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., ET AL.,

v.

Petitioners,

JULIA BERNSTEIN, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF GEORGIA, ALABAMA, ALASKA,

ARKANSAS, FLORIDA, IDAHO, KENTUCKY,

LOUISIANA, MISSISSIPPI, MONTANA, NEBRASKA,

NORTH DAKOTA, OHIO, SOUTH CAROLINA,

SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH,

AND WEST VIRGINIA AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------CHRISTOPHER M. CARR

Attorney General of Georgia

DREW F. WALDBESER

ROSS W. BERGETHON

Counsel of Record

Deputy Solicitors General

SLADE MENDENHALL

Assistant Attorney General

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3546

rbergethon@law.ga.gov

Counsel for Amici Curiae

i

QUESTION PRESENTED

Does the Airline Deregulation Act 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

TABLE OF CONTENTS

Page

Question Presented .............................................

i

Table of Authorities .............................................

iii

Interests of Amici Curiae ....................................

1

Summary of the Argument ..................................

3

Argument .............................................................

5

I.

The Ninth Circuit’s decision will cause severe economic harm to state and local

economies across the country ....................

5

A. The imposition of California break requirements on flight crews will have

cascading impacts on air travel nationwide ...............................................

6

B. The decision below will disproportionately harm the consumers and rural

communities served by regional airlines and airports ................................ 10

II.

The Ninth Circuit’s decision conflicts with

this Court’s ADA holdings and causes a

circuit split ................................................ 14

Conclusion............................................................ 21

Additional Counsel .............................................. 22

iii

TABLE OF AUTHORITIES

Page

CASES

Am. Airlines v. Wolens, 513 U.S. 219 (1995) ......... 14, 15

Angeles v. U.S. Airways, No. C 12-058600, 2013

WL 622032 (N.D. Cal. Feb. 19, 2013) ........................8

Augustus v. ABM Sec. Servs., 2 Cal. 5th 257

(2016) ...................................................................17

Bower v. Egyptair Airlines Co., 731 F.3d 85 (1st

Cir. 2013) ............................................................. 9, 16

Branche v. Airtran Airways, Inc., 342 F.3d 1248

(11th Cir. 2003).................................................... 9, 17

California Trucking Ass’n v. Bonta, No. 2055106, 2021 WL 1656283 (9th Cir. Apr. 28,

2021) ........................................................................16

Dilts v. Penske Logistics, 769 F.3d 637 (9th Cir.

2014) .................................................... 5, 6, 15, 16, 17

Dow v. Casale, 83 Mass. App. Ct. 751 (2013) ...............8

Goldthorpe v. Cathay Pac. Airways Ltd., 279

F. Supp. 3d 1001 (N.D. Cal. 2018) ........................ 7, 8

Massachusetts Delivery Ass’n v. Coakley, 769

F.3d 11 (1st Cir. 2014) .............................................16

Morales v. Trans World Airlines, 504 U.S. 374

(1992) ............................................................... passim

Northwest v. Ginsberg, 572 U.S. 273 (2014) .... 2, 5, 14, 15

O’Neill v. Mermaid Touring, 968 F. Supp. 2d 572

(S.D.N.Y. 2013) ..........................................................8

iv

TABLE OF AUTHORITIES—Continued

Page

Rodriguez v. Peak Pressure Control, No.

217CV00576JCHJFR, 2020 WL 3000414

(D.N.M. June 4, 2020) ...............................................8

Shaw v. Delta Airlines, 463 U.S. 85 (1983) .................15

Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011) .........7

Travel All Over the World v. Kingdom of Saudi

Arabia, 73 F.3d 1423 (7th Cir. 1996) ......................17

Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th

Cir. 2004) .................................................................16

STATUTES

49 U.S.C. § 41713(b) ................................................ 2, 14

49 U.S.C. § 40101(12)(A) ...............................................2

49 U.S.C. § 40101(a)(6) .................................................2

RULES AND REGULATIONS

14 C.F.R. § 121.385(a) .................................................18

Cal. Code Regs. tit. 8, § 11090(11)–(12) .....................17

Cal. Code Regs. tit. 8, § 11090(11)(C) .........................18

Flight Attendant Duty Period Limitations and

Rest Requirements, 59 Fed. Reg. 42,974-01

(Aug. 19, 1994) .........................................................17

Sup. Ct. R. 37.2(a) .........................................................1

Sup. Ct. R. 37.4 .............................................................1

v

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Bruce A. Blonigen & Anica D. Cristea, Air Service and Urban Growth, J. of Urban Econ. 86

(2015) .........................................................................1

