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., PETITIONERS

v.

JULIA BERNSTEIN, ET AL., INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

JOHN E. PUTNAM

General Counsel

PAUL M. GEIER

Assistant General Counsel

PETER J. PLOCKI

Deputy Assistant General

Counsel

CHARLES E. ENLOE

Senior Trial Attorney

Department of Transportation

MARC A. NICHOLS

Chief Counsel

RUSSELL B. CHRISTENSEN

Acting Assistant Chief

Counsel

JONATHAN W. CROSS

Senior Attorney

Federal Aviation

Administration

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

SOPAN JOSHI

Assistant to the Solicitor

General

MARK B. STERN

JENNIFER L. UTRECHT

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether generally applicable California labor laws

governing employee meal and rest breaks, when applied to California-based flight attendants on intrastate

flights, are “related to a price, route, or service of an air

carrier,” 49 U.S.C. 41713(b)(1), and thus preempted by

federal law.

(I)

TABLE OF CONTENTS

Page

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

Discussion ...................................................................................... 7

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

TABLE OF AUTHORITIES

Cases:

American Airlines, Inc. v. Wolens,

513 U.S. 219 (1995).......................................................... 3, 10

Augustus v. ABM Security Services,

385 P.3d 823 (Cal. 2016) ........................................... 2, 14, 16

Bedoya v. American Eagle Express Inc.,

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

140 S. Ct. 102 (2019) ........................................................... 21

Bowen v. Massachusetts, 487 U.S. 879 (1988) .................... 16

Bower v. Egyptair Airlines Co.,

731 F.3d 85 (1st Cir. 2013), cert. denied,

572 U.S. 1046 (2014)............................................................ 20

Branche v. Airtran Airways, Inc.,

342 F.3d 1248 (11th Cir. 2003), cert. denied,

540 U.S. 1182 (2004)............................................................ 22

Brindle v. Rhode Island Department of Labor &

Training, 211 A.3d 930 (R.I. 2019), cert. denied,

140 S. Ct. 908 (2020) ........................................................... 22

Brinker Restaurant Corp. v. Superior Court,

273 P.3d 513 (Cal. 2012) ..................................... 2, 13, 14, 16

California Trucking Association v. Su,

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

139 S. Ct. 1331 (2019) ................................................... 19, 20

Chambers v. RDI Logistics, Inc.,

65 N.E.3d 1 (Mass. 2016) ................................................... 21

(III)

IV

Cases—Continued:

Page

Costello v. BeavEx, Inc.,

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

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

Dan’s City Used Cars, Inc. v. Pelkey,

569 U.S. 251 (2013).......................................................... 3, 10

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

Delta Air Lines, Inc. v. Black,

116 S.W.3d 745 (Tex. 2003), cert. denied,

540 U.S. 1181 (2004)............................................................ 21

DiFiore v. American Airlines, Inc.,

646 F.3d 81 (1st Cir.), cert. denied,

565 U.S. 1059 (2011)............................................................ 21

Dilts v. Penske Logistics, LLC,

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

575 U.S. 996 (2015)...........................................4, 5, 10, 17, 18

Koutsouradis v. Delta Air Lines, Inc.,

427 F.3d 1339 (11th Cir. 2005) ........................................... 21

Leavitt v. Jane L., 518 U.S. 137 (1996) ................................ 16

Lyn-Lea Travel Corp. v. American Airlines, Inc.,

283 F.3d 282 (5th Cir.), cert. denied,

537 U.S. 1044 (2002)............................................................ 21

Massachusetts Delivery Association v. Healey,

821 F.3d 187 (1st Cir. 2016) ............................................... 21

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

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

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

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992).........................................3, 4, 8, 9, 10, 19

Northwest, Inc. v. Ginsberg,

572 U.S. 273 (2014)........................................................ 10, 20

Onoh v. Northwest Airlines, Inc.,

613 F.3d 596 (5th Cir. 2010) ............................................... 20

V

Cases—Continued:

Page

Phillips v. Washington Legal Foundation,

524 U.S. 156 (1998).............................................................. 16

Rodriguez v. Taco Bell Corp.,

896 F.3d 952 (9th Cir. 2018) ............................................... 16

Rowe v. New Hampshire Motor Transport

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

Schwann v. FedEx Ground Package System, Inc.,

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

Travel All Over the World, Inc. v. Kingdom of Saudi

Arabia, 73 F.3d 1423 (7th Cir. 1996) ................................. 21

United Airlines, Inc. v. Mesa Airlines, Inc.,

219 F.3d 605 (7th Cir.), cert. denied,

531 U.S. 1036 (2000)............................................................ 21

Ward v. United Airlines, Inc.,

986 F.3d 1234 (9th Cir. 2021) ....................................... 19, 20

Wisniewski v. United States, 353 U.S. 901 (1957) ............. 20

Witty v. Delta Air Lines, Inc.,

366 F.3d 380 (5th Cir. 2004) ............................................... 21

Statutes and regulations:

