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

Supreme Court briefSep 22, 2021

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No. 21-260

In the

Supreme Court of the United States

VIRGIN AMERICA, INC., AND ALASKA AIRLINES, INC.,

Petitioners,

JULIA BERNSTEIN, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

(202) 467-5337

GREGORY G. GARRE

Counsel of Record

CAROLINE A. FLYNN

MICHAEL CLEMENTE

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ...............................................................5

II.

The Ninth Circuit Has Long Contravened

This Court’s Precedent Under The ADA

And FAAAA .........................................................5

This Court Has Interpreted The

Statutes To Impose A “Significant

Impact” Test ................................................5

For Decades, The Ninth Circuit Has

Applied The “Binds To” Test Instead

.....................................................................7

The Ninth Circuit’s Decision In This Case

Takes

Its

Flawed

Preemption

Jurisprudence To A New Extreme ...................10

III. This Court’s Intervention Is Needed Now .......12

Applying California’s Meal-AndRest-Break Rules To Flight Crews

Would Severely Disrupt The Airline

Industry .....................................................12

The

Ninth

Circuit’s

Outlier

Preemption Regime Also Harms

National Commerce More Broadly...........15

TABLE OF CONTENTS—Continued

Page

CONCLUSION ..........................................................19

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Air Transport Association v. City &

County of San Francisco,

266 F.3d 1064 (9th Cir. 2001)............................7, 8

American Airlines, Inc. v. Wolens,

513 U.S. 219 (1995) ..........................................3, 18

American Trucking Associations v. City

of Los Angeles,

660 F.3d 384 (9th Cir. 2011)..................................8

Augustus v. ABM Security Services,

Inc.,

385 P.3d 823 (Cal. 2016) ......................................10

Brinker Restaurant Corp. v. Superior

Court,

273 P.3d 513 (Cal. 2012) ......................................10

California Trucking Association v.

Bonta,

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

for cert. filed, No. 21-194 (U.S. Aug.

9, 2021) .............................................................8, 16

California Trucking Association v. Su,

903 F.3d 953 (9th Cir. 2018)..................................8

Dilts v. Penske Logistics, LLC,

769 F.3d 637 (9th Cir. 2014)........................7, 8, 15

TABLE OF AUTHORITIES—Continued

Page(s)

Egelhoff v. Egelhoff,

532 U.S. 141 (2001) ............................................8, 9

Morales v. Trans World Airlines, Inc.,

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

Northwest, Inc. v. Ginsberg,

572 U.S. 273 (2014) .................................. 3, 5, 9, 18

People v. Superior Court,

57 Cal. App. 5th 619 (2020) .................................16

Rowe v. New Hampshire Motor

Transport Association,

552 U.S. 364 (2008) .............................. 3, 6, 7, 9, 18

Ward v. United Airlines, Inc.,

986 F.3d 1234 (9th Cir. 2021)................................8

FEDERAL STATUTES

49 U.S.C. App. § 1302(a)(4) (1988) .............................5

49 U.S.C. § 14501 ........................................................2

49 U.S.C. § 14501(c)(1) ............................................2, 6

49 U.S.C. § 41713(b)(1) ...........................................2, 6

49 U.S.C. § 41713(b)(4)(A) ..........................................6

Pub. L. No. 95-504, 92 Stat. 1705 (1978) ...................5

TABLE OF AUTHORITIES—Continued

Page(s)

Pub. L. No. 96-296, 94 Stat. 793 (1980) .....................6

Pub. L. No. 103-305, 108 Stat. 1569

(1994) ......................................................................6

STATE STATUTES

Cal. Lab. Code § 226.7 ..............................................10

Cal. Lab. Code § 226.7(b) ..........................................10

Cal. Lab. Code § 512(a) .............................................10

OTHER AUTHORITIES

83 Fed. Reg. 67,470 (Dec. 28, 2018) ..........................15

Paul Berger, U.S. Ports See Shipping

Logjams Likely Extending Far Into

2022, Wall St. J. (Sept. 5, 2021),

https://on.wsj.com/3DVCXOV..............................17

Doug Carlin, 15 Largest Airports in the

US [Update 2021], USA by Numbers

(Mar. 13, 2021),

https://usabynumbers.com/largestairports-in-the-us/ ................................................13