David Koenig, Regional airlines not sharing

in majors’ success, AP News (Sept. 10, 2014),

https://perma.cc/M7V8-QSD2 .................................12

Derek Thompson, How Airline Ticket Prices Fell

50 Percent in 30 Years (And Why Nobody Noticed), The Atlantic (Feb. 28, 2013), https://

perma.cc/Y4YN-N5ES ....................................... 1, 2, 5

Douglas Jacobson, The Economic Impact of the

Airline Industry in the South, The Council of

State Gov’ts (May 2004), https://perma.cc/

XZM9-KBVG ...........................................................11

Ethan S. Klapper, Effects of the Pilot Shortage

on the Regional Airline Industry: A 2023 Forecast, Embry-Riddle Aeronautical Univ. (2019),

https://perma.cc/N59M-PHBK ................................13

FAA, The Economic Impact of Civil Aviation on

the U.S. Economy (Nov. 2020), https://perma.

cc/ZPL5-UB4P ..................................................... 1, 11

GAO, Initiatives to Reduce Flight Delays and

Enhance Capacity are Ongoing but Challenges Remain (May 26, 2005), https://perma.

cc/G5RN-YY3T ........................................................19

vi

TABLE OF AUTHORITIES—Continued

Page

Greg Pecorara & Ed Bolen, General Aviation

and Smaller Airports Critical Now More Than

Ever, Clarion Ledger (Oct. 2, 2020), https://

perma.cc/B9UY-YJ48 ..............................................11

Hugo Martin, As airlines post big profits, small

communities lose service, LA Times (Jan. 22,

2018), https://perma.cc/6YRH-GF45 ......................11

Iowa DOT, Iowa Air Service Study (Apr. 2008),

https://perma.cc/4UXR-EHYU .................... 12, 13, 18

Lauren Zumbach, Frequent travelers assume regional flights are more likely to get canceled,

Are they really? Chicago Tribune (Mar. 26,

2019), https://perma.cc/E3K6-CWJ8 ......................13

RAA, Annual Report 2020 (2020), https://perma.

cc/H3Q6-SGD6 ........................................................11

RAA, Regional Airlines Provide the Critical

Link, https://perma.cc/UB95-XX7Q ........................10

RAA, Valuable: Air Service to Small Communities Generates Significant Economic Activity

(2019), https://perma.cc/3LRB-ZX98.................. 13, 19

Regional Airline Association (RAA), Annual

Report 2019 (2019), https://perma.cc/2UB5EUUR .................................................................... 1, 5

Scott McCartney, Imagine Not Hating Flying

Coach, WSJ (Oct. 16, 2019), https://perma.cc/

36SU-E3WM ...........................................................18

vii

TABLE OF AUTHORITIES—Continued

Page

Shantay Piazza, 30 Years After Airline Deregulation, OSU L. Magazine (2009), https://perma.

cc/63MS-B5T5 ...........................................................5

Vinayak Deshpande & Mazhar Arıkan, The Impact of Airline Flight Schedules on Flight Delays, Mfg. & Serv. Operations Mgmt. 14(3)

(2012) ................................................................. 19, 20

William Swelbar, Will Regional Airlines Survive

the COVID-19 Market?, Brink News (Aug. 12,

2020) ........................................................................11

Xugang Ye, Airlines’ Crew Pairing Optimization:

A Brief Review, Dep’t of Applied Sciences and

Mathematics, Johns Hopkins Univ. (2007) ............20

1

INTERESTS OF AMICI CURIAE1

Over the past half-century, few advancements

have done as much good for the States and their citizens as the arrival of affordable and reliable air travel.

In 2016 alone, civil aviation produced $1.8 trillion in

economic activity and supported 10.9 million jobs.

FAA, The Economic Impact of Civil Aviation on the U.S.

Economy 3 (Nov. 2020), https://perma.cc/ZPL5-UB4P.

These economic benefits ripple across the country to

communities large and small. Regional Airline Association (RAA), Annual Report 2019 12 (2019), https://

perma.cc/2UB5-EUUR (airports in small communities

create millions of jobs and produce $134 billion annually in economic activity for their regions, including

tens of millions in wage and tax revenue); Bruce A.

Blonigen & Anica D. Cristea, Air Service and Urban

Growth, J. of Urban Econ. 86, 145 (2015) (increased air

traffic leads to population growth, higher incomes, and

more jobs).

The airline industry’s status as an engine of economic growth stems from a single, major shift in federal policy: deregulation. Before Congress passed the

Airline Deregulation Act in 1978, the federal government micromanaged every aspect of the industry. As a

result, fares were “absurdly expensive,” and most of the

country had never been on a plane. Derek Thompson,

How Airline Ticket Prices Fell 50 Percent in 30 Years

(And Why Nobody Noticed), The Atlantic (Feb. 28,

Amici have notified counsel for all parties of their intention

to file this brief. Sup. Ct. Rules 37.2(a), 37.4.