Airline Deregulation Act of 1978,

Pub. L. No. 95-504, 92 Stat. 1705 ........................................ 3

sec. 3(a), § 102(a)(4), 92 Stat. 1706 ................................... 3

FAA Reauthorization Act of 2018,

Pub. L. No. 115-254, § 335(a)(2)(A),

132 Stat. 3280 ...................................................................... 12

Federal Aviation Act of 1958,

Pub. L. No. 85-726, 72 Stat. 731

(49 U.S.C. 40101 et seq.) ..................................................... 11

Federal Aviation Administration Authorization Act

of 1994, Pub. L. No. 103-305, 108 Stat. 1569 ...................... 3

49 U.S.C. 14501(c)(1) ............................................................... 3

VI

Statutes and regulations—Continued:

Page

49 U.S.C. 41713(b)(1) ........................................................... 3, 8

49 U.S.C. 44701(a)(4) ............................................................. 11

49 U.S.C. 44701(a)(5) ............................................................. 11

Cal. Code Regs. tit. 8 (2002):

§ 11090(11).............................................................. 2, 13, 16

§ 11090(11)(C) .................................................................. 14

§ 11090(12).................................................................... 2, 16

Cal. Labor Code (2020):

§ 226.7(b) .......................................................................... 13

§ 226.7(c) ............................................................................. 2

§ 512(a) (2018) .................................................................... 2

14 C.F.R.:

Section 121.291 ................................................................ 11

Section 121.391(a) ............................................................ 11

Section 121.391(d)...................................................... 11, 15

Section 121.393(b)............................................................ 11

Section 121.394 ................................................................ 11

Section 121.397(a) ...................................................... 12, 14

Section 121.467(a) ............................................................ 12

Section 121.467(b)(1) ....................................................... 11

Section 121.467(b)(2) ....................................................... 12

Section 121.571 ................................................................ 11

Section 121.573 ................................................................ 11

49 U.S.C. 41713(b)(1) .................................................... 3, 8

Miscellaneous:

FAA, Flight Standards Information Management

System, Order No. 8900.1, CHG 310

(Apr. 28, 2022), go.usa.gov/xuQKQ ............................. 12, 13

86 Fed. Reg. 60,424 (Nov. 2, 2021) ....................................... 12

In the Supreme Court of the United States

No. 21-260

VIRGIN AMERICA, INC., ET AL., PETITIONERS

v.

JULIA BERNSTEIN, ET AL., INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the order of the

Court inviting the Solicitor General to express the views

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

the petition for a writ of certiorari should be denied. Alternatively, the Court could grant the petition, vacate

the judgment below, and remand for further consideration of California law and applicable federal requirements.

STATEMENT

Respondents, a class of California-based flight attendants, brought this suit alleging that petitioners violated various California labor laws, including by failing

to provide required meal and rest breaks. The district

court granted summary judgment to respondents on the

meal- and rest-break claims. Pet. App. 29a-78a. The

court of appeals affirmed. Id. at 1a-28a.

(1)

2

1. a. California generally requires employers

across nearly all industries to provide employees who

have worked at least five hours per day a 30-minute

meal break during which the employee is relieved of

duty. Cal. Code Regs. tit. 8, § 11090(11) (2002); Cal. Labor Code § 512(a) (2018). California also requires a second off-duty meal break for those employees who work

more than ten hours per day. Ibid. In addition to those

meal breaks, California generally requires employers in

the transportation industry to provide employees with

a ten-minute rest break for every four hours worked.

Cal. Code Regs. tit. 8, § 11090(12) (2002). The Supreme

Court of California has stated that, in general, employees must be “free to come and go as they please” during

the breaks, and employers may not require employees

to remain “on call” during that time. Brinker Restaurant Corp. v. Superior Court, 273 P.3d 513, 534 (2012);

see Augustus v. ABM Security Services, 385 P.3d 823,

832 (Cal. 2016). An employer who fails to provide the

requisite meal or rest breaks may be liable to each

employee for an additional hour of pay per day that

a required break was not provided. Cal. Labor Code

§ 226.7(c) (2020). Employers also may be liable for civil

penalties. See Pet. App. 26a-27a.

b. In 2015, respondent Julia Bernstein, a flight attendant, brought this class action against petitioner

Virgin America, Inc., her employer, claiming a wide

range of violations of California labor laws, including

that Virgin America failed to provide the required meal

and rest breaks. See Pet. App. 2a-4a. (Virgin America

has since merged with petitioner Alaska Airlines, Inc.

