Petition for Writ of Certiorari — Delta Air Lines, Inc., Petitioner v. Dev Anand Oman, et al.

No. ______

In the

Supreme Court of the United States

________________

DELTA AIR LINES, INC.,

v.

Petitioner,

DEV ANAND OMAN, TODD EICHMANN, ALBERT

FLORES, AND MICHAEL LEHR,

________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

PAUL D. CLEMENT

Counsel of Record

GEORGE W. HICKS, JR.

JULIE M.K. SIEGAL

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

Counsel for Petitioner

September 9, 2021

QUESTION PRESENTED

Flight attendants are quintessential employees

involved in interstate commerce. They typically spend

only a small fraction of their workweek in any one

state, and spend most of their working time airborne,

where conditions are either regulated by federal law

or left deliberately unregulated by the Airline

Deregulation Act. As a result, flight attendants

traditionally have not been subjected to the wage-andhour laws of any state, let alone the conflicting

commands of multiple states, each with a minimal

interest in workers who spend almost all of their time

elsewhere. The decisions below change all that.

Confronted with flight attendants hailing from New

York, Nevada, and California, none of whom spent the

majority of their workweek in California, but all of

whom claimed the benefit of California wage-and-hour

law, the Ninth Circuit certified questions for the

California Supreme Court. While recognizing that

state law generally would not apply to workers who

primarily work outside the state, the California

Supreme Court fashioned a special rule for “interstate

transportation workers.” Under that rule, flight

attendants are subject to California wage-and-hour

laws as long as they begin their multi-day, multi-state

work shifts at a California airport, even if they spend

only a small fraction of their workweek working in

California and live elsewhere. The Ninth Circuit then

found that California’s new approach did not regulate

extraterritorially or impermissibly burden interstate

commerce. The question presented is:

Whether, consistent with the Commerce Clause

and the deregulatory preferences of the Airline

ii

Deregulation Act, California may extend its wageand-hour laws to flight attendants who spend the vast

majority of their workweek outside of California

simply because they report to a California airport to

begin their multi-day, multi-state work shift.

iii

PARTIES TO THE PROCEEDING

Delta Air Lines, Inc. is petitioner here and was

defendant-appellee below.

Dev Anand Oman, Todd Eichmann, Michael Lehr,

and Albert Flores are respondents here and were

plaintiffs-appellants below.

iv

CORPORATE DISCLOSURE STATEMENT

Delta Air Lines, Inc. has no parent corporation

and no publicly held company owns 10 percent or more

of its stock.

v

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

• Oman et al. v. Delta Air Lines, Inc., No. 1715124 (9th Cir.) (opinion issued and

judgment entered on Feb. 2, 2021; order

denying rehearing and rehearing en banc

issued April 13, 2021);

• Oman et al. v. Delta Air Lines, Inc., No.

S248726 (Cal.) (opinion answering certified

questions of state law issued June 29, 2020);

and

• Oman et al. v. Delta Air Lines, Inc., No. 15cv-131(N.D. Cal.) (order granting partial

summary judgment to defendant, filed

December 29, 2015; order granting partial

summary judgment to defendant, filed

January 6, 2017; judgment entered January

6, 2017).

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly

related to this case within the meaning of this Court’s

Rule 14.1(b)(iii).

vi

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING .......................... iii

CORPORATE DISCLOSURE STATEMENT ........... iv

STATEMENT OF RELATED PROCEEDINGS ........ v

TABLE OF AUTHORITIES ...................................... ix

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 4

JURISDICTION ......................................................... 4

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED...................................... 5

STATEMENT OF THE CASE ................................... 5

A. Factual and Legal Background .................... 5

B. The Oman Litigation .................................... 9

REASONS FOR GRANTING THE PETITION....... 16

I.

The Decision Below Is Profoundly Wrong. ....... 18

A. Applying California Wage-and-Hour

Laws to “Interstate Transportation

Workers” Who Spend the Vast Majority

of Their Working Time Outside

California Violates the Commerce

Clause ......................................................... 18

B. The Ninth Circuit’s Reasoning is Deeply

Flawed......................................................... 27

II. The Question Presented Warrants The

Court’s Review In This Case ............................. 31

CONCLUSION ......................................................... 37

vii

APPENDIX

Appendix A

Opinion, United States Court of Appeals

for the Ninth Circuit, Dev Anan Oman et

al. v. Delta Air Lines, Inc., No. 17-15124

(Feb. 2, 2021) ............................................... App-1

Appendix B

Order Denying Petition for Rehearing,

United States Court of Appeals for the

Ninth Circuit, Dev Anan Oman, et al. v.

Delta Air Lines, Inc., No. 17-15124

(April 13, 2021) ............................................ App-4

Appendix C

Opinion, California Supreme Court, Dev

Anan Oman, et al. v. Delta Air Lines, Inc.,

No. S248726 (June 29, 2020) ...................... App-5

Appendix D

Order Certifying Questions to the

Supreme Court of California, United

States Court of Appeals for the

Ninth Circuit, Dev Anan Oman, et al. v.

Delta Air Lines, Inc., No. 17-15124

(May 9, 2018) ............................................. App-47

Appendix E

Order on Motions for Summary

Judgment, United States District Court

for

the

Northern

District

of

California, Dev Anan Oman, et al. v. Delta

Air Lines, Inc., No. 15-cv-00131-WHO

(Jan. 6, 2017) ............................................ App-60

viii

Appendix F

Order on Cross-motions for Summary

Judgment, United States District Court

for

the

Northern

District

of

California, Dev Anan Oman, et al. v. Delta

Air Lines, Inc., No. 15-cv-00131-WHO

(Dec. 29, 2015) ........................................... App-77

Appendix G

Relevant Constitutional and Statutory

Provisions................................................. App-104

U.S. Const. art. I, §8, cl. 3 ................ App-104

Cal. Labor Code §204 ....................... App-104

Cal. Labor Code §226 ....................... App-106

ix

TABLE OF AUTHORITIES

Cases

Air Transport Ass’n of Am., Inc.

v. Wash. Dep’t of Labor & Indus.,

__ F.App’x __, 2021 WL 3214549

(9th Cir. July 29, 2021) ................................ 4, 33, 34

American Airlines, Inc. v. Wolens,

513 U.S. 219 (1995)................................................ 33

Armenta v. Osmose, Inc.,

135 Cal. App. 4th 314 (2005) ................................... 7

Assn. des Eleveurs de Canards et d'Oies du

Quebec

v. Harris,

729 F.3d 937 (9th Cir. 2013).................................. 27

Baldwin v. G.A.F. Seelig, Inc.,

294 U.S. 511 (1935)................................................ 18

Bernstein v. Virgin America, Inc.,

3 F.4th 1127 (9th Cir. 2021) .............................. 3, 33

Bibb v. Navajo Freight Lines, Inc.,

359 U.S. 520 (1959).......................................... 21, 25

Brown-Forman Distillers Corp.

v. N.Y. State Liquor Auth.,

476 U.S. 573 (1986).......................................... 18, 24

Cal. Trucking Ass’n v. Bonta,

996 F.3d 644 (9th Cir. 2021).................................. 34

CTS Corp. v. Dynamics Corp. of Am.,

481 U.S. 69 (1987).................................................. 29

Dilts v. Penske Logistics, LLC,

769 F.3d 637 (9th Cir. 2014).................................. 32

x

Edgar v. MITE Corp.,

457 U.S. 62 (1982).................................................. 25

Granholm v. Heald,

544 U.S. 460 (2005)................................................ 27

Healy v. Beer Inst., Inc.,

491 U.S. 324 (1989)........................................ passim

Kassel v. Consol. Freightways Corp.,

450 U.S. 662 (1981)................................................ 21

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992)................................ 9, 22, 32, 33