1

2

2013), https://perma.cc/Y4YN-N5ES. The ADA freed

the airline industry from that oppressive regulation by

opting for “maximum reliance on competitive market

forces and on actual and potential competition.” Northwest v. Ginsberg, 572 U.S. 273, 280 (2014) (quoting 49

U.S.C. §§ 40101(a)(6), (12)(A)). And it worked. Since

1978, the price of flying has dropped by half, democratizing air travel and creating trillions of dollars in economic growth for state and local economies.

This unqualified success story is put in peril by the

Ninth Circuit’s decision and the circuit precedent it extends. The ADA’s success came first from retiring the

federal regulatory scheme that hampered innovation

and competition. But deregulation has had staying

power because Congress preempted any state “law,

regulation, or other provision having the force and effect of law related to a price, route, or service of an air

carrier.” 49 U.S.C. § 41713(b). Those words “express a

broad pre-emptive purpose” aimed at ensuring that

heavy-handed state regulation, however well-meaning,

would not keep this critical industry from taking off.

Morales v. Trans World Airlines, 504 U.S. 374, 383

(1992).

But the Ninth Circuit held below that generally

applicable laws are preempted by the ADA only if they

“bind” the airline to a particular price, route, or service.

That holding does not reconcile with the ADA’s broad

language. And that cramped construction of the ADA’s

preemptive scope risks resurrection of the very forces

that kept air travel out of reach for the average person.

The amici States have strong and obvious interests in

3

maintaining the benefits of airline deregulation for

their citizens and write here to urge the Court to grant

certiorari and reverse.

SUMMARY OF THE ARGUMENT

I. The Ninth Circuit’s outlier decision will impose a crippling regulatory burden on airlines across

the country. First, the decision threatens airlines with

a patchwork of new state-specific regulations from

California and elsewhere. The burden of scheduling

wholly “off-duty” rest breaks for flight attendants

traveling through California is bad enough. But the

decision applies equally to other airline employees, including pilots. And, of course, if California’s employment laws are enforceable against airlines, then the

laws of every other state in the Ninth Circuit are, too.

Plus, airlines must now account for a split among the

courts of appeals over the scope of ADA preemption.

When planning a flight from California to anywhere

else in the country, airlines must now find, track, and

comply with a shifting body of newly-applicable state

laws. Second, this harsh regulatory burden will disproportionately harm the consumers and rural communities served by regional airlines and airports.

Those airlines provide the primary access to air travel

for most of the country, but they already struggle to

turn a profit, hire enough staff, and provide punctual,

affordable service. Providing mandatory off-duty rest

breaks for their flight attendants (and other staff ) will

make a difficult situation nigh impossible. Regional

airlines simply do not have enough staff, scheduling

4

flexibility, or room on their small planes to offer rest

breaks to the entire flight crew every few hours.

II. This Court’s precedent does not permit the

Ninth Circuit’s ruling. The ADA’s preemptive language

is broad: it applies to any state laws that are “related

to” airline prices, routes, or services. This Court has interpreted that language to apply when the law in question has a “significant impact,” and four circuits have

faithfully followed that direction. The Ninth Circuit’s

rule is far different—only laws that “bind” the airline

are preempted. That narrow view of ADA preemption

disregards what this Court has interpreted “related to”

to mean. If the Ninth Circuit had applied the correct

test, the outcome would have been different. Flight

attendants have mandatory duties while the plane is

in the air, so flight attendants cannot go off duty

every few hours while still keeping customers safe and

happy. Airlines cannot offer on-the-ground breaks

without scheduling fewer flights. And if airlines must

hire and staff additional flight attendants to comply

with the California rules, prices will inevitably rise

and there will be fewer seats on the plane for paying

customers. These burdens are undeniably significant.

5

ARGUMENT

I.

The Ninth Circuit’s decision will cause severe economic harm to state and local

economies across the country.

The amici States and their citizens depend on

faithful application of the ADA’s preemption to prevent the serious harms caused by over-regulation.

The ADA spurs innovation in the airline industry

and drives down prices by precluding an oppressive

regulatory landscape. See Ginsberg, 572 U.S. at 280.

The ADA’s preemption provision is central to that

aim: it “ensured that the States would not undo federal deregulation with regulation of their own.” Morales, 504 U.S. at 378. Freed from restrictive federal

and state regulation, airfares dropped by half, capacity and passenger traffic tripled, and air travel became an engine for nationwide economic growth, in

communities large and small. Thompson, supra;

Shantay Piazza, 30 Years After Airline Deregulation,

OSU L. Magazine (2009), https://perma.cc/63MS-B5T5

(tripled capacity and traffic); RAA, Annual Report

2019 supra, 12.