TABLE OF AUTHORITIES—Continued

Page(s)

Susan Helper & Evan Soltas, Why the

Pandemic Has Disrupted Supply

Chains, The White House (June 17,

2021), https://www.whitehouse.gov/

cea/blog/2021/06/17/why-thepandemic-has-disrupted-supplychains/ ..................................................................18

Industrial Welfare Commission, Order

No. 9-2001 Regulating Wages, Hours

& Working Conditions in the

Transp. Indus. (updated Jan. 1,

2003), https://www.dir.ca.gov/iwc/

Wageorders2003/IWCArticle9.pdf ......................10

Grace Kay, The US shipping crisis is not

going away as 33 cargo ships float off

the coast of LA waiting to dock,

Business Insider (July 26, 2021),

https://bit.ly/3j5JyhF ...........................................17

Jennifer Smith, Chip Shortage Curtails

Heavy-Duty Truck Production, Wall

St. J. (Sept. 3, 2021),

https://on.wsj.com/3yMccJa .................................16

Jennifer Smith, Truckers Expect U.S.

Transport Capacity Crunch to

Persist, Wall St. J. (May 2, 2021),

https://on.wsj.com/3mmWt0K .............................17

vii

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. GAO, National Airspace System:

Initiatives to Reduce Flight Delays

and Enhance Capacity are Ongoing

but Challenges Remain, GAO-05755T (May 26, 2005),

https://www.gao.gov/products/

GAO-05-755T .................................................12, 13

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America (the “Chamber”) is the world’s largest

business federation. It represents approximately

300,000 direct members and indirectly represents the

interests of more than three million companies and

professional organizations of every size, in every

industry sector, and from every region of the

country—including throughout California.

important function of the Chamber is to represent the

interests of its members in matters before Congress,

the Executive Branch, and the courts. To that end,

the Chamber regularly files amicus curiae briefs in

cases, like this one, that raise recurring issues of

concern to the nation’s business community.

The Chamber has a strong interest in this case

because it raises important and recurring questions

concerning the extent to which States may interfere

with the prices, routes, and services of air carriers in

the face of Congress’s decision to expressly preempt

such interference. Many of the Chamber’s members

are either airlines themselves, or transact business on

a nationwide scale and rely on the services of air

carriers in their day-to-day operations. Indeed, the

air carrier industry affects nearly every business in

the United States, whether directly or indirectly, as

well as countless American consumers.

No counsel for a party authored this brief in whole or in

part, and no such counsel, any party, or any other person or

entity—other than amicus curiae, its members, or its counsel—

made a monetary contribution intended to fund the preparation

or submission of this brief. Counsel of record for all parties were

timely notified more than 10 days prior to filing, and all parties

have consented to the filing of this brief.

If allowed to stand, the Ninth Circuit’s decision

will significantly hamper the airline industry and

prevent air carriers from competing freely and

efficiently. It will also increase costs for businesses

and consumers alike, as air carriers are forced to cope

with the expense of regulatory burdens that Congress

prohibited in passing the Airline Deregulation Act.

Granting the petition and reversing would ensure

that—consistent

with

congressional

design—

businesses and consumers continue to enjoy a full

range of services at prices determined largely by the

free market, rather than a haphazard patchwork of

state regulation.

INTRODUCTION AND

SUMMARY OF ARGUMENT

For decades, the Ninth Circuit has refused to

follow this Court’s preemption precedent under the

Airline Deregulation Act (ADA), 49 U.S.C.

§ 41713(b)(1),

and

the

Federal

Aviation

Administration Authorization Act of 1994 (FAAAA),

id. § 14501. Those statutes expressly preempt all

state laws “related to a price, route, or service” of an

air or motor carrier.

Id. § 41713(b)(1); id.

§ 14501(c)(1). Consistent with their text and history,

this Court has repeatedly held that those provisions

preempt at least any state law that has a “significant

impact” on an air carrier’s price, route, or service.

Despite that clear precedent, the Ninth Circuit has

doggedly applied its own markedly narrower

preemption test. The Ninth Circuit’s outlier approach

creates a direct conflict in the courts of appeals and

flies in the face of this Court’s case law. That

approach also has (and will continue to have) severely

disruptive effects on the interstate transportation

industry. The Court should grant the petition and

reverse.