Morgan v. Virginia,

328 U.S. 373 (1946)................................................ 21

Northwest, Inc. v. Ginsberg,

572 U.S. 273 (2014).......................................... 22, 33

Oil Workers v. Mobil Oil Corp.,

426 U.S. 407 (1976)................................................ 23

Parker Drilling Mgmt. Servs., Ltd. v. Newton,

139 S. Ct. 1881 (2019)........................................ 9, 23

Pharm. Rsch. and Mfrs. of Am. v. Walsh,

538 U.S. 644 (2003)................................................ 27

Pike v. Bruce Church,

397 U.S. 137 (1970).......................................... 15, 24

Raymond Motor Transp. Inc. v. Rice,

434 U.S. 429 (1978).......................................... 21, 25

S. Pac. Co. v. Arizona,

325 U.S. 761 (1945).......................................... 21, 26

Tenn. Wine & Spirits Retailers Ass’n

v. Thomas,

139 S. Ct. 2449 (2019)........................................ 8, 27

xi

Ward v. United Airlines, Inc.,

2016 WL 3906077 (N.D. Cal. July 19, 2016) ........ 11

Ward v. United Airlines, Inc.,

466 P.3d 309 (Cal. 2020) ........................................ 12

Ward v. United Airlines, Inc.,

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

Constitutional Provision

U.S. Const. art. I, § 8, cl. 3 ......................................... 8

Statutes

28 U.S.C. §1254 .......................................................... 5

49 U.S.C. §1301 .......................................................... 9

49 U.S.C. §40116 .................................................. 9, 24

49 U.S.C. §41713 ...................................................... 32

Cal. Lab. Code §204 .................................................... 8

Cal. Lab. Code §226 .............................................. 8, 25

Wash. Admin. Code §296-128-660 ........................... 34

Wash. Rev. Code §49.46.210 .................................... 34

Other Authorities

H. Rep. No. 95-1211 (1978) ...................................... 21

Tim Freudenberger et al., Trends in PAGA

claims and what it means for California

employers, Inside Counsel (Mar. 19, 2015),

https://bit.ly/3eoN9Vo .............................................. 8

State Employee Demographics, California

State Controller, https://bit.ly/3nhk2bL

(last visited Sept. 9, 2021) ..................................... 25

PETITION FOR WRIT OF CERTIORARI

Flight attendants work in interstate commerce,

not within the confines of any one state. They spend

the majority of their time in federal airspace, where

federal regulations (and deregulatory policies) hold

sway. The flight attendants’ relationship with the

state jurisdictions they traverse is at best episodic and

transitory. As a consequence, they traditionally have

not been subject to the wage-and-hour laws of any one

state, let alone the conflicting laws of multiple

jurisdictions. Instead, they are paid according to

formulas that result in substantial compensation (well

above state-law minima) and are directly responsive

to the unique and sometimes unpredictable conditions

associated with interstate air travel, where flights can

get cancelled or delayed for myriad reasons. For

example, Petitioner Delta Air Lines uses four different

formulas to calculate flight attendant pay and then

uses whichever formula yields the highest

compensation for the complete rotation.

Respondents filed this lawsuit in an avowed effort

to change those longstanding practices and subject a

wide variety of flight attendants—some with virtually

no connection to California—to California wage-andhour law. Respondents hailed from New York,

Nevada, and California.

Despite their varied

residences and bases, they had at least two things in

common: they concededly spent the vast majority of

their time working outside of California, and they

nonetheless wanted California wage-and-hour law to

govern their pay and wage statements. In particular,

Respondents alleged that Delta failed to comply with

various provisions of the California Labor Code,

2

including minimum wage requirements, Section 204

(governing the timing of pay), and Section 226

(governing the contents of wage statements). The

district court rejected this seemingly far-fetched

attempt to apply these California wage-and-hour laws

to flight attendants who work only a de minimis

amount of time in California.

On appeal, the Ninth Circuit certified questions

concerning the applicability of California law to airline

personnel to the California Supreme Court. The

Ninth Circuit asked, inter alia, whether Sections 204

and 226 apply to wage payments and statements

provided by an out-of-state employer to an employee

who, in the relevant pay period, works in California

only episodically and for less than a day at a time. The

California Supreme Court framed the dispute as

whether “various California wage and hour laws

[apply] to flight attendants who work primarily

outside California’s territorial jurisdiction.” App.5.

Remarkably, the California Supreme Court answered

that question in the affirmative as long as the flight

attendant does not work a majority of his time in

another jurisdiction and begins his required rotation

at a California airport. While the Court recognized

that California wage-and-hour law generally applies

only to workers spending the majority of their

workweek within “California’s territorial jurisdiction,”

it felt compelled to fashion a special rule for “interstate

transportation workers” who are so actively engaged

in interstate commerce that they spend only a small

fraction of their workweek in any one state.

Back in the Ninth Circuit, Delta argued that the

California Supreme Court’s extension of California

3

wage-and-hour law to employees who spent the vast

majority of their workweek elsewhere impermissibly

regulated extraterritorially and unconstitutionally

burdened interstate commerce. The Ninth Circuit

disagreed and upheld California’s extension of certain

wage-and-hour laws into federal airspace. That ruling

is both deeply flawed and profoundly disruptive. The

Ninth Circuit approved California’s avowed extension

of wage-and-hour laws beyond California’s territorial

jurisdiction and into areas where federal regulation

(and deregulatory preferences) govern. Indeed, the

Court went further and called into question the very

notion that state laws could violate the Commerce

Clause by regulating extraterritorially. Worse still,

the Ninth Circuit adopted that view in a case where

the avowed justification for extending California law

was that flight attendants are so actively involved in

interstate commerce that no state has a better claim

to regulation.

This nature-abhors-a-vacuum

justification for projecting state law extraterritorially

would be mistaken in any context, but it is particularly

misplaced in an industry where Congress has

embraced a national policy of deregulation.

Unfortunately, the decision below does not stand

alone, but is of a piece with other recent Ninth Circuit

decisions that interpret both the Commerce Clause

and Airline Deregulation Act narrowly, with the net

effect of putting the operation of interstate airlines at

the mercy of state regulation within the confines of the

Ninth Circuit. See Bernstein v. Virgin America, Inc.,

3 F.4th 1127 (9th Cir. 2021), pet. for cert. filed (U.S.

Aug. 19, 2021); Air Transport Ass’n of Am., Inc. v.

Wash. Dep’t of Labor & Indus., __ F.App’x __, 2021 WL

4

3214549 (9th Cir. July 29, 2021); Ward v. United

Airlines, Inc., 986 F.3d 1234 (9th Cir. 2021).

This Court’s intervention is warranted to protect

interstate air carriers like Delta from being subjected

to California’s extraterritorial regulation and the

threat of a patchwork of conflicting state regulations.

There can be no serious question about the importance

and recurring nature of the issue. California’s highest

court has spoken and the Ninth Circuit has endorsed

its regulatory grab as consistent with federal law.

Thus, airline carriers across the nation are now

subject to California wage-and-hour laws for flight

attendants who spend only a small fraction of their

workweek in California. And the combined effect of

the decision below and other recent Ninth Circuit

decisions paves the way for state regulation of matters

of national concern where the congressional policy

favors deregulation.

The case for this Court’s

intervention is clear.