Each of the first four circuits to address the issue

have faithfully followed the text of the ADA and held

that the ADA preempts state laws that significantly

impact airline prices, routes, or services. The Ninth

Circuit departed from this consensus. It held that the

ADA does not preempt California’s rest and meal

break rules as applied to flight attendants because

those rules do not “bind[ ] the carrier to a particular

price, route, or service.” Pet. App. 20a (quoting Dilts v.

6

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

rest and meal break rules—which rigidly require “off

duty” breaks for employees every few hours—thus now

apply to flight attendants who live or are based in California. But these flight attendants spend only a fraction of their time in California, and the decision’s logic

applies equally to transient employees just passing

through California.

The breadth of the decision is striking, and it

threatens widespread economic harm. The combination of disruption, delays, and price increases caused

by applying California’s break laws to the airline industry would cascade across the country, and the consequences would be especially painful for regional

airlines—the exclusive providers of air travel for much

of the country.

A. The imposition of California break requirements on flight crews will have

cascading impacts on air travel nationwide.

The decision below applies California’s break requirements to all flight attendants who live or are

based in California. See Pet. App. 23a. There is nothing

about the Ninth Circuit’s reasoning, however, that

would prevent the break requirements from applying

to all flight attendants working even temporarily in

California. Id. The court simply held that this kind

of state law is not preempted by the ADA. See Pet.

App. 21a. And California already covers transient

7

non-residents with some labor protections. Id. The implications are far-reaching.

Start with the most direct impacts. About threequarters of Virgin America flights pass through both

California and another state. Pet. App. 3a. And since

every major airline has multiple flights through California each day, the break rules will introduce serious

logistical challenges for every airline, and not just for

their California flights. See infra at 18–20. At minimum, airlines would have to track not only which employees live or are based in California, but also how

long they spend in California.

And the impact will extend well beyond this case.

To begin with, the court of appeals’ reasoning encompasses flight attendants who are merely passing

through California, not just those who live or are based

in California. The court of appeals “extrapolated” California labor law as applying to “nonresidents, as well

as residents.” Pet. App. 21a, 43a (citing Sullivan v.

Oracle Corp., 51 Cal. 4th 1191, 1197–98 (2011))

(cleaned up). So there is reason to believe that the

break rules will apply to all flight attendants while in

California, no matter where they live or are based. Unless these rules are preempted, airlines will have to

provide off-duty breaks for all of those employees, too.

Nor is there any apparent reason why the court of

appeals’ decision would apply only to flight attendants.

The next cases will inevitably be about the rest of the

flight and ground crew. We know this because they

have already been brought. See Goldthorpe v. Cathay

8

Pac. Airways Ltd., 279 F. Supp. 3d 1001, 1003 (N.D.

Cal. 2018) (pilots); Angeles v. U.S. Airways, No. C 12058600, 2013 WL 622032 (N.D. Cal. Feb. 19, 2013)

(ground crews). So the decision below imposes regulatory uncertainty and related costs on airlines for those

employees as well.

To make matters worse, if the ADA does not

preempt the enforcement of California’s break rules

against the airline industry, then other states’ laws

will be enforceable, too. See, e.g., Rodriguez v. Peak

Pressure Control, No. 217CV00576JCHJFR, 2020 WL

3000414, at *2 (D.N.M. June 4, 2020) (applying New

Mexico’s overtime laws “to employment done in New

Mexico, without reference to an employer’s or employee’s place of residence”); O’Neill v. Mermaid Touring, 968 F. Supp. 2d 572, 579 (S.D.N.Y. 2013) (similar);

Dow v. Casale, 83 Mass. App. Ct. 751, 758 (2013) (applying the Massachusetts Wage Act to work done by a

non-resident traveling salesman). Consider the implications. The Ninth Circuit’s decision seems to apply

California’s break rules to work performed by anyone

while in California. But the same rule presumably

holds for Oregon, or Washington, or Nevada, so a flight

attendant who lives in California might be covered by

three or four states’ laws during a day’s work. Even

assuming that an airline could find some way to simultaneously satisfy each state’s break laws, compliance

would be expensive and time-consuming. Airlines

would have to parse each state’s labor laws, then determine which state laws cover each flight attendant

during each flight, and try to factor that information

9

into its schedules—while still building in flexibility for

unexpected delays or diversions.

