Petition for Writ of Certiorari — Virgin America, Inc., et al., Petitioners v. Julia Bernstein, et al., Individually and on Behalf of All Others Similarly Situated
Supreme Court briefAug 19, 2021
Ask Donna
What actually matters in this document.
Text
No. 21-____
In the Supreme Court of the United States
________________________________________
VIRGIN AMERICA, INC., AND ALASKA AIRLINES, INC.,
PETITIONERS
v.
JULIA BERNSTEIN, ET AL.,
RESPONDENTS
________________________________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________________
PETITION FOR A WRIT OF CERTIORARI
________________________________________
Brendan T. Killeen
MORGAN, LEWIS &
BOCKIUS LLP
101 Park Ave.
New York, NY 10178
Shay Dvoretzky
Counsel of Record
Emily J. Kennedy
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Ave., NW
Washington, DC 20005
202-371-7000
Douglas W. Hall
Anthony J. Dick
shay.dvoretzky@skadden.com
David J. Feder
JONES DAY
51 Louisiana Ave., NW
Washington, DC 20001
Counsel for Petitioners
i
QUESTION PRESENTED
The Airline Deregulation Act (ADA) expressly
preempts state laws that are “related to a price, route,
or service of an air carrier.” 49 U.S.C. § 41713(b)(1).
This “deliberately expansive” language broadly
preempts state laws that affect airline prices, routes,
and services—even if the state law is “not specifically
designed to affect” airlines, and even if its “effect is
only indirect,” as long as it is not “too tenuous, remote,
or peripheral.” Morales v. Trans World Airlines, Inc.,
504 U.S. 374, 384-86, 390 (1992) (citations omitted).
The ADA thus preempts a state law that has “a ‘significant impact’” on carriers’ rates, routes, or services.
Rowe v. N. H. Motor Transp. Ass’n, 552 U.S. 364, 370
(2008) (quoting Morales, 504 U.S. at 390).
The Ninth Circuit rejects that standard. It holds
that the ADA does not preempt generally applicable
“background” rules unless they “bind[] the carrier to a
particular price, route, or service.” App. 20a (citation
omitted). Applying that categorical rule here, the
Ninth Circuit held that the ADA does not preempt applying California’s meal-and-rest-break laws to flight
attendants. In doing so, it refused even to consider
the significant impact of state-mandated breaks—
which conflict with FAA regulations governing flight
attendants’ responsibilities and rest breaks—on airline prices, routes, and services.
The question presented is:
Does the ADA preempt generally applicable state
laws that have a significant impact on airline prices,
routes, and services, as this Court and four circuits
have held, or does it preempt such laws only if they
bind an airline to a particular price, route, or service,
as the Ninth Circuit has held?
ii
PARTIES TO THE PROCEEDING
AND CORPORATE DISCLOSURE STATEMENT
Petitioners are Virgin America, Inc., and Alaska
Airlines, Inc. Virgin America, Inc., has merged with
and into Alaska Airlines, Inc. Alaska Airlines, Inc., is
owned by Alaska Air Group, Inc., which is a publicly
held corporation. There are no other corporations to
disclose under Rule 29.6.
Respondents are Julia Bernstein, Esther Garcia,
and Lisa Marie Smith, on behalf of themselves and
others similarly situated.
RELATED PROCEEDINGS
This case arises from the following proceedings:
•
Bernstein, et al., v. Virgin America, Inc.; Alaska
Airlines, Inc., Nos. 19-15382, 20-15186 (9th Cir.
filed July 20, 2021); and
•
Bernstein, et al., v. Virgin America, Inc.; Alaska
Airlines, Inc., No. 15-cv-02277-JST (N.D. Cal.
filed Feb. 4, 2019).
There are no other proceedings in state or federal
trial or appellate courts, or in this Court, directly related to this case under Supreme Court Rule
14.1(b)(iii).
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED........................................... i
PARTIES TO THE PROCEEDING AND
CORPORATE DISCLOSURE STATEMENT ......ii
RELATED PROCEEDINGS .......................................ii
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES ....................................... vi
PETITION FOR WRIT OF CERTIORARI ................. 1
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
STATUTORY PROVISIONS INVOLVED ................. 1
STATEMENT .............................................................. 1
I.
FEDERAL REGULATORY BACKGROUND .................... 3
A. The ADA Preempts State Laws That
Interfere With Federal Deregulation Of
Airlines............................................................ 3
B. Federal Law Regulates Flight Attendants’
Duty And Break Periods ................................ 6
II. PROCEEDINGS BELOW............................................. 8
A. Plaintiffs Sued Virgin For Not Providing
Meal And Rest Breaks Under
California Law ................................................ 8
B. The District Court’s Decision ......................... 9
C. The Ninth Circuit’s Decision ........................ 11
REASONS FOR GRANTING THE PETITION ....... 13
I.
THE NINTH CIRCUIT’S ADA PREEMPTION TEST
CONTRAVENES THIS COURT’S PRECEDENT AND
CREATES A CIRCUIT SPLIT .................................... 15
iv
TABLE OF CONTENTS
(continued)
Page
A. The Ninth Circuit’s Demanding
“Binds To” Test Conflicts With This
Court’s Decisions .......................................... 16
B. Four Circuits Apply The “Significant Impact”
Test For ADA Preemption ............................ 17
II. THE NINTH CIRCUIT’S DECISION IS WRONG ......... 21
A. The Ninth Circuit Applied The Wrong Legal
Standard ....................................................... 21
B. California’s Break Laws Would Have A
Significant Impact On Virgin’s Rates, Routes,
And Services ................................................. 23
1. Relieving flight attendants of their duties
would disrupt airline operations ........... 23
2. Adding more flight attendants would
create new adverse impacts ................... 25
III. THE QUESTION PRESENTED IS EXCEPTIONALLY
IMPORTANT ........................................................... 27
IV. THIS CASE PRESENTS AN IDEAL VEHICLE FOR THE
COURT’S CONSIDERATION ..................................... 30
CONCLUSION .......................................................... 32
APPENDIX A:
Court of Appeals Opinion
(July 20, 2021) ..................................................... 1a
APPENDIX B:
District Court Order Regarding Motion for
Summary Judgment
(January 5, 2017) .............................................. 29a
v
TABLE OF CONTENTS
(continued)
Page
APPENDIX C:
District Court Order Denying Motion for Leave
to File a Motion for Reconsideration
(March 27, 2017) ............................................... 79a
APPENDIX D:
District Court Judgment
(February 4, 2019) ............................................ 97a
APPENDIX E:
Stautory Provisions Involved ......................... 102a
vi
TABLE OF AUTHORITIES
Page(s)
CASES
Air Transp. Ass’n of Am. v. City of San Francisco,
266 F.3d 1064 (9th Cir. 2001) ............................. 15
Air Transp. Ass’n of Am. v. Cuomo,
520 F.3d 218 (2d Cir. 2008) ................................ 23
Air Transp. Ass’n of Am., Inc. v. Healey,
No. 18-CV-10651-ADB, 2021 WL 2256289
(D. Mass. June 3, 2021) ...................................... 19
Am. Trucking Ass’ns v. City of Los Angeles,
660 F.3d 384 (9th Cir. 2011) ............................... 15
Am. Airlines, Inc. v. Wolens,
513 U.S. 219 (1995) ..................................... passim
Angeles v. US Airways, Inc.,
No. C 12-05860, 2013 WL 622032
