not fairly be regarded as having a significant impact on prices, routes,

or services either.

Second, petitioners’ argument overlooks that the

California statute exempts from the ABC test any “bona

15

fide business-to-business contracting relationship”—

including one with “an individual acting as a sole

proprietor”—when certain conditions are satisfied. Cal.

Labor Code § 2776(a) (2020); see § 2776(a)(1)-(12) (listing the conditions). Some of those conditions are obviously inapposite, e.g., § 2776(a)(12) (excluding “work for

which a license from the Contractors’ State License

Board is required”), and others are unremarkable, e.g.,

§ 2776(a)(3) (requiring the contract to be in writing and

to specify the payment and due dates); § 2776(a)(4) (requiring the service provider to have a “business license

or business tax registration” if the jurisdiction requires

one). The remaining conditions require, among other

things, that the service provider be “free from the control and direction of the contracting business entity in

connection with the performance of the work,”

§ 2776(a)(1); generally “provid[e] services directly to

the contracting business rather than to customers of

the contracting business,” § 2776(a)(2); “maintain[] a

business location * * * that is separate from the business or work location of the contracting business,”

§ 2776(a)(5); be “customarily engaged in an independently established business of the same nature as

that involved in the work performed,” § 2776(a)(6); be

able to “contract with other businesses to provide the

same or similar services,” § 2776(a)(7); “advertise[] and

hold[] itself out to the public as available to provide the

same or similar services,” § 2776(a)(8); generally “provide[] its own tools, vehicles, and equipment to perform

the services,” § 2776(a)(9); be able to “negotiate its own

rates,” § 2776(a)(10); and, “[c]onsistent with the nature

of the work,” be able to “set its own hours and location

of work,” § 2776(a)(11).

16

Petitioners assert (Pet. 33 n.6) that “carriers and

owner-operators generally will not be able to meet” all

of those conditions, but petitioners neither specify

which conditions the carriers and owner-operators

could not meet, nor demonstrate that any steps required to meet all of the conditions would result in a significant impact on prices, routes, or services. See Cal

Cartage, 57 Cal. App. 5th at 633-634 (rejecting the argument that “independent owner-operators can never

meet several of the requirements in the business-tobusiness exemption”). Perhaps petitioners ultimately

would be able to demonstrate that the business-tobusiness exemption is unavailable without itself imposing a significant impact on prices, routes, or services—

but they have not done so at this interlocutory stage,

which further counsels against this Court’s review.

c. Petitioners assert that the court of appeals erred

by adopting the view “that the FAAAA preempts only

laws that ‘bind, compel or otherwise freeze into place a

particular price, route, or service.’ ” Pet. 24; see Pet. 2430. That assertion is overstated. After reviewing the

statutory language and relevant case law, the court explained that “a generally applicable state law is not ‘related to a price, route, or service of any motor carrier’

for purposes of the F[AAA]A unless the state law [(1)]

‘binds the carrier to a particular price, route or service’

or otherwise [(2)] freezes them into place or [(3)] determines them to a significant degree.” Pet. App. 19a (citation and emphasis omitted). For that proposition, the

court relied (ibid.) on its prior decision in Dilts v.

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

cert. denied, 575 U.S. 996 (2015) (No. 14-801). Dilts

stated that the FAAAA preempts “those state laws that

are significantly ‘related to’ prices, routes, or services,”

17

and found that certain state laws governing employee

meal and rest breaks were not preempted as applied to

short-haul truck drivers because “the laws do not ‘bind’

motor carriers to specific prices, routes, or services”; do

not “ ‘freeze into place’ prices, routes, or services”; and

do not “ ‘determine (to a significant degree) the prices,

routes, or services that motor carriers will provide.’ ”

Id. at 647 (brackets and citations omitted). Like the decision below, therefore, Dilts viewed the binding of carriers to specific prices, routes, or services as one way to

establish preemption—not as the exclusive test for

FAAAA preemption.

In focusing on the “binds” and “freezes” language,

petitioners overlook the disjunctive “or determines

them to a significant degree” language. Pet. App. 19a

(citation omitted). That language is taken directly from

this Court’s decision in Rowe. See 552 U.S. at 372. The

court of appeals’ recognition that the FAAAA preempts

state laws that “determine (to a significant degree) the

prices, routes, or services that motor carriers will provide,” Dilts, 769 F.3d at 647 (brackets and citation omitted), thus makes clear that the Ninth Circuit’s preemption test is consistent with this Court’s precedent and

not meaningfully different from the “significant effect”

test that petitioners derive (cf. Pet. 27, 31) from that

precedent. Indeed, the Ninth Circuit in Dilts expressly

“agree[d] with” the government’s invited amicus brief

in that case explaining that state labor laws and similar

generally applicable laws “are not preempted by the

FAAAA unless they have a ‘significant effect’ on prices,

routes, or services.” 769 F.3d at 649-650; see Gov’t Amicus Br. at 14-16, 18-23, Dilts, supra (9th Cir. Feb. 18,

2014) (No. 12-55705).

