Petition for Writ of Certiorari — Air Transport Association of America, Inc., dba Airlines for America, Petitioner v. The Washington Department of Labor & Industries, et al.
Supreme Court briefOct 27, 2021
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No. 21-____
In The
Supreme Court of the United States
AIR TRANSPORT ASSOCIATION OF AMERICA, INC. d/b/a
AIRLINES FOR AMERICA,
Petitioner,
v.
THE WASHINGTON DEPARTMENT OF LABOR &
INDUSTRIES, ET AL.,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
ADAM P. KOHSWEENEY
KRISTIN MACDONNELL
O’MELVENY & MYERS LLP
Two Embarcadero Center
San Francisco, CA 94111
(415) 984-8700
HARRY J.F. KORRELL
JOHN HODGES-HOWELL
DAVIS WRIGHT TREMAINE
LLP
950 Fifth Ave., Ste. 3300
Seattle, WA 98104
(206) 622-3150
ANTON METLITSKY
Counsel of Record
O’MELVENY & MYERS LLP
7 Times Square
New York, NY 10036
ametlitsky@omm.com
(212) 326-2000
ROBERT A. SIEGEL
JASON ZARROW
O’MELVENY & MYERS LLP
400 S. Hope St., 18th Fl.
Los Angeles, CA 90071
(213) 430-6005
i
QUESTION PRESENTED
The Airline Deregulation Act (“ADA”) expressly
preempts any state law “related to a price, route, or
service of an air carrier.” 49 U.S.C. § 41713(b)(1). The
question presented is whether that provision
preempts neutral state laws only where those laws
“bind” an airline to a “particular” price, route, or service (as the Ninth Circuit holds), or whether it
preempts any state law that has a “significant impact” on carrier prices, routes, or services, even if that
impact “is only indirect,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 386, 390 (1992) (quotations
omitted), as this Court and several courts of appeals
have held.
ii
PARTIES TO THE PROCEEDING
Petitioner Airlines for America is a trade association. Petitioner was plaintiff in the district court and
appellant in the court of appeals.
Respondents are the Washington Department of
Labor & Industries and Joel Sacks, the Department’s
Director. Respondents were defendants in the district
court and appellees in the court of appeals.
Respondent Association of Flight AttendantsCommunication Workers of America, AFL-CIO was
an intervenor-defendant in the district court and appellee in the court below.
iii
CORPORATE DISCLOSURE STATEMENT
Petitioner Airlines for America has no parent corporation and does not issue stock. No publicly held
company owns more than 10% of Airlines for America.
iv
RELATED PROCEEDINGS
•
Air Transp. Ass’n of Am., Inc. v. Wash. Dept. of
Lab. & Indus. et al., No. 19-35937 (9th Cir.),
amended decision, filed July 29, 2021, available at
859 F. App’x 181.
•
Air Transp. Ass’n of Am., Inc. v. Wash. Dept. of
Lab. & Indus. et al., No. 3:18-cv-05092-RBL (W.D.
Wash.), decision filed October 11, 2019, Judgement Entered: October 15, 2019
v
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................ i
PARTIES TO THE PROCEEDING .......................... ii
CORPORATE DISCLOSURE STATEMENT ......... iii
RELATED PROCEEDINGS .................................... iv
PETITION FOR A WRIT OF CERTIORARI ........... 1
OPINION BELOW .................................................... 1
JURISDICTIONAL STATEMENT .......................... 1
RELEVANT STATUTORY PROVISIONS ............... 1
INTRODUCTION ..................................................... 2
STATEMENT OF THE CASE .................................. 6
A. Statutory Background .................................... 6
B. Factual Background ....................................... 8
C. Procedural Background ................................ 16
REASONS FOR GRANTING THE WRIT.............. 18
I. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER THE PROPER SCOPE OF
THE ADA’S PREEMPTION PROVISION ........ 19
A. The Decision Below Conflicts With The
Precedents Of This Court And Of Other
Circuits ......................................................... 19
1. The Ninth Circuit’s “binds to” test
conflicts with this Court’s precedents
................................................................. 19
2. The Ninth Circuit’s “binds to” test
conflicts with the test in other
circuits ..................................................... 21
B. The
Question
Presented
Is
Exceptionally Important .............................. 23
vi
TABLE OF CONTENTS
(continued)
Page
C. This Case Presents An Ideal Vehicle
Through Which To Resolve The Conflict
Over The Question Presented ...................... 27
D. The Decision Below Is Incorrect .................. 29
II. THE
COURT
SHOULD
IN
THE
ALTERNATIVE HOLD THIS PETITION
PENDING RESOLUTION OF BERNSTEIN ... 32
CONCLUSION ........................................................ 33
APPENDIX A: Court of Appeals Order Denying
Petition for Rehearing En Banc and Amended
Opinion (July 29, 2021) ..................................... 1a
APPENDIX B: District Court Order Denying
Plaintiff’s Motion for Summary Judgment and
Granting Defendants’ Motions for Summary
Judgment (Oct. 11, 2019) ................................ 10a
APPENDIX C: Relevant Statutory Provisions ... 40a
vii
TABLE OF AUTHORITIES
Page(s)
Cases
Air Transp. Ass’n of Am., Inc. v. Wash.