And there is yet more. The existence of the circuit

split itself creates logistical difficulties for airlines. Because the standard for preemption differs across the

country, see Pet. 16–21; infra at 16–17, airlines must

track that shifting legal landscape, too. An airline planning flights from Boston to Atlanta, for instance, need

not comply with Massachusetts or Georgia laws that

would significantly impact the airline’s prices, routes,

or services. See Bower v. Egyptair Airlines Co., 731 F.3d

85, 96 (1st Cir. 2013); Branche v. Airtran Airways, Inc.,

342 F.3d 1248, 1255 (11th Cir. 2003). When it comes to

a flight from Atlanta to Los Angeles, the airline must

apply two different standards to determine which state

laws it must comply with. And the planning can get

even more complicated if the flight ends in—or connects through—a circuit that has not clearly defined

the scope of ADA preemption. In that scenario, airlines

are all but required to comply with all state laws that

fall short of “binding” the airline to a specific price,

route, or service, lest the airline risk an expensive

class action lawsuit like the one Virgin America is defending now.

The Ninth Circuit’s opinion thus guarantees a

patchwork of inconsistent standards across the country, which is exactly what Congress meant to prevent

by including a broad preemptive provision in the ADA.

See Morales, 504 U.S. at 384. Even setting aside the

uncertainty produced by the circuit split, California’s

break rules will disrupt air traffic across the country if

10

applied to flight attendants who live in or are based

out of California. See infra at 17–20. The compliance

burdens magnify exponentially if airlines must also

give pilots and ground crew the same breaks, plus

comply with the employment law of every state in the

Ninth Circuit. This Court’s review is necessary to restore a uniform, nationwide standard for airline regulation.

B. The decision below will disproportionately harm the consumers and rural

communities served by regional airlines and airports.

Most parts of the country depend on regional airports and airlines for air travel, but regional airlines

already struggle to stay profitable. The Ninth Circuit’s

decision threatens to bury them with costly compliance

burdens. The inevitable result would be fewer routes

to small airports, higher rates for the remaining

flights, and increased delays. The decision thus risks

depriving entire communities of the economic and

quality-of-life benefits that come with affordable and

accessible air travel.

1. Most states receive a majority of their air service through regional airports and airlines. Regional

carriers are the sole provider of air service to 63 percent of airports in the United States. RAA, Regional

Airlines Provide the Critical Link, https://perma.cc/

UB95-XX7Q. Twenty-nine states receive at least fifty

percent of their air service from regional airlines, and

11

fifteen states receive more than seventy-five percent.

RAA, Annual Report 2020 64–65 (2020), https://perma.

cc/H3Q6-SGD6.

These regional airports and airlines provide irreplaceable economic benefits. In the fifteen states that

depend almost exclusively on regional airlines for air

service, the aviation industry generated $67.1 billion

in economic activity in 2016. See The Economic Impact

of Civil Aviation on the U.S. Economy, supra, at 10; see

also William Swelbar, Will Regional Airlines Survive

the COVID-19 Market?, Brink News (Aug. 12, 2020),

https://perma.cc/AKL5-6NS2 (explaining that “small

community air service contributes more than $130 billion in economic activity every year”). Put simply, regional air service provides huge economic benefits for

small communities. Douglas Jacobson, The Economic

Impact of the Airline Industry in the South, The Council of State Gov’ts (May 2004), https://perma.cc/XZM9KBVG. And when communities lose this link to the national and global economy—from dropped routes or

shuttered airports—economic growth stagnates. See

Greg Pecorara & Ed Bolen, General Aviation and

Smaller Airports Critical Now More Than Ever, Clarion Ledger (Oct. 2, 2020), https://perma.cc/B9UY-YJ48;

Hugo Martin, As airlines post big profits, small communities lose service, LA Times (Jan. 22, 2018), https://

perma.cc/6YRH-GF45.

2. These regional carriers and airports are likely

to be hit hardest by the costs that the court of appeals’

rule will impose, and that could decimate the many

communities that rely on them for air travel.

12

Regional airlines already operate on a knife’s edge.

They have fewer resources, administrative staff, and

pilots. RAA Panel Amicus Br., Black Decl. ¶¶5, 8.

“Their profits are shrinking, costs are rising, and

they’re having trouble finding enough pilots to work for

the salaries they pay.” David Koenig, Regional airlines

not sharing in majors’ success, AP News (Sept. 10, 2014),

https://perma.cc/M7V8-QSD2. Since 2007, ninety-one

airports nationwide have closed. RAA Panel Amicus

Br., Black Decl. ¶9. And aviation experts predict more

failures and route cancellations. Koenig, supra.