Petitioners have already persuasively explained

the circuit split among the lower courts on the

question presented, Pet. 15-21, and why the decision

below is wrong, id. at 21-27. The Chamber submits

this brief to elaborate upon how the decision is just

the latest example of the Ninth Circuit’s blatant

disregard for this Court’s preemption precedent—and

to reinforce the threat that the decision poses to the

airline industry and national commerce more broadly.

I. This Court’s intervention is necessary to put an

end to an entrenched body of Ninth Circuit

preemption jurisprudence that sharply conflicts with

the decisions of other courts of appeals—and deprives

the airline and transportation industries of the

protections that Congress afforded in the ADA and

FAAAA. Over the last 30 years, this Court has

addressed the preemptive effect of the ADA and

FAAAA in four key cases: Morales v. Trans World

Airlines, Inc., 504 U.S. 374 (1992); American Airlines,

Inc. v. Wolens, 513 U.S. 219 (1995); Rowe v. New

Hampshire Motor Transport Association, 552 U.S.

364 (2008); and Northwest, Inc. v. Ginsberg, 572 U.S.

273 (2014). Consistent with Congress’s expressed

intent, these decisions interpret the ADA and FAAAA

to insulate the airline and transportation industries

from state laws that impose duties on such carriers,

including by preempting “at least” state laws that

have a “significant impact” on carrier prices, routes,

or services. Rowe, 552 U.S. at 370-71 (quoting

Morales, 504 U.S. at 390). Although most lower

courts have followed this Court’s guidance, the Ninth

Circuit has charted its own path that veers further

and further from this Court’s jurisprudence. The

decision below—holding that California’s meal-andrest-break laws apply to flight crews because such

laws do not directly “bind” airlines to particular

prices, routes, or services—takes the Ninth Circuit’s

derelict preemption jurisprudence to a new extreme.

II. As petitioners have explained, the Ninth

Circuit’s decision below is wrong and should be

overturned. Enforcing California’s meal-and-restbreak rules against airlines would allow California to

dictate how air carriers assign and manage their

flight crews, which, in turn, will affect airline travel

more generally. California’s regime, for instance,

requires breaks every three-and-a-half to five hours,

during which time the employee must be completely

off-duty. Enforcing those rules would require more

crew members aboard each flight, would create longer

delays between flights, and would undoubtedly cause

significant impacts on carriers’ prices, routes, and

services. That is the very type of law Congress sought

to preempt when it enacted the ADA and FAAAA.

Indeed, it is hard to imagine state laws that more

squarely implicate the concerns that Congress sought

to address.

III. This Court’s intervention is needed because

the decision below threatens to severely disrupt the

airline industry and interstate commerce more

broadly. By allowing California to regulate the

working conditions of flight crews—a decision that

will inevitably open the door to other States doing the

same—the decision below creates precisely the kind

of interference with market-driven uniformity and

efficiency that Congress sought to prevent through

the ADA. Enforcing California’s meal-and-rest-break

laws would also destabilize the airline industry by

reducing the services and routes air carriers are able

to offer. And the negative consequences of the Ninth

Circuit’s approach to preemption extend even further,

given the identically worded preemption provision

governing the motor carrier industry in the FAAAA.

This case provides an ideal—and urgently

necessary—opportunity to rein in the Ninth Circuit’s

persistent misapplication of this Court’s preemption

precedent and to vindicate Congress’s deregulatory

design. The petition should be granted.

ARGUMENT

I. THE

NINTH

CIRCUIT

HAS

LONG

CONTRAVENED

THIS

COURT’S

PRECEDENT UNDER THE ADA AND FAAAA

This Court Has Interpreted The Statutes

To Impose A “Significant Impact” Test

In 1978, Congress enacted the Airline

Deregulation Act after “determining that ‘maximum

reliance on competitive market forces’” would lead to

lower airline fares and better airline service. Morales

v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992)

(quoting 49 U.S.C. App. § 1302(a)(4) (1988)); see Pub.

