Amicus Curiae Brief — Virgin America, Inc., et al., Petitioners v. Julia Bernstein, et al., Individually and on Behalf of All Others Similarly Situated

No. 21-260

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 Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

____________________

BRIEF FOR AMICI CURIAE AIRLINES FOR

AMERICA AND INTERNATIONAL AIR

TRANSPORT ASSOCIATION

IN SUPPORT OF PETITIONERS

____________________

PATRICIA N. VERCELLI

RIVA PARKER

AIRLINES FOR AMERICA

1275 Pennsylvania Ave., NW

Suite 1300

Washington, D.C. 20004

(202) 626-4001

ANTON METLITSKY

(Counsel of Record)

ametlitsky@omm.com

O’MELVENY & MYERS LLP

7 Times Square

New York, N.Y. 10036

(212) 326-2000

Counsel for Amicus Curiae

Airlines for America

JASON ZARROW

O’MELVENY & MYERS LLP

400 S. Hope St.

Los Angeles, Cal. 90071

(213) 430-6000

Counsel for Amici Curiae

(Additional Counsel Listed on Inside Cover)

LESLIE MACINTOSH

INTERNATIONAL AIR

TRANSPORT ASSOCIATION

Route de l’Aéroport 33, P.O

Box 416

1215 Geneva Airport 15

Switzerland

+41 (0) 22 770 26 99

Counsel for Amicus Curiae

International Air Transport

Association

i

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................ 2

ARGUMENT ............................................................. 6

I. THE PANEL’S DECISION WILL HARM

AVIATION IN THE PRECISE MANNER

THAT FEDERAL PREEMPTION WAS

MEANT TO PREVENT ....................................... 6

A. Adding Flight Crew Will Significantly

Affect The Prices And Services Of

Mainline Carriers ........................................... 8

B. The Decision Below Imperils Regional

Routes ........................................................... 13

C. Airlines Will Have To Reschedule

Flights To Allow Breaks During Or

After “Shorter” Flights ................................. 15

D. Carriers Will Have To Add Multiple

Flight Attendants To Comply With FAA

Rest Rules ..................................................... 17

II. THIS CASE SATISFIES ALL OF THE

TRADITIONAL

CRITERIA

FOR

CERTIORARI .................................................... 18

A. The Ninth Circuit’s Longstanding

“Binds To” Test Conflicts Directly With

This Court’s Cases ........................................ 19

B. The Ninth Circuit’s “Binds To” Test

Conflicts With The Preemption Test In

Multiple Circuits .......................................... 22

ii

TABLE OF CONTENTS

(cont’d)

Page

C. The Proper Test For ADA Preemption

Is Exceptionally Important .......................... 24

CONCLUSION ........................................................ 25

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Air Transp. Ass’n of Am., Inc. v. Healey,

2021 WL 2256289 (D. Mass. June 3, 2021) ...... 23

Air Transp. Ass’n of Am. v. City & Cty. of

San Francisco,

266 F.3d 1064 (9th Cir. 2001)............................ 21

Air Transp. Ass’n of Am., Inc. v. The Wash.

Dep't of Labor & Indus.,

--- F. App’x ----, 2021 WL 3214549 (9th

Cir. July 29, 2021) ............................................. 22

Am. Airlines, Inc. v. Wolens,

513 U.S. 219 (1995) ............................................ 20

Augustus v. ABM Sec. Servs., Inc.,

2 Cal. 5th 257 (2016)............................................ 3

Brinker Rest. Corp. v. Superior Court,

53 Cal. 4th 1004 (2012)........................................ 3

Cal. Trucking Ass’n v. Bonta,

996 F.3d 644 (9th Cir. 2021).............................. 22

Dilts v. Penske Logistics, LLC,

769 F.3d 637 (9th Cir. 2014).........................19, 20

Goldthorpe v. Cathay Pac. Airways Ltd.,

279 F. Supp. 3d 1001 (N.D. Cal. 2018).............. 12

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) ..................................... passim

Northwest, Inc. v. Ginsberg,

572 U.S. 273 (2014) ............................................ 20

iv

TABLE OF AUTHORITIES

(cont’d)

Pages(s)

Puerto Rico v. Franklin Cal. Tax-Free Tr.,

136 S. Ct. 1938 (2016)........................................ 21

Rowe v. N.H. Motor Transp. Ass’n,

552 U.S. 364 (2008) ........................................ 6, 11

Witty v. Delta Air Lines, Inc.,

366 F.3d 380 (5th Cir. 2004).......................... 4, 23

FEDERAL STATUTES

49 U.S.C. § 14501(c)(1) .............................................. 6

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

49 U.S.C. § 44701(a)(4) ............................................. 6

49 U.S.C. App. § 1302(a)(9)....................................... 6

49 U.S.C. App. § 1302(a)(4)....................................... 6

FEDERAL REGULATIONS

14 C.F.R. § 121.391(a) ......................................... 7, 10

14 C.F.R. § 121.391(d) ............................................... 7

14 C.F.R. § 121.394(c) ............................................... 7

14 C.F.R. § 121.467(b) ......................................... 7, 17

14 C.F.R. § 121.543(b)(3) ........................................ 12

14 C.F.R. § 121.547 ................................................. 12

CALIFORNIA STATUTES AND REGULATIONS

Cal. Labor Code § 226.7 ............................................ 8

Cal. Labor Code § 512 ............................................... 8

v

TABLE OF AUTHORITIES

(cont’d)