(N.D. Cal. Feb. 19, 2013) .................................... 28
Augustus v. ABM Sec. Servs., Inc.,
385 P.3d 823 (Cal. 2016) ....................................... 9
Bower v. Egyptair Airlines Co.,
731 F.3d 85 (1st Cir. 2013) ................................. 18
Branche v. Airtran Airways, Inc.,
342 F.3d 1248 (11th Cir. 2003) ........................... 20
Brindle v. R. I. Dep’t of Lab. & Training,
211 A.3d 930 (R.I. 2019) ............................... 21, 27
Brinker Rest. Corp. v. Superior Ct.,
273 P.3d 513 (Cal. 2012) ....................................... 9
Cal. Trucking Ass’n v. Bonta,
996 F.3d 644 (9th Cir. 2021) ............. 15, 16, 21, 22
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Chambers v. RDI Logistics, Inc.,
65 N.E.3d 1 (Mass. 2016) .................................... 21
Dan’s City Used Cars, Inc. v. Pelkey,
569 U.S. 251 (2013) ............................................... 6
Delta Air Lines, Inc. v. Black,
116 S.W.3d 745 (Tex. 2003) ................................ 21
DiFiore v. Am. Airlines, Inc.,
646 F.3d 81 (1st Cir. 2011) ........................... 17, 18
Dilts v. Penske Logistics, LLC,
769 F.3d 637 (9th Cir. 2014) ....................... passim
Goldthorpe v. Cathay Pac. Airways Ltd.,
279 F. Supp. 3d 1001 (N.D. Cal. 2018) ............... 28
Koutsouradis v. Delta Air Lines, Inc.,
427 F.3d 1339 (11th Cir. 2005) ........................... 20
Lyn-Lea Travel Corp. v. Am. Airlines, Inc.,
283 F.3d 282 (5th Cir. 2002) ............................... 19
Mass. Delivery Ass’n v. Healey,
821 F.3d 187 (1st Cir. 2016) ......................... 18, 27
Morales v. Trans World Airlines, Inc.,
504 U.S. 374 (1992) ..................................... passim
Northwest, Inc. v. Ginsberg,
572 U.S. 273 (2014) ..................................... passim
Onoh v. Nw. Airlines, Inc.,
613 F.3d 596 (5th Cir. 2010) ............................... 19
Rowe v. N. H. Motor Transp. Ass’n,
552 U.S. 364 (2008) ..................................... passim
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
Schwann v. FedEx Ground Package Sys., Inc.,
813 F.3d 429 (1st Cir. 2016) ............................... 18
Travel All Over the World, Inc. v.
Kingdom of Saudi Arabia,
73 F.3d 1423 (7th Cir. 1996) ............................... 20
United Airlines, Inc., v. Mesa Airlines, Inc.,
219 F.3d 605 (7th Cir. 2000) ......................... 20, 27
Ward v. United Airlines,
986 F.3d 1234 (9th Cir. 2021) ............................. 15
Witty v. Delta Airlines, Inc.,
366 F.3d 380 (5th Cir. 2004) ................... 19, 25, 26
STATUTES AND CONSTITUTIONAL PROVISIONS
U.S. Const. Art. VI, cl. 2 .............................................. 1
28 U.S.C. § 1254 .......................................................... 1
49 U.S.C. § 41713 ........................................ 1, 4, 17, 22
49 U.S.C. § 40103 ........................................................ 6
49 U.S.C. § 44701 ........................................................ 7
49 U.S.C. App. § 1302 (1988) ...................................... 3
Cal. Lab. Code § 226.7 ......................................... 1, 8, 9
Cal. Lab. Code § 2698 .................................................. 9
Cal. Lab. Code § 2699 .................................................. 9
Cal. Lab. Code § 512 .............................................. 1, 28
N.Y. Lab. Law § 162 (McKinney) .............................. 28
ix
TABLE OF AUTHORITIES
(continued)
Page(s)
REGULATIONS
14 C.F.R. § 121.135 ..................................................... 7
14 C.F.R. § 121.385 ................................................... 29
14 C.F.R. § 121.391 ................................................. 7, 8
14 C.F.R. § 121.397 ..................................................... 7
14 C.F.R. § 121.467 ................................... 7, 25, 26, 29
14 C.F.R. § 121.542 ..................................................... 7
14 C.F.R. § 121.575 ..................................................... 7
Flight Attendant Duty Period Limitations and Rest
Requirements,
59 Fed. Reg. 42,974 (Aug. 19, 1994) ................ 7, 8
OTHER AUTHORITIES
IWC Wage Order No. 9-2001 .................................. 8, 9
1
PETITION FOR WRIT OF CERTIORARI
Petitioners Virgin America, Inc., and Alaska Airlines, Inc. (together, Virgin), respectfully petition this
Court for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Ninth Circuit in this case.
OPINIONS BELOW
The court of appeals’ opinion (App. 1a-28a) is reported at 3 F.4th 1127. The relevant opinion of the
district court (App. 29a-78a) is reported at 227 F.
Supp. 3d 1049.
JURISDICTION
The judgment of the court of appeals was entered
on February 23, 2021, and amended on March 8, 2021,
and again on July 20, 2021. App. 1a-28a. The court
of appeals denied both parties’ petitions for rehearing
en banc on July 20, 2021. App. 2a. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The Supremacy Clause of the U.S. Constitution
(art. VI, cl. 2) provides in part that “the laws of the
United States … shall be the supreme law of the land.”
The relevant provision of the Airline Deregulation
Act, 49 U.S.C. § 41713, is reproduced at App. 102a03a. California Labor Code sections 226.7 and 512 are
reproduced at App. 104a-10a.
STATEMENT
Federal law assigns flight attendants a host of important safety duties that they must be ready to
handle at all times during flight. Flight attendants
must remain constantly on call and vigilant to help
passengers in case of emergency. Federal law thus extensively regulates their duty and break periods.
2
While flight attendants are often seated on flights,
and have time to sit and eat in between their work
tasks, federal regulations do not allow them to go “off
duty” while an airplane is operating.
In the decision below, the Ninth Circuit nevertheless held that flight crews are subject to California’s
strict meal-and-rest-break rules. Those rules require
completely “off duty” breaks for flight attendants
every three-and-a-half to five hours, even during
flights. During those breaks, flight attendants must
be “free to leave the premises”—an impossibility in
mid-air—and may not be on call, even for emergencies. Because airplanes cannot operate while flight
attendants are taking “off duty” breaks, imposing
those breaks under state law will cause massive delays. Planes will be forced to idle on the ground as
they wait for mandatory break periods to end, leaving
other planes to circle in the air as they await a gate.
The cascading effects will cast air traffic into disarray.
Despite those problems, the Ninth Circuit rejected
Virgin’s argument—endorsed by the United States—
that the Airline Deregulation Act (ADA) preempts
mandatory state-law breaks. Indeed, the court turned
a blind eye to the disruption that will result from allowing states to impose their own break rules on flight
crews. The court’s only response was that adding
flight attendants to longer flights would let crew members take turns with their state-required breaks. But
that is no solution because it would create forbidden
impacts of its own. For starters, it would confiscate
seats otherwise available to passengers—directly depriving those passengers of the very core service of air
travel. It would also affect prices, and make some
routes—especially those served by small planes with
few seats to begin with—unsustainable altogether.