Applying a layer of state regulations like California’s will only increase the pressure on regional airlines. Regional flights are (by definition) short. So, even

assuming in-flight breaks are permitted by federal law

and would comply with California law (but see infra at

17–18 & n.2), there will typically not be enough time

for flight attendants to take an in-flight break while

still performing their assigned duties. Regional airlines might instead have to staff an extra flight crew to

comply with a break rule like California’s. Those extra

employees take up seats on small-capacity planes,

which will displace paying customers and threaten the

profitability of regional airlines that operate on razorthin margins. See Iowa DOT, Iowa Air Service Study

2-34 (Apr. 2008), https://perma.cc/4UXR-EHYU. Since

regional airlines already struggle to break even,

Koenig, supra, these substantial and duplicative costs,

see Doc. 120 at 4–5 (estimating break rules would cost

Virgin America $1,950,925 annually in extra salary

13

alone), would inevitably require higher rates or less inflight service.

And this all assumes that the airlines can actually

hire more staff. But that is a problem too: regional

airlines struggle to find enough pilots. In fact, some

smaller routes have already been canceled for lack of

staff. See RAA, Valuable: Air Service to Small Communities Generates Significant Economic Activity (2019),

https://perma.cc/3LRB-ZX98; see also Ethan S. Klapper,

Effects of the Pilot Shortage on the Regional Airline

Industry: A 2023 Forecast, Embry-Riddle Aeronautical

Univ. 1 (2019), https://perma.cc/N59M-PHBK (predicting a “substantial . . . regional pilot shortage” that

would “have devastating effects for the overall U.S. airline industry, and the broader U.S. economy”). If airlines must hire additional pilots to accommodate

California’s break rules, more cancellations will follow.

Breaks on the ground would present extra difficulties for regional airlines, too. Regional aircraft visit

up to eight cities on an average day, more than national airlines, RAA Panel Amicus Br., Black Decl. ¶7,

because regional flights typically connect travelers

from smaller communities to large “hub” airports,

where they continue their journey. Iowa Air Service

Study, supra, 2-27; Lauren Zumbach, Frequent travelers assume regional flights are more likely to get canceled, Are they really? Chicago Tribune (Mar. 26,

2019), https://perma.cc/E3K6-CWJ8. Regional airlines

have tight windows in which to deliver these passengers so they can make their connections, and even

short delays will add up over the course of the day. Id.

14

To make the logistics work, regional airlines would

either have to fly fewer connections (thus limiting air

access for some customers) or hire more staff. Either

answer will significantly impact rates and routes and

harm consumers in smaller communities.

In short, if the Ninth Circuit’s decision stands, the

story does not end well for regional airlines and the

hundreds of millions of people they serve. Even if major airlines can adapt—still at the expense of consumers, who will have to pay more and get less in return—

regional airlines may well struggle to stay in business

at all. At the very least, the decision will mean fewer

regional flights, higher prices, and more delays, erasing substantial gains from deregulation with a single

opinion.

II.

The Ninth Circuit’s decision conflicts with

this Court’s ADA holdings and causes a circuit split.

That outcome seems wrong, and it is. The Ninth

Circuit’s decision does not square with this Court’s

construction of the ADA and diverges from the other

courts of appeals to address the question. This Court

should review and reverse.

1. This Court has explained several times that

the ADA’s preemptive sweep in § 41713(b) is “broad”—

it covers laws that are even just “related to” the prices,

routes, or services of an air carrier. Morales, 504 U.S.

at 383; see also Ginsberg, 572 U.S. at 284; Am. Airlines

v. Wolens, 513 U.S. 219, 223 (1995). The Court has

15

interpreted that language to mean “[s]tate enforcement actions having a connection with or reference to

airline ‘rates, routes, or services’ are pre-empted.” Id.

at 384 (emphasis added).

Under this test, “what is important is the effect of

a state law, regulation, or provision, not its form.” Ginsberg, 572 U.S. at 283 (cleaned up). Some state actions,

like gambling or prostitution bans, “may affect airline

fares in too tenuous, remote, or peripheral a manner

to have pre-emptive effect.” Morales, 504 U.S. at 390

(cleaned up). But laws that have a “significant impact”

on the fares airlines charge, the routes they travel, or

the services they provide are preempted, id., even

when that impact could be described as “indirect,” id.

at 386. As a result, even generally applicable state laws

that ban deceptive advertising, id. at 388, or allow private lawsuits for consumer fraud, Wolens, 513 U.S. at

228, or breach of implied covenants, Ginsberg, 572 U.S.

at 284, are preempted as applied to airlines because

they have “the forbidden significant effect” on prices,

routes or services. Morales, 504 U.S. at 388 (quoting

Shaw v. Delta Airlines, 463 U.S. 85, 100 n.1 (1983)).