18

Other Ninth Circuit cases likewise have made clear

the court’s view that the FAAAA and ADA preempt

state laws that have a significant impact on prices,

routes, or services, regardless of whether the laws bind

carriers to or freeze into place particular prices, routes,

or services. For example, in finding that the ADA does

not preempt a generally applicable California labor law

regarding wage statements, the Ninth Circuit discussed

the “binding” language to which petitioners object, but

then held that “what proves dispositive here is that [the

airline] has presented no evidence that [its] increased

costs would have a ‘significant impact’ on its prices,

routes, or services.” Ward v. United Airlines, Inc., 986

F.3d 1234, 1243 (2021) (citation omitted).

Similarly, in Miller v. C.H. Robinson Worldwide,

Inc., 976 F.3d 1016 (2020), petition for cert. pending,

No. 20-1425 (filed Apr. 8, 2021), the Ninth Circuit held

that a state-law negligence claim was “ ‘related to’ carrier prices, routes, or services” under the FAAAA’s

preemption provision even though the claim did “not

‘bind’ [the carrier] to ‘specific prices, routes, or services.’ ” Id. at 1023-1024 (emphasis added; citation omitted). The court acknowledged its prior use of the “binding” language, but clarified “that the scope of FAAAA

preemption is broader than this language suggests.”

Id. at 1025. And in California Trucking Association v.

Su, 903 F.3d 953 (2018), cert. denied, 139 S. Ct. 1331

(2019) (No. 18-887), the Ninth Circuit reiterated that

the FAAAA preempts a state law “that significantly impacts a carrier’s prices, routes, or services,” as distinguished from one “that has only a tenuous, remote, or

peripheral connection.” Id. at 960.

As those decisions make clear, the Ninth Circuit has

adopted and regularly applies a test for ADA and

19

FAAAA preemption that looks to “significant impact”

on prices, routes, or services—a phrase used in Morales, see 504 U.S. at 390, and repeated in Rowe, see 552

U.S. at 375. And the Ninth Circuit has done so notwithstanding its use as well of the “binds” or “freezes”

language—which itself echoes language from this

Court’s cases, see Morales, 504 U.S. at 388 (describing

the preempted law as having imposed “binding requirements as to how [airline] tickets may be marketed”);

Rowe, 552 U.S. at 372 (explaining that the preempted

“law would freeze into place services that carriers might

prefer to discontinue in the future”).

2. Further review also is unwarranted because the

decision below does not create a conflict with any decision of this Court or another court of appeals that warrants this Court’s review. Petitioners base (Pet. 15-23)

an asserted circuit conflict on the Ninth Circuit’s supposed adoption of a “binds” or “freezes” test. But as

just explained, the Ninth Circuit has not actually

adopted such a test, as exemplified by recent decisions

making clear that the “dispositive” consideration is

whether application of state law to a carrier “would have

a ‘significant impact’ on its prices, routes, or services,”

Ward, 986 F.3d at 1243 (citation omitted); see Miller,

976 F.3d at 1024-1025; California Trucking Association, 903 F.3d at 960. And because petitioners have not

identified any other court of appeals or state court of

last resort that has adopted a “binds” or “freezes” test,

any residual disagreement between Ninth Circuit panels would at most amount to an intracircuit conflict that

would not warrant this Court’s review. See Wisniewski

v. United States, 353 U.S. 901, 902 (1957) (per curiam)

(“It is primarily the task of a Court of Appeals to recon-

20

cile its internal difficulties.”); see also, e.g., Davis v.

United States, 417 U.S. 333, 340 (1974).

Petitioners contend (Pet. 18-21) that the decision below conflicts with decisions of the First Circuit and the

Supreme Judicial Court of Massachusetts holding that

the FAAAA preempted application of the second element of the ABC test as codified under Massachusetts

law. See Massachusetts Delivery Association v. Healey, 821 F.3d 187 (1st Cir. 2016); Schwann v. FedEx

Ground Package System, Inc., 813 F.3d 429 (1st Cir.