L. No. 95-504, 92 Stat. 1705 (1978); Northwest, Inc. v.

Ginsberg, 572 U.S. 273, 280-83 (2014) (likewise

emphasizing that Congress enacted the ADA to

“promote ‘efficiency, innovation, and low prices’ in the

airline industry through ‘maximum reliance on

competitive market forces and on actual and potential

competition’” (citation omitted)). To “ensure that the

States would not undo federal deregulation with

regulation of their own,” Congress sharply

circumscribed state authority to regulate the airline

industry by including a broadly worded preemption

provision in the ADA: States are prohibited from

“enforcing any law relating to rates, routes, or

services of any air carrier.” Morales, 504 U.S. at 37879 (citation omitted); see 49 U.S.C. § 41713(b)(1).

In 1980, Congress extended its deregulation

efforts from the airline industry to trucking. See

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

793. Then, in 1994, Congress borrowed the ADA’s

preemption language to preempt state trucking

regulation and thereby ensure that the States would

not frustrate its deregulatory objectives. Rowe v. New

Hampshire Motor Transp. Ass’n, 552 U.S. 364, 368

(2008) (citing the Federal Aviation Administration

Authorization Act of 1994, Pub. L. No. 103-305, § 601,

108 Stat. 1569, 1605-06); see 49 U.S.C. § 14501(c)(1)

(preempting States from enacting or enforcing any

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

carrier . . . with respect to the transportation of

property”); see also 49 U.S.C. § 41713(b)(4)(A) (similar

provision for combined motor-air carriers).

Consistent with the statutes’ shared text and

history, this Court has instructed that courts should

interpret the preemption language in the ADA and

FAAAA in pari materia. See Rowe, 552 U.S. at 37071. This Court has also long emphasized the statutes’

comprehensive preemptive force. It has held that

Congress’s use of the phrase “relating to”—consistent

with its plain meaning—expresses a “broad preemptive purpose.” Morales, 504 U.S. at 383. It has

made clear that laws bearing a “connection with”

rates, routes, or services qualify. Id. at 384. It has

clarified that preemption may occur even if a state

law is one of general applicability and if its effect on

rates, routes, or services “‘is only indirect.’” Id. at 386

(citation omitted). And it has emphasized that the

state law need not “‘regulate rates, routes, or

services’” to be preempted. Id. at 383-86 (citation

omitted).

To underscore the reach of these statutes, the

Court has explained that only those laws that affect

rates, routes, or services in a “‘tenuous, remote, or

peripheral . . . manner’”—like a law proscribing

“gambling”

“prostitution”—can

survive

preemption. Id. at 390 (citation omitted); see also

Rowe, 552 U.S. at 370-71, 376 (interpreting FAAAA’s

preemption clause to have same broad scope).

Putting all of that together, this Court has

repeatedly held that the ADA and FAAAA preempt

any state law that has “a ‘significant impact’” on

carrier rates, routes, or services. Rowe, 552 U.S. at

370-71 (quoting Morales, 504 U.S. at 390).

For Decades, The Ninth Circuit Has

Applied The “Binds To” Test Instead

Despite the plain text of the ADA’s and FAAAA’s

preemption provisions—as well as this Court’s

straightforward case law interpreting them—the

Ninth Circuit has for decades followed its own line of

ADA and FAAAA preemption precedent. Instead of

implementing this Court’s “significant impact” test,

the Ninth Circuit has held that a state law is

preempted by the ADA only if it “binds the [air]

carrier to a particular price, route, or service.” Pet.

App. 20a (emphasis added) (quoting Dilts v. Penske

Logistics, LLC, 769 F.3d 637, 646 (9th Cir. 2014)).

The Ninth Circuit first articulated the “binds to”

test in Air Transport Association v. City & County of

San Francisco, 266 F.3d 1064, 1072 (9th Cir. 2001).

There, it interpreted a decision of this Court

construing a different statute, the Employee

Retirement Income Security Act of 1974 (ERISA), as

“suggest[ing]” the proper preemption analysis under

the ADA. See id. at 1071-72 (citing Egelhoff v.

Egelhoff, 532 U.S. 141 (2001)). Quoting this Court’s

observation in Egelhoff that the state law at issue

“b[ound] ERISA plan administrators to a particular

choice of rules for determining beneficiary status,” id.

at 1071 (citation omitted), the Ninth Circuit read that

phrase to mean the state law “must compel or bind”

the plan administrator for ERISA preemption to

attach, id. (emphasis added). Turning back to the

ADA, the court concluded that “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.