The Ninth Circuit did not merely disagree that applying California’s break rules to flight attendants

would have a “significant impact” on airline prices,

routes, or services. The court declined even to apply

that test, despite its Supreme Court pedigree, see Morales, 504 U.S. at 388. In its place, with little analysis,

the court relied on Dilts v. Penske Logistics, 769 F.3d

637 (9th Cir. 2014), which held that the Federal Aviation Administration Authorization Act—a law that

16

borrowed the ADA’s preemption language—did not

preempt break rules as applied to trucking companies.

See Pet. App. 20a. Under Dilts, the ADA preempts state

law only if the law “binds the carrier to a particular

price, route, or service.” Id.

That narrow test cannot be squared with this

Court’s construction of the ADA. See Massachusetts

Delivery Ass’n v. Coakley, 769 F.3d 11, 20 (1st Cir. 2014)

(refusing “to adopt [Dilt’s] categorical rule”); see also

California Trucking Ass’n v. Bonta, No. 20-55106, 2021

WL 1656283, at *14–19 (9th Cir. Apr. 28, 2021) (Bennett, J., dissenting) (explaining why the Dilts line of

cases contradict Supreme Court precedent). This Court

has directly rejected the argument that the ADA

preempts only state enforcement actions that “actually

prescribe rates, routes, or services” because that would

“read[ ] the words ‘relating to’ out of the statute.” Morales, 504 U.S. at 385. And asking whether a state law

“binds” a carrier to a particular rate, route, or service

is no different than asking whether a law prescribes it.

Nor does it matter that the break rules here are “normal background rules for almost all employers doing

business in the state of California,” Dilts, 769 F.3d at

647. This Court has made clear that the ADA preempts

laws of general applicability, too. Morales, 504 U.S. at

386 (calling a proposed exception for generally applicable laws “utterly irrational”). Given all that, it should

be no surprise that other courts of appeals have rejected the Ninth Circuit’s “binds to” test. See Bower,

731 F.3d at 96 (1st Cir. 2013) (asking only whether the

challenged law had a “significant impact”); Witty v.

17

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

(same); Branche, 342 F.3d at 1255 (11th Cir. 2003)

(same); Travel All Over the World v. Kingdom of Saudi

Arabia, 73 F.3d 1423, 1431 (7th Cir. 1996) (same).

In short, Dilts conflicts with Supreme Court precedent construing the ADA, and the Ninth Circuit’s decision applying it here does too. The Court should grant

certiorari to clear this direct obstacle to proper application of the ADA’s text.

2. If the Ninth Circuit had applied the right test,

the result would have been different. California’s

break requirements will undeniably have a “significant

impact” on airline prices, routes, and services if applied

to flight attendants. Airlines could theoretically schedule these mandated breaks either while in flight or on

the ground between flights. But either option would

significantly affect prices, routes, or services.

Take in-flight breaks first. California law generally prohibits employees from being on duty at all—not

even “on call”—during their breaks. See Cal. Code

Regs. tit. 8, § 11090(11)–(12); Augustus v. ABM Sec.

Servs., 2 Cal. 5th 257, 269 (2016). But FAA regulations generally contemplate that flight attendants

will remain on duty for the whole flight to handle both

routine and emergency safety duties—including medical emergencies, in-flight fires, and evacuations.

Flight Attendant Duty Period Limitations and Rest

Requirements, 59 Fed. Reg. 42,974-01, 42,974 (Aug. 19,

1994). And federal law requires the minimum contingent of flight attendants to be on duty the entire time

18

the aircraft is operating. 14 C.F.R. § 121.385(a). These

requirements alone seem to preclude in-flight breaks

altogether. See U.S. Panel Amicus Br. at 19–20.

At minimum, meeting both federal law and California’s break rules would require staffing many

flights with extra flight attendants so they could take

turns going “off duty.”2 The result would be higher

prices and fewer seats for paying customers. See Doc.

120 at 4–5 (estimating the break rules will cost Virgin

$1,950,925 annually just in additional salary); Iowa

Air Service Study, supra, 2-34 (calculating that airlines must already have a paying customer in about 80

percent of their seats on every flight to break even).

Combined with already-slim margins, those higher

costs and lower revenues would significantly impact

prices. Id. at 2-40 (explaining that escalating operating

costs have forced airlines to “increase[ ] fares, and . . .

increase their average load factors for each departing

flight”). And those cost pressures likely would make

some routes unprofitable, thus impacting routes and

services as well. Id. at 2-31–32 (warning that rising

operating costs have “reduced service frequencies” at

Even under such an arrangement, it is hard to see how airlines could ensure that off-duty flight attendants would be left

alone for the full break, see Cal. Code Regs. tit. 8, § 11090(11)(C),

(E) (requiring a “suitable place” for breaks), since flight attendants on break in jump seats would be fully visible, in uniform, and

steps away from passengers. And allowing off-duty attendants to

refuse to help passengers in need—even those with health or

safety issues—would significantly impact airline “services.” Scott

McCartney, Imagine Not Hating Flying Coach, WSJ (Oct. 16,

2019), https://perma.cc/36SU-E3WM.