3
In the Ninth Circuit’s view, none of these significant impacts matters because the ADA preempts
generally applicable “background” rules only if they
“bind[] the carrier to a particular price, route, or service.” App. 20a (citation omitted). That impossible
standard eviscerates the ADA’s express preemption
clause, contradicts this Court’s decisions, and cements
a split with four other circuits. It is also illogical on
its own terms: By definition, a generally applicable
background rule—one that doesn’t even refer to air
carriers—does not bind the carrier to the particulars
of a price, route, or service. On top of the chaos that
the Ninth Circuit’s rule will cause for the traveling
public, it threatens to force airlines to comply with a
dizzying patchwork of conflicting break laws in any
state they happen to serve, contravening a core purpose of the ADA. And the problems only multiply if,
as plaintiffs have already asserted, the Ninth Circuit’s
logic extends to pilots, ground crew, and other employees necessary for airlines to function. This Court
should intervene to restore the ADA’s “deliberately expansive” preemptive effect and to prevent nationwide
tumult in the airline industry. Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 384 (1992) (citation
omitted).
I.
FEDERAL REGULATORY BACKGROUND
A. The ADA Preempts State Laws That
Interfere With Federal Deregulation Of
Airlines
Congress enacted the ADA in 1978 to further “efficiency, innovation, and low prices” in the airline
industry through “maximum reliance on competitive
market forces.” 49 U.S.C. App. § 1302(a)(9), (4)
(1988). The ADA includes a preemption provision
4
intended to “ensure that the States would not undo
federal deregulation with regulation of their own.”
Morales, 504 U.S. at 378. That provision expressly
preempts State laws that are “related to a price, route,
or service of an air carrier.” 49 U.S.C. § 41713(b)(1).
As this Court has recognized repeatedly, this language is “deliberately expansive.” Morales, 504 U.S.
at 384 (citation omitted). It broadly preempts state
laws that affect airline prices, routes, and services—
even if the state law is “not specifically designed to affect” airlines, and even if its “effect is only indirect,”
as long as it is not “too tenuous, remote, or
peripheral.” Id. at 384-86, 390 (citations omitted).
Thus, the Court analyzes preemption by considering
whether state law has “a ‘significant impact’” on carrier rates, routes, or services. Rowe v. N. H. Motor
Transp. Ass’n, 552 U.S. 364, 370 (2008) (quoting Morales, 504 U.S. at 390) (same analysis under similarly
worded Federal Aviation Administration Authorization Act (FAAAA)).
Morales, for example, held that the ADA
preempted the application of a state’s general deceptive-advertising law to an airline because of the
“significant impact” it would have on fares. 504 U.S.
at 390; see id. at 386-88. The Court rejected the state’s
arguments that “the ADA imposes no constraints on
laws of general applicability,” and that “only state
laws specifically addressed to the airline industry are
preempted.” Id. at 386. That crabbed reading “ignores the sweep of the ‘relating to’ language” and
would “creat[e] an utterly irrational loophole.” Id.
Morales also rejected the state’s argument that its
laws were not sufficiently “related to” an airline’s
prices. Although the state was “not compelling or restricting” particular prices, its laws “would have a
5
significant impact upon the airlines’ ability to market
their product, and hence a significant impact upon the
fares they charge.” Id. at 389. It was “quite obvious[]”
that applying such laws to airlines “relates to” airline
rates. Id. at 387-89.
Similarly, American Airlines, Inc. v. Wolens held
that the ADA preempted the application of a state’s
general consumer-fraud statute to an airline’s frequent-flier program. 513 U.S. 219 (1995). The lower
court had deemed frequent flier programs too “peripheral to the operation of the airline” to implicate
preemption; it thought the ADA’s preemption provision reached only matters “essential” to airline
operations. Id. at 226 (citation omitted). Wolens rejected that formalistic restriction, emphasizing that
the relevant question is how the claims at issue affect
airline prices, routes, or services. See id. at 226-27.
The Court concluded that applying the consumerfraud statute would have an impermissible effect: It
would impact the airline’s “‘rates,’ i.e., charges in the
form of mileage credits for free tickets and upgrades,”
and “‘services,’ i.e., access to flights and class-of-service upgrades.” Id. at 226.
Finally, Northwest, Inc. v. Ginsberg held that the
ADA preempted a general breach-of-implied-covenant
claim against an airline arising from its frequent-flier
program because of the impact it would have on rates
and services. 572 U.S. 273, 284 (2014). To begin with,
the Court “ha[d] little difficulty rejecting” the argument that “the ADA’s pre-emption provision applies
only to [state] legislation … but not to a [background]
common-law rule.” Id. at 281. “What is important” is
a state law’s “effect,” “not its form.” Id. at 283. “[T]he
ADA’s deregulatory aim can be undermined just as
surely by a state common-law rule as it can by a state
6
statute or regulation.” Id. And when it came to the
dispositive question for preemption—whether the
plaintiff’s breach-of-implied covenant claim “relates
to” prices, routes, or services—the Court found a
“clear[]” connection. Id. at 284. That claim sought the
plaintiff’s reinstatement into the airline’s frequent
flier program, which, in turn, could ultimately impact
“the price of a particular ticket” and “access to flights
and to higher service categories” (since frequent flier
miles “can be redeemed for tickets and upgrades”). Id.
To be sure, “the breadth of the words ‘related to’
does not mean the sky is the limit.” Dan’s City Used
Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013). Some
state laws, such as prohibitions on “gambling and
prostitution,” may affect airlines in “in too tenuous,
remote, or peripheral a manner to have pre-emptive
effect.” Morales, 504 U.S. at 390 (citation omitted).
But the question is always the same: Whether a state
law has a significant impact on airline prices, routes,
or services.
B. Federal
Law
Regulates
Flight
Attendants’ Duty And Break Periods
The ADA’s preemption provision reflects that the
federal government, not states, is primarily responsible for regulating airlines. “The United States
Government has exclusive sovereignty of airspace of
the United States.” 49 U.S.C. § 40103(a)(1). Because
air transportation is an inherently national enterprise, the Federal Aviation Administration (FAA)
“develop[s] plans and policy for the use of the navigable airspace,” and “ensur[es] the safety of aircraft and
the efficient use of airspace.” Id. § 40103(b). To that
end, the FAA “promote[s] safe flight of civil aircraft in
air commerce by prescribing” “regulations in the
7
interest of safety for the maximum hours or periods of
service of airmen and other employees of air carriers.”
Id. § 44701(a), (a)(4). And under that authority, the
FAA has promulgated extensive rules about duty and
break periods for flight attendants. See 14 C.F.R.
§ 121.467.
FAA regulations provide that airlines “may assign
a duty period to a flight attendant” of up to “14 hours,”
and that every duty period must be followed by a mandatory “rest period of at least 9 consecutive hours.” Id.
§ 121.467(b)(1), (2). A “duty period” is “the period of
elapsed time between reporting for an assignment involving flight time and release from that assignment.”
Id. § 121.467(a).
Flight attendants have ample opportunity to sit
and eat on flights, but under FAA rules they must remain on duty at all times to perform their mandatory
safety duties. See, e.g., id. § 121.135(b)(12) (must respond to emergencies according to procedures outlined
in flight manual); id. §§ 121.467(a), 121.397(a) (must
handle “cabin-safety-related responsibilities”); id.
§ 121.391(d) (must remain “uniformly distributed
throughout the airplane” to help passengers); id.
§ 121.542(a) (must perform “duties required for the
safe operation of the aircraft”); id. § 121.575 (must be
constantly aware of intoxicated passengers). Indeed,
the FAA considered and rejected a proposal to “establish provisions for on-board rest” for flight attendants
because it found that the rest requirements “adopted
in [the] final rule are adequate to ensure that flight
attendants are provided the opportunity to be sufficiently rested to perform their routine and emergency
safety duties without imposing a significant burden on
operators.” Flight Attendant Duty Period Limitations
8
and Rest Requirements, 59 Fed. Reg. 42,974, 42,97980 (Aug. 19, 1994).