Dep’t of L&I,
2021 WL 2029186 (9th Cir. May 21,
2021) ...................................................................... 17
Air. Transp. Ass’n of Am., Inc. v. Healy,
2021 WL 2256289 (D. Mass. June 3,
2021) ............................................................ 5, 24, 28
Am. Airlines, Inc. v. Wolens,
513 U.S. 219 (1995) ............................................. 2, 7
Bernstein v. Virgin Am., Inc.,
3 F.4th 1127 (9th Cir. 2021) ....................... 3, 20, 23
Branche v. Airtran Airways, Inc.,
342 F.3d 1248 (11th Cir. 2003) ............................. 23
Cal. Div. of Lab. Standards
Enforcement v. Dillingham Constr.,
N.A., Inc.,
519 U.S. 316 (1997) ................................................. 8
Cal. Trucking Ass’n v. Bonta,
996 F.3d 644 (9th Cir. 2021 ...................3, 21, 22, 23
Dan’s City Used Cars, Inc. v. Pelkey,
569 U.S. 251 (2013) ............................................. 7, 8
Delta Air Lines, Inc. v. N.Y. City Dep’t
of Consumer Affairs,
--- F. Supp. 3d ----, 2021 WL 4582138
(E.D.N.Y. Sept. 30, 2021) ............................... passim
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
DiFiore v. Am. Airlines, Inc.,
646 F.3d 81 (1st Cir. 2011) ................................... 21
Dilts v. Penske Logistics, LLC,
769 F.3d 637 (9th Cir. 2014) ................................. 22
Kassel v. Consol. Freightways Corp. of
Del.,
450 U.S. 662 (1981) ............................................... 26
Koutsouradis v. Delta Air Lines, Inc.,
427 F.3d 1339 (11th Cir. 2005) ............................. 23
Mass. Delivery Ass’n v. Healey,
821 F.3d 187 (1st Cir. 2016) ................................. 22
Morales v. Trans World Airlines, Inc.,
504 U.S. 374 (1992) ........................................ passim
Nw., Inc. v. Ginsberg,
572 U.S. 273 (2014) ....................................... 2, 7, 21
Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970) ............................................... 25
Raymond Motor Transp., Inc. v. Rice,
434 U.S. 429 (1979) ............................................... 26
Rowe v. N.H. Motor Transp. Ass’n,
552 U.S. 364 (2008) ........................................ passim
S. Pac. Co. v. State of Ariz., ex rel.
Sullivan,
325 U.S. 761 (1945) ............................................... 26
ix
TABLE OF AUTHORITIES
(continued)
Page(s)
Schwann v. FedEx Ground Package
Sys., Inc.,
813 F.3d 429 (1st Cir. 2016) ................................. 22
Travel All Over the World, Inc. v.
Kingdom of Saudi Arabia,
73 F.3d 1423 (7th Cir. 1996) ................................. 22
United Airlines v. Mesa Airlines, Inc.,
219 F.3d 605 (7th Cir. 2000) ................................. 22
Ward v. United Airlines, Inc.,
986 F.3d 1234 (9th Cir. 2021) ........................... 3, 24
Witty v. Delta Air Lines, Inc.,
366 F.3d 380 (5th Cir. 2004) ................................. 22
Federal Statutes
49 U.S.C. § 14501(c)(1) ............................................... 7
49 U.S.C. § 41713(b)(1) .................................... 1, 6, 19
49 U.S.C. App. § 1302(a)(4)........................................ 6
49 U.S.C. App. § 1302(a)(9)........................................ 6
State Statutes and Regulations
21 V.S.A. § 482(b) ..................................................... 30
940 CMR 33.02 ......................................................... 30
Conn. Gen. Stat. § 31-57s(b) .................................... 30
Md. Code Lab. & Empl. § 3-1305(e)(2) .................... 30
Md. Code Lab. & Empl. § 3-1305(g)(1) .................... 30
x
TABLE OF AUTHORITIES
(continued)
Page(s)
N.J.S.A. § 34:11D-2(a) .............................................. 30
ORS 653.626(3)(b) .................................................... 30
RCW 49.46.210(2)(e) ................................................ 30
RCW 49.46.210(2)(g) ................................................ 30
RCW 49.46.210(3) .................................................... 14
RCW 49.46.210(4) .................................................... 14
S.D. Mun. Code § 39.0105(h) ................................... 30
WAC 296-128-630(2) ................................................ 30
WAC 296-128-630(4) ................................................ 30
WAC 296-128-660 .................................................... 14
WAC 296-128-750 .................................................... 30
WAC 296-128-770 .................................................... 14
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Airlines for America (“A4A”) respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for
the Ninth Circuit.
OPINION BELOW
The amended decision of the court of appeals is reported at 859 F. App’x 181, and reprinted in the Appendix to the Petition (“App.”) at 1a-9a.1 The decision
of the district court granting respondents’ motion for
summary judgment and denying petitioner’s motion
for summary judgment is reported at 410 F. Supp. 3d
1162, and is reprinted at App. 10a-39a.
JURISDICTIONAL STATEMENT
The amended decision of the court of appeals was
issued on July 29, 2021. App. 3a. That court denied
rehearing en banc that same day. App. 1a. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISIONS
The ADA’s preemption clause provides, as relevant, that “a State, political subdivision of a State, or
political authority of at least 2 States 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.