OPINIONS BELOW

The Ninth Circuit’s opinion, 835 F.App’x 272, is

reproduced at App.1-3. Its order certifying questions

to the California Supreme Court, 889 F.3d 1075, is

reproduced at App.47-59. The Supreme Court of

California’s opinion, 466 P.3d 325, is reproduced at

App.5-46. The district court’s decisions granting

Delta’s motions for partial summary judgment, 153

F.Supp.3d 1094; 230 F.Supp.3d 986, are reproduced at

App.60-103.

JURISDICTION

The Ninth Circuit issued its opinion on February

2, 2021, and denied rehearing on April 13, 2021. This

5

Court has jurisdiction under 28 U.S.C. §1254(1). See

Order (July 19, 2021).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Relevant provisions of the U.S. Constitution and

California Labor Code are reproduced at App.104-12.

STATEMENT OF THE CASE

A. Factual and Legal Background

1. Flight attendants spend the majority of their

time working in federal airspace or in brief stopovers.

As a result, they spend only a small fraction of their

workweek in any one state, and their relationship

with each state they traverse is episodic and

transitory.

As a consequence, flight attendants

traditionally have not been subject to the wage-andhour laws of any state, but instead work under terms

that reflect their unique industry and the federal

government’s regulatory (and deregulatory) approach

to the airline industry.

Staffing commercial flights with pilots and flight

attendants is complicated.

It requires careful

choreography that accounts for a web of federal

regulations, gate availability, air traffic, transfers

between terminals, and more. That coordination also

must be flexible enough to accommodate delays,

inclement weather, sick days, and other unexpected

events that are an unavoidable feature of air travel.

Delta is a leading air carrier that transports

passengers and cargo around the country and the

globe. It is a Delaware corporation headquartered in

Atlanta, Georgia. App.50. Delta employs more than

6

21,000 flight attendants across the United States.

App.79.

In order to comply with its considerable

regulatory obligations and ensure passenger and crew

safety, Delta has developed a system of staffing flights

that allows flight attendants to bid on rotations

scheduled to depart from their base airport the

following month. While each flight attendant is

assigned a base airport, that simply means that a

flight attendant’s “rotation” will begin at that airport.

The base airport is not necessarily located in the flight

attendant’s state of residence, and rarely means that

a flight attendant will spend a significant portion of

his workweek at that airport or in that state. Flight

attendants report to that base for the sole purpose of

departing to work elsewhere on multi-day, multi-state

“rotations.”

As detailed in Delta’s Work Rules, a “rotation” is

a sequence of flights over a day or series of days. Each

rotation comprises one or more “duty periods,”

interspersed with layovers (when flight attendants

are not “on duty” and not working). A “duty period”

starts when a flight attendant reports to an airport

before a flight. The flight attendant then has work

responsibilities before, during, and after a flight;

transit or “sit” time (waiting in another airport before

the next flight); and similar obligations during each

subsequent flight until the duty period ends. App.29.

Flight attendants have substantial control over

which rotations they work. Each month, Delta

circulates a bid packet listing available rotations. The

bid packet details the number and length of duty

periods within each rotation, report times and total

7

scheduled flight times for the flights within each

rotation, and the amount of time the flight attendant

can expect to be away from his base airport. App.3031.

Flight attendants submit their rotation

preferences, and Delta assigns them so that each

flight is staffed in compliance with federal regulations.

Delta pays its flight attendants according to a

credit-based system on the same rotation-by-rotation

basis. Delta uses four different formulas to calculate

pay; each flight attendant is paid based on the formula

yielding the highest compensation for a given rotation.

App.30. The number of hours worked is part of those

various calculations; however, Delta does not pay by

the hour, or pay for only some hours and not others.

App.30.

Delta pays flight attendants semimonthly and

provides a wage statement with each payment.

App.63-64. Those statements show the category of

payments made but not hours worked or hourly rates,

as flight attendants are not paid directly on an hourly

basis. App.63. Delta also provides flight attendants a

monthly “activity pay statement” showing details

about each flight in a rotation, including flight time.

The statement breaks down current monthly pay

based on flight credits and various forms of premium

pay. App.63-64; 87 n.9. The pay statement reflects

the unique nature of interstate air travel, and does not

follow the dictates of any one state law.

2. California wage-and-hour law is notorious for

the detail in which it regulates matters left

unaddressed by the federal Fair Labor Standards Act

(FLSA) and other state laws. E.g., Armenta v. Osmose,

Inc., 135 Cal. App. 4th 314, 324 (2005) (identifying

8

“clear legislative intent” to regulate beyond the

FLSA). It is equally notorious for its potential to

generate class litigation and outsized liability via

California’s Private Attorneys General Act, or PAGA.

Tim Freudenberger et al., Trends in PAGA claims and

what it means for California employers, Inside

Counsel (Mar. 19, 2015), https://bit.ly/3eoN9Vo.

The two provisions directly at issue here

exemplify the detail at which California wage-andhour law regulates the timing of pay and the contents

of wage statements. Section 204 requires full payment

of “all wages” twice monthly. Cal. Lab. Code §204(a).

Section 226 requires employers to provide employees,

“semimonthly or at the time of each payment,” written

wage statements itemizing the total hours worked,

applicable hourly rates, hours worked at each rate,

gross and net wages earned, deductions, and more. Id.

§226(a). Section 226 provides that an employee must

be able to “promptly and easily determine” the

required information “from the wage statement

alone.” Id. §226(e)(2)(B)-(C). Violations may result in

penalties of up to $4,000 for each injured employee,

plus fees and costs and additional potential penalties

under PAGA. Id. §226(e)(1).

3. The Commerce Clause of the U.S. Constitution

gives Congress power to “regulate commerce … among

the several States.” U.S. Const. art. I, § 8, cl. 3. This

Court has long held that the Clause “prohibits state

laws that unduly restrict interstate commerce.” Tenn.

Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct.

2449, 2459 (2019). The Clause reflects a “special

concern” with laws that directly regulate interstate

commerce and laws that “project[] … one state

9

regulatory regime into the jurisdiction of another

state.” Healy v. Beer Inst., Inc., 491 U.S. 324, 336-37

(1989).

There is a distinct temptation for states to project

their laws extraterritorially into areas that Congress

has reserved for relatively limited regulation. Cf.

Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S.

Ct. 1881 (2019). Congress made just such a judgment

about the airline industry in the Airline Deregulation

Act of 1978 (ADA). The ADA reflects Congress’

judgment that the federal government should embrace

a policy of relative deregulation, and that state and

local governments should not fill the resulting gap

with regulatory policies of their own. 49 U.S.C. §1301;

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

378-79 (1992) (“To ensure that the States would not

undo federal deregulation with regulation of their

own, the ADA included a pre-emption provision[.]”).

Congress has also recognized the distinct work

environment of flight attendants, many of whom do

not spend a majority of their workweek in any one

jurisdiction. For example, Congress has exempted

flight attendants from the overtime requirements of

the FLSA, and devised special rules authorizing the

flight attendant’s state of residence to impose state

income tax even if the flight attendant does not spend

a majority of his time in any one state. See 49 U.S.C.

§40116(f)(2).

B. The Oman Litigation

1. This lawsuit was initiated by four flight

attendants with varying degrees of connection with

California. The lead plaintiff, Dev Anand Oman, is a

New York resident based out of New York’s Kennedy

10

airport. A second plaintiff, Michael Lehr, lives in

Nevada and is based out of San Francisco

International Airport. The remaining plaintiffs, Todd

Eichmann and Albert Flores, live in California and are

based out of Los Angeles International Airport.