Finally, consistent with the scope of flight attendant responsibilities, FAA regulations specify the
minimum number of flight attendants airlines must
staff on passenger airplanes, based on a plane’s capacity. 14 C.F.R. § 121.391(a).
II. PROCEEDINGS BELOW
A. Plaintiffs Sued Virgin For Not Providing
Meal And Rest Breaks Under California
Law
The plaintiffs here are a class of flight attendants
who spent a small fraction of their time working in
California, but the vast majority of their time working
elsewhere—either in federal airspace, or at airports in
other states. App. 41a; Appellants’ Excerpts of Record
at 247, Bernstein v. Virgin America, Inc., No. 1915382 (9th Cir.), ECF No. 25-1. Among other claims,
they asserted that Virgin violated California law by
assigning them to work continuous duty periods authorized by federal law, while failing to provide them
with duty-free meal and rest breaks as required by the
California Labor Code.
Unlike the FAA regulations that govern duty and
break periods for flight attendants, California law
generally requires employees to receive a meal or rest
break every three-and-a-half to five hours. See IWC
Wage Order No. 9-2001, § 11-12. During these mandatory breaks, employers “shall not require an
employee to work.” Cal. Lab. Code § 226.7(b).
This means that employers must not only “relieve
employees of all duties,” but also “relinquish control
over how employees spend their time”—“including the
9
obligation that an employee … remain on call, vigilant, [or] at the ready,” with no exception for safety
duties. Augustus v. ABM Sec. Servs., Inc., 385 P.3d
823, 832-34 (Cal. 2016). During meal breaks, employees must be “free to leave the premises.” Brinker Rest.
Corp. v. Superior Ct., 273 P.3d 513, 534 (Cal. 2012).
And although breaks may be “interrupted” or “reschedule[d]” occasionally, this must be “the exception
rather than the rule.” Augustus, 385 P.3d at 833-34 &
n.14. On-duty meal breaks (that is, breaks occurring
on the jobsite) are permissible “only when the nature
of the work prevents an employee from being relieved
of all duty and when by written agreement” the employer and employee agree to an “on-the-job paid meal
period.” Brinker, 273 P.3d at 533. An employee may
revoke his agreement to on-the-job breaks at any time.
See id.
California law also requires an employer who fails
to provide the prescribed meal or rest breaks to “pay
the employee one additional hour of pay at the employee’s regular rate of compensation for each
workday that the meal or rest or recovery period is not
provided.” Cal. Lab. Code § 226.7(c); see also IWC
Wage Order No. 9-2001, §§ 11(D), 12(B). Employees
also may bring a private claim under California Labor
Code Private Attorneys General Act of 2004, Cal. Lab.
Code § 2698 et seq., which allows an employee to seek
civil penalties against his employer on behalf of himself and other current or former employees, a portion
of which must be awarded to the state, id. § 2699.
B. The District Court’s Decision
1. Virgin moved for summary judgment. As relevant here, Virgin argued that the ADA preempts
California’s break rules because they have a
10
“significant impact” on prices, routes, and services.
Relieving flight attendants of all duties every threeand-a-half to five hours, as California law requires,
would disrupt carefully choreographed flight schedules because airplanes cannot operate without a full
contingent of flight attendants on duty. Nor can airlines engage in critical operations that affect core
services, including boarding, takeoff, landing, and deplaning. Forcing airlines to employ more flight
attendants than the federally required minimum—
and to let them take breaks in seats otherwise available to passengers—would not solve the ADA problem
because that, too, would have an impermissible significant impact on prices, routes, and services.
Virgin also argued that requiring mandatory
breaks under state law conflicts with FAA regulations.
By preventing flight attendants from
remaining on duty to handle their federally assigned
safety responsibilities, California’s break laws interfere with the functioning of the FAA’s regulatory
scheme.
2. The district court rejected both arguments.
First, the district court held that Ninth Circuit precedent foreclosed Virgin’s argument that the ADA
preempts California’s meal-and-rest-break laws. App.
65a-67a (citing Dilts v. Penske Logistics, LLC, 769
F.3d 637 (9th Cir. 2014)). In Dilts, the Ninth Circuit
held that the FAAAA does not preempt California’s
meal-and-rest-break laws for the intrastate trucking
industry because those laws do not “bind[] the carrier
to a particular price, route or service”: “They do not set
prices, mandate or prohibit certain routes, or tell motor carriers what services they may or may not
provide, either directly or indirectly.” 769 F.3d at 64647. Without addressing Virgin’s arguments about the
11
more acute impact that rest break laws would have on
interstate airlines as compared to intrastate trucking
companies, the district court concluded that airlines,
like the trucking companies in Dilts, “simply must
hire a sufficient number of [flight attendants] and
stagger their breaks for any long period in which continuous service is necessary.” App. 66a (quoting Dilts,
769 F.3d at 648).
For similar reasons, the district court also found
no conflict between California’s break rules and FAA
rules that require flight attendants to remain on duty
during flights to handle federal safety duties. It said
that Virgin could simply “staff longer flights with additional flight attendants in order to allow for dutyfree breaks.” App. 64a.
3. Virgin sought reconsideration, emphasizing
the United States’ argument in Dilts that, while California’s meal-and-rest-break laws were not preempted
as applied to truckers, applying those laws to airlines
would present “significantly different considerations.”
Brief for the United States as Amicus Curiae in Support of Appellants and Reversal at 25, Dilts, 769 F.3d
637 (9th Cir.), 2014 WL 809150; see Defendant’s Motion for Leave to File a Motion of Reconsideration at
11-12, 17-18, Bernstein v. Virgin America, Inc., No. 15cv-02277-JST (N.D. Cal.), ECF No. 127. The district
court denied Virgin’s motion. App. 79a.
C. The Ninth Circuit’s Decision
1. On appeal, Virgin again argued that the ADA
preempts state-mandated, duty-free breaks for flight
attendants because such breaks would have a forbidden significant impact on airline’s prices, routes, and
services.
12
The United States filed an uninvited amicus brief
supporting Virgin and arguing that “[t]here can be no
serious question that applying California’s meal and
rest break laws to flight attendants will have a significant impact on the market forces influencing carrier
services and prices.” Brief for the United States as
Amicus Curiae in Support of Appellants at 18, Bernstein, No. 19-15382 (9th Cir.), 2019 WL 4307414.
Because “federal regulations contemplate that attendants will be on-duty and on-call to perform” critical
safety duties throughout a flight, “the only time that
an off-duty break could occur would be between
flights.” Id. at 19-20. That, in turn, “would significantly interfere with th[e] complex choreography” of
air traffic, and could “easily snowball into delays at
other airports throughout the country.” Id. at 21.
Adding more flight attendants as an alternative
“would create its own difficulties,” including stranding
extra flight attendants away from their home base,
and taking away “seats that might otherwise have
been occupied by paying passengers.” Id. at 22-23.
2. The Ninth Circuit affirmed. App. 1a-28a. It
rejected Virgin’s argument that the ADA preempts
California’s break laws, because it reasoned that those
generally applicable “background” rules do not “bind[]
the carrier to a particular price, route or service.”
App. 20a (quoting Dilts, 769 F.3d at 646). The court
explained that Dilts’s holding that the FAAAA does
not preempt applying California’s break laws to the
trucking industry “applies with equal force here.”
App. 21a. The court did not address Virgin’s or the
United States’ arguments about the different impact
that California’s meal-and-rest-break laws would
have on airlines as compared to the trucking industry.