1 The court of appeals’ original opinion, which included a factual
error that the court subsequently corrected, is reported at 2021
WL 2029186.
2
§ 41713(b)(1).
The relevant provisions of Washington’s paid sickleave law are reproduced at App. 40a-43a.
INTRODUCTION
Congress enacted the ADA because it concluded
that “maximum reliance on competitive market
forces” would best promote efficient and affordable
national transportation services. Morales, 504 U.S.
at 378 (quotations omitted). “To ensure that the
States would not undo federal deregulation with regulation of their own,” id., Congress included in the
ADA an express preemption provision that preempts
any state law “related to a price, route, or service of
an air carrier.” 49 U.S.C. § 41713(b)(1). This Court
has always construed that provision broadly, holding
that it preempts any state law with a significant impact on prices, routes, and services, even if that impact is only indirect. Morales, 504 U.S. at 386, 38890; see also Rowe v. N.H. Motor Transp. Ass’n, 552
U.S. 364, 370-71 (2008) (construing materially identical trucking deregulation provision).
The question presented here is whether that same
rule applies to neutral state laws of general applicability. In truth, this Court has already answered that
question—it has thrice held that the ADA preempts
state laws of general applicability that have a significant effect on carrier prices, routes, or services. See
Morales, 504 U.S. 374; see also Nw., Inc. v. Ginsberg,
572 U.S. 273 (2014); Am. Airlines, Inc. v. Wolens, 513
U.S. 219 (1995). But the Ninth Circuit has outright
rejected that rule. In a series of cases, including the
decision below, that court has held that such laws are
3
preempted only when they “bind” carriers to “particular” prices, routes, or services. See Bernstein v. Virgin
Am., Inc., 3 F.4th 1127, 1141 (9th Cir. 2021), petition
for cert. docketed, No. 21-260 (Aug. 23, 2021); Cal.
Trucking Ass’n v. Bonta, 996 F.3d 644, 658 (9th Cir.
2021), petition for cert. docketed, No. 21-194 (Aug. 11,
2021); Ward v. United Airlines, Inc., 986 F.3d 1234,
1243 (9th Cir. 2021). Under the “binds to” test, generally-applicable background laws are not preempted,
no matter how significant their impacts, because such
laws by their nature do not bind carriers to particular
prices, routes, or services.
The Ninth Circuit’s rule is irreconcilable with this
Court’s precedent. It also conflicts with the approach
of several other circuits, which apply this Court’s
preemption test. The First Circuit has expressly rejected the “binds to” rule, and the Fifth, Seventh, and
Eleventh Circuits have all held that the ADA
preempts generally applicable state laws when they
have a significant, even if indirect, effect on air carrier
prices, routes, or services.
There is thus a square circuit conflict on an important question of federal law that warrants this
Court’s review: the scope of ADA preemption should
not turn on the happenstance of geography, particularly when national regulatory uniformity was one of
the principal purposes of the ADA in the first place.
And the decision below, along with several recent district court decisions, demonstrates that the circuit
conflict makes all the difference.
The state law at issue here is Washington’s paid
sick-leave law (“PSL”). A4A challenged that law on
the ground (among others) that it is preempted under
4
the ADA as applied to flight crew (i.e., pilots and flight
attendants). A4A’s concern is not the aspect of the
law that requires a minimum amount of paid sick
leave—A4A’s Member Carriers generally provide
more generous leave than the PSL requires. The issue instead is that the PSL disables established mechanisms—oftentimes collectively bargained—that allow carriers to mitigate the effect of flight crew taking
sick leave on very short (or no) notice. The evidence
in the summary judgment record, including the experience of carriers attempting to comply with similar
laws in other jurisdictions, showed that when airlines
cannot employ such mechanisms, the logical and predictable result is flight delays and cancellations that
ripple throughout an airline’s national network and
cause hundreds of thousands of passengers to be delayed per year. That is a significant effect on airline
routes and services under any definition. But the
Ninth Circuit held that this evidence was legally irrelevant because the PSL does not “bind the airlines
to a particular price, route, or service,” and, as a rule,
“generally applicable labor regulations are too tenuously related to airlines’ services to be preempted.”
App. 5a-6a.
While the Ninth Circuit’s flawed interpretation of
the ADA required rejecting A4A’s challenge to the
PSL, A4A and Delta Air Lines recently succeeded in
defeating summary judgment in two nearly identical
challenges to two nearly identical laws—the only difference was that the courts were in circuits that do
not apply the “binds to” test. A Massachusetts district
court recently denied the State’s motion for summary
judgment on a challenge to the Massachusetts paid
5
sick-leave law, rejecting the State’s reliance on Ninth
Circuit case law precisely because the tests for ADA
preemption in the two circuits are irreconcilable. See
Air. Transp. Ass’n of Am., Inc. v. Healy, 2021 WL
2256289 (D. Mass. June 3, 2021). And in New York,
a district court recently granted Delta’s motion for
summary judgment on preemption grounds, and expressly rejected the City’s reliance on the Ninth Circuit’s “binds to” test, observing that “[n]o other circuit,
including the Second Circuit, has adopted such a narrow standard.” Delta Air Lines, Inc. v. N.Y. City Dep’t
of Consumer Affairs, --- F. Supp. 3d ----, 2021 WL
4582138, at *7 (E.D.N.Y. Sept. 30, 2021).