App.50. None of the plaintiffs—Respondents here—

spends a majority of his working time in California.

On the contrary, during the relevant period,

Eichmann worked outside California 91.4% of the

time. Lehr, Flores, and Oman likewise worked the

vast majority of time outside California (86%, 89.1%,

and 97.1% of the time, respectively). App.65-66 n.7.

In 2015, Respondents filed a putative class action

in the Northern District of California, alleging that

Delta violated California’s wage-and-hour laws. They

alleged that Delta failed to pay at least minimum

wage for all hours worked, did not pay “all wages” in

accordance with the semimonthly time frame required

by Section 204, and failed to provide comprehensive

wage statements reporting hours worked and

applicable hourly pay rates, as required by Section

226. App.6-7.

The district court granted summary judgment in

Delta’s favor on each of Respondents’ claims. In its

initial opinion, the district court granted summary

judgment on Respondents’ minimum-wage claims.

App.77-103. The court held that even assuming

California law applied, Delta complies with California

minimum-wage law because its pay formulas

expressly consider all hours worked and do not rely on

“averaging.” App.102.

In a subsequent opinion, the district court granted

summary judgment for Delta on Respondents’ timing-

11

of-pay and wage-statement claims. App.60-76. The

court agreed with Delta that Section 226 does not

apply to Respondents’ wage statements because

Respondents worked only a de minimis amount of

time on the ground in California and thus “the ‘situs’

of their work is not California.” App.70. The court

found additional support from the facts that flight

attendants “necessarily work[] in federal airspace” as

well as in multiple states on a daily basis, and that

Delta is based outside California. App.74. Because

Respondents had conceded that Section 204 did not

apply independently of Section 226, the court granted

summary judgment to Delta on those claims. Having

found

California

wage-and-hour

law

either

inapplicable or satisfied, the district court had no

occasion to address Delta’s argument that application

of California wage-and-hour law would violate the

Commerce Clause. App.75 n.12.

Meanwhile, pilots and flight attendants filed two

suits raising similar claims under California wageand-hour law against United Airlines. See Ward, 986

F.3d at 1237-38. In both cases (later consolidated on

appeal), separate district courts granted summary

judgment for United. They held that Section 226 only

applies to employees who work “principally” in

California and thus could not apply to pilots or flight

attendants, neither of whom work a majority of the

time in any one state. Id. at 1238. One court further

held that applying Section 226 to United’s pilots would

violate the Commerce Clause.

Ward v. United

Airlines, Inc., 2016 WL 3906077, *5 (N.D. Cal. July 19,

2016).

12

2. Respondents and the Ward plaintiffs appealed.

In both cases, the Ninth Circuit certified questions of

state law to the California Supreme Court. In this

case, the Ninth Circuit asked, inter alia:

(1) Do California Labor Code §§204 and 226

apply to wage payments and wage statements

provided by an out-of-state employer to an

employee who, in the relevant pay period,

works in California episodically and for less

than a day at a time?

App.49.

The California Supreme Court answered the

certified questions in two opinions released on the

same day. The court first articulated the general rule

that Section 226 applies “if an employee works

primarily (i.e., the majority of the time) in California.”

App.10; Ward v. United Airlines, Inc., 466 P.3d 309,

324 (Cal. 2020). The court then announced a special

rule “[f]or interstate transportation workers and

others who do not work more than half the time in any

one state.” Ward, 466 P.3d at 321; see App.10. For

such workers, Section 226 still applies “if the worker

performs some work” in California “and is based in

California, meaning that California serves as the

physical location where the worker presents himself

or herself to begin work.” Ward, 466 P.3d at 321. The

court added that a pilot or flight attendant “presents

himself or herself to begin work” in California if the

pilot or flight attendant “has a designated home-base

airport” in California. Id. at 321, 324. The court

rejected as “not pertinent” any considerations of

employer location, employee residence, receipt of pay,

and payment of taxes. Id. at 324; see also id. at 311

13

(“For pilots, flight attendants, and other interstate

transportation workers who do not perform a majority

of their work in any one state, this test is satisfied

when California serves as their base of work

operations, regardless of their place of residence.”).

In this case, the California Supreme Court framed

the question as whether “various California wage and

hour laws [apply] to flight attendants who work

primarily outside California’s territorial jurisdiction.”

App.5. The court answered in the affirmative for

“interstate transportation workers and others who do

not spend a majority of their working time in any one

state,” if “California serves as their base of work

operations.” App.10. In reaching that conclusion, the

court reaffirmed that California generally applies a

presumption against extraterritorial application and

the default rule that California wage-and-hour law

applies “if an employee works primarily (i.e., the

majority of the time) in California.” App.10. But the

court perceived an especial need to extend California

law to “interstate transportation workers” precisely

because they “do not spend a majority of their working

time in any one state.” App.10. The Court rejected as

unworkable an approach that would apply California

law only to the portions of the workweek spent in

California, and acknowledged that its approach means

that substantial “periods of work outside California

will be covered, if they … are performed by an

employee who primarily works in no state but is based

here.” App.14-15.

The California Supreme Court declined to

definitively decide whether California’s minimum

wage law would apply to Respondents because Delta

14

would satisfy the law in any event. The court

explained that under all four of Delta’s compensation

formulas, flight attendant compensation always

exceeds the state minimum wage per hour worked and

that Delta does not violate state prohibitions against

wage averaging. App.31.

3. When the cases returned to the Ninth Circuit,

Delta and United both argued, inter alia, that the

California Supreme Court’s newly-announced rule

extending California law to “interstate transportation

workers and others who do not spend a majority of

their working time in any one state” violates the

Commerce Clause. The Ninth Circuit disagreed. The

court first rejected any notion that California

discriminated against or directly regulated interstate

commerce because application of California’s wageand-hour laws does not depend on the employer’s

location, and it therefore burdens in-state and out-ofstate employers equally. App.2-3; Ward, 986 F.3d at

1239-40. The Ninth Circuit then rejected the objection

that

California’s

new

approach

involved

impermissible extraterritorial regulation. In the

court’s view, only state statutes that “have the

practical effect of dictating the price of goods sold outof-state or tying the price of in-state products to outof-state prices” are invalid as impermissibly

“extraterritorial[].” Ward, 986 F.3d at 1240; see App.23. Furthermore, the court observed, California’s “ties

to the employment relationship are sufficiently strong

to justify application of” Section 226, because the

covered employees “must perform some of their work

in-state and be based for work purposes in California.”

Ward, 986 F.3d at 1241; see App.2-3.

15

The Ninth Circuit then held that California’s

approach did not impose excessive burdens on

interstate commerce. App.2-3; Ward, 986 F.3d at 1241

(citing Pike v. Bruce Church, 397 U.S. 137, 142 (1970)).

Although both airlines argued that compliance with

California’s new rule and determining which

employees would be subject to it would be complicated

and burdensome, the Ninth Circuit reasoned that the

costs of complying with state regulations are

insufficient on their own to show a substantial burden

on interstate commerce. App.2-3; Ward, 986 F.3d at

1241-42. And while California has a minimal interest

in regulating the working conditions of workers who

spend the vast majority of their workweek elsewhere,

the Ninth Circuit found California’s interest

sufficient. App. 2-3; Ward, 986 F.3d at 1241.

Finally, the Ninth Circuit rejected the contention

that California’s approach would inevitably open up

airlines to a “patchwork of inconsistent regulations

imposed by other States.” Ward, 986 F.3d at 1242; see

App.2-3. In the court’s view, Section 226 does not

“regulate[] in an area that requires national

uniformity.” Ward, 986 F.3d at 1242. “Even if there

are aspects of the interstate transportation industry

that require national uniformity,” the Ninth Circuit

reasoned, “employee wage statements are not among

them.” Id.