Nor did it consider whether applying those laws would
13
have a “significant impact” on air carrier rates, routes,
or services. It noted only that “an increase in cost associated with compliance [is] not sufficient to show a
relation to prices, routes, or services.” App. 20a-21a.
Finally, like the district court, the panel thought
that Virgin could comply with California’s break rules
by staffing flights with additional flight attendants—
i.e., more than the federally required number—“in order to allow for duty-free breaks.” App. 18a (citation
omitted). It refused to consider, however, the effect
that this would have on airlines’ prices, routes, and
services.
3. Virgin petitioned for panel rehearing and rehearing en banc, arguing that the Ninth Circuit’s
demanding “binds to” test contravenes this Court’s
precedents and creates a circuit split. Although the
panel amended its opinion to address other arguments
that Virgin made in its rehearing petition about conflict preemption, it left its discussion of ADA
preemption untouched. The court of appeals denied
rehearing en banc. App. 2a.
REASONS FOR GRANTING THE PETITION
This case checks every box for certiorari. The
Ninth Circuit’s decision eviscerates a crucial federal
preemption statute, with nationwide consequences for
air carriers and passengers alike, by shielding generally applicable laws from the ADA’s preemptive reach.
It also conflicts with this Court’s decisions interpreting the ADA and cements a split with four other
circuits. This Court should intervene.
I. The Ninth Circuit’s categorical “binds to” test
contradicts this Court’s decisions. Morales, Wolens,
and Ginsberg explicitly reject the notion that the ADA
preempts only state laws that force airlines to adopt
14
particular prices, routes, or services. And they shun a
specialized test for generally applicable laws.
The Ninth Circuit’s demanding rule also conflicts
with the decisions of the First, Fifth, Seventh, and
Eleventh Circuits.
Those courts analyze ADA
preemption by considering whether a generally applicable state law has a forbidden “significant impact” on
prices, routes, or services. The Ninth Circuit, by contrast, refuses to even ask that question unless a law
can satisfy its demanding “binds to” prerequisite.
II. The Ninth Circuit’s holding that the ADA does
not preempt the application of California’s rest break
laws to flight attendants is wrong. It is based on a
flawed standard—one that this Court and other courts
of appeals have rightly rejected as conflicting with the
ADA’s text and purpose. Under the correct test—
whether the law has a “significant impact”—preemption is obvious: Affording flight attendants statemandated, duty-free breaks would have a tremendous
impact on airline prices, routes, and services. Airplanes cannot operate without a full contingent of
flight attendants on duty, and requiring them to take
duty-free breaks would interfere with critical operations like takeoff and landing, leaving planes stranded
on runways at unpredictable times and causing cascading delays at airports nationwide.
While the Ninth Circuit viewed these disruptions
as irrelevant to preemption, it also suggested that airlines could avoid them by adding more flight
attendants per flight. But that “solution” creates forbidden impacts of its own by confiscating seats
otherwise available to paying customers, substantially affecting prices, and threatening the very
viability of some routes. It also generates confusion
15
and uncertainty for airlines operating in federal airspace by subjecting them to a patchwork of state break
rules.
The petition should be granted.
I.
THE NINTH CIRCUIT’S ADA PREEMPTION TEST
CONTRAVENES THIS COURT’S PRECEDENT AND
CREATES A CIRCUIT SPLIT
The decision below reflects the Ninth Circuit’s
longstanding, categorical rule that the ADA does not
preempt “generally applicable” state laws unless they
“bind[]” a carrier to a “particular rate, route, or service.” App. 20a; see Cal. Trucking Ass’n v. Bonta, 996
F.3d 644, 664 (9th Cir. 2021), petition for cert. docketed, No. 21-194 (U.S. Aug. 11, 2021) (“generally
applicable labor law[s]” are not preempted unless they
“bind, compel, or otherwise freeze into place a particular price, route, or service of a … carrier”); see also,
e.g., Ward v. United Airlines, 986 F.3d 1234, 1243 (9th
Cir. 2021); Am. Trucking Ass’ns v. City of Los Angeles,
660 F.3d 384, 398 (9th Cir. 2011); Dilts, 769 F.3d at
646; Air Transp. Ass’n of Am. v. City of San Francisco,
266 F.3d 1064, 1071-72 (9th Cir. 2001). Based on that
stringent rule, the Ninth Circuit refuses even to consider a state law’s impact on prices, rates, or services.
See, e.g., App. 19a-21a; Ward, 986 F.3d at 1243.
The Ninth Circuit’s rule disregards the decisions
of this Court, which hold that the ADA preempts generally applicable laws if they have a “significant
impact” on a carrier’s prices, routes, or services. And
as the Ninth Circuit itself has recognized, its demanding standard also “is contrary to” the law of other
circuits, which interpret the same language more
broadly to preempt laws that significantly impact
prices, routes, and services, even if the impact is only
16
“indirect.” Cal. Trucking, 996 F.3d at 663-64; see id.
at 670-71 (Bennett, J., dissenting).
A. The Ninth Circuit’s Demanding “Binds
To” Test Conflicts With This Court’s
Decisions
The Ninth Circuit’s rule that the ADA does not
preempt generally applicable laws unless they “bind”
a carrier to specific prices, routes, or services, cannot
be squared with this Court’s decisions interpreting the
ADA’s express preemption provision.
First, this Court has rejected the notion that the
ADA “only pre-empts the States from actually prescribing rates, routes, or services.” Morales, 504 U.S.
at 385. Indeed, in Ginsberg, this Court reversed the
Ninth Circuit’s holding that “the prerequisite for
[ADA] preemption” is whether a state law “force[s] the
Airlines to adopt or change their prices, routes or services.” 572 U.S. at 279 (citation omitted). None of the
state laws that the Court found preempted in Morales,
Wolens, or Ginsberg “force[d] [airlines] to adopt or
change their prices, routes, or services.” Ginsberg,
572 U.S. at 279 (citation omitted); see Morales, 504
U.S. at 385 (rejecting argument that ADA “only preempts the States from actually prescribing rates,
routes, or services”). The Court still found them
preempted because of their “significant impact” on airline prices, routes, or services. Morales, 504 U.S. at
390; see Ginsberg, 572 U.S. at 284; Wolens, 513 U.S.
at 226-27.
Second, this Court’s preemption analysis in Morales, Wolens, and Ginsberg confirms that there is no
specialized or more demanding preemption test for
“generally applicable” laws. The state rules at issue
in those cases were all generally applicable; none
17
specifically targeted airlines. See Ginsberg, 572 U.S.
at 276 (general breach-of-implied-covenant rule);
Wolens, 513 U.S. at 227 (general consumer-fraud statute); Morales, 504 U.S. at 378 (general deceptiveadvertising laws). Subjecting all laws to the same
standard reflects the text of the ADA, which specifies
a single test: whether the law is “related to” an air carrier’s prices, routes, or services.
49 U.S.C.
§ 41713(b)(1).
The Ninth Circuit’s heightened standard for generally applicable laws is particularly at odds with
Ginsberg. If background common-law rules are not
subject to heightened standards, then there is no reason generally applicable statutes should be either.
“[T]he ADA’s deregulatory aim can be undermined
just as surely” by a generally applicable statute “as it
can by [a common-law rule,] state statute or regulation.”
Ginsberg, 572 U.S. at 283.
“What is
important … is the effect of a state law, regulation, or
provision, not its form.” Id.
B. Four Circuits Apply The “Significant
Impact” Test For ADA Preemption
The First, Fifth, Seventh, and Eleventh Circuits
analyze ADA preemption by considering whether a
generally applicable state law has a forbidden “significant impact” on prices, routes, or services.