This case thus presents an ideal vehicle to resolve
a circuit conflict on an exceedingly important question
of federal law and to bring the Ninth Circuit’s case
law back in line with the Court’s own ADA preemption precedents. As a matter of prudence, however,
the Court might also wish to refrain from acting on
this petition now, because it is currently considering
a petition for certiorari presenting the same preemption-related question as applied to California’s mealand-rest-brake laws. See Virgin Am., Inc. v. Bernstein, No. 21-260 (docketed Aug. 23, 2021). If the
Court does not wish to consider the cases in tandem
on the merits, it might instead hold this petition for
Bernstein. And if the Ninth Circuit’s decision in that
case is reversed, the Court should grant the petition
here, vacate the decision below, and remand for further consideration in light of the standard announced
in Bernstein.
6
STATEMENT OF THE CASE
A. Statutory Background
In 1978, Congress deregulated the airline industry. After years of experience with federal and state
regulation, Congress determined “that ‘maximum reliance on competitive market forces’ would best further ‘efficiency, innovation, and low prices’” as well as
“variety and quality of air transportation services.”
Morales, 504 U.S. at 378 (quoting 49 U.S.C. App.
§§ 1302(a)(4), (9) (alterations omitted)). “To ensure
that States would not undo federal deregulation with
regulation of their own,” Congress included in the
ADA a “broadly worded” and “deliberately expansive”
express preemption provision. Id. at 378, 384 (quotations omitted). That provision preempts any state
“law related to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b)(1).
This Court has on several occasions considered the
ADA’s application to state laws of general applicability and each time this Court held that the law was
preempted. The first was Morales, where the Court
held that the ADA preempted application of a state’s
general consumer protection statute to allegedly deceptive fare advertisements, in part because it was
“clear as an economic matter that state restrictions on
fare advertising have the forbidden significant effect
upon fares.” 504 U.S. at 388. Especially relevant
here, the Court rejected the argument that the ADA
“only pre-empts the States from actually prescribing
rates, routes, or services.” Id. at 385. And the Court
rejected “the notion that only state laws specifically
addressed to the airline industry are pre-empted,
whereas the ADA imposes no constraints on laws of
7
general applicability.” Id. at 386.
The Court reiterated this point twice more. First,
in American Airlines, Inc. v. Wolens, 513 U.S. 219
(1995), the Court held that the ADA preempted application of a state’s general consumer fraud statute to
an airline’s frequent flier program. And most recently, in Northwest, Inc. v. Ginsberg, 572 U.S. 273
(2014), the Court held that the ADA preempted application of a state common-law breach-of-implied covenant claim arising from an airline’s frequent flier program. All of these cases involved generally-applicable
background laws and all were preempted.
The Federal Aviation Administration Authorization Act (“FAAAA”) contains a similar preemption
provision, 49 U.S.C. § 14501(c)(1), designed “to preempt state trucking regulation,” and this Court has
construed the ADA and FAAAA in a materially identical manner because of their materially identical language. Rowe, 552 U.S. at 364.2 In Rowe, this Court
reaffirmed Morales, holding “that the state laws
whose ‘effect’ is ‘forbidden’ under federal law are those
with a ‘significant impact’ on carrier rates, routes, or
services.” Id. at 375 (quoting Morales, 504 U.S. at
390); see also id. at 370-71. The Court also rejected
Maine’s argument that the FAAAA’s “related to” language applied differently to laws with a “public health
2 The scope of FAAAA preemption differs from the ADA only in
that the FAAAA also requires a connection “to transportation of
property.” 49 U.S.C. § 14501(c)(1). This qualification “limits the
scope of preemption” under the FAAAA, Dan’s City Used Cars,
Inc. v. Pelkey, 569 U.S. 251, 261 (2013) (quotations omitted), but
it is not relevant here.
8
objective.” Id. at 373-74. Rowe observed that allowing Maine to enforce its tobacco delivery law would
necessarily “allow other States to do the same,” which
could “easily lead” to precisely the type of “regulatory
patchwork” that Congress meant to prevent. Id. at
373.
All of that said, “the breadth of the words ‘related
to’ does not mean the sky is the limit.” Dan’s City, 569
U.S. at 260. “[A]s many a curbstone philosopher has
observed, everything is related to everything else.”
Cal. Div. of Lab. Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335 (1997)
(Scalia, J., concurring). Thus, the Court has held that
the ADA and FAAAA would not preempt “state laws
against gambling and prostitution,” Morales, 504 U.S.
at 390, or “a prohibition on smoking in certain public
places,” Rowe, 552 U.S. at 375. Those types of laws
“affect rates, routes, or services in ‘too tenuous, remote, or peripheral a manner.’” Id. (quoting Morales,
504 U.S. at 390). But that does not mean that “generally applicable labor regulations,” as a rule, “are too
tenuously related to airlines’ services to be preempted
by the Act,” App. 5a-6a, which is why this Court repeatedly has held generally applicable laws
preempted. No matter the form of the law, the test is
always the same: state laws that significantly impact
prices, routes, or services are preempted, even if that
impact is only indirect.