In the decades following Air Transport

Association, the Ninth Circuit has repeatedly applied

the “binds to” test in its ADA and FAAAA preemption

decisions. See Dilts, 769 F.3d at 646; California

Trucking Ass’n v. Su, 903 F.3d 953, 964 (9th Cir.

2018) (“‘[T]he question is whether the Ordinance

compels or binds [airlines] to a particular price, route

or service.’” (quoting Air Transp. Ass’n, 266 F.3d at

1074)); American Trucking Ass’ns v. City of Los

Angeles, 660 F.3d 384, 397 (9th Cir. 2011) (describing

the “binds” test as “the proper inquiry”). This past

year was a high-water mark, with the Ninth Circuit

issuing three ADA and FAAAA decisions enforcing

that standard to deem California labor laws not

preempted. See Pet. App. 20a; California Trucking

Ass’n v. Bonta, 996 F.3d 644, 664 (9th Cir. 2021),

(“[G]enerally 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 . . . .”), petition for cert. filed, No. 21-194

(U.S. Aug. 9, 2021); Ward v. United Airlines, Inc., 986

F.3d 1234, 1243 (9th Cir. 2021) (The “ADA and

FAAAA . . . preempt state regulations that bind

carriers to specific prices, routes, or services . . . .”).

But the “binds to” test is doctrinally unsound at its

core. To start with, the Ninth Circuit flatly misread

Egelhoff; this Court was merely describing a sufficient

condition for ERISA preemption, not a necessary

condition. See 532 U.S. at 147. Air Transport

Association also ignored this Court’s far more onpoint statement in Morales that state laws with a

“significant impact” upon airline prices are

preempted under the ADA. 504 U.S. at 390. The

Ninth Circuit also apparently overlooked the Morales

Court’s forceful rejection of the argument that the

ADA “only pre-empts the States from actually

prescribing rates, routes, or service.” Id. at 385-86.

And even when this Court reinforced the “significant

impact” test in subsequent ADA and FAAAA

decisions, see Rowe, 552 U.S. at 370-71, the Ninth

Circuit has refused to revisit its contrary standard.

The Ninth Circuit’s flawed preemption analysis

has not gone unnoticed by this Court. In Ginsberg,

the Court reversed the Ninth Circuit’s holding that a

state-law claim was not preempted because it did not

“force the Airlines to adopt or change their prices,

routes or services” and did not have a “direct effect”

on either “prices” or “services.” 572 U.S. at 279

(emphasis added) (citations omitted); see id. at 284

(finding that the state-law claim “clearly” had the

kind of “connection” to airline prices and services to

warrant preemption).

Unfortunately, the Ninth

Circuit did not get the message. Its continued

misapplication of ADA preemption—even after this

Court’s clear signal in Ginsberg that the court was off

course—requires this Court to intervene once again.

II. THE NINTH CIRCUIT’S DECISION IN THIS

CASE TAKES ITS FLAWED PREEMPTION

JURISPRUDENCE TO A NEW EXTREME

In the decision below, the Ninth Circuit doubleddown on its outlier test for when the ADA’s and

FAAAA’s express preemption provisions are

triggered.

In allowing respondents to enforce

California’s meal-and-rest-break rules against air

carriers’ flight crews, the decision below disregards

not only this Court’s precedent, but also the vital

congressional objective of the ADA’s preemption

provision.

California’s Labor Code requires employers to

provide a 30-minute meal period after five hours of

work. See Cal. Lab. Code §§ 226.7, 512(a). The State

further requires an “authorized rest period time” that

is “based on the total hours worked daily at the rate

of ten (10) minutes net rest time per four (4) hours or

major fraction thereof.” Indus. Welfare Comm’n,

Order No. 9-2001 Regulating Wages, Hours &

Working Conditions in the Transp. Indus. § 12(A)

(updated Jan. 1, 2003), https://www.dir.ca.gov/iwc/

Wageorders2003/IWCArticle9.pdf; Cal. Lab. Code

§ 226.7(b). During such breaks, employers must

“relieve employees of all duties and relinquish control

over how employees spend their time.” Augustus v.

ABM Sec. Servs., Inc., 385 P.3d 823, 832 (Cal. 2016).

Employees must also be “free to leave the premises”

during their breaks. Brinker Rest. Corp. v. Superior

Court, 273 P.3d 513, 533-34 (Cal. 2012). What might

be feasible in a warehouse hardly translates to a

confined space traveling over 500 miles per hour at

30,000 feet.