2016); Chambers v. RDI Logistics, Inc., 65 N.E.3d 1

(Mass. 2016). Petitioners further contend (Pet. 21-23)

that the decision below “cannot be reconciled with the

analysis used by the Third and Seventh Circuits,” Pet.

21, in decisions holding that the FAAAA did not

preempt application of the ABC test under New Jersey

and Illinois law, respectively. See Bedoya v. American

Eagle Express Inc., 914 F.3d 812 (3d Cir.), cert. denied,

140 S. Ct. 102 (2019) (No. 18-1382); Costello v. BeavEx,

Inc., 810 F.3d 1045 (7th Cir. 2016), cert. denied, 137 S.

Ct. 2289 (2017) (No. 15-1305). None of those casespecific decisions establishes a conflict warranting this

Court’s review.

Both the First Circuit and the Massachusetts high

court found it significant that the relevant Massachusetts statutes would compel carriers to treat “last mile”

delivery drivers as employees. See Schwann, 813 F.3d

at 438 (stating that the law “requires FedEx to use persons who are employees to perform first-and-last mile

pick-up and delivery services”); Chambers, 65 N.E.3d at

9 (citing Schwann and stating that the law imposes a

“de facto ban” on “us[ing] independent contractors” for

such services); see also Massachusetts Delivery Association, 821 F.3d at 191-192 (relying on Schwann). In

21

reaching that conclusion, the First Circuit observed

that Massachusetts law prohibited the parties from contracting around some of the more onerous requirements

applicable to employees, Schwann, 813 F.3d at 433, 439,

and distinguished the Seventh Circuit’s decision in Costello precisely because of “the carrier’s ability under Illinois law to contract around the state rule[s]” applicable to employees, id. at 440 n.8; see Costello, 810 F.3d

at 1057. The Third Circuit, conversely, distinguished

Schwann on the ground that unlike the Massachusetts

statute codifying the ABC test, New Jersey’s statute

contained an “alternative method for reaching independent contractor status—that is, by demonstrating

that the worker provides services outside of the putative employer’s ‘places of business.’ ” Bedoya, 914 F.3d

at 824 (citation omitted).

Here, the presence of the business-to-business exemption indicates that, like the Illinois and New Jersey

statutes—but unlike the Massachusetts one—the California statute does not necessarily require motor carriers to hire owner-operators as employees for purposes

of state labor law rather than to engage them as independent contractors.

Moreover, any analysis of

FAAAA preemption requires analyzing the effects of

applying the challenged state law to the particular parties and industry at issue. Cf. Northwest, Inc. v. Ginsberg, 572 U.S. 273, 283 (2014) (“What is important * * *

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

its form.”). At a minimum, the effects of the California

law on classification of owner-operators—and any resulting indirect impact on carriers’ prices, routes, or

services—would become clearer with a fuller record, cf.

Pet. App. 22a n.11, at which point the court below could

22

revisit its preliminary conclusion as to petitioners’ likelihood of success.

3. This case is an unsuitable vehicle to review the

question presented not just because of its interlocutory

posture, but also because, as noted above, whether

owner-operators could be covered by the business-tobusiness exemption remains a substantial and unresolved question of state law. In a recent case involving

FAAAA preemption, this Court declined to address one

of the questions on which it had granted certiorari because “the pre-enforcement posture of th[e] case” made

it unclear how the municipal entity would enforce the

challenged law. American Trucking Associations, Inc.

v. Los Angeles, 569 U.S. 641, 654 (2013). This case likewise effectively presents a pre-enforcement challenge,

given that the district court’s preliminary injunction

has remained in force in light of the stay of the court

of appeals’ mandate. As in American Trucking, there

is “no reason to take a guess now” about whether the

business-to-business exemption would cover owneroperators, or what the burdens associated with satisfying its conditions would be. Id. at 654-655. “There will

be time enough to address” the FAAAA preemption issue if warranted once that threshold question of state

law has been answered. Id. at 655.

23

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JOHN E. PUTNAM

General Counsel

PAUL M. GEIER

Assistant General Counsel

P ETER J. PLOCKI

Deputy Assistant General

Counsel

CHARLES E. ENLOE

Senior Trial Attorney

Department of Transportation

EARL ADAMS, JR.

Chief Counsel

CHARLES J. FROMM

Deputy Chief Counsel

T RACY M. WHITE

Senior Attorney

Federal Motor Carrier

Safety Administration

MAY 2022

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

SOPAN JOSHI

Assistant to the Solicitor

General

MARK B. STERN

JENNIFER L. UTRECHT

Attorneys

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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