B. Factual Background
1. A4A Member Carriers3 provide air transporta-
3 These are Alaska, American, Atlas, FedEx, Hawaiian, JetBlue,
9
tion on an overwhelmingly interstate and international, rather than intrastate, basis. As of June 2018,
for example, the vast majority of flights at American
(94.7%), Delta (95.7%), JetBlue (96%), Southwest
(94.2%), and United (93.5%) were interstate. ER329.4
Meanwhile, Alaska Airlines—which is headquartered
in Washington and offers the most non-stop service to
and from Washington of A4A’s Member Carriers—operates only 2.5% of its total routes within that State.
Id. In 2017, moreover, all of its intrastate, non-stop
flights transported passengers who began or ended
their trips outside the State. ER331.
“Because of the mobile nature of their work, flight
crew have unusual schedule structures that complicate the use of sick leave.” App. 13a. Pilots and flight
attendants spend the vast majority of their working
time in federally- or internationally-regulated airspace, and not in any one state. Even for on-theground time, flight crew do not necessarily spend the
majority of their time at their “base” or “domicile”—
i.e., the airport where flight crew begin and end their
work assignments. See, e.g., ER540. Since 2016,
Alaska’s Sea-Tac-based flight attendants spent only
about 17% of their on-duty time in Washington, compared to 26-30% in other states, and 54-58% in federally- and internationally-regulated airspace. ER340.
Flight crew do not work traditional daily schedules. Instead, they work “trip pairings”—i.e., a series
of flights that typically begin and end at the same
Southwest, United, UPS, and Delta.
“ER” refers to the excerpts of record A4A submitted in the
Ninth Circuit.
4
10
base or domicile airport. ER529; ER252; ER242. Trip
pairings regularly traverse multiple cities and states,
often over a few days, before returning to the base
where they began. ER334-40. The “average” trip
pairing is “one to three days.” ER909.
Crewmembers’ schedules also change frequently;
they rarely fly the same schedules from month-tomonth. See ER728-29, 731. Flight crew can trade,
add, or drop trips after they receive their monthly
schedule, without advance notice to or approval from
the airline. ER541; ER283; ER271; ER252; ER243.
The “frequency” with which this trip-trade right is
utilized is “unique to the airline industry,” providing
“flight attendants and pilots enormous flexibility and
control over their work schedules.” ER494. Another
unique aspect of airline scheduling is that flight crew
rarely can resume their previously-scheduled assignment upon return from illness (because the plane may
be in a different city). See App. 13a; ER285; ER359.
2. Commercial aviation’s unique attributes present unique problems. Short-notice (or no-notice) sick
leave and sick-leave abuse are two of the most vexing.
A4A Member Carriers’ operations—their ability to
take off and land on time, to provide efficient services
to their customers, and to comply with federal regulations—depend on crewmembers’ predictable attendance. Because FAA regulations set minimum staffing
levels for all flights, “[i]f a flight has insufficient crew
on board, the aircraft must wait at the gate until a
sufficient number of crew members is assembled.”
ER537; see, e.g., ER258. When airlines have adequate
notice of leave, they can appropriately re-staff their
flights to avoid delays or cancellations. But when
11
flight crew “call out sick, especially on short notice or
in high volumes, delays and cancellations inevitably
increase because [the airlines] must take the time to
rearrange flight crew to adequately staff flights, or, if
insufficient crew members are available, [they] must
cancel flights.” ER537.
Sick-leave abuse is also a serious problem, more so
here than in other industries. Unscheduled or shortnotice leave (as sick-leave abuse often is, ER224-25)
is exceedingly difficult to manage, and can lead to delays or cancellations. And sick leave “call outs tend to
spike on weekends, holidays, and the days before and
after weekends and holidays,” when airlines are busiest and already stretched thin. ER538; ER495;
ER291; ER275; ER240; ER224; ER595-96.
The resulting delays and cancellations are magnified because of the inherently interconnected (and interstate) nature of air transport. “Given that A4A
[Member Carriers] collectively operate over 13,000
mainline flights per day with [an] average of 131 passengers, even a relatively small (i.e., one percentage
point) increase in delays will delay thousands of passengers each day.” ER372; see ER449. Delays and
cancellations, moreover, are not limited to a single
flight; rather, they “can ripple through a carrier’s network, causing further ‘downstream’ disruptions to
passengers on other flights.” ER360; see ER537;
ER526; ER258-59; ER249. The effects are not limited
to a single state: delays or cancellations on a single
flight in Washington will impact hundreds (if not
thousands) of passengers, “including many who are
not even flying to/from Washington.” ER451.
12
3. For decades, flight crew leave has predominantly been governed by Collective Bargaining Agreements (“CBAs”), which balance flight crews’ interest
in sick leave with the airlines’ needs for predictable
staffing. Each airline’s CBA is nationwide in scope,
ensuring that flight crew are treated uniformly, no
matter the state in which they live, start or end their
shifts, or are working on any given day.