Applying those principles to Respondents’ claims,

the Ninth Circuit affirmed in part, reversed in part,

and remanded in part. In light of the California

Supreme Court’s minimum-wage holding, the Ninth

Circuit affirmed summary judgment on Respondents’

minimum-wage claims. App.2. The Ninth Circuit

16

reversed and remanded, however, with respect to

Respondents’ timing-of-pay and wage-statement

claims. App.2-3. Having rejected Delta’s argument

that California’s extraterritorial extension of its wageand-hour laws to interstate transportation workers

violated the Commerce Clause, the Ninth Circuit

remanded for further proceedings with respect to the

flight attendants who began their rotations at

California airports. App.3. As to the lead plaintiff,

Oman, who was based out of New York’s Kennedy

Airport, the Ninth Circuit affirmed the grant of

summary judgment against him. App.3.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit plainly erred in holding that,

consistent with the Commerce Clause, California can

regulate the timing of pay and content of wage

statements provided to interstate transportation

workers who spend the vast majority of their

workweek outside California, simply because they

begin their multi-state, multi-day work rotations in

California.

Not only has California expressly

projected its law beyond its borders to directly

regulate interstate commerce, but its rule

purposefully

targets interstate transportation

workers who principally work in a federal jurisdiction

distinctively subject to federal oversight. California’s

regulation of interstate commerce is intentional,

direct, and substantial.

Worse still, the Ninth

Circuit’s blessing of California’s effort to fill a

perceived gap in the regulation of interstate commerce

invites other states to follow suit, creating a

patchwork of laws undermining the national

uniformity and deregulatory policies that Congress

17

has adopted for the airline industry. California’s

direct and extraterritorial regulation of interstate

commerce is fundamentally inconsistent with the

Commerce Clause. And even if the burdens on

interstate commerce were weighed against local

benefits, the latter are illusory. California has only

the most minimal interest in regulating workers who

spend the vast majority of their workweek elsewhere,

yet exempts hundreds of thousands of its own State

and local workers who spend their workweeks in

California from the wage-and-hour rules at issue here.

California

has devised a

special

rule

extraterritorially applying its wage-and-hour law to

interstate air carriers like Delta, and the Ninth

Circuit has now blessed that approach. The Ninth

Circuit’s decision is inconsistent with this Court’s

precedent and expressly calls into question the

prohibition on extraterritorial legislation outside

narrow contexts. As a result, air carriers are now

subject to California wage-and-hour law for flight

attendants who spend the vast majority of their

working time outside California, and not in any one

particular state but in federal airspace where federal

law governs. Even worse, California’s avowedly

extraterritorial projection of its law invites other

states to follow suit, creating a patchwork of state

regulation of interstate commerce in a field that

Congress, in the ADA, has already recognized as

distinctively federal and where deregulation is the

favored federal policy.

The decision in this case joins other recent Ninth

Circuit decisions that have given short shrift to the

uniquely federal nature of interstate air travel.

18

Congress’ deregulatory preferences provide states

with ample temptation to fill the regulatory vacuum.

By interpreting both the ADA and the Commerce

Clause narrowly, the Ninth Circuit has repeatedly

approved these intrusions and left interstate airlines

at the mercy of state regulation within the Ninth

Circuit. This case presents an ideal vehicle to address

the Ninth Circuit’s errant Commerce Clause

principles as a companion to the pending cases

challenging

the

Ninth

Circuit’s

cramped

interpretation of the ADA. In all events, certiorari is

clearly necessary to rein in the Ninth Circuit’s

misguided and far-reaching jurisprudence.

I.

The Decision Below Is Profoundly Wrong.

A. Applying California Wage-and-Hour

Laws to “Interstate Transportation

Workers” Who Spend the Vast Majority

of Their Working Time Outside

California Violates the Commerce

Clause.

1. This Court has long recognized “the

Constitution’s special concern” with “the maintenance

of a national economic union unfettered by stateimposed limitations on interstate commerce.” Healy,

491 U.S. at 335-36. Accordingly, under the Commerce

Clause,

a

state

may

neither

“directly

regulate[] … interstate commerce” nor legislate

extraterritorially by “‘project[ing] its legislation’ into

other States.” Brown-Forman Distillers Corp. v. N.Y.

State Liquor Auth., 476 U.S. 573, 582-83 (1986)

(quoting Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511,

521 (1935)). California has avowedly done both those

things by adopting a special rule for “interstate

19

transportation workers” who concededly spend only a

small fraction of their workweek in California

precisely because they are actively engaged in

interstate commerce elsewhere. The Ninth Circuit’s

decision endorsing that rule as consistent with the

Commerce Clause is deeply flawed.

In Healy, this Court set forth several guiding

principles to determine whether a state law’s

“extraterritorial effects” render it incompatible with

the Commerce Clause. 491 U.S. at 336. First, the

Commerce Clause “precludes the application of a state

statute to commerce that takes place wholly outside of

the State’s borders, whether or not the commerce has

effects within the State.” Id. Second, “a statute that

directly controls commerce occurring wholly outside

the boundaries of a State exceeds the inherent limits

of the enacting State’s authority and is invalid

regardless of whether the statute’s extraterritorial

reach was intended by the legislature.” Id. The

“critical inquiry” is “whether the practical effect of the

regulation is to control conduct beyond the boundaries

of the State.” Id. Third, the “practical effect of the

statute must be evaluated not only by considering the

consequences of the statute itself, but also by

considering how the challenged statute may interact

with the legitimate regulatory regimes of other States

and what effect would arise if not one, but many or

every, State adopted similar legislation.” Id. That is

so because “the Commerce Clause protects against

inconsistent legislation arising from the projection of

one state regulatory regime into the jurisdiction of

another State.” Id. at 336-37.

20

California’s extension of its wage-and-hour law to

interstate transportation workers who spend the vast

majority of their working time beyond California’s

borders violates all these principles. While Sections

204 and 226 do not by their terms apply

extraterritorially, the rule adopted by the California

Supreme Court is avowedly extraterritorial. The

California Supreme Court itself framed the question

as whether “various California wage and hour laws

[apply] to flight attendants who work primarily

outside California’s territorial jurisdiction,” and

answered that question in the affirmative for workers

who start their rotation in California but spend the

vast majority of their working time elsewhere. App.5.

The degree to which California purports to regulate

conduct “that takes place wholly outside of the State’s

borders,” Healy, 491 U.S. at 336, is staggering. For

example, Respondent Eichmann spends over 90% of

his workweek outside of California, yet California

subjects 100% of his time to California wage-and-hour

law, expressly rejecting a rule that would subject only

work done in California to California law as

unworkable.

Worse still, this direct regulation of interstate

commerce is not incidental, but fully intentional. The

California Supreme Court recognized both the

presumption against extraterritoriality and the

default rule that Sections 204 and 226 apply “if an

employee works primarily (i.e., the majority of the

time) in California.” App.10. But the California

Supreme Court then went on to purposefully extend

the reach of those laws to “interstate transportation

workers and others who do not spend a majority of

their working time in any one state” so long as

21

“California serves as their base of work operations.”

App.10.

In purpose and effect, therefore, the California

Supreme Court fashioned a special rule for “interstate

transportation workers” that applies California wageand-hour law to their work in other jurisdictions, and

that does so precisely because the interstate nature of

their work means that they do not spend the majority

of their time in any one jurisdiction. This special rule

for “interstate transportation workers” thus combines

two cardinal Commerce Clause sins. It not only

avowedly regulates extraterritorially but directly

regulates interstate commerce.