Pages(s)

IWC Wage Order No. 9-2001, § 11-12 ...................... 7

OTHER AUTHORITIES

Airline Pilots Association, International

Jumpseat Guide (July 2018) ............................. 12

Dep’t of Transp., Essential Air Service .................. 14

INTEREST OF THE AMICI CURIAE1

Airlines for America (“A4A”) is the nation’s oldest and largest airline trade association. In 2019,

A4A’s passenger carrier members and their marketing partners accounted for more than 90% of U.S.

airline passenger and cargo traffic. The International Air Transport Association (“IATA”) is a nongovernmental international trade association founded by air carriers engaged in international air services. Commercial aviation drives 5% of U.S. GDP

and helps support more than 10 million U.S. jobs.

Amici routinely file briefs in courts around the Nation, and participated as amici in the court below.

Ensuring the uniformity of the laws and regulations governing interstate aviation through proper

application of preemption principles is vitally important to Amici’s members. Its members operate

under complex federal regulatory regimes, which,

properly construed, will often preempt the application of state and local law. The Ninth Circuit’s decision threatens to upset this regulatory stability by

construing critical preemption protections out of existence, thereby subjecting Amici’s members to exactly the sort of patchwork of regulation that federal

preemption is intended to prevent.

1 Pursuant to Rule 37.6, no counsel for any party authored this

brief in whole or in part and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. Counsel of record for the parties received

timely notice of the intent to file this brief. All parties have

consented to the filing of this brief.

2

INTRODUCTION AND SUMMARY

OF ARGUMENT

If California enacted a law requiring every flight

to and from its airports to have one extra flight attendant, the law would obviously be invalid. And if

California required airlines to schedule longer

ground times between flights, preemption would, if

anything, be even more obvious. Both laws would

significantly affect airline prices, routes, and services, and thus would be preempted by the express

preemption clause of the Airline Deregulation Act

(“ADA”), 49 U.S.C. § 41713(b)(1).

California’s meal-and-rest-break laws—which

require such breaks at rigid intervals, and even require employers to allow employees to leave the

premises (an impossibility on a plane)—are invalid

as applied to flight attendants for exactly these reasons, as the federal government explained below.

The only way airlines can comply with these laws is

to add more flight attendants on “longer” flights and

to schedule longer ground times between “shorter”

flights. That is precisely the sort of state regulation

of airline routes and services that the ADA was

meant to eradicate.

Remarkably, the court of appeals did not dispute

that this would be the effect of the rule it adopted.

According to the court below, “airlines [can] comply

with both the FAA safety rules and California’s meal

and break requirement by staffing longer flights with

additional flight attendants in order to allow for duty-free breaks.” Petition Appendix (“Pet. App.”) 18a

(quotations and alterations omitted). Yet the court

did not find California’s meal-and-rest-break laws

3

preempted because of a key doctrinal error that has

long infected the Ninth Circuit’s test for ADA

preemption: under its test, state laws of general applicability are not preempted unless they bind airlines to particular prices, routes, or services. And

because generally-applicable background laws by definition do not bind carriers in that way, such laws

are never preempted in the Ninth Circuit, including

California’s meal-and-rest-break laws, no matter how

significantly they impact airline prices, routes, or

services.

That result conflicts with this Court’s cases,

which have rejected special rules or carve-outs for

laws of general applicability as “utterly irrational”

and inconsistent with the ADA’s text. Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 386 (1992).

The Ninth Circuit’s interpretation of the ADA’s

preemption provision is also inconsistent with that of

multiple other circuits. Amici thus agree with petitioners that this Court’s review is necessary to correct an erroneous interpretation of federal law on

which the courts of appeals are divided.

Amici write separately to emphasize the immense practical consequences of the Ninth Circuit’s

decision for aviation. California’s meal-and-restbreak rules are strict. They require employers to

provide breaks that “relieve employees of all duties

and relinquish control over how employees spend

their time.” Augustus v. ABM Sec. Servs., Inc., 2 Cal.

5th 257, 269 (2016). And they require that employees be “free to leave the premises,” Brinker Rest.

Corp. v. Superior Court, 53 Cal. 4th 1004, 1036

(2012), which is impossible when a plane is in the

air. Yet the court below held that airlines are re-

4

quired to comply with California’s requirements with

respect to flight attendants. After initially omitting

any mention of how, exactly, airlines are supposed to

do that, the Ninth Circuit partially addressed this

critical issue in its amended opinion denying rehearing en banc: airlines, the Ninth Circuit held, should

staff “longer flights with additional flight attendants

in order to allow for duty-free breaks.” Pet. App. 18a

(quotations omitted).

A state-law rule requiring airlines to add more

flight attendants is self-evidently not a solution to

ADA preemption—it is a reason to find preemption.