Under this Court’s test, it is clear that the ADA

preempts these labor regulations. As the United

States explained in its amicus brief to the Ninth

Circuit, “[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 18, Bernstein v. Virgin Am.,

Inc., No. 19-15382 (9th Cir. Sept. 3, 2019), 2019 WL

4307414 (“United States Amicus Br.”).

Carriers cannot operate flights without a full crew

on duty, and requiring them to take duty-free breaks

would interfere with critical—and tightly scheduled—

operations like boarding, takeoff, landing, and

deplaning, not to mention unplanned contingencies

like weather or actual emergencies. Pet. 23-24. To be

sure, airlines could attempt to rearrange flight

schedules to accommodate breaks between flights,

but that just underscores the problem. That would

have an unavoidable impact on services, routes, and

prices—both

“throughout

the

country

and

internationally.” United States Amicus Br. 22; see

Pet. 24-25. The same goes for the Ninth Circuit’s

proffered solution of adding more paid flight

attendants to the flights themselves, see Pet. App.

18a; that would have the direct effect of taking away

seats from passengers, reducing services, increasing

prices, and negatively impacting routes. Pet. 25-27.

Under the Ninth Circuit’s “binds to” test, however,

none of that matters. The only question is whether

the California regime compels “a particular price,

route, or service.” Pet. 20a (emphasis added) (citation

omitted). Because the answer to that question is (and

invariably will be) no, the Ninth Circuit held that

California’s meal-and-rest-break laws could

applied to the airline industry. Pet. 19a-21a.

III. THIS

COURT’S

NEEDED NOW

INTERVENTION

Applying California’s Meal-And-RestBreak Rules To Flight Crews Would

Severely Disrupt The Airline Industry

If the decision below stands, it will have dire

effects on airlines. As the United States recognized in

its brief below, enforcing California’s labor law to

govern flight crews will frustrate the congressional

policy underlying ADA preemption by allowing state

regulation, rather than federal regulation and market

forces, to dictate the manner by which air carrier

services will be performed. United States Amicus Br.

18. The result will be precisely the inefficiency,

confusion, and patchwork of state regulation that

Congress sought to avoid.

As the United States has explained, commercial

aircraft operate under tight schedules and require

careful coordination regarding the availability of

runways, gates, and flight crews. Id. at 20-21 (citing

U.S. GAO, National Airspace System: Initiatives to

Reduce Flight Delays and Enhance Capacity are

Ongoing but Challenges Remain, GAO-05-755T at 45 (May 26, 2005), https://www.gao.gov/products/GAO05-755T (GAO Report)).

The Federal Aviation

Administration also conducts extensive coordination

with air carriers to manage airspace, including

planning related to thunderstorms, en-route

congestion, and terminal congestion. Id. at 21 (citing

GAO Report 7-9). Those tasks are particularly

difficult for airports serving major metropolitan

areas, see id., like Los Angeles International Airport,

McCarran International Airport, San Francisco

International Airport, Phoenix Sky Harbor

International

Airport,

and

Seattle-Tacoma

International Airport—five of the ten busiest airports

in the United States, see Doug Carlin, 15 Largest

Airports in the US [Update 2021], USA by Numbers

(Mar.

13,

2021),

https://usabynumbers.com/

largest-airports-in-the-us/, and only a few of the large

airports located in the Ninth Circuit.

Requiring air carriers to comply with California’s

meal-and-rest-break laws would substantially

disrupt that already complex coordination. The

proposed options for complying with California’s

laws—adding mid-flight breaks for flight attendants,

hiring more flight attendants, and scheduling longer

ground time between flights—would significantly

affect airline prices by adding labor expenses and

reducing the efficiency and number of flights. See

United States Amicus Br. 21-23. This is all the more

true if—as seems likely—the decision below is

extended to pilots as well as flight attendants. See

Pet. 28.