This Court has

repeatedly recognized the dangers of state regulation

where efficient travel across state lines is in the

national interest. E.g., Kassel v. Consol. Freightways

Corp., 450 U.S. 662, 671 (1981) (trucking); Raymond

Motor Transp. Inc. v. Rice, 434 U.S. 429 (1978)

(trucking); Bibb v. Navajo Freight Lines, Inc., 359 U.S.

520, 529-30 (1959) (trucking); Morgan v. Virginia, 328

U.S. 373, 386 (1946) (buses); S. Pac. Co. v. Arizona,

325 U.S. 761, 783-84 (1945) (rail). Those dangers are

even more obviously present when it comes to

interstate air travel, where Congress and the federal

government first regulated intensively, see H. Rep. No.

95-1211, at 1-4 (1978), and then adopted a federal

policy of deregulation in the ADA. Perhaps for that

reason, California’s effort to apply its wage-and-hour

laws to flight attendants spending the vast majority of

their time in interstate travel is as novel as it is

problematic.

The California Supreme Court recognized that it

was consciously departing from its ordinary

22

presumption against extraterritoriality, but felt

compelled to extend its law to “interstate

transportation workers and others who do not spend a

majority of their working time in any one state.”

App.10. This nature-abhors-a-vacuum justification

for the extraterritorial application of state law would

be questionable in any context, but it is entirely

misplaced when it comes to airlines and flight

attendants. Respondents do not spend the majority of

their workweek in any one state, not just because they

are engaged in interstate commerce, but because they

spend much of their time in federal airspace governed

by federal law. And the applicable federal law is

expressly deregulatory. Thus, to the extent the

California Supreme Court perceived a regulatory

vacuum, it was one Congress created intentionally

and did not intend states to fill. As its very name

indicates, the ADA evinces a broad “deregulatory

aim,” Northwest, Inc. v. Ginsberg, 572 U.S. 273, 283

(2014), and includes a broadly worded preemption

clause “[t]o ensure that the States would not undo

federal deregulation with regulation of their own,”

Morales, 504 U.S. at 378.

This is not the first time this Court has confronted

an effort to project state law into a federal realm in an

effort to fill a perceived vacuum.

This Court

confronted and rejected such an effort in Parker

Drilling.

The plaintiffs there sought to project

California’s wage-and-hour laws onto the Outer

Continental Shelf to regulate matters that the FLSA

left unregulated. While the Ninth Circuit endorsed

that extraterritorial projection of California wageand-hour law, this Court unanimously reversed. This

Court rejected that effort to fill gaps in federal law

23

with California wage-and-hour law even though the

statute at issue there authorized borrowing state law

in limited circumstances. See 139 S. Ct. at 1886-93.

Similarly, in an earlier case involving employment on

the high seas, this Court rejected the notion that a gap

in coverage justified the extraterritorial extension of

Texas labor law. See Oil Workers v. Mobil Oil Corp.,

426 U.S. 407, 420-21 (1976). As the Court reasoned

there, “[i]t is immaterial that Texas may have more

contacts than any other State with the employment

relationship in this case, since there is no reason to

conclude” that under the applicable federal law “some

State or Territory’s law … must be applicable.” Id. at

420. As Oil Workers demonstrates, sometimes a gap

in coverage is entirely compatible with federal policy.

That is particularly true when the federal policy

favors deregulation.

California’s effort to apply its wage-and-hour laws

outside its territorial jurisdiction to interstate

transportation workers who spend the vast majority of

their time working elsewhere also creates the

potential for conflicting state requirements that this

Court warned against in Healy. To be sure, if every

state adopted California’s “home base” rule, then no

two states would regulate the pay and wage

statements of the same employee, since each employee

has only one base airport. But nothing guarantees

that other states would regulate based on a flight

attendant’s home base, as opposed to his state of

residence, state where he worked the most hours, the

employer’s home base, or some other basis. Indeed,

once states deviate from the baseline rules that they

cannot regulate extraterritorially or directly regulate

“interstate transportation workers” who spend the

24

majority of their time elsewhere, there is no coherent

limit as to what states could deem a sufficient basis to

apply their own laws to these interstate workers, and

no end to the potential for conflicting obligations. 1

2. Even if California’s special rule for “interstate

transportation workers” did not run afoul of Healy and

the direct prohibitions against laws that regulate

interstate commerce directly or extraterritorially, it

would still impermissibly burden interstate commerce

because the burdens on interstate commerce so

“clearly exceed[] the local benefits.” Brown-Forman,

476 U.S. at 579 (citing Pike, 397 U.S. at 142).

The “local benefits” to California from applying

Sections 204 and 226 to workers like respondents are

trivial. At most, California has adverted to a possible

state interest in ensuring that employees “receive the

information they need to determine whether they have

been paid correctly.” Ward, 986 F.3d at 1241. But

California’s interest in providing that information to a

Nevada resident who spends over 85% of his

workweek outside California is truly negligible.

1 Congress, of course, is free to pick factors that permit states

to regulate such workers in a manner that avoids any potential

for conflict. Congress has done just that in providing that airline

employees (like Respondents) who work in more than two states,

but do not spend a majority of their time in any one, are subject

to the income tax laws of the state where they reside. See 49

U.S.C. §40116(f)(2). Thus, pursuant to Congress’ judgment,

Respondent Lehr pays Nevada income taxes (based on residence)

and yet would get a California wage statement under the decision

below. While Congress can pick from among a variety of

potentially relevant factors to avoid conflicting obligations, the

solution for avoiding conflicting obligations from multiple states

is simpler: they cannot regulate extraterritoriality at all.

25

Moreover, the gaping exceptions in Section 226 make

clear that California itself does not view that interest

as particularly important even for workers who spend

all their workweek in California. Most notably,

Section 226 does not apply to the state as an employer.

Nor does it apply to any “governmental entity” within

the state—be it a city, county, district, or otherwise.

§226(i). That is true even though those workers

presumably work nearly all their hours within

California’s territorial jurisdiction.

If wage

statements including the details laid out in Section

226 are optional for hundreds of thousands of state

and local workers who spend nearly all their time instate, see State Employee Demographics, California

State Controller, https://bit.ly/3nhk2bL (last visited

Sept. 9, 2021), then it simply does not follow that

California has a sufficient interest in ensuring that

such statements are provided to individuals who

spend the vast majority of their time working outside

the state. See Raymond Motor Transp., 434 U.S. at

445 (purported state interest “undercut by the maze of

exemptions … that the State itself allows”); accord

Edgar v. MITE Corp., 457 U.S. 624, 644 (1982).

At any rate, the “local benefits” to California are

clearly exceeded by the burden on interstate

commerce occasioned by applying Sections 204 and

226 to flight attendants who work a majority of time

outside California, do not work a majority of time in

any state, and are quintessential employees involved

in interstate commerce governed by a federal law that

recognizes the need for national uniformity. See, e.g.,

Bibb, 359 U.S. at 527-29 (holding that burden on

interstate commerce outweighed Illinois’ interest in

its preferred shape of mud flaps on trucks and

26

trailers); Southern Pacific, 325 U.S. at 771 (holding

that because national uniformity was “practically

indispensable to the operation of an efficient and

economical national railway system,” Arizona law

limiting train length violated Commerce Clause). The

burdens of complying with California wage-and-hour

laws are substantial, especially because the formulas

Delta uses to pay its flight attendants are keyed to the

unique regulatory requirements and practical

constraints of interstate air travel, and do not involve

any set hourly rate. Moreover, the decision below

creates divides within Delta’s previously unified work

force, with flight attendants based at California

airports receiving different wage statements than

flight attendants (including Respondent Oman) based

elsewhere. Moreover, decisions to change a flight

attendant’s base airport now come fraught with

regulatory consequences. And that is just sections 204

and 226. If the “logic” of the decisions below is

extended to the entirety of California wage-and-hour

law, then the burdens on interstate commerce would

be even more substantial, and yet California would

still have only a minimal interest in workers who

spend a majority of their time elsewhere.