It is not at all clear as a threshold matter that an airline can comply with federal regulations and California law by giving flight attendants on-duty breaks.

But assuming that is possible, adding extra flight attendants requires taking seats away from the traveling public because many flights will not have extra

flight-attendant seats. Adding extra flight attendants also increases labor costs, which will be passed

on to passengers in the form of higher prices and reduced services. And at regional airlines, which already operate on razor-thin margins, decreased seats

and increased costs mean route cancelations, harming the small communities they serve. The inevitable effect of the Ninth Circuit’s proposed solution, in

other words, will be to decrease airline services, increase prices, and imperil routes. Confronted with a

similar claim that would have required airlines to

decrease the number of available passenger seats,

the Fifth Circuit had no difficulty finding a “forbidden significant effect” on price. Witty v. Delta Air

Lines, Inc., 366 F.3d 380, 383 (5th Cir. 2004) (quoting

Morales, 504 U.S. at 388).

5

Even on its own terms, moreover, the Ninth Circuit’s suggestion that airlines can just add more

flight attendants only applies to “longer” flights. But

many flights are relatively short. Mid-flight breaks

cannot be scheduled on those flights (assuming flight

attendants can even take such breaks). For these

flights, the only ways to comply with California law

would be either to: (i) make flights longer; or (ii)

schedule longer ground-times between flights. A law

that requires airlines to change flight lengths or reschedule flights clearly “relate[s] to an [airline] price,

route, or service,” 49 U.S.C. § 41713(b)(1), and thus is

preempted by the ADA. “[S]tate-mandated breaks

between flights would [also] significantly disrupt the

tight choreography of flight takeoffs and landings,”

causing cascading delays nationwide, as the federal

government explained to the court below. Br. for the

United States as Amicus Curiae (“U.S. Amicus Br.”),

Bernstein, No. 19-15382 (9th Cir.) 2019 WL 4307414,

at *3 .

It is no surprise that Congress enacted a broad

preemption provision for aviation. Air transportation is integral to the Nation’s commerce, which is

precisely why Congress sought to establish national

uniformity in this area. Preemption of patchwork

state regulation has helped create a cost-effective

and efficient transportation network throughout the

United States—since deregulation, for example, ticket prices have fallen dramatically. The panel’s decision undermines those achievements, directly contrary to Congress’s manifest purpose.

The petition should be granted and the decision

below reversed.

6

ARGUMENT

I. THE PANEL’S DECISION WILL HARM

AVIATION IN THE PRECISE MANNER

THAT

FEDERAL

PREEMPTION

WAS

MEANT TO PREVENT

In 1978, Congress deregulated the airline industry. After years of experience with federal and state

regulation, Congress determined “that ‘maximum

reliance on competitive market forces’ would best

further ‘efficiency, innovation, and low prices’ as well

as ‘variety and quality of air transportation services.’” Morales, 504 U.S. at 378 (quoting 49 U.S.C.

App. §§ 1302(a)(4), (9) (alterations omitted)). “To ensure that the States would not undo federal deregulation with regulation of their own,” Congress included in the ADA a “broadly worded” and “deliberately expansive” preemption provision. Id. at 378,

384 (quotations omitted). That provision preempts

any state “law related to a price, route, or service of

an air carrier.” 49 U.S.C. § 41713(b)(1).2

While Congress deregulated the economic aspects of air travel, it has tasked the FAA—and not

the states—with regulating aviation safety, including “the maximum hours or periods of service of airmen and other employees of air carriers.” Id.

§ 44701(a)(4). The FAA has in turn promulgated

comprehensive rules governing flight attendants’ onboard responsibilities. Relevant here, carriers must

2 The Federal Aviation Administration Authorization Act’s

(“FAAAA”) express preemption provision is similarly worded,

see 49 U.S.C. § 14501(c)(1), and the same analysis generally

applies under both. See Rowe v. N.H. Motor Transp. Ass’n, 552

U.S. 364, 370 (2008).

7

have at least one flight attendant for every fifty passengers, 14 C.F.R. § 121.391(a), and flight attendants have assigned places and responsibilities during taxi, takeoff, landing, and deplaning, id.

§§ 121.391(d), 121.394(c). As the federal government

explained below, “[r]elieving attendants of all duty

while inflight or even taxiing would clearly interfere

with the duties prescribed by federal regulations.”

U.S. Amicus Br. at *20 (footnote omitted). FAA regulations further “require that flight attendants be

available to perform routine safety duties for the duration of the flight and be on call to assist with mandatory safety responsibilities in emergencies.” U.S.

Amicus Br. at *4.

FAA has also promulgated regulations specifying

the length of duty and rest periods “to avoid safety

issues related to fatigue.” Id. at *1. Flight attendants may be scheduled on duty for up to 14 hours,

which must then be followed by a mandatory “rest

period of at least 9 consecutive hours.” 14 C.F.R.