1. In several decisions, the First Circuit has
found preemption of generally applicable laws without
considering whether those laws bind a carrier to particular prices, routes, or services. In DiFiore v.
American Airlines, Inc., for example, the court concluded that the ADA preempted a generally applicable
Massachusetts law governing tips for all “service employees,” without considering whether the law bound
18
the airlines to any specific prices, routes, or services.
646 F.3d 81, 84, 86-88 (1st Cir. 2011). That case involved skycaps’ claim that an airline’s $2 curbside
bag-check fee constituted a tip under Massachusetts’s
tipping statute, and thus belonged to the skycaps. Under the Ninth Circuit’s “binds to” test, the tipping
statute would not have been preempted because it did
not prescribe any particular price or service. Indeed,
the skycaps proposed several ways for the airline to
comply “without incurring great expense or substantially altering the gist of curbside check-in service.”
Id. at 88. But the statute was preempted anyway because of its “significant impact” on the airline’s
“service” of “arranging for transportation of bags,” and
on the airline’s “price,” which “includes charges for
such ancillary services as well as the flight itself.” Id.
at 87.
Similarly, in Bower v. Egyptair Airlines Co., the
First Circuit held that the ADA preempted generally
applicable common-law tort claims because they
would “significantly impact” services by requiring
“heightened and qualitatively different procedures for
the booking and boarding of certain passengers on certain flights.” 731 F.3d 85, 92, 95-96 (1st Cir. 2013).
And in Massachusetts Delivery Association v. Healey,
the court held that the FAAAA preempted the application of Massachusetts’ generally applicable
employee-classification law to same-day delivery because of the “significant impact” it would have on the
companies’ services by eliminating their choice between providing services directly or through an
independent contractor. 821 F.3d 187, 191-92 (1st Cir.
2016); see also Schwann v. FedEx Ground Package
Sys., Inc., 813 F.3d 429, 438-39 (1st Cir. 2016) (same).
19
Underscoring the difference between the First
Circuit’s standard and the Ninth Circuit’s, a district
court recently ordered a trial to determine the “significant impact” of applying Massachusetts’s sick-leave
law to airlines for purposes of ADA preemption. Air
Transp. Ass’n of Am., Inc. v. Healey, No. 18-CV-10651ADB, 2021 WL 2256289, at *12 (D. Mass. June 3,
2021). Under the Ninth Circuit’s test, a trial would be
unnecessary because this generally applicable law
does not prescribe any particular rates, routes, or services.
2. The Fifth Circuit applies the same standard
as the First Circuit. In Witty v. Delta Air Lines, Inc.,
it held that the ADA preempted a passenger’s common-law negligence claim arising from an airline’s
failure to provide adequate leg room to prevent deep
vein thrombosis. 366 F.3d 380, 383 (5th Cir. 2004).
Because “requiring more leg room would necessarily
reduce the number of seats on the aircraft,” the court
held that state regulation of leg room would have a
“forbidden significant effect” on prices. Id. (citation
omitted). That ended the preemption inquiry; the
Fifth Circuit did not ask whether the passenger’s
claim would have bound the airline to specific prices.
See id. Other cases agree. See, e.g., Onoh v. Nw. Airlines, Inc., 613 F.3d 596, 599 (5th Cir. 2010) (ADA
preempted emotional-distress and breach-of-contract
claims arising from airline’s denial of boarding because of their impermissible impact on airline’s
services); Lyn-Lea Travel Corp. v. Am. Airlines, Inc.,
283 F.3d 282, 288 (5th Cir. 2002) (ADA preempted
travel agency’s tortious-interference claims because of
their impermissible impact on airline’s prices and services).
20
3. The Seventh Circuit likewise applies the “significant impact” standard. For example, in Travel All
Over the World, Inc. v. Kingdom of Saudi Arabia, an
airline cancelled tickets that customers bought
through a travel agency, and required them to purchase tickets directly from the airline. 73 F.3d 1423,
1428 (7th Cir. 1996). The Seventh Circuit held that
the ADA preempted intentional tort claims based on
the airline’s actions. Id. at 1434. The court did not
ask whether those generally applicable common-law
claims bound the airline to any particular price, route,
or service. It was sufficient for ADA preemption that
the claims were “based on the airline’s refusal to
transport [certain] passengers” and accordingly had “a
significant economic effect on the airline’s services.”
Id.; see also United Airlines, Inc., v. Mesa Airlines,
Inc., 219 F.3d 605, 611 (7th Cir. 2000) (ADA
preempted state-law fraudulent-inducement claims
arising from major airline’s code-sharing agreement
with regional airline because of their “significant effect” on “routes and divisions of revenues”).
4. The Eleventh Circuit similarly recognizes that
the ADA preempts state-law claims that would significantly impact airlines’ baggage-handling procedures,
even if they do not bind airlines to specific prices,
routes, or services. See Koutsouradis v. Delta Air
Lines, Inc., 427 F.3d 1339, 1343-44 (11th Cir. 2005)
(ADA preempted breach-of-contract claim based on
airline’s baggage-handling services, relying on
Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1255
(11th Cir. 2003) (holding that a law with “a forbidden
significant effect” on a “carrier’s prices, routes or services” is preempted)).
5. Finally, state high courts, too, apply the same
standard. The Rhode Island Supreme Court has held
21
that the ADA preempts generally applicable state
laws regulating pay on Sundays and holidays because
of the “significant impact” such laws have on airlines’
services. Brindle v. R. I. Dep’t of Lab. & Training, 211
A.3d 930, 937-38 (R.I. 2019), cert. denied, 140 S. Ct.
908 (2020). The court explained that “increased labor
costs” on Sundays and holidays “could lead to reduction in service from a flight frequency opportunity.”
Id. Other states likewise consider a law’s forbidden
“significant impact” dispositive of the preemption
analysis. See Chambers v. RDI Logistics, Inc., 65
N.E.3d 1, 9 (Mass. 2016) (FAAAA preempted state
worker-classification law because of its “‘significant
impact’ on motor carriers”); Delta Air Lines, Inc. v.
Black, 116 S.W.3d 745, 756 (Tex. 2003) (ADA
preempted misrepresentation and fraud claims arising from denial of first class seating because of their
significant impact on airlines’ services).
II. THE NINTH CIRCUIT’S DECISION IS WRONG
The Ninth Circuit’s holding that the ADA does not
preempt applying California’s rest break laws to airlines is wrong.
A. The Ninth Circuit Applied The Wrong
Legal Standard
The Ninth Circuit’s categorical rule that the ADA
does not preempt a generally applicable state law unless it “binds” a carrier to a particular price, route, or
service conflicts with this Court’s cases. See supra at
16-17. Whether described as “bind[ing], compel[ing],
or otherwise freez[ing] into place,” Cal. Trucking, 996
F.3d at 664, this test is indistinguishable from the
“prescrib[ing]” and “forc[ing]” tests that Morales and
Ginsberg rejected, Ginsberg, 572 U.S. at 279; Morales,
504 U.S. at 385. Whatever the synonym, none is a
22
“prerequisite for … preemption.” Ginsberg, 572 U.S.
at 279 (citation omitted).