The Ninth Circuit’s proposed solution is also

unworkable. As petitioners point out, adding a single

flight attendant to a route would increase flightattendant-related costs by 33%. Id. at 26. Nor is it

simply a matter of adding extra employees to the

plane. “Flight attendants . . . often work in flight

‘pairings’; coordinated flights that allow the

attendant to fly to and from one city, always returning

to the attendant’s home base.” United States Amicus

Br. 22. As the United States observed, “[i]f providing

attendants with a state-mandated break caused them

to be replaced by a relief attendant on the next

regularly scheduled flight, the first attendant could

be abandoned in an airport that is not their home base

for a significant period.” Id. In other words, not only

would the Ninth Circuit’s solution “require airlines to

hire two flight attendants to do the work of one,” it

would require them to “strand[] both in airports

outside of their home base.” Id. at 23.

The compliance options are even less realistic for

regional airlines, which already have extremely tight

profit margins. See Pet. 26-27. These airlines

specialize in the use of smaller planes that are

carefully calibrated to the size of the market and

demand. These flights already have lower revenue

potential compared to large aircraft flights, and any

of the proposed compliance options—like requiring

the airlines to staff back-up flight attendants or pilots

on flights and then take away scarce seats on planes

from customers—would render many such flights

economically unviable. See id.

And make no mistake: the decision below will have

widespread ramifications in the aviation industry

beyond airlines’ attempts to accommodate the

California rules at issue here. After the Ninth

Circuit’s decision, airlines cannot turn to a single

body of labor law to govern their flight crews. The

Ninth Circuit’s stingy approach to preemption

permits enforcement of not only California law, but

also the different (and sometimes incompatible) labor

requirements of other States as well. Pet. 27.

Layering those additional logistical complications on

top of the already complex requirements of aviation

coordination would be disastrous. It is no surprise

that the United States warned the court below that

imposing labor regimes like California’s on airlines

would “plainly conflict” not just with efforts “to

maximize efficient use of the navigable airspace,” but

with “the purposes and objectives of federal safety

regulations.” United States Amicus Br. 4.

The Ninth Circuit’s Outlier Preemption

Regime Also Harms National Commerce

More Broadly

The Ninth Circuit’s flawed preemption test also

has—and will continue to have—grave consequences

well beyond the airline industry. Its misguided

approach has already negatively affected the trucking

industry in particular, which Congress protected from

state laws disrupting rates, routes, and services by

enacting an identical preemption provision in the

FAAAA. The Ninth Circuit has applied the “binds to”

test to hold that California’s meal-and-rest-break

laws are not preempted by the FAAAA and must be

enforced against motor carriers in the State—

notwithstanding the state regime’s significant impact

upon trucking routes and services. Dilts, 769 F.3d at

646-47. Ultimately, the disastrous practical effects of

that decision were averted only by federal

intervention; in the aftermath of Dilts, the Federal

Motor Carrier Safety Administration (FMCSA)

exercised its statutory authority to administratively

exempt truckers from California’s meal-and-restbreak laws. 83 Fed. Reg. 67,470 (Dec. 28, 2018).2

Undeterred, the Ninth Circuit has since applied

the same test to hold that the FAAAA does not

preempt a California worker-classification law that

The FMCSA deemed California’s meal-and-rest-break

regime a regulation of “commercial motor vehicle safety” that

was “incompatible” with federal regulation and would “cause an

unreasonable burden on interstate commerce” while providing

“no safety benefit.” 83 Fed. Reg. at 67,473-80.

effectively precludes motor carriers from using

independent owner-operators to provide trucking

services. See California Trucking Ass’n, 996 F.3d at

664. That decision also split with other courts, and

the petition of the California Trucking Association et

al. seeking review has been supported by dozens of

stakeholders in the trucking industry (including the

Chamber). See Docket in No. 21-194. The Court

should consider granting that petition alongside this

one, both of which address the Ninth Circuit’s flawed

analysis of the same preemption language.3

Without this Court’s intervention, the Ninth

Circuit’s rulings pose a significant threat to national

commerce more broadly. Because travel and supply

chains are configured for competitive and efficient air

and motor carrier service, prices will rise as carriers’

capacity is reduced and routes become more

circuitous. The ripple effect from this disruption will

harm travelers, consumers, and the national

economy, which are already grappling with travel

disruptions and significant supply-chain delays

caused by the ongoing COVID-19 pandemic.

This fallout could not come at a worse time for the

shipping industry. Currently a global semiconductor

shortage “is short-circuiting heavy-duty truck

production” and as of July 2021, “the backlog of trucks

ordered but not built has nearly tripled from the same

month a year ago, to 262,100.” Jennifer Smith,

The petition in Cal Cartage Transportation Express,

LLC v. California, No. 20-1453, seeking review of the California

Court of Appeal’s decision in People v. Superior Court, 57 Cal.