§ 121.467(b)(1)-(2). During the duty period, “FAA

regulations contemplate that flight attendants will

be able to take short, on-duty breaks: attendants

may certainly eat on airplanes, and they spend significant amounts of time sitting down.” U.S. Amicus

Br. at *4. But federal regulations do not allow flight

attendants to take an off-duty break, nor do they allow flight attendants to return immediately to work

after a break: once a flight attendant’s duty period

ends, a nine-hour rest period is triggered under federal law.

California law requires 30-minute meal breaks

and 10-minute rest breaks at certain intervals. See

IWC Wage Order No. 9-2001, §§ 11-12; Cal. Labor

8

Code §§ 226.7 & 512. According to the court below,

airlines can comply with these requirements and

with FAA regulations by “staffing longer flights with

additional flight attendants in order to allow for duty-free breaks.” Pet. App. 18a (quotations and alteration omitted). That solution will necessarily and

adversely affect airline prices, routes, and services

on both mainline (i.e., national/international) and

regional carriers and on both longer and shorter

flights.

A. Adding Flight Crew Will Significantly

Affect The Prices And Services Of Mainline Carriers

Adding at least one flight attendant to mainline

flights would deprive passengers of seats and would

be inordinately costly, driving up ticket prices and

decreasing services. Though Amici strongly disagree

that California’s meal-and-rest-break laws can be

applied to pilots, the logic of the decision below

seems to suggest that conclusion, further exacerbating the effects of the decision and underscoring the

importance of this Court’s review.

1. a. By requiring carriers to staff extra flight

attendants, the Ninth Circuit’s rule will deprive the

traveling public of otherwise-available seats, reducing the core service offered by airlines, and depriving

airlines of the ability to generate revenues. In other

words, “even assuming an on-call rotation system

would comply with California law, the additional

cost of that system would include not only the salaries of the additional attendants on board but the

loss of revenue resulting from their use of seats that

9

might otherwise have been occupied by paying passengers.” U.S. Amicus Br. at *23.

The Ninth Circuit dismissed this concern on the

ground that “Virgin [America] operate[d] flights with

empty jump seats.” Pet. App. 18a.3 Jump seats are

the foldable seats that one often sees in the front or

back of the cabin by the doors. Critically, while airlines operate some flights with empty jump seats,

that is not always the case. And if there is no empty

jump seat available, then an airline will necessarily

have to reduce the number of seats available for paying passengers.

There are numerous circumstances in which

jump seats may be unavailable for extra flight attendants. Jump seats are often occupied by flight

crew commuting to or from other cities. Given the

flexibility inherent in airline operations, many flight

attendants live in one city but work out of another.

For example, a flight attendant might live in San

Diego but work out of San Francisco. To get to and

from San Francisco before and after work, the flight

attendant will often commute in the jump seat. The

same also happens when a flight attendant calls out

sick. The airline might fly a flight attendant from

one city to another to replace the sick flight attendant, and the replacement flight attendant will

fly in the jump seat. Jump seats can also be occupied by flight attendant trainees, supervisors, or

FAA inspectors. Compliance with California law on

one of these flights will require reducing the number

3 Virgin America merged into Alaska Airlines and there are

no longer flights operated under that name.

10

of seats available to paying passengers, thus reducing airlines’ core service: air transport.

b. California’s rule will also increase labor costs

significantly. A 90-seat plane with two flight attendants, see 14 C.F.R. § 121.391(a)(3), will now require three, increasing flight attendant labor costs

by 50%. A smaller plane, which previously needed

only one flight attendant, see id. §§121.391(a)(1)-(2),

will now require two, increasing costs by 100% because airlines will have “to hire two flight attendants

to do the work of one.” U.S. Amicus Br. at *23. To

put this in perspective, staffing an additional flight

attendant on all flights would increase annual labor

costs at mainline airlines by hundreds of millions of

dollars per airline. It would be absurd to suggest

that such a state-law rule would not have a significant effect on the prices they charge and the services

they offer. And in all fairness to the Ninth Circuit, it

never suggested otherwise. Instead, it ignored these

costs, and their effect on airline prices and services,

because the Ninth Circuit’s “binds to” test does not

allow it. See infra Part II.A. Because California law

did not bind airlines to particular prices, routes, or

serves, a massive increase in costs was irrelevant as

a matter of law.

c. Providing mid-flight breaks will also be a

scheduling nightmare. Airlines will have to build

flight attendant schedules so that mid-flight breaks

occur when California law dictates they must. Obviously, that is impossible. What happens if a flight is

delayed 30 minutes, such that a flight attendant’s

break is now scheduled during landing? What if

there is serious turbulence and the captain requires

11

the flight attendants to remain in their seats? Or an

altercation? Or an emergency?

Building California-compliant schedules also

presupposes that airlines know in advance which

flight attendants are flying which flights. But logistical necessity requires that schedules be built first,

then crew assigned later. And flight attendant unions have negotiated tremendous flexibility for individual flight attendants to add, drop, or trade trips

with other flight attendants, which means that airlines do not know in advance which flights will actually need backup crew and when they need breaks.