These CBAs have long entitled flight crew to generous leave that in many respects exceeds the PSL’s
requirements. See App. 12a. In exchange, flight crew
unions have allowed airlines critical tools to ensure
predictable staffing. (The same is generally true at
the few carriers where leave is not collectively bargained.) Airlines’ principal tool to minimize short-notice leave is points-based reliability policies. Standard in the industry, these policies allow airlines to assess “points” for employee absences, with the point
values reflecting the level of operational disruption
caused by the absence. See, e.g., ER287-88; ER245;
ER533; ER254; ER549-50. Thus, flight crew receive
minimal points for leave with adequate notice, while
they receive the maximum amount of points for a noshow. See, e.g., ER549; ER533; ER274; ER254;
ER245. Points are not permanent, and flight crew can
(and frequently do) use point-reduction programs
(like the “Stuff Happens Pass” at Virgin America) to
ensure these attendance policies accommodate even
unexpected ailments. ER550; ER289; ER275; ER254.
Airlines cannot discipline or terminate an employee just because they use sick leave. Rather,
points are one factor in the administration of progressive discipline policies. ER287-88; ER245; ER533;
13
ER254; ER549-50. Under these policies, employees
must have extremely poor attendance to trigger discipline, which rarely progresses past a warning.
ER287-88; ER245; ER533; ER254; ER549-50. But
while airlines cannot subject crewmembers to meaningful discipline unless they greatly exceed the normal amount of sick leave or call out sick with shortnotice repeatedly, points-based reliability policies impose accountability on crewmembers who might otherwise be tempted to abuse the system in that manner. E.g., ER549.
Carriers are also permitted in some circumstances
to request medical verification—a primary means to
deter sick-leave abuse. ER544; ER532-33; ER285.
Crewmembers are not automatically required to provide medical verification, but carriers generally reserve the right to request a doctor’s note if they suspect sick-leave abuse. ER244; ER285; ER532-33.
4. The PSL precludes airlines from using the foregoing tools to mitigate the effects of sick leave. Depriving airlines of such mitigation efforts in turn results in substantial delays and cancellations. And
such delays and cancellations ripple through airlines’
national networks and thus cause further delays and
cancellations throughout the country.
a. The PSL’s “primary purpose” was “to give paid
sick leave to employees who did not have [it].” ER6364. That purpose does not apply to the airline industry because “CBAs for pilots and flight attendants [already] provide for sick leave accrual, banking, and
roll-over that generally meet or exceed [PSL]’s requirements.” App. 12a.
14
Even so, the PSL negates airlines’ policies designed to ensure predictable attendance and therefore
on-time flights. The PSL prohibits employers from
counting sick-leave-related absences toward discipline, which effectively invalidates airlines’ reliability
policies. See RCW 49.46.210(3)-(4); WAC 296-128770. The PSL also prohibits employers from requesting medical verification unless (among other things)
the employee misses more than three consecutive
days of work. WAC 296-128-660. Because flight crew
are usually staffed on trips that are three days or
shorter, ER909, the PSL effectively precludes medical
verification for flight crew.
b. Laws like the PSL predictably result in flight
delays and cancellations, as carriers’ efforts to comply
with similar paid sick-leave laws have repeatedly
shown. Consider the following examples from the
summary judgment record.
In April 2015 Virgin America attempted to comply
with New York City’s Earned Sick Time Law
(“ESTA”) by suspending its reliability policy. ER550;
ER581. Sick leave surged among JFK-based flight attendants—“[b]y July 2015, the sick leave usage at
JFK was nearly double that [at Virgin America’s] SFO
or LAX bases.” ER551; see ER375. Virgin America
even “observed flight attendants request base transfers into the airline’s New York City base,” which
“strongly suggest[s] that flight attendants were transferring to a New York City base solely to take advantage of the Act.” Delta, 2021 WL 4582138, at *9.
Pre-ESTA, “it was exceedingly rare for Virgin America to delay or cancel flights due to cabin crew shortages.” ER377. After, “there were three cabin crew
15
shortage cancellations and 103 cabin crew shortage
delays.” Id. (emphasis omitted). Even controlling for
weather and other variables, the delays attributable
to ESTA were “statistically significant” for Virgin
America, while “cabin-crew shortage delays” were
“statistically insignificant” for those airlines that “did
not change their policies” at JFK, ER377-78, and for
Virgin America at other airports, ER470. Ultimately,
“[t]he adverse operational effects, high administrative
burdens, and significant increase in overhead resulting from ESTA compliance contributed significantly
to Virgin America’s decision” to close its New York
base. ER552; ER578-79.
Similarly, since American began complying with
Massachusetts’s sick-leave law, it “has seen a significant increase in the use of sick leave at [Boston], with
sick leave call-outs especially concentrated around
the weekends and winter holidays.” ER239. “[S]ome
flight attendants have” gone so far as to “request[] to
have their base transferred to [Boston] just for the
month of December.” Id. The result is as predicted:
“increased delays, cancellations, and other negative
operational impacts at that station.” Id.
American’s experience was the same in Los Angeles, where it attempted to comply with similar rules
for ground crew. ER224-26; ER381-83. Sick leave became “the biggest operational challenge for ground
operations at LAX,” “increasing on a year-to-year basis” and “spik[ing] on weekends and holidays, which
also tend to be the busiest times for American’s operations.” ER224. American suffered “an increase in
flight delays and service disruptions,” and even
“closed gates at LAX due to insufficient ground crew
16
available to unload baggage and clean, fuel, and service aircraft in between flights.” ER224-25; see also
ER381-83.