App. 5th 619 (2020), presents the same FAAAA-preemption

question as California Trucking Association v. Bonta—further

illustrating the need for this Court’s review.

Chip

Shortage

Curtails

Heavy-Duty

Truck

Production, Wall St. J. (Sept. 3, 2021),

https://on.wsj.com/3yMccJa. And even where trucks

are available, there is simply too much cargo to move

and not enough infrastructure to move it, as

businesses are facing a full-fledged “supply-chain

crisis,” including “port delays . . . near a record high,”

with dozens of ships carrying “tens of thousands of

shipping containers” “waiting off the shore for weeks,

pushing back delivery dates and driving up the cost of

transportation.” Grace Kay, The US Shipping Crisis

Is Not Going Away As 33 Cargo Ships Float Off The

Coast Of LA Waiting To Dock, Business Insider (July

26, 2021), https://bit.ly/3j5JyhF.

All of this results in dramatically higher prices for

businesses and consumers. Consistent with the

broader trend of inflation across the country, U.S.

freight costs are rising disproportionate to demand:

“U.S. freight demand rose 3.4% from February to

March [2021] while . . . freight expenditures rose

nearly twice as fast, at 6.5%.” Jennifer Smith,

Truckers Expect U.S. Transport Capacity Crunch to

Persist,

Wall

St.

(May

2021),

https://on.wsj.com/3mmWt0K. That trend is set to

continue, as “U.S. ports expect congestion” of the

nation’s shipping routes “to continue deep into next

year,” with “logjams stretch[ing] into warehouses and

distribution networks across the country.” Paul

Berger, U.S. Ports See Shipping Logjams Likely

Extending Far Into 2022, Wall St. J. (Sept. 5, 2021),

https://on.wsj.com/3DVCXOV. As the Council of

Economic Advisers has explained, “[t]he situation has

been especially difficult for businesses with complex

supply chains, as their production is vulnerable to

disruption due to shortages of inputs from other

businesses.” Susan Helper & Evan Soltas, Why

the Pandemic Has Disrupted Supply Chains,

The

White

House

(June

17,

2021),

https://www.whitehouse.gov/cea/blog/2021/06/17/why

-the-pandemic-has-disrupted-supply-chains.

In short, the Ninth Circuit’s repeated refusal to

give effect to the broad reach of ADA and FAAAA

preemption has created unacceptable uncertainty,

confusion, and obstruction in industries for which

nationwide uniformity is crucial. And the Ninth

Circuit’s latest decision applying its flawed precedent

to the airline industry epitomizes why its rule cannot

stand. The Court should grant this petition and put

an end to the Ninth Circuit’s legally unsound and

commercially disruptive preemption standard.

*****

This Court’s ADA and FAAAA jurisprudence has

been clear. Morales affirmed the breadth of the ADA’s

preemption language, stating that the clause

“express[ed] a broad pre-emptive purpose,” had a

“sweeping nature,” and was “‘broadly worded.’” 504

U.S. at 383-84 (citation omitted). Wolens reiterated a

broad construction of the ADA preemption clause,

applying it to claims relating to “unessential,” as well

as “essential,” services. 513 U.S. at 226. Rowe

affirmed that a claim may have an effect that is “only

indirect” on prices, routes, or services, and still be

preempted. 552 U.S. at 370 (citation omitted). And

Ginsberg expressly rejected the Ninth Circuit’s

crabbed reading of ADA preemption. 572 U.S. at 279.

Other courts of appeals have faithfully applied those

decisions, see Pet. 17-21, yet the Ninth Circuit has

charted a completely different course. This has

produced a clear split of authority that itself

threatens national uniformity in this critical area.

In this case, the Ninth Circuit has upped the ante.

Only this Court can address the circuit’s flawed

approach, and it should do so before the court’s

decisions further undermine Congress’s design—and

disrupt the nation’s vital air transportation system.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

(202) 467-5337

GREGORY G. GARRE

Counsel of Record

CAROLINE A. FLYNN

MICHAEL CLEMENTE

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Amicus Curiae

September 22, 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.