So the only possible compliance options would be to

add even more flight attendants or schedule longer

ground times for all flights.

d. All of this would be made worse if the Ninth

Circuit’s rule were adopted nationwide. If California

can require 30-minute breaks every few hours, then

so can any other state. And those states also can require breaks at different intervals—say, two 20minute breaks for every 4 hours of work. See Pet.

27-28. It is not clear how airlines could ever comply

with the patchwork of state and local regulations

that the Ninth Circuit’s decision invites. It is clear,

however, that these sorts of regulatory patchworks

are precisely the type of state regulation that Congress meant to preempt. See, e.g., Rowe, 552 U.S. at

373 (“To allow Maine to insist that the carriers provide a special checking system would allow other

States to do the same …. That state regulatory

patchwork is inconsistent with Congress’ major legislative effort to leave such decisions … to the competitive marketplace.”).

12

2. There is no pilot-only carve-out from California’s meal-and-rest-break laws, nor any relevant pilot-only federal preemption provision. And some pilots have already taken the position that they are

entitled to state-law breaks as well. See Goldthorpe

v. Cathay Pac. Airways Ltd., 279 F. Supp. 3d 1001

(N.D. Cal. 2018). Amici strongly disagree that federal law allows the states to require pilots to take

mid-flight breaks, but the Ninth Circuit’s reasoning

seems to require this conclusion.

Pilots represent airlines’ single largest labor

cost, and there is currently a well-publicized pilot

shortage, meaning extra pilots (as would be necessary under California law) are hard to come by and

very expensive. Adding pilots, even more than adding flight attendants, would increase airline prices

and decreases services.

Adding pilots to comply with California law will

also require reducing the number of available passenger seats because some flights do not have available cockpit jump seats for extra pilots. In fact,

compliance with California law as to pilots would

likely require displacing two (or more) paying passengers because pilots and co-pilots can only be relieved mid-flight by pilots with certain qualifications,

see 14 C.F.R. § 121.543(b)(3)(i)-(ii), and many pilots

are not dual qualified. FAA regulations also give the

Captain authority to determine who may access the

cockpit, which California law cannot supersede. See

14 C.F.R. § 121.547.4 And airline CBAs often would

See also Airline Pilots Association, International Jumpseat

Guide (July 2018), https://www.alpa.org/~/media/ALPA/Files/

eLibraries/Safety/jumpseat/jumpseat-guide.pdf.

4

13

require carriers to provide relief pilots with a seat in

the cabin (not in the cockpit jump seat) anyway.

B. The Decision Below Imperils Regional

Routes

There is no question that the decision below will

devastate regional airlines and the small and rural

communities they serve. See generally Br. for Regional Airline Ass’n as Amicus Curiae In Support of

Petitioners.

Regional airlines are a critical part of our national aviation infrastructure. They operate nearly

half of all domestic flights, and are the sole source of

air service to more than half of U.S. airports.

Whereas mainline airlines typically operate between

their hub airports and other large cities, regional

airlines fly smaller aircraft that primarily provide

“feeder” service funneling passengers to mainline

hubs from smaller communities. Mainline carriers

thus depend on regional airlines to bring passengers

from smaller communities into their networks. If

regional flights are delayed, for example, then passengers inevitably will miss their connecting flights

on mainline carriers because carriers’ regional and

national networks are inextricably intertwined. See

id. at 12-13.

Regional airlines specialize in the use of smaller

planes that are appropriately sized for the markets

they serve. Some of these smaller aircraft only have

enough cabin jump seats for the FAA-required number of flight attendants, and thus cannot add more

flight attendants without potentially displacing paying passengers. Consider, for example, a 20-seat aircraft staffed by one flight attendant. Under Califor-

14

nia’s rule, a regional carrier will lose 5% of the

flight’s revenue potential by eliminating a revenuegenerating seat and see their flight attendant labor

costs increase by 100%. And if carriers are also required to give California-compliant breaks to pilots,

these costs and losses increase on both sides of the

equation. With fewer seats over which to amortize

cost increases and revenue losses, additional crew

can push these fragile routes from positive to negative margins, imperiling service to small communities.

Compliance will also result in small communities becoming ineligible for the Essential Air Service

(“EAS”) program subsidies, further resulting in

withdrawal of service to smaller communities.5 The

EAS program was intended to ensure that small

communities would not lose air service after deregulation due to the marginal profitability of their

routes. Indeed, the entire premise of the EAS program is that smaller communities are highly vulnerable to market forces, and many today cannot be

served without federal subsidization. But communities are generally ineligible for EAS subsidies if their

per-passenger subsidies exceed certain limits. And

the additional costs required by compliance with

California’s meal-and-rest-break law (as well as any

other state or local laws in the Circuit) will push certain routes above these limits.

The threat of terminated service to small communities is all too real. Dozens of airports, including

six in California, have lost service in the past decade.

See

https://www.transportation.gov/policy/aviationpolicy/small-community-rural-air-service/essential-air-service.

5

15

And roughly two thirds of California’s airports are

serviced exclusively or primarily by regional airlines.

Those communities are uniquely harmed by the decision below. Route cancellations affect mainline

carriers as well, because mainline carriers depend on

regional routes to bring passengers into their hubs

for connecting flights.