Southwest’s experience shows the efficacy of medical verification requirements. In March and April
2017—which corresponded with school spring
breaks—Southwest flight attendants called out sick
at such a high rate that the airline was forced to declare a “sick leave emergency” to avoid “delaying and
cancelling flights.” ER778-79, 781, 784-85. The airline invoked verification, and even provided a doctor,
with the result that the sick leave rates were cut “by
about half.” ER778-79.
5. As the above examples demonstrate, numerous
states and localities have enacted paid sick-leave laws
that are similar in their broad contours. But those
laws differ in almost every conceivable particular, including choice-of-law test, permitted uses of leave,
permitted use of medical verification, and so on. See
infra at 30-31 (demonstrating conflict); ER865,
ER796-827. Thus, if the PSL applies to flight crew,
then airlines will also be required to comply with an
ever-expanding patchwork of conflicting laws nationwide.
C. Procedural Background
A4A filed suit seeking a declaration that the PSL
is preempted by the ADA as applied to flight crew and
violates the Dormant Commerce Clause. On crossmotions for summary judgment, the district court
granted respondents’ motions and denied A4A’s.
The Ninth Circuit affirmed. The court held that
the ADA claim failed as a matter of law because the
17
PSL is a “generally applicable labor regulation[]” and
such laws and regulations are “too tenuously related
to airlines’ services to be preempted by the Act.” App.
5a-6a. Relying on its recent Bernstein decision, the
court of appeals explained that “[t]he proper inquiry
is whether the PSL itself ‘binds the [airlines] to a particular price, route, or service,’” and generally-applicable background laws like the PSL do not bind airlines to specific prices, routes, or services. App. 6a.
(quoting Bernstein, 990 F.3d at 1169-70). The court
below thus did not consider any of A4A’s summary
judgment evidence showing the likely effect of the
PSL on airlines’ actual prices, routes, or services.
The Ninth Circuit also affirmed as to the Dormant
Commerce Clause. In its initial opinion, the court below held there was no genuine fact dispute because
even a “1.2 percent increase in delays … is not a substantial burden on interstate commerce.” Air Transp.
Ass’n of Am., Inc. v. Wash. Dep’t of L&I, 2021 WL
2029186, at *2 (9th Cir. May 21, 2021). The court was
factually mistaken: A4A’s summary judgment evidence showed a 1.2 percentage point increase in delays, which translated to hundreds of thousands of
passengers per year.5 The court corrected itself on rehearing, yet it still held that delays affecting hundreds of thousands of passengers is not a substantial
burden on interstate commerce. App. 7a. The court
also held that airlines could navigate the ever-expanding patchwork of state and local sick-leave laws
5 A simplified example illustrates the difference.
Assuming a
base rate of 10%, a one percent increase would yield 10.1%. By
contrast, a one percentage point increase would yield 11%.
18
“by choosing to comply with the law that imposes the
strictest requirements.” App. 8a-9a.
On July 29, 2021, the court denied rehearing en
banc. On August 25, 2021, the court granted A4A’s
motion to stay the mandate.
This petition followed.
REASONS FOR GRANTING THE WRIT
The court below rejected an ADA preemption challenge because of Ninth Circuit precedent holding that
neutral laws of general applicability are not
preempted under the ADA, even if they have a substantial effect on airline prices, routes, or services.
That legal rule is irreconcilable with decades worth of
this Court’s precedent—and with the ADA preemption precedent of several other circuits—which hold
that even neutral rules are preempted if they have a
significant effect on prices, routes, or services. The
proper scope of ADA preemption is an important
question. And this case presents an ideal vehicle for
this Court to resolve that question: applying the
proper legal rule would indisputably require reversing the judgment below, as two recent decisions applying other circuits’ rules to nearly identical sickleave laws make clear.
The petition should be granted.
19
I. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER THE PROPER SCOPE OF
THE ADA’S PREEMPTION PROVISION
A. The Decision Below Conflicts With The
Precedents Of This Court And Of Other
Circuits
1. The Ninth Circuit’s “binds to” test conflicts
with this Court’s precedents
The decision below is incompatible with this
Court’s precedents. The ADA expressly preempts any
state law “related to a price, route, or service of an air
carrier.” 49 U.S.C. § 41713(b)(1). This Court has always construed this language “broadly,” giving it “expansive sweep.” Morales, 504 U.S. at 384-85 (quotations and alteration omitted); see Rowe, 552 U.S. at
370 (noting congressional approval of “the broad
preemption interpretation adopted by the United
States Supreme Court in Morales” (quotations omitted)). The preemption test under this Court’s cases is
whether the state law has a “significant impact” on
prices, routes, or services, “even if a state law’s effects
on rates, routes, or services is ‘is only indirect.’” Rowe,
552 U.S. at 370-71 (quoting Morales, 504 U.S. at 386).
But that is not the test in the Ninth Circuit, at
least for laws of general applicability. Instead of evaluating such a law’s likely or inevitable effects, the
Ninth Circuit’s preemption test asks whether the law
“binds” carriers to “particular” prices, routes, or services. App. 6a (second emphasis added); supra at 3.