The plain language of the ADA’s preemption provision forecloses such a crabbed reading. Interpreting
the ADA to preempt only state laws that “actually prescrib[e] rates, routes, or services” would “read[] the
words ‘relating to’ out of the statute.” Morales, 504
U.S. at 385. “Had the statute been designed to preempt state law in such a limited fashion, it would have
forbidden the States to ‘regulate rates, routes, and services.’” Id. But that is not what Congress wrote, and
in fact, it rejected a bill that would have substituted
“determining” for “relating to.” Id. at 386 n.2. In addition, if the ADA’s preemption provision had so
“limited” effect, “no purpose would be served by” the
later subsection “preserv[ing] to the States certain
proprietary rights over airports.” Id. at 386; see 49
U.S.C. § 14713(b)(3).
The Ninth Circuit’s restrictive view of preemption
also thwarts the ADA’s underlying policy of deregulation. It is hard to imagine how any generally
applicable law would “bind, compel, or otherwise
freeze into place” specific prices, routes, or services.
Cal. Trucking, 996 F.3d at 664. Yet a generally applicable statute can undermine the ADA’s deregulatory
aim “just as surely” as state common-law rules, statutes, or regulations. Ginsberg, 572 U.S. at 283. And
“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. Indeed,
essentially exempting generally applicable laws
would resurrect the “patchwork of state service-determining laws, rules, and regulations” that the ADA
was designed to eliminate. Rowe, 552 U.S. at 373.
23
The proper standard for ADA preemption, as this
Court and several circuits have recognized, is whether
state law has “a ‘significant impact’” on carrier rates,
routes, or services. Rowe, 552 U.S. at 371 (quoting
Morales, 504 U.S. at 390).
B. California’s Break Laws Would Have A
Significant Impact On Virgin’s Rates,
Routes, And Services
Under the “significant impact” doctrine recognized by this Court and other circuits, ADA
preemption is inescapable here. As the United States
agreed as amicus below, completely relieving flight attendants of their duties as required by California’s
break laws would have a severe impact on airlines’
prices, routes, and services. And while the Ninth Circuit thought that adding flight attendants would help
eliminate disruptions caused by breaks, its solution
would have an impermissible impact of its own.
1. Relieving flight attendants of their
duties
would
disrupt
airline
operations
Relieving flight attendants of all duties every
three-and-a-half to five hours, as California law requires, would have a massive impact on an airline’s
services, which at a minimum, include “the provision
of air transportation.” Air Transp. Ass’n of Am. v.
Cuomo, 520 F.3d 218, 223 (2d Cir. 2008) (noting circuit split on whether “services” is confined to
transportation or also includes amenities like beverage service, baggage handling, and passenger
assistance). FAA regulations require flight attendants to be on duty throughout a flight. See supra at 7.
Forcing flight attendants to take breaks every few
hours would disrupt and delay air traffic: Whenever
24
flight attendants take state-mandated breaks, airlines cannot engage in critical operations that affect
core services—including boarding, takeoff, landing,
and deplaning. As the United States explained in its
amicus brief below, moreover, “[r]elieving [flight] attendants of all duty while inflight or even taxiing
would clearly interfere with duties prescribed by federal regulations,” including routine and emergency
safety responsibilities. Brief for the United States as
Amicus Curiae, Bernstein, supra, at 20.
Flight attendants are essential to ensuring that
all of these operations function smoothly, often within
narrow windows of availability on runways and at
gates. But state-mandated break periods would fall
at unpredictable times due to weather, maintenance,
and other contingencies. So, for example, if a flight
were grounded because of a passing thunderstorm,
and then were cleared for takeoff just as state break
rules kicked in at the three-and-a-half-hour mark of a
shift, the passengers could be left sitting on the tarmac waiting for the flight attendants’ breaks to end.
And because flights operate on tight schedules and
crowded runways, such delays would have ripple effects: One plane delayed by a mandatory break could
delay the next plane in the queue, which could delay
another from landing, which would cause missed passenger connections, and so on. Appellants’ Excerpts
of Record at 671-72 ¶¶ 4-5, Bernstein, No. 19-15382
(9th Cir.), ECF No. 25-3. Allowing state law to interfere with these tightly scheduled operations would
have precisely the type of “significant impact” on airline services that the ADA’s preemption clause
prevents. Rowe, 552 U.S. at 375 (emphasis omitted)
(citation omitted); see Brief for the United States as
Amicus Curiae, Bernstein, supra, at 22 (requiring
25
airlines “to shift flight schedules to accommodate
…state-mandated breaks” would have “a significant
impact throughout the country and internationally”).
2. Adding more flight attendants would
create new adverse impacts
The Ninth Circuit suggested that airlines could
add more flight attendants to each plane, allowing
them to cycle on and off duty to facilitate mandatory
breaks without disruption. App. 18a; see App. 66a.
But that is no solution because it, too, would have an
impermissible effect on prices, routes, and services.
First, adding flight attendants would significantly
affect services by taking away available seats on every
flight, depriving some passengers of the very core service of air travel. Only “some [Virgin] aircraft …
ha[ve] an extra jump seat,” Appellees’ Supplemental
Excerpts of Record at 1241, Bernstein, No. 19-15382
(9th Cir.), ECF No. 68-1 (emphasis added), and even
then, any extra seat is often occupied by commuting
employees, see id. at 1133. The ADA does not let
states determine how many seats are available for
passengers by forcing airlines to add flight attendants
any more than states can directly regulate the seating
configuration of planes. Cf. Witty, 366 F.3d at 383.
Moreover, California’s break rules would require
multiple extra attendants per flight. FAA rules require a “rest period” of “at least 9 consecutive hours”
after any “duty period of 14 hours or less.” 14 C.F.R.
§ 121.467(b)(2) (emphasis added). And a duty period
ends whenever a flight attendant is “release[d]” from
duty. Id. § 121.467(a). This means that a flight attendant who is released from duty—as California law
requires for every meal and rest break—cannot “commence[]” working again for at least nine hours. Id. at
26
§ 121.467(b)(2). If state regulation of even a single
customer’s membership in a frequent flier program
impermissibly impacts services by restricting “access
to flights,” then surely restricting access to multiple
otherwise available seats does, too. Ginsberg, 572
U.S. at 284; see Wolens, 513 U.S. at 226 (finding ADA
preemption based on impact on passengers’ “access to
flights”).
Second, “reducing the number of seats on the aircraft” available for customers would also have a
“significant” impact on “prices.” Witty, 366 F.3d at
383. Indeed, requiring airlines to shift seats from paying customers to flight attendants would effectively
change the price of a given seat to $0 (and correspondingly drive up the price of tickets for remaining seats).
That is precisely the sort of state regulation the ADA
prohibits. See Ginsberg, 572 U.S. at 284 (ADA
preempts state laws that indirectly “eliminate[] or reduce[]” “the price of a particular ticket”); Wolens, 513
U.S. at 226 (ADA preempts state laws that indirectly
impact airline “charges in the form of mileage credits
for free tickets and upgrades”).
Third, requiring more flight attendants would impact routes, too. Adding even a single flight attendant
to a route would increase flight-attendant-related
costs by “approximately 33%.” Appellants’ Excerpts of
Record at 463-64 ¶ 81, Bernstein, No. 19-15382 (9th
Cir.), ECF No. 25-3. These costs would make some
routes unsustainable. Id. at 463-64 ¶¶ 81-82. As the
Regional Airline Association has explained, the Ninth
Circuit’s decision will “likely … cause cessation of service” to some “small communities”—which are served
by small planes with limited seating capacity to begin
with—by making it unprofitable for airlines to fly
there. Brief for Regional Airline Association as
27
Amicus Curiae in Support of Defendants-Appellants
and Reversal at 26, Bernstein, No. 19-15382 (9th Cir.),
2019 WL 4060560. That impact is significant, and the
ADA prevents it. Cf. United Airlines, 219 F.3d at 611
(finding ADA preemption based on “significant effect”
on routes); Brindle, 211 A.3d at 937-38 (finding forbidden impact based on “reduction in service from a flight
frequency opportunity”).