C. Airlines Will Have To Reschedule

Flights To Allow Breaks During Or After

“Shorter” Flights

By its terms, the Ninth Circuit’s solution applies

only to “longer flights.” Pet. App. 18a (quotations

omitted). Presumably, the Ninth Circuit meant

flights that are long enough for a flight attendant to

take an uninterrupted, 30-minute break between

takeoff and landing. But what about “shorter”

flights? The Ninth Circuit did not say, but there are

only two possible options, and both would plainly violate the ADA. Airlines could make flights longer.

Or they could schedule longer ground times between

flights.

1. Little need be said about the notion that a

state could require airlines to make short flights

longer. A law with that effect would clearly relate to

carrier routes and services.

2. The other option—longer ground times—is no

better. “[T]he provision of regular, frequent, and

safe air services requires significant coordination

and scheduling of aircraft takeoff, landing and taxi

time—particularly in congested airports serving major metropolitan areas.” U.S. Amicus Br. at *21.

Given this “complex choreography,” flight schedules

usually do not allow enough time between flights to

16

allow for California-compliant breaks. Id. “Flight

attendants working in paired flights frequently must

move quickly from gate to gate in order to prepare a

subsequent flight for a safe departure.” Id. And at

regional airlines, crew spend much of their time between landings and takeoffs completing post- and

pre-flight duties, leaving little or no time for breaks

at all.

To accommodate meal-and-rest breaks, then,

airlines would have to modify their flight schedules.

The federal government explained this problem to

the court below. Altering flight schedules to accommodate state-mandated breaks “would plainly affect

the frequency and regularity of service, particularly

because of the complexities of other concerns that

dominate scheduling decisions, including gate availability, airport infrastructure, aircraft availability,

airport takeoff and landing slots, passenger demand,

weather or mechanical failures, connection times, air

traffic congestion, airport noise or access restrictions, and environmental factors.” U.S. Amicus

Br. at *22. Further, “because air traffic is so intricately coordinated, changes to the scheduling of even

intrastate flights to accommodate breaks would have

a significant impact throughout the country and internationally.” Id. A state-law rule whose necessary

effect is cascading scheduling changes nationwide is

obviously one that is “related to a price, route, or

service of an air carrier.” 49 U.S.C. § 41713(b)(1).

17

D. Carriers Will Have To Add Multiple

Flight Attendants To Comply With FAA

Rest Rules

The analysis above assumes that flight attendants would be able to resume work once their dutyfree California break ends. Layering federal regulations atop state law makes the problem worse. It is

not clear that airlines can lawfully provide flight attendants with 10- or 30-minute off-duty breaks because federal law requires flight attendants to remain continuously on-duty during a flight and to

take at least a nine-hour rest period once released

from duty. 14 C.F.R. § 121.467(b)(2). Without a

regulatory change from the FAA, an airline would

have to swap in a new flight attendant after every

break, meaning airlines would have to staff more

than one backup flight attendant on most longer

flights and have replacement crew ready at the airport between shorter flights.

Using new flight attendants or flight attendant

crews poses additional problems—problems that

would adversely affect flight attendants in addition

to airline operations. Flight attendants usually fly

“trip pairings”—i.e., multi-segment flights that often

span several days and begin and end at the same

airport. For example, a trip pairing for a Los Angeles-based flight crew might include the following

itinerary: Los Angeles-Seattle-Cleveland-Austin-Los

Angeles. But if the original flight attendants must

be replaced in the middle of the pairing—say, in

Cleveland—the new crew will have to be flown to

Cleveland to staff the rest of the itinerary, which itself may take up jump seats, supra at 9-10, and

cause delays (airlines typically do not have crews

18

waiting around at non-base airports). As the government explained, California’s rule will have the

perverse effect of “stranding” flight attendants “outside of their home base for significant periods.” U.S.

Amicus Br. at *23.

For similar reasons, the decision below poses serious comity concerns. Because aviation is inherently national, the decision below will inevitably result

in delayed or cancelled flights in states other than

California. Indeed, returning to the example above,

supra at 17, it borders on absurd to suggest that California can require a plane in Ohio (en route to Texas) to wait on the tarmac so a flight attendant can

take a 30-minute break. That is why 13 states took

the unusual step of arguing to the court below that

federal preemption applied: “California’s break rules

[will] disrupt air traffic across the country even if

they apply only to flight attendants that live in or

are based out of California.” Br. of Georgia, et al. as

Amicus Curiae In Support of Rehearing En Banc,

Bernstein, No. 19-15382 (9th Cir.), at 15. And if every state applied its meal-and-rest-break laws to

flight attendants—and to pilots and ground crew—

then these interstate harms would be significantly

worse. Id.

II. THIS CASE SATISFIES ALL OF THE TRADITIONAL CRITERIA FOR CERTIORARI

The immense practical impacts of the Ninth Circuit’s decision are reason enough to grant certiorari.