And because laws of general applicability do not bind
carriers in that way, such laws are not preempted in
20
the Ninth Circuit, no matter how significant their effects. In other words, generally-applicable background laws that have a significant but indirect effect
on airline prices, routes, or services are not preempted
in the Ninth Circuit. For example, under the Ninth
Circuit’s rule, generally applicable meal-and-restbreak laws are not preempted even where they are
certain to delay flights and increase prices. See Virgin
Am., Inc. v. Bernstein, No. 21-260 (U.S.) (docketed
Aug. 23, 2021).
That carve-out from ADA preemption for laws of
general applicability is irreconcilable with decades of
unbroken precedent from this Court. This Court held
in Morales that the notion that “the ADA imposes no
constraints on laws of general applicability” is inconsistent with the “sweep” of the ADA’s broad language
and would create “an utterly irrational loophole.” Morales, 504 U.S. at 386. After all, “there is little reason
why state impairment of the federal scheme should be
deemed acceptable so long as it is effected by the particularized application of a general statute.” Id. That
is why this Court has held laws of general applicability preempted by the ADA at least three times. Supra
at 6-7.
A rule recognizing preemption only if the law has
a “binding” effect on “particular” prices, routes, or services is no different than requiring direct regulation
as a precondition to preemption. Indeed, the Ninth
Circuit expressly holds that “Congress did not intend
to preempt generally applicable state transportation,
safety, welfare, or business rules that do not otherwise
regulate prices, routes, or services.” Bernstein, 3
F.4th at 1141 (quotations omitted; emphasis added).
21
This Court has already reversed the Ninth Circuit for
holding that “the prerequisite for preemption” is a
state law that “force[s] the Airlines to adopt or change
their prices, routes or services.” Ginsberg, 572 U.S. at
279 (quotations and alteration omitted). Morales rejected that argument, too, holding that the ADA is not
limited to state laws that “actually prescribe[] rates,
routes, or services.” 504 U.S. at 385. Yet that is somehow still the test in the Ninth Circuit.
2. The Ninth Circuit’s “binds to” test conflicts
with the test in other circuits
Unsurprisingly, then, the Ninth Circuit’s “binds
to” test “creates a circuit split.” Cal. Trucking, 996
F.3d at 671 (Bennett, J., dissenting). As a district
court correctly observed in the recent New York City
sick-leave litigation, while the Ninth Circuit holds
“that a state or local law is preempted only when it
‘binds’ an airline to a particular price, route, or service,” “[n]o other circuit … has adopted such a narrow
standard.” Delta, 2021 WL 4582138, at *7. The First
Circuit has expressly rejected it. And the Fifth, Seventh, and Eleventh Circuits have found state laws
preempted based on their effects even when they do
not bind the carrier to particular prices, routes, or services.
a. The First Circuit rejects a “binds to” preemption
test, even for laws of general applicability. For example, that court has held that the ADA preempted
skycaps’ claim that, under Massachusetts’s general
tipping statute, an airline’s curbside bag-check fee
constituted a tip belonging to the skycaps, even
though the law did not bind the airline to any particular price or service. DiFiore v. Am. Airlines, Inc., 646
22
F.3d 81, 86-88 (1st Cir. 2011). And the court held that
a neutral employee classification law was preempted
where it would “logically be expected to have a significant impact on the actual routes followed for the pickup and delivery of packages.” Schwann v. FedEx
Ground Package Sys., Inc., 813 F.3d 429, 438-39 (1st
Cir. 2016). The First Circuit has acknowledged that
its precedent is “inconsistent with” Dilts v. Penske Logistics, LLC, 769 F.3d 637, 645 (9th Cir. 2014), which
applied the “binds to” test in the Ninth Circuit. Mass.
Delivery Ass’n v. Healey, 821 F.3d 187, 191-92 (1st Cir.
2016). And the Ninth Circuit itself has held that the
First Circuit rule is “contrary to [Ninth Circuit] precedent.” Cal. Trucking, 996 F.3d at 663.
b. The Fifth, Seventh, and Eleventh Circuits likewise apply preemption to laws of general applicability
so long as they have a significant effect on prices,
routes, or services.
For example, the Fifth Circuit held in Witty v.
Delta Air Lines, Inc., 366 F.3d 380 (5th Cir. 2004),
that a plaintiff’s negligence claim regarding seat layout was preempted because it would have had “the
forbidden significant effect on … prices.” Id. at 383
(quotation omitted). The Seventh Circuit held in
Travel All Over the World, Inc. v. Kingdom of Saudi
Arabia, 73 F.3d 1423 (7th Cir. 1996), that generally
applicable tort law was preempted as applied to an
airline’s booking procedures—even though the state
law did not bind the airline to particular prices or services. Id. at 1434; see also United Airlines v. Mesa
Airlines, Inc., 219 F.3d 605, 611 (7th Cir. 2000) (statelaw tort claims preempted “when they would have a
23
significant effect on air carriers’ rates, routes, or services”). And in Koutsouradis v. Delta Air Lines, Inc.,
427 F.3d 1339 (11th Cir. 2005) (per curiam), the Eleventh Circuit held the plaintiff’s breach-of-contract
claim based on baggage-handling services preempted,
even though that common-law claim did not bind the
airline to particular prices, routes, or services. Id. at
1343-44; see also Branche v. Airtran Airways, Inc.