Finally, the radical nature of the Ninth Circuit’s
“solution” underscores the significant impact that
duty-free, state-mandated rest breaks would have on
airline prices, routes, and services. If states’ efforts to
regulate a carrier’s choice between providing services
directly or through an independent contractor would
have a forbidden “significant impact,” Mass. Delivery
Ass’n, 821 F.3d at 191-92, then surely the same is true
of states dictating how many employees to staff on a
flight. Moreover, if California can tell airlines how
many flight attendants to put on each plane, then so
can every other state, subjecting airplanes operating
in federal airspace to a confusing “patchwork” of conflicting state regulations and undermining the ADA’s
core goal. Rowe, 552 U.S. at 373; see Morales, 504 U.S.
at 378-79.
III. THE QUESTION PRESENTED IS EXCEPTIONALLY
IMPORTANT
The question presented has nationwide importance.
A. Giving state-mandated, duty-free breaks to
flight attendants would cast air traffic control into disarray. See supra at 23-25. It also would create
enormous operational problems for airlines. If the
ADA does not preempt California’s break rules
against airlines, then other states could enforce their
28
rules, too. While California requires a 30-minute meal
break for five hours of work, see Cal. Labor Code
§ 512(a), New York (to take one example) requires a
30-minute meal break for six hours of work, to be
taken at a particular time of day (between 11:00 a.m.
and 2:00 p.m.), unless an employee starts work between 1:00 p.m. and 6:00 a.m., in which case the meal
break must be 45 minutes, N.Y. Lab. Law § 162(2), (4)
(McKinney). Subjecting airlines to a confusing “patchwork” of state laws undermines the very purpose of
the ADA. Rowe, 552 U.S. at 373; see Morales, 504 U.S.
at 378-79.
The breadth of the Ninth Circuit’s reasoning exacerbates the uncertainty and cost of requiring airlines
to comply with multiple states’ break rules. The
Ninth Circuit’s logic is not limited to flight attendants;
indeed, plaintiffs have already brought cases seeking
breaks for other flight and ground crew, including pilots. See Goldthorpe v. Cathay Pac. Airways Ltd., 279
F. Supp. 3d 1001, 1003 (N.D. Cal. 2018) (pilots); Angeles v. US Airways, Inc., No. C 12-05860, 2013 WL
622032 (N.D. Cal. Feb. 19, 2013) (ground crews). And
plaintiffs will no doubt try to extend the Ninth Circuit’s reasoning to flight attendants who are merely
passing through California, no matter where they live
or are based. Airlines therefore could be forced to provide breaks for all flight and ground crew under the
laws of every state that the airline happens to serve.
B. The possibility of adding flight attendants
does not mitigate this logistical disaster. It would,
however, have a forbidden significant impact on airline prices, routes, and services, to the detriment of
the traveling public. See supra at 25-27.
29
Those effects will multiply if airlines are also required to provide state-mandated breaks to pilots.
Allowing states to dictate the number of pilots—above
the FAA’s minimum requirements, see 14 C.F.R.
§ 121.385(c)—would confiscate even more seats that
are otherwise available to customers. Adding just one
pilot to every flight also would multiply costs, inevitably increasing ticket prices and jeopardizing the
sustainability of certain routes. These results do not
benefit anyone.
On top of that, the United States explained below
that adding flight attendants would create operational problems of its own. Because federal law
mandates a nine-hour break whenever a flight attendant is released from duty, see 14 C.F.R.
§ 121.467(b)(2); supra at 25-26, complying with California’s duty-free rest period would require releasing
flight attendants for nine hours after their first threeand-a-half hours of work. That not only means that
hiring one additional flight attendant would be insufficient. It also would disrupt the “pairing” systems in
which flight attendants typically work—coordinated
multi-leg flights that enable attendants to fly to and
from one city, before eventually returning to their
home base. If the original flight attendants have to be
replaced in the middle of a pairing, a new set of flight
attendants will not necessarily be available to replace
them and complete the pairing. Moreover, a flight attendant who is being relieved for a break may end up
stranded away from his home base for an extended period. In other words, airlines would often need “to hire
two flight attendants to do the work of one, stranding
both … outside of their home base for significant periods.” Brief for the United States as Amicus Curiae,
Bernstein, supra, at 23.
30
C. Finally, the Ninth Circuit’s reasoning extends
beyond break rules, effectively insulating all laws of
general applicability from the ADA’s preemptive
reach. That creates “an utterly irrational loophole”
that will “undo” the ADA’s deregulatory purpose. Morales, 504 U.S. at 378, 386.
IV. THIS CASE PRESENTS AN IDEAL VEHICLE FOR
THE COURT’S CONSIDERATION
This case is a perfect vehicle for considering the
appropriate test for ADA preemption. The question
presented is dispositive of the plaintiffs’ meal-andrest-break claims: Under the “significant impact”
test, the ADA preempts those claims, see supra at 2327; but under the Ninth Circuit’s “binds to” test, the
claims evade preemption and the plaintiffs are entitled to summary judgment, see App. 19a-21a, 27a-28a.
The record below is well-developed with evidence of
the immense impact that applying California’s break
laws will have on Virgin’s prices, routes, and services.
And the Court has the benefit of the considered views
of the United States, which participated as an amicus
below.
Letting the Ninth Circuit’s decision stand here
also would have more drastic consequences than in
Dilts. As the United States explained in Dilts, applying state break laws to airlines rather than intrastate
motor carriers “entails significantly different considerations”: “[U]nlike motor carriers, an airline cannot
readily interrupt tightly scheduled flight operations to
accommodate state-mandated rest breaks for its
staff.” Brief for the United States as Amicus Curiae,
Dilts, supra, at 25. The United States again stressed
that distinction in this case, agreeing with Virgin that
changing flight schedules “to accommodate breaks
31
would have a significant impact throughout the country and internationally,” and that adding flight
attendants is no solution. Brief for the Unites States
as Amicus Curiae in Bernstein, supra, at 22; see also
supra at 23-27.
In addition, the need for this Court’s intervention
is more acute than it was in 2015 when this Court denied certiorari in Dilts. At that time, perhaps it was
reasonable to hope that the Ninth Circuit would not
apply its “binds to” language as a categorical rule:
Such a rule conflicts with Ginsberg, decided only a few
months before Dilts, and Dilts itself analyzed the impact that meals and rest breaks would have on motor
carrier’s prices, routes, and services. See Dilts, 769
F.3d at 648-49. In the years since Dilts, however, the
Ninth Circuit has clarified—repeatedly and emphatically—that its rule is both categorical and sweeping.
See supra at 15. Unless a generally applicable law
binds a carrier to specific prices, routes, or services,
the Ninth Circuit will not even consider the law’s impact. See App. 19a-21a.
The Court should intervene now, before the Ninth
Circuit’s decision wreaks nationwide havoc in the airline industry.
32
CONCLUSION
The petition should be granted.
Respectfully submitted,
Brendan T. Killeen
MORGAN, LEWIS &
BOCKIUS LLP
101 Park Ave.
New York, NY 10178
Douglas W. Hall
Anthony J. Dick
David J. Feder
JONES DAY
51 Louisiana Ave., NW
Washington, DC 20001
Shay Dvoretzky
Counsel of Record
Emily J. Kennedy
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Ave., NW
Washington, DC 20005
202-371-7000
shay.dvoretzky@skadden.com
Counsel for Petitioners
August 19, 2021
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.