Pet. ii.) As relevant here, petitioners argued that respondents’ meal- and rest-break claims were pre-

3

empted by the Airline Deregulation Act of 1978 (ADA),

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

In the ADA, Congress “largely deregulated domestic

air transport,” American Airlines, Inc. v. Wolens, 513

U.S. 219, 222 (1995), replacing the prior public-utility

model for regulating commercial airlines with one favoring “maximum reliance on competitive market

forces and on actual and potential competition,” ADA

sec. 3(a), § 102(a)(4), 92 Stat. 1706. “To ensure that the

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

Inc., 504 U.S. 374, 378 (1992), Congress included in the

ADA a broadly worded preemption provision, now codified at 49 U.S.C. 41713(b)(1). See Wolens, 513 U.S. at

223 n.1 (describing the statutory history). Under that

provision, “a State * * * may not enact or enforce a law,

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

carrier.” 49 U.S.C. 41713(b)(1).

That provision of the ADA served as the model for a

similar provision applicable to the trucking industry in

the Federal Aviation Administration Authorization Act

of 1994 (FAAAA), Pub. L. No. 103-305, 108 Stat. 1569,

which similarly preempts state laws “related to a price,

route, or service of any motor carrier,” albeit only “with

respect to the transportation of property.” 49 U.S.C.

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

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

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

price, route, or service”—should be interpreted identically. See Rowe v. New Hampshire Motor Transport

Association, 552 U.S. 364, 370 (2008). The Court also

has explained that those provisions have an “expansive

4

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

They preempt not only state laws that make “reference”

to the prices, routes, or services of airlines and motor

carriers, but also laws of general applicability that have

a “significant impact” on prices, routes, or services. Id.

at 388, 390; see Rowe, 552 U.S. at 375; Wolens, 513 U.S.

at 224. The Court has emphasized, however, that the

statutes do not preempt generally applicable state laws

that affect prices, routes, or services in merely a “tenuous, remote, or peripheral” manner. Morales, 504 U.S.

at 390 (citation omitted).

2. The district court denied in relevant part petitioners’ motion for summary judgment. Pet. App. 29a-78a.

As relevant here, the court rejected petitioners’ argument that the ADA preempts application of the California meal- and rest-break laws to respondent flight attendants, at least with respect to purely intrastate

flights. Id. at 65a-67a; see id. at 48a (limiting respondents’ meal- and rest-break claims to purely intrastate

flights). The court observed (id. at 65a-66a) that the

Ninth Circuit had held in Dilts v. Penske Logistics,

LLC, 769 F.3d 637 (2014), cert. denied, 575 U.S. 996

(2015) (No. 14-801), that the FAAAA did not preempt

application of California’s meal- and rest-break laws to

short-haul intrastate delivery truck drivers. The court

in this case explained that the FAAAA was modeled on

the ADA, and that petitioners had “offer[ed] no persuasive argument as to why identical language in a statute

with an identical purpose should be interpreted differently merely because it applies to a different industry”

(here, the airline industry). Pet. App. 67a.

The district court denied petitioners’ subsequent

motion for reconsideration. Pet. App. 79a-96a. Petitioners’ motion relied in part on the government’s Ninth

5

Circuit amicus brief in Dilts, which the court of appeals

had found “persuasive” and with which it had

“agree[d].” 769 F.3d at 650. In its invited brief, the

government had argued that the FAAAA did not

preempt application of the California meal- and restbreak laws to short-haul truck delivery drivers. The

government had reasoned in part that drivers made

“many local stops and deliveries during the course of a

day” and thus “could presumably take a break before or

after one of these many scheduled stops,” thereby enabling compliance with the California meal- and restbreak laws without any significant impact on prices,

routes, or services. Gov’t Amicus Br. at 22, Dilts, supra

(9th Cir. Feb. 18, 2014) (No. 12-55705). The government

had emphasized, however, that “the preemption analysis would differ significantly if the state law were applied to airline employees” because “an airline cannot

readily interrupt tightly scheduled flight operations to

accommodate state-mandated rest breaks.” Id. at 25.

The government had further observed that “federal aviation safety laws and regulations apply in this area and

would inform any preemption analysis.” Ibid.

The district court rejected petitioners’ reliance on

the government’s amicus brief in Dilts, however, because of “the limited role that the amicus brief played

in the Ninth Circuit’s decision,” because “the Ninth Circuit did not even mention in its opinion” the portions of

that brief discussing the airline industry on which petitioners relied, and because petitioners had “fail[ed] to

previously present this argument” to the district court.

Pet. App. 85a-86a.

The district court later granted in part respondents’

motion for summary judgment, including on their mealand rest-break claims. 2018 WL 3344316, at *6. Of the

6

nearly $77.8 million judgment against petitioners, approximately $1.4 million ($601,366.66 in damages and

$817,087.50 in civil penalties) was for the meal- and restbreak claims. See Pet. App. 99a-100a.

3. The court of appeals affirmed in part, reversed in

part, and vacated in part. Pet. App. 1a-28a. As relevant

here, the court affirmed the judgment with respect to

the meal- and rest-break claims, holding that the ADA

does not preempt application of California’s meal- and

rest-break laws to the respondent flight attendants. Id.

at 19a-21a. The court cited and described its earlier decision in Dilts, see id. at 19a-20a, observed that “[t]he

language of the ADA’s preemption clause is virtually

identical to the language of the FAAA[A]’s,” id. at 21a,

and concluded that “[t]he reasoning of Dilts thus applies with equal force here,” ibid.

The government had filed an amicus brief in this case

arguing that the ADA preempted application of the

meal- and rest-break laws to the respondent flight attendants because applying those laws would have a “significant impact on the market forces influencing carrier

services and prices.” Gov’t C.A. Amicus Br. 18. The

government explained that Federal Aviation Administration (FAA) “regulations contemplate that flight

attendants will remain on duty and on call, capable of

performing any required safety functions for flights

throughout their specified ‘duty period,’ which the regulations define as the ‘period of elapsed time between

reporting for an assignment involving flight time and

release from that assignment.’ ” Id. at 18-19 (citation

omitted). The government then observed that, by contrast, “California law generally prohibits employers

from requiring employees to be on duty during the

state-mandated meal or rest breaks.” Id. at 18. Accord-

7

ingly, the government argued that “as a practical matter, the only time that an off-duty break could occur

would be between flights,” id. at 19-20, and that ensuring sufficient between-flight breaks for all flight attendants likely would require “shift[ing] flight schedules,”

id. at 22, which would constitute a significant impact on

prices, routes, or services. See id. at 20-23 (describing

the “complex choreography” of flight scheduling); see

also id. at 6-8 (describing the extensive FAA regulations governing flight attendant duties).

The court of appeals did not directly address the government’s argument in resolving the ADA preemption

issue. Cf. Pet. App. 19a-21a. But in a separate portion

of its opinion addressing petitioners’ claim that the California laws directly conflict with FAA regulations (a

claim that petitioners have not renewed in this Court),

the court of appeals held that “airlines could 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 dutyfree breaks.’ ” Id. at 18a (brackets omitted).

DISCUSSION

The petition for a writ of certiorari should be denied.

In rejecting petitioners’ separate conflict-preemption

claim, the court of appeals stated that petitioners could

satisfy both California meal- and rest-break requirements and FAA safety requirements by adding extra

flight attendants. As explained below, that would be

true only if the state-law requirements could be satisfied by an in-flight meal or rest break during which the

flight attendant remains on call to perform certain

safety-related duties, if necessary. If that view of California law is correct and underlay the court’s analysis,

the court’s bottom-line conclusion that the ADA does

8

not preempt application of the meal- and rest-break

laws to intrastate flight attendants also would be correct, because petitioners have not demonstrated that a

requirement to provide that type of in-flight break

would have a significant impact on prices, routes, or

services. Yet it also is possible that the court did not

fully understand the relevant FAA requirements. Ultimately, the need to resolve that potentially dispositive

issue of state law and its interaction with FAA requirements would make this a poor vehicle in which to review

the question presented. Moreover, petitioners do not

identify any decision of this Court or another court of

appeals that conflicts with the decision below. Certiorari should therefore be denied. In the alternative, the

Court may wish to grant the petition for a writ of certiorari, vacate the judgment below, and remand for further consideration of those issues, including the possibility of partial preemption, see pp. 16-17, infra.

1. a. To be preempted under the ADA, a claim must

seek to enforce a state law “related to a price, route, or

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

Court has provided important guidance on the meaning

of that provision in Morales v. Trans World Airlines,

Inc., 504 U.S. 374 (1992), and Rowe v. New Hampshire

Motor Transport Association, 552 U.S. 364 (2008).

In Morales, the Court concluded that the phrase

“relat[ed] to” reflects a broad and deliberately expansive preemptive purpose, and that the ADA thus

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

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

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

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

or service even if it is not specifically addressed to the

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

9

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

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

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

define “ ‘where it would be appropriate to draw the

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

guidelines interpreting general consumer-protection

laws in a way that restricted airlines’ advertising of

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

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

In Rowe, the Court held that the same principles

govern the preemptive scope of the similarly worded

FAAAA. Applying those standards, the Court held that

the FAAAA preempted a Maine statute forbidding licensed tobacco retailers from employing a “delivery

service” unless that service followed a particular set of

prescribed delivery procedures. 552 U.S. at 371 (citation omitted); see id. at 370-372. The Court emphasized

that the Maine statute directly focused on motor-carrier

services and compelled carriers “to offer tobacco delivery services that differ significantly from those that, in

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

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

law sought to avoid, namely, a State’s direct substitution of its own governmental commands for ‘competitive

market forces’ in determining (to a significant degree)

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

The Court in Rowe noted, however, that the FAAAA

does not preempt laws of general applicability that only

incidentally affect motor carriers. Citing Morales, the

10

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

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

laws that apply to carriers only in their capacity as

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

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

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

b. In resolving petitioners’ ADA preemption claim,

the court of appeals reasoned that because its previous

decision in Dilts v. Penske Logistics, LLC, 769 F.3d 637

(9th Cir. 2014), cert. denied, 575 U.S. 996 (2015) (No. 14801), had held that the FAAAA does not preempt application of the California meal- and rest-break laws to

short-haul intrastate truck drivers, the ADA must not

preempt application of those laws to intrastate flight attendants either. Pet. App. 19a-21a. That reasoning was

misguided. As explained above, the ADA and FAAAA

preempt state laws of general applicability if they would

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

or services. Morales, 504 U.S. at 390; see Rowe, 552

U.S. at 372-373; American Airlines, Inc. v. Wolens, 513

U.S. 219, 222 (1995). That inquiry naturally entails an

analysis of the effects of the challenged state law on the

particular industry. Cf. Northwest, Inc. v. Ginsberg,

572 U.S. 273, 283 (2014) (“What is important * * * is

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

form.”). That Dilts found the meal- and rest-break laws

not to have a significant impact on short-haul delivery

prices, routes, or services when applied to intrastate

truck drivers does not resolve whether those laws might

have a significant impact on airline prices, routes, or

services when applied to flight attendants on intrastate

flights. The court did not, however, engage in the req-

11

uisite industry-specific analysis of any potential impact

here.

Such an analysis would begin with the pertinent FAA

rules governing flight-attendant responsibilities. The

Federal Aviation Act of 1958, Pub. L. No. 85-726, 72

Stat. 731, codified as amended at 49 U.S.C. 40101 et seq.,

authorizes the Administrator of the FAA to “promote

safe flight of civil aircraft in air commerce.” 49 U.S.C.

44701(a)(5). Under that authority, FAA has promulgated extensive regulations in the interest of ensuring

safety, including ones that require air carriers to have a

certain minimum number of “flight attendants on board

each passenger-carrying airplane when passengers are

on board,” depending on the aircraft’s maximum seating capacity. 14 C.F.R. 121.391(a). Flight attendants

must assist with boarding and deplaning of passengers,

see 14 C.F.R. 121.394, conduct pre-flight briefing about

emergency procedures, see 14 C.F.R. 121.571, 121.573;

cf. 14 C.F.R. 121.291, and perform duties required for

safe operation of the aircraft throughout takeoff, landing, and other phases of the flight, including to ensure

the “effective egress of passengers in [the] event of an

emergency evacuation,” 14 C.F.R. 121.391(d); see 14

C.F.R. 121.393(b).

FAA regulations also limit the length of time that

flight attendants may be on duty to perform flightrelated responsibilities. See 49 U.S.C. 44701(a)(4) (authorizing FAA to prescribe “regulations in the interest

of safety for the maximum hours or periods of service”

for “employees of air carriers”). Those regulations generally prohibit airlines from “assign[ing] a flight attendant to a scheduled duty period of more than 14

hours,” 14 C.F.R. 121.467(b)(1), and generally require

that a flight attendant be given “a scheduled rest period

12

of at least 9 consecutive hours” before starting a new

duty period, 14 C.F.R. 121.467(b)(2); cf. FAA Reauthorization Act of 2018, Pub. L. No. 115-254, § 335(a)(2)(A),

132 Stat. 3280 (directing the FAA to modify the applicable regulation to require a “scheduled rest period of

at least 10 consecutive hours”); 86 Fed. Reg. 60,424

(Nov. 2, 2021) (notice of proposed rulemaking to implement that change). FAA regulations do not prohibit airlines from providing flight attendants with breaks in

the middle of a duty period—and thus, contrary to petitioners’ contention (Pet. 25-26, 29), would not require an

airline to provide a nine-hour rest period after a statemandated meal or rest break. But FAA regulations

do require, among other things, that the total duty

period—inclusive of breaks—not exceed the applicable

maximum duty period, and that the flight attendant be

able to perform all required safety-related duties. Cf.

14 C.F.R. 121.397(a), 121.467(a).

The court of appeals and respondents correctly observe that carriers may staff a flight with more than the

minimum required number of flight attendants. See

Pet. App. 18a; Br. in Opp. 33-36. But carriers must identify in advance which flight attendants will serve as part

of the required minimum complement, and those who

are so identified remain responsible for carrying out the

“necessary functions to be performed in an emergency”

throughout the flight—including during any meal or

rest break. 14 C.F.R. 121.397(a); see FAA, Flight

Standards Information Management System, Order

No. 8900.1 CHG 310, Vol. 3, Ch. 33, § 4, ¶ 3-3513(E)

(Apr. 28, 2022), go.usa.gov/xuQKQ (requiring air carriers that assign extra flight attendants to “identify the

required and nonrequired [flight attendants],” and “not

assign duties to the extra [flight attendants] wh[ich]

13

would mandate their presence and duty assignment in

the event of an emergency situation, such as an evacuation”); ¶ 3-3513(C) (explaining that “[t]he capability to

handle emergency situations and emergency evacuations is based on the complement of required [flight attendants],” not the “extra or nonrequired [flight attendants]”).

As noted above, the government filed an amicus brief

in this case in the court of appeals explaining that in

light of FAA regulations, imposing additional state-law

break requirements would have an improper significant

impact on prices, routes, or services. See Gov’t C.A.

Amicus Br. 18-23. The government’s position was

premised on the assumption that any qualifying meal or

rest break for a flight attendant would have to be provided on the ground, not during a flight, which would

then potentially require substantial modifications to

flight schedules to accommodate the required breaks

while also complying with the applicable maximum duty

period. See id. at 19-21.

The government’s assumption that meal and rest

breaks would have to occur on the ground, and not inflight, rested on the view that “California law generally

prohibits employers from requiring employees to be on

duty during the state-mandated meal or rest breaks.”

Gov’t C.A. Amicus Br. 18. For example, the Supreme

Court of California has stated that an employer must

“relieve[] its employees of all duty” and “relinquish[]

control over their activities” during the 30-minute meal

break, which must remain “uninterrupted.” Brinker

Restaurant Corp. v. Superior Court, 273 P.3d 513, 536537 (2012); see Cal. Code Regs. tit. 8, § 11090(11) (2002);

Cal. Labor Code § 226.7(b) (2020). Employees also generally must be “free to leave the premises” during meal

14

breaks. Brinker, 273 P.3d at 534; see Cal. Code Regs.

tit. 8, § 11090(11)(C) (2002). The Supreme Court of California likewise has stated that “state law prohibits onduty and on-call rest periods,” and that “[d]uring required rest periods, employers must relieve their employees of all duties and relinquish any control over how

employees spend their break time.” Augustus v. ABM

Security Services, Inc., 385 P.3d 823, 825-826 (2016).

Accordingly, FAA’s requirement that the required

complement of identified flight attendants remain on

call to respond to emergencies at all times during a

flight would, under the understanding of state law set

forth in the government’s brief in the court of appeals,

effectively prevent any in-flight meal or rest break from

satisfying the requirements of California’s meal- and

rest-break laws for those flight attendants. Indeed, respondents’ expert proposed a damages calculation that

would award the extra hour of compensation only on

days when “the time between flights was inadequate to

provide a 30-minute meal break or 10-minute rest break

for a class member who worked sufficient hours to qualify for a break.” Gov’t C.A. Amicus Br. 20.

Nonetheless, in addressing petitioners’ separate

conflict-preemption claim, the court of appeals stated

that “airlines could 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.’ ” Pet. App. 18a

(brackets omitted). But as just explained, the assignment of extra flight attendants would not relieve flight

attendants identified as part of the minimum required

complement from having to remain on call to handle

emergencies throughout the flight, including during

breaks. See 14 C.F.R. 121.397(a). Accordingly, the

15

court’s statement that “airlines could comply with both

the FAA safety rules and California’s meal and break

requirement” cannot be true unless an in-flight break

during which the flight attendant remains on call to

respond to emergencies qualifies as a “ ‘duty-free

break[]’ ” under California’s meal- and rest-break laws.

Pet. App. 18a.

If that view of California law is correct and underlay

the court of appeals’ decision, the court’s bottom-line

conclusion regarding ADA preemption also would be

correct. That is because airlines could, under that view,

satisfy the California meal- and rest-break requirements by providing flight attendants the requisite

breaks at some point in their respective duty periods—

including during flight (except during taxi, takeoff, and

landing, see 14 C.F.R. 121.391(d)), when they remain on

call to respond to emergencies. Petitioners have not

demonstrated that providing that type of in-flight

break—as opposed to an in-flight break during which

the flight attendant is relieved of all duties, cf. Pet. 2324, or a break that can be provided only between flights,

cf. Gov’t C.A. Amicus Br. 19-20—would have a significant impact on airline prices, routes, or services. To the

contrary, petitioners themselves acknowledge (Pet. 7)

that “[f ]light attendants have ample opportunity to sit

and eat on flights” already, suggesting that there would

not be such an impact.*

Petitioners assert (Pet. 23-27) that relieving flight

attendants of their duties during the flight or adding

* The Department of Transportation and the FAA have informed

this Office that they are prepared to facilitate discussions outside of

this litigation with the airlines, unions, and States to address and

minimize any other potential disruption to the traveling public that

could arise.

16

flight attendants to flights would have such an impact.

But under the above view of California law, it is not

clear that either of those changes would be required. As

just explained, flight attendants could remain subject to

their FAA-imposed duties during an in-flight meal or

rest break without running afoul of state law. For the

same reason, assigning extra flight attendants would be

superfluous and thus unnecessary.

That view of California law as affording the requisite

degree of flexibility in this context is, to be sure, contestable. See Cal. Code Regs. tit. 8, § 11090(11) and (12)

(2002); Augustus, 385 P.3d at 832-834; Brinker, 273

P.3d at 536-537. But the Ninth Circuit elsewhere has

taken a permissive view of what California law requires

in this area. See Rodriguez v. Taco Bell Corp., 896 F.3d

952, 956 (2018) (holding that a policy requiring restaurant employees who purchase a discounted meal to remain on the premises during their meal break “satisfies

the standard set forth in Brinker”). And this Court has

“a settled and firm policy of deferring to regional courts

of appeals in matters that involve the construction of

state law.” Bowen v. Massachusetts, 487 U.S. 879, 908

(1988); see Phillips v. Washington Legal Foundation,

524 U.S. 156, 167 (1998); but cf. Leavitt v. Jane L., 518

U.S. 137, 145 (1996) (per curiam). At a minimum, the

need to definitively resolve that potentially dispositive

issue of state law would complicate this Court’s review,

making this case an unsuitable vehicle in which to address more general questions concerning the scope of

ADA preemption.

It also is possible that the court of appeals simply

misunderstood the FAA requirements concerning extra

flight attendants and the interaction of those requirements with California law. Neither the parties nor the

17

government specifically addressed that interaction in

their briefs below. Nor did they address the possibility

that the ADA might preempt the California meal- and

rest-break laws only to the extent that those laws do not

credit an in-flight break during which the flight attendant remains on call to respond to emergencies.

Such partial preemption would provide an alternative

basis for the court’s holding in its conflict-preemption

analysis about extra flight attendants. Those complications underscore the unsuitability of this case for review

by this Court. The Court could, however, grant the petition for a writ of certiorari, vacate the judgment below, and remand for a fuller consideration of those issues.

c. Petitioners assert (Pet. 21) that the court of appeals nevertheless erred because it supposedly adopted

and applied a “categorical rule” that the ADA preempts

a state law of general applicability only if the law

“ ‘binds’ a carrier to a particular price, route, or service.” That assertion is overstated. The court did not

adopt or apply such a rule in this case; instead, it resolved the ADA preemption issue by applying its previous decision in Dilts, supra. See Pet. App. 19a-21a. Although the mechanical application of Dilts to the circumstances here was misguided, see pp. 10-11, supra,

the decision below did not purport to adopt or apply the

categorical rule that petitioners ascribe to it.

Nor did Dilts itself adopt or apply such a rule. Dilts

stated that the FAAAA preempts “those state laws that

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

and found that as applied to the short-haul truckers in

that case, the California meal- and rest-break laws were

not preempted because “the laws do not ‘bind’ motor

carriers to specific prices, routes, or services”; do not

18

“ ‘freeze into place’ prices, routes, or services”; and do

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

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

769 F.3d at 647 (brackets and citations omitted). As

that discussion indicates, Dilts viewed the binding of

carriers to specific prices, routes, or services as one way

to establish preemption—not as the exclusive test for

FAAAA preemption. And the Ninth Circuit has recognized that the FAAAA also preempts state laws that

“determine (to a significant degree) the prices, routes,

or services that motor carriers will provide.” Ibid.

(brackets and citation omitted). That language is taken

directly from this Court’s decision in Rowe. See 552

U.S. at 372. The Ninth Circuit’s preemption test is thus

consistent with this Court’s precedent and not meaningfully different from the “significant impact” test that

petitioners derive (cf. Pet. 17-21) from that precedent.

Indeed, the Ninth Circuit in Dilts expressly “agree[d]

with” the government’s invited amicus brief in that case

explaining that “state laws * * * are not preempted by

the FAAAA unless they have a ‘significant effect’ on

prices, routes, or services.” 769 F.3d at 649-650; see

Gov’t Amicus Br. at 14-16, 18-23, Dilts, supra (No. 1255705).

Other Ninth Circuit cases likewise have made clear

the court’s view that the FAAAA and ADA preempt

state laws that have a significant impact on prices,

routes, or services, regardless of whether the laws bind

carriers to particular prices, routes, or services. For

example, in finding that the ADA does not preempt a

generally applicable California labor law regarding

wage statements, the Ninth Circuit discussed the

“binds to” standard to which petitioners object, but then

held that “what proves dispositive here is that [the air-

19

line] has presented no evidence that [its] increased

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

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

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

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

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

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

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

preemption provision even though the claim did “not

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

to” language, but clarified “that the scope of FAAAA

preemption is broader than this language suggests.”

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

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

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

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

peripheral connection.” Id. at 960.

As those decisions make clear, the Ninth Circuit has

adopted and regularly applies a “significant impact”

test drawn from this Court’s precedent, notwithstanding its use as well of the “binds to” or “freezes”

language—which itself echoes language from this

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

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

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

“law would freeze into place services that carriers might

prefer to discontinue in the future”).

20

2. Further review also is unwarranted because the

decision below does not conflict with any decision of this

Court or another court of appeals. Petitioners base

(Pet. 15-21) an asserted conflict on the Ninth Circuit’s

supposed adoption of a “binds to” test. But as just explained, the Ninth Circuit has not actually adopted such

a test, as exemplified by recent decisions making clear

that the “dispositive” consideration is whether application of state law to a carrier “would have a ‘significant

impact’ on its prices, routes, or services,” Ward, 986

F.3d at 1243 (citation omitted); see Miller, 976 F.3d at

1024-1025; California Trucking Association, 903 F.3d

at 960. And because petitioners have not identified any

other court of appeals or state court of last resort that

has adopted a “binds to” test, any residual disagreement between Ninth Circuit panels would at most

amount to an intracircuit conflict that would not warrant this Court’s review. See Wisniewski v. United

States, 353 U.S. 901, 902 (1957) (per curiam) (“It is primarily the task of a Court of Appeals to reconcile its internal difficulties.”); see also, e.g., Davis v. United

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

Petitioners’ reliance (Pet. 17-21) on decisions from

other federal courts of appeals or state courts of last resort is misplaced because none of those decisions involved the application of state labor laws similar to the

California meal- and rest-break laws to employees similarly situated to respondents. Cf. Northwest, 572 U.S.

at 283. Most of the cases that petitioners cite involved

state common-law tort or contract claims that have little

relation to the meal- and rest-break laws at issue in this

case. See Bower v. Egyptair Airlines Co., 731 F.3d 85

(1st Cir. 2013), cert. denied, 572 U.S. 1046 (2014); Onoh

v. Northwest Airlines, Inc., 613 F.3d 596 (5th Cir. 2010);

21

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

2004); Lyn-Lea Travel Corp. v. American Airlines,

Inc., 283 F.3d 282 (5th Cir.), cert. denied, 537 U.S. 1044

(2002); United Airlines, Inc. v. Mesa Airlines, Inc., 219

F.3d 605 (7th Cir.), cert. denied, 531 U.S. 1036 (2000);

Travel All Over the World, Inc. v. Kingdom of Saudi

Arabia, 73 F.3d 1423 (7th Cir. 1996); Koutsouradis v.

Delta Air Lines, Inc., 427 F.3d 1339 (11th Cir. 2005)

(per curiam); Delta Air Lines, Inc. v. Black, 116 S.W.3d

745 (Tex. 2003), cert. denied, 540 U.S. 1181 (2004).

Other cases on which petitioners rely involved laws

governing the classification of truck drivers as employees rather than independent contractors. See Massachusetts Delivery Association v. Healey, 821 F.3d 187

(1st Cir. 2016); Schwann v. FedEx Ground Package

System, Inc., 813 F.3d 429 (1st Cir. 2016); Chambers v.

RDI Logistics, Inc., 65 N.E.3d 1 (Mass. 2016); cf.

Bedoya v. American Eagle Express Inc., 914 F.3d 812

(3d Cir.) (addressing New Jersey worker-classification

law), cert. denied, 140 S. Ct. 102 (2019) (No. 18-1382);

Costello v. BeavEx, Inc., 810 F.3d 1045 (7th Cir. 2016)

(addressing Illinois worker-classification law), cert. denied, 137 S. Ct. 2289 (2017) (No. 15-1305). There is no

reason to think that application of such a law to flight

attendants would have a significant impact on airline

prices, routes, or services given that most (and perhaps

all) flight attendants already are bona fide airline employees.

Petitioners cite three cases involving generally applicable state labor or employment laws, but each involved the application of those laws to airline employees

quite dissimilar to the flight attendants here. See

DiFiore v. American Airlines, Inc., 646 F.3d 81 (1st

Cir.) (law governing tips for service employees, as ap-

22

plied to curbside skycaps), cert. denied, 565 U.S. 1059

(2011) (No. 11-221); Branche v. Airtran Airways, Inc.,

342 F.3d 1248 (11th Cir. 2003) (employee whistleblower

protection law, as applied to former aircraft inspector),

cert. denied, 540 U.S. 1182 (2004) (No. 03-904); Brindle

v. Rhode Island Department of Labor & Training, 211

A.3d 930 (R.I. 2019) (law governing time-and-a-half pay

on Sundays and holidays, as applied to airport customer

service agents), cert. denied, 140 S. Ct. 908 (2020) (No.

19-352). Whether the ADA preempts application of

such laws to curbside skycaps, aircraft inspectors, or

customer service agents does not lead to any particular

conclusion as to whether it preempts application of

meal- and rest-break laws to flight attendants on intrastate flights.

23

CONCLUSION

The petition for a writ of certiorari should be denied.

In the alternative, the Court may wish to grant the petition, vacate the judgment below, and remand for further consideration of California law and the applicable

FAA requirements.

Respectfully submitted.

JOHN E. PUTNAM

General Counsel

PAUL M. GEIER

Assistant General Counsel

PETER J. PLOCKI

Deputy Assistant General

Counsel

CHARLES E. ENLOE

Senior Trial Attorney

Department of Transportation

MARC A. NICHOLS

Chief Counsel

RUSSELL B. CHRISTENSEN

Acting Assistant Chief

Counsel

JONATHAN W. CROSS

Senior Attorney

Federal Aviation

Administration

MAY 2022

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

SOPAN JOSHI

Assistant to the Solicitor

General

MARK B. STERN

JENNIFER L. UTRECHT

Attorneys