But this case also satisfies the remaining traditional

criteria. The Ninth Circuit’s “binds to” test for ADA

preemption “conflicts with relevant decisions of this

Court.” Sup. Ct. R. 10(c). And it conflicts with the

19

preemption test in several other circuits. Sup. Ct. R.

10(a).

A. The

Ninth

Circuit’s

Longstanding

“Binds To” Test Conflicts Directly With

This Court’s Cases

The ADA expressly preempts state laws “related

to a price, route, or service of an air carrier.” 49

U.S.C. § 41713(b)(1). This Court has always construed this language “broadly,” giving it “expansive”

sweep. Morales, 504 U.S. at 384 (quotations omitted). As relevant here, a state law that significantly

affects an airline’s prices, routes, or services is

preempted, even if “the effect is only indirect.” Id. at

386 (quotations omitted).

That is not the test in the Ninth Circuit, at least

for laws of general applicability. The longstanding

rule for such a law, the Ninth Circuit holds, is that it

is not preempted unless the law “binds the carrier to

a particular price, route, or service.” Pet. App. 20a

(quoting Dilts v. Penske Logistics, LLC, 769 F.3d

637, 646 (9th Cir. 2014)). And because laws of general applicability typically do not bind carriers in

that way, such laws are not preempted in the Ninth

Circuit, no matter how significant their actual effects on airline prices, routes, or services. See, e.g.,

Pet. App. 20a-21a.

Not only is the Ninth Circuit’s “binds to” test inconsistent with this Court’s “significant effects” test,

but it also incorporates three arguments that this

Court has rejected.

First, whereas the Ninth Circuit has carved out

from ADA preemption laws of general applicability,

20

this Court held in Morales that the notion that “the

ADA imposes no constraints on laws of general applicability” is inconsistent with the “sweep” of ADA’s

broad language and would create “an utterly irrational loophole.” Morales, 504 U.S. at 386. Thus,

Morales found preempted a state’s deceptiveadvertising law. In Northwest, Inc. v. Ginsberg, 572

U.S. 273 (2014), the Court found preempted a

breach-of-implied-covenant claim. And in American

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

Court found preempted a state’s consumer-fraud

statute. All of those are generally-applicable background laws and all were preempted because of their

effects.

Second, a rule recognizing preemption only if

the law has a “binding” effect on “particular” prices,

routes, or services is no different than requiring direct regulation as a precondition to preemption. In

fact, the Ninth Circuit expressly holds that “Congress did not intend to preempt generally applicable

state transportation, safety, welfare, or business

rules that do not otherwise regulate prices, routes, or

services.” Pet. App. 20a (quoting Dilts, 769 F.3d at

644) (emphases added)). This Court has already reversed the Ninth Circuit for holding that “the prerequisite for preemption” is a state law that “force[s]

the Airlines to adopt or change their prices, routes or

services.” Ginsberg, 572 U.S. at 279 (quotations and

alteration omitted). Morales rejected that argument,

too, holding that the ADA is not limited to state laws

that “actually prescribe[] rates, routes, or services.”

504 U.S. at 385. The same result should obtain here.

Third, the Ninth Circuit erroneously adapted its

“binds to” test from ERISA precedents. The Ninth

21

Circuit’s test traces its roots to Air Transport Association of America v. City & County of San Francisco,

266 F.3d 1064 (9th Cir. 2001). That case followed

the “Supreme Court ERISA cases suggest[ing] that

in order for the ‘effect’ of a state law to cause

preemption, the state law must compel or bind an

ERISA plan administrator to a particular course of

action.” Id. at 1071. “By analogy,” the Ninth Circuit

reasoned, “a local law will have a prohibited connection with a price, route or service if the law binds the

air carrier to a particular price, route or service.” Id.

at 1072.6

The analogy no longer holds. In Rowe, this

Court implicitly rejected these ERISA precedents’

application to the ADA and FAAAA by reaffirming

Morales and declining to adopt petitioner’s argument

that “[t]he Court should use the ERISA cases as a

guide.” Br. for Pet’r, Rowe v. N.H. Motor Transp.

Ass’n, 2007 WL 2428380 (U.S. No. 06-457), at *29

(Aug. 23, 2007); see id. at *40 (“As with the ERISA

cases, because the state law neither requires nor

binds the carriers to do anything, there is no

preemption.”). See generally Pet. for Certiorari, Cal.

Trucking Ass’n, Inc. v. Bonta (U.S. No. 21-194) at 2830 (Aug. 9, 2021) (explaining conflict with ERISA

precedents).

Any one of these doctrinal errors alone would

warrant this Court’s review. All three make it imperative.

Air Transport Association also erroneously applied the

presumption against preemption to an express preemption provision. See Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct.

1938, 1946 (2016).

6

22

B. The Ninth Circuit’s “Binds To” Test

Conflicts With The Preemption Test In

Multiple Circuits

Virgin America’s petition demonstrates that the

Ninth Circuit’s narrow approach to ADA and FAAAA

preemption “creates a circuit split.” Cal. Trucking

Ass’n v. Bonta, 996 F.3d 644, 671 (9th Cir. 2021)

(Bennett, J., dissenting), petition for cert. filed, No.