Indeed, California would concede that it has no

sufficient interest in respondents who spend roughly

10% of their workweek in California, if only they spent

50-plus percent of their time in any other state, even

one that did not regulate wage statements at all.

California does not have any greater interest in

Respondents just because they spend 90% of their

time in interstate commerce. California’s effort to

regulate them anyway plainly runs afoul of the

Commerce Clause.

27

B. The Ninth Circuit’s Reasoning is Deeply

Flawed.

Against all of this, the Ninth Circuit concluded

that there is no Commerce Clause violation here. It

could do so only by deeming the prohibition on

extraterritoriality limited to a small subset of cases

and downplaying California’s avowed effort to create

special rules for “interstate transportation workers”

lest they escape the regulation of some state. The

Ninth Circuit’s analysis is fundamentally misguided.

The Ninth Circuit began its analysis by casting

doubt on the continued viability of the rule against

extraterritorial regulation of interstate commerce

articulated in Healy. See App.2-3; Ward, 986 F.3d at

1240. Citing its own precedent, the court explained

that it “ha[s] read” this Court’s decision in

Pharmaceutical Research and Manufacturers of

America v. Walsh, 538 U.S. 644 (2003), as “holding

that the extraterritoriality principle derived from the

Healy line of cases now applies only when state

statutes have the practical effect of dictating the price

of goods sold out-of-state or tying the price of in-state

products to out-of-state prices.” Ward, 986 F.3d at

1240 (citing Assn. des Eleveurs de Canards et d'Oies

du Quebec v. Harris, 729 F.3d 937, 951 (9th Cir.

2013)). But this Court has never given Healy so

cramped a reading, before or after Walsh. See, e.g.,

Tenn. Wine & Spirits, 139 S. Ct. at 2471 (citing Healy

with approval); Granholm v. Heald, 544 U.S. 460, 487

(2005) (reaffirming principle that when “a state

statute directly regulates” interstate commerce, the

Court has “generally struck down the statute without

further inquiry”). Nor is there any logical reason that

28

extraterritorial price regulation would be more

problematic than extraterritorial wage regulation.

Having cast doubt on Healy’s continuing vitality,

the Ninth Circuit then breezily concluded that, even

assuming Healy were applicable, California’s

approach was permissible. In doing so, the court did

not even purport to apply any of the principles stated

in Healy that govern whether a state has directly

regulated interstate commerce by projecting its

regulations extraterritorially.

See p.19, supra.

Instead, in the court’s view, “[t]he salient

question … is whether California’s ties to the

employment relationship are sufficiently strong to

justify its assertion of regulatory authority over the

contents of an employee’s wage statements.” Ward,

986 F.3d at 1240. Pointing to the fact that employees

“must be based for work purposes in California and

perform at least some work in California,” the court

held that the “nexus between the State and the

employment relationship is not so casual or slight—as

would be true if California were attempting to

regulate commerce occurring wholly outside its

borders—as to render application of California’s wagestatement law arbitrary or unfair.” Id. at 1241

(quotation marks omitted).

That ignores both what the California Supreme

Court said about its rule and what this Court said in

Healy. As to the former, the California Supreme Court

was forthright that it was extending California wageand-hour law beyond California’s territorial

jurisdiction and regulating 100% of the workweek of

workers who spend the vast majority of their

workweek elsewhere. It specifically rejected a regime

29

in which it would only regulate time spent in

California for one in which it would regulate all the

time of interstate transportation workers who do not

spend the majority of their time in California. As to

the latter, Healy instructed that courts must

“evaluate[] not only … the consequences of the statute

itself, but also … how the challenged statute may

interact with … regulatory regimes of other States

and what effect would arise if not one, but many or

every, State adopted similar legislation.” 491 U.S. at

336. Under the Ninth Circuit’s reasoning, every state

could apply laws to interstate transportation workers

like flight attendants so long as there was some

“nexus” between the law and the employment

relationship. Under the Ninth Circuit’s lax standard,

that nexus would be readily established in myriad

conflicting ways—for example, as noted, a state could

conclude that the nexus is satisfied based on, inter

alia, employee residency, employer residency, or

where the employee spends the plurality of his work

time. Under that standard, a patchwork of conflicting

laws would proliferate.

But see CTS Corp. v.

Dynamics Corp. of Am., 481 U.S. 69, 88 (1987)

(collecting cases where Court “invalidated statutes

that may adversely affect interstate commerce by

subjecting activities to inconsistent regulations”).

The Ninth Circuit’s conclusion that California’s

approach does not excessively burden interstate

commerce likewise lacks merit and reinforces its

incorrect holding as to extraterritoriality, for the court

wholly failed to properly account for the burdens on

interstate commerce. The court glibly suggested that

interstate air carriers could “easily” comply with

Section 226 by “issuing §226-compliant wage

30

statements to all pilots and flight attendants whose

home-base airport is located in California.” Ward, 986

F.3d at 1242. But the California rule first requires

airlines to screen out California-based employees who

work a majority of their time in another state, and

then attempt to fit the square peg of Delta’s air-travelspecific wage formulas into the round hole of state

regulation designed for ordinary hourly employees.

The Ninth Circuit also failed to account for the

distinctively federal nature of interstate air travel.

Indeed, the court explicitly stated that Section 226

does not “regulate[] in an area that requires national

uniformity,” Ward, 986 F.3d at 1242, which cannot be

squared with Congress’ contrary judgment in the

ADA, with this Court’s precedents addressing other

interstate transportation industries, or with common

sense. And when the Ninth Circuit grudgingly

acknowledged, in the very next breath, that there

might be “aspects of the interstate transportation

industry that require national uniformity,” it

nevertheless concluded that “employee wage

statements are not among them” because compliance

with California law purportedly would not

“disrupt … interstate service.” Id. But that is not the

standard.

States can impermissibly regulate

extraterritorially, burden interstate commerce, and

interfere with Congress’ deregulatory intent while

stopping short of disrupting interstate service. The

Ninth Circuit seemed to think compliance with

California wage-and-hour law is straightforward

because no other jurisdiction is actively regulating

flight attendant wage statements. But that vacuum is

a product of no state’s having a valid interest in

directly regulating interstate commerce as well as the

31

federal government’s deregulatory policy. The Ninth

Circuit mistook the deliberate absence of federal

regulation as an invitation for direct state regulation

of interstate commerce. That erroneous view cannot

stand.

II. The Question Presented Warrants

Court’s Review In This Case.

The

This Court’s intervention is imperative, both to

correct the Ninth Circuit’s disregard for fundamental

Commerce Clause principles and to prevent California

from imposing unprecedented state regulations on

employees who concededly spend the vast majority of

their workweek outside of California and are actively

engaged in interstate commerce. In addition to the

immediate burdens that Delta will bear under

Sections 226 and 204 as a result of the Ninth Circuit’s

holding, see pp.29-30, supra, the court’s erroneous

ruling paves the way for greater burdens under

California law and the law of other states. The

California Supreme Court framed the question

broadly as whether “various California wage and hour

laws [apply] to flight attendants who work primarily

outside California’s territorial jurisdiction.” App.5.