2

19

some airports and put “commercial air service” at risk

for some communities entirely); Valuable: Air Service

to Small Communities, supra (explaining that “mainline airlines intensely focused on profitability” may

drop service to smaller markets, especially if there are

staffing concerns).

Between-flight breaks would significantly impact

prices, routes, and services, too. Commercial aircraft

operate under tight, carefully coordinated schedules

that must account for many factors, including weather,

congestion in airspace and at airports, mechanical failures, and connection times. Vinayak Deshpande & Mazhar Arıkan, The Impact of Airline Flight Schedules on

Flight Delays, Mfg. & Serv. Operations Mgmt. 14(3),

pp. 423–24 (2012). But delays happen anyway, usually

from bad weather or congested airports. And because

airlines share gates, runways, and airspace, delays at

even one airport will have “significant ramifications for

the rest of the national airspace system.” GAO, Initiatives to Reduce Flight Delays and Enhance Capacity

are Ongoing but Challenges Remain 1 (May 26, 2005),

https://perma.cc/G5RN-YY3T.

On-the-ground breaks for California-based flight

attendants would make this logistical challenge much

harder. An airline might need to shift crew schedules

around to accommodate breaks. But flight schedules

are driven by inflexible factors including gate availability, aircraft availability, takeoff and landing slots,

passenger demand, weather, mechanical failures, connection times, and air traffic congestion. Deshpande &

20

Arıkan, supra. So incorporating rest breaks would introduce severe disruptions into the schedule for not

just California flights, but the rest of the country, too.

If airlines instead hire and staff additional sets of

flight attendants for California flights, that will also

impact prices and services. Flight attendants typically

fly a string of connected flights that begin and end (often days later) in the same city. Xugang Ye, Airlines’

Crew Pairing Optimization: A Brief Review, Dep’t of

Applied Sciences and Mathematics, Johns Hopkins

Univ. 1 (2007). So if an airline swaps out flight attendants for a break, the airline will have to ferry both

flight attendants to their next destination. Airlines

would thus be paying two flight attendants, and incurring unnecessary transportation costs, to do the work

of just one.

Finally, these impacts only account for Californiabased flight attendants. But as explained above, the

decision’s logic extends to any flight attendants while

their flight is “in” California, to other airline employees

(e.g., pilots), and to other states that have similar or

even conflicting break requirements.

All together, the Ninth Circuit’s decision has

breathtaking potential to disrupt air travel. Applying

California’s break rules to the airline industry will

significantly impact rates, routes, and services not

only in California, but across the entire country—ultimately to the detriment of consumers, who will

bear the burden of higher prices and less reliable air

21

travel. Those rules are preempted under the ADA’s

express terms.

CONCLUSION

Congress passed the ADA to free airlines from burdensome regulation and unleash the free market. But

the Ninth Circuit’s decision reinstitutes the burdensome web of state regulation that spurred Congress to

action in the first place. This Court should grant the

petition for certiorari.

Respectfully submitted,

CHRISTOPHER M. CARR

Attorney General

of Georgia

DREW F. WALDBESER

ROSS W. BERGETHON

Counsel of Record

Deputy Solicitors General

SLADE MENDENHALL

Assistant Attorney General

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3546

rbergethon@law.ga.gov

Counsel for Amici Curiae

22

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

of Alabama

DOUG PETERSON

Attorney General

of Nebraska

TREG R. TAYLOR

Attorney General

of Alaska

WAYNE STENEHJEM

Attorney General

of North Dakota

LESLIE RUTLEDGE

Attorney General

of Arkansas

DAVE YOST

Attorney General

of Ohio

ASHLEY MOODY

Attorney General

of Florida

ALAN WILSON

Attorney General

of South Carolina

LAWRENCE G. WASDEN

Attorney General

of Idaho

JASON R. RAVNSBORG

Attorney General

of South Dakota

DAVE CAMERON

Attorney General

of Kentucky

HERBERT H. SLATERY III

Attorney General

of Tennessee

JEFF LANDRY

Attorney General

of Louisiana

LYNN FITCH

Attorney General

of Mississippi

AUSTIN KNUDSEN

Attorney General

of Montana

KEN PAXTON

Attorney General

of Texas

SEAN D. REYES

Attorney General

of Utah

PATRICK MORRISEY

Attorney General

of West Virginia