21-194 (Aug. 9, 2021); see Pet. 17-21. Amici write

here to emphasize that the conflict with the First

and Fifth Circuits is especially stark.

Two recent decisions on the validity of state paid

sick-leave laws show that the difference between the

Ninth and First Circuit’s preemption tests is outcome determinative. In Air Transport Association of

America, Inc. v. The Washington Department of Labor & Industries, --- F. App’x ----, 2021 WL 3214549

(9th Cir. July 29, 2021), petition forthcoming, the

Ninth Circuit held that application of Washington’s

paid sick-leave law to flight crew was not preempted.

According to the Ninth Circuit, “[t]he proper inquiry

is whether the [paid sick-leave law] itself binds the

airlines to a particular price, route, or service.” (Id.

at *2 (quoting the decision below, Pet. App. 20a) (alteration omitted)). By definition, a state’s general

paid sick-leave law does not. The court thus did not

consider any of A4A’s summary-judgment evidence

showing the law’s effects because, as a rule in the

Ninth Circuit, “generally applicable labor regulations are too tenuously related to airlines’ services to

be preempted by the Act.” Id.

A recent Massachusetts district court decision,

by contrast, denied Massachusetts’s motion for

23

summary judgment on an identical claim. See Air

Transp. Ass’n of Am., Inc. v. Healey, 2021 WL

2256289 (D. Mass. June 3, 2021). Like Washington,

Massachusetts argued that its paid sick-leave law

was immune from ADA preemption because it did

not “directly regulate[] how an airline provides services, sets prices, or chooses routes (as opposed to

merely regulating how airlines behave as employers).” Id. at *10. But the district court rejected the

Attorney General’s argument precisely because the

First Circuit’s test for ADA and FAAAA preemption

is to the contrary. Id.; see also id. at *12 (noting that

the First Circuit had rejected “the attorney general’s

request for a categorical rule against preemption of

background labor laws” like the Ninth Circuit’s (quotations omitted)). In the First Circuit, the claim was

set for trial. In the Ninth Circuit, it failed as a matter of law.

The Fifth Circuit, meanwhile, holds that states

cannot require airlines to reduce the number of

available seats. In Witty, the plaintiff “alleged that

Delta was negligent in failing to provide adequate

leg room to prevent DVT.” 366 F.3d at 382. Because

that application of Louisiana negligence law “would

necessarily reduce the number of seats on the aircraft,” the Fifth Circuit held that it was “inexorably

relate[d] to prices charged by airlines” and would

have “‘the forbidden significant effect.’” Id. at 383

(quoting Morales, 504 U.S. at 388). The Ninth Circuit’s suggestion that airlines can just add more

flight attendants would likewise reduce the number

of passenger seats on the aircraft, supra at 8-10, and

thus would mean that California’s meal-and-rest

24

break laws would be preempted if this case arose in

the Fifth Circuit.

C. The Proper Test For ADA Preemption Is

Exceptionally Important

The importance of this case extends well beyond

the practical impacts of California’s meal-and-rest

break rules on aviation—and those impacts are severe and warrant certiorari on their own. Supra

Part I. In particular, the proper test for ADA and

FAAAA preemption is an issue of exceptional public

importance. The sheer number of cases raising the

issue is a testament to that fact, as is the involvement of the numerous amici, including the federal

government in the court below. Many major airlines

and trucking companies have hubs or headquarters

in the Ninth Circuit and even more have flight crew

bases there. All of these entities—and their employees, and their customers—are directly affected by

the preemption rule the Ninth Circuit applies.

So are passengers in other states. “[D]elays in

one airport—due to any cause—can easily snowball

into delays at other airports throughout the country.” U.S. Amicus Br. at *21. If carriers are required

to delay flights to allow time for California breaks,

the result will be delays nationwide. If state laws

are to have such far-reaching extraterritorial effects

on interstate commerce, then it should be this Court

that says so.

The Ninth Circuit’s narrow test also conflicts directly with Congress’s goal in enacting the ADA—

viz., to deregulate the commercial aspects of aviation

so that prices, routes, and services would be set by

“competitive market forces.” Morales, 504 U.S. at

25

378. By all accounts, the ADA has been a resounding

success. But by reducing the ADA’s preemption provision to a virtual nullity and only prohibiting direct

regulation of airlines, the panel’s decision threatens

to erase these gains, and will clearly frustrate Congress’s goal of creating a uniform, efficient, and affordable system of interstate transportation.

CONCLUSION

The petition should be granted and the decision

below reversed.

Respectfully submitted,

PATRICIA N. VERCELLI

RIVA PARKER

AIRLINES FOR AMERICA

1275 Pennsylvania Ave., NW

Suite 1300

Washington, D.C. 20004

(202) 626-4001

ANTON METLITSKY

(Counsel of Record)

ametlitsky@omm.com

O’MELVENY & MYERS LLP

Times Square Tower

7 Times Square

New York, N.Y. 10036

(212) 326-2000

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INTERNATIONAL AIR

TRANSPORT

ASSOCIATION

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O’MELVENY & MYERS LLP

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September 2021