And the Court’s reasoning would authorize other

states to seize on the same or different relatively

minimal

connections

to

regulate

interstate

transportation workers who spend the majority of

their workweek out-of-state.

The Ninth Circuit gave the green light to

California’s erection of special rules for interstate

transportation workers who spend the majority of

their time elsewhere by reading the Commerce Clause

narrowly and calling into question its prohibition

32

against extraterritorial regulation. As problematic as

that decision is, it does not stand alone. It is part of a

pattern of recent Ninth Circuit decisions that read

both the Commerce Clause and the ADA narrowly,

with the net result that states within the Ninth

Circuit have a broad path to regulate what Congress

has chosen to leave unregulated. In each of those

cases, the Ninth Circuit has declined to apply federal

law that protects airlines from patchwork burdens on

a quintessentially interstate industry.

These

decisions—which are or will soon be the subject of

other

petitions

for

certiorari—collectively

demonstrate that this Court must step in to provide a

much-needed course correction.

For example, the Ninth Circuit has complemented

its cramped view of the Commerce Clause with an

exceedingly narrow view of the ADA’s preemption

provision. The ADA provides that 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 that may provide air

transportation under this subpart.”

49 U.S.C.

§41713(b)(1). This Court has described that clause as

“broad,” “deliberately expansive,” and “conspicuous for

its breadth.” Morales, 504 U.S. at 383-84. The Ninth

Circuit, by contrast, has read the clause far more

narrowly. In Ward, the Ninth Circuit reiterated its

holding from Dilts v. Penske Logistics, LLC, 769 F.3d

637 (9th Cir. 2014), that only those state laws that

“bind” air carriers “to specific prices, routes, or

services” are preempted. Ward, 986 F.3d at 1243. On

that basis, it rejected United’s argument that Section

226 is preempted by the ADA, a ruling that binds

Delta on remand unless it is reviewed and reversed.

33

The Ninth Circuit’s “binds” test ignores the broader

language of the statute—and is irreconcilable with

this Court’s precedents holding that the ADA

preempts state laws “having a connection with” rates,

routes, or services. Morales, 504 U.S. at 384; see also

Northwest, 572 U.S. at 284-85; American Airlines, Inc.

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

The Ninth Circuit has applied its overly

restrictive reading of ADA preemption in at least two

other recent cases applying state employment laws to

interstate air carriers. In Bernstein v. Virgin America,

Inc., 3 F.4th 1127 (9th Cir. 2021), pet. for cert. filed

(U.S. Aug. 19, 2021), the Ninth Circuit held that

mandatory meal and rest break requirements imposed

by California law are not preempted by the ADA and

are applicable to flight attendants.

Those

requirements would force flight attendants to take

meal and rest breaks mid-flight, and in turn force

airlines to staff additional flight attendants to cover

those breaks. The obvious disruptions to how airlines

provide “services” were unconvincing to the Ninth

Circuit, which concluded that because the meal and

rest break requirements are generally applicable and

do not “bind[]” an airline to a particular rate, route, or

service, they are not preempted by the ADA. Id. at

1141 (emphasis omitted).

Likewise, in Air Transport Ass’n of America, Inc.

v. Washington Department of Labor & Industries, __

F. App’x __, 2021 WL 3214549 (9th Cir. July 29, 2021),

the Ninth Circuit held that applying Washington’s

paid-sick-leave law to flight attendants and pilots does

not violate the Commerce Clause and is not preempted

by the ADA. The Washington law prohibits employers

34

from penalizing employees for using sick leave or

requiring medical verification for sick leave absences

of fewer than three days.

Wash. Rev. Code

§49.46.210(3); Wash. Admin. Code §296-128-660(1).

The airline industry’s trade group sued to enjoin the

law, arguing that it deprives airlines of their most

important means of preventing sick leave abuse,

which causes flight crew shortages and is thus highly

disruptive to air travel. As in Ward and Bernstein, the

Ninth Circuit held that ADA preemption did not apply

because the paid sick leave law does not itself “bind”

an airline to any particular rate, route, or service.

2021 WL 3214549, at *2. As in this case, moreover,

the court rejected a Commerce Clause objection,

concluding that an increase in flight delays is not a

substantial burden on interstate commerce, the

expense or impossibility of complying with multiple

states’ paid sick leave laws is not a relevant

consideration, and paid sick leave laws are not an

aspect of the interstate transportation industry that

demands national uniformity. Id.; see Ward, 986 F.3d

at 1242.

These decisions demonstrate that the Ninth

Circuit’s narrow reading of both the Commerce Clause

and the ADA creates an untenable dynamic for the

airline industry. 2

With the ADA’s preemption

provision effectively disarmed by the Ninth Circuit’s

2 The Ninth Circuit recently applied its Dilts test to uphold the

application of a California law to the trucking industry,

notwithstanding a federal preemption provision materially

similar to the ADA’s. A petition for certiorari is pending. See

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

for cert. filed (U.S. Aug. 9, 2021).

35

flawed “binds” standard, and the Commerce Clause

read to greenlight even expressly extraterritorial

applications targeted to “interstate transportation

workers,” the national policy of federal deregulation is

all but a dead letter within the confines of the Ninth

Circuit. The combined effect of the Ninth Circuit’s

refusal to enforce Commerce Clause principles and its

cramped interpretation of ADA preemption creates

enormous, unjustified obstacles to operating an

interstate air carrier within the Ninth Circuit.

This Court’s intervention is thus plainly

warranted to rein in the Ninth Circuit’s hostility

toward the interstate transportation industry and

restore a proper understanding of the federal nature

of interstate air travel. This case presents an ideal

vehicle for doing so, as it presents a purely legal

question that was thoroughly addressed in the

decision below, the California Supreme Court’s

certification opinion, and the accompanying California

Supreme Court and Ninth Circuit opinions in Ward.

Furthermore, Delta is not based in California, at least

one named Respondent (Lehr) does not reside in

California, and all Respondents undisputedly spend

the vast majority of their working time outside

California; accordingly, this case allows the Court to

account for these important facts when evaluating the

regulation of interstate commerce here and

California’s purported interests in applying its wageand-hour law extraterritorially.

Finally, the

remaining legal question is dispositive: if Commerce

Clause principles preclude application of Sections 204

and 226 to Respondents, this case is over.

36

This case would also present an appropriate

companion case to cases addressing the Ninth

Circuit’s unduly narrow reading of the ADA. Both the

ADA and the Commerce Clause pose important limits

on states’ ability to regulate interstate transportation

workers in a distinctly interstate industry, and yet the

Ninth Circuit has read both provisions to allow all

manner of state regulation. Granting this petition and

one or more of the petitions raising ADA issues would

allow the Court to consider how the ADA’s preemption

provision and Commerce Clause principles work

together to ensure that interstate air travel remains

unobstructed by state efforts to regulate that

quintessentially federal endeavor.

At a bare

minimum, the Court could grant one of the ADA

preemption cases and hold this petition in the

meantime. The one option that has nothing to

recommend it is to do nothing and to consign the

airline industry to ever-more-erroneous Ninth Circuit

jurisprudence that deems state law paramount and

federal law’s preference for deregulation irrelevant.

37

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

PAUL D. CLEMENT

Counsel of Record

GEORGE W. HICKS, JR.

JULIE M.K. SIEGAL

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

Counsel for Petitioner

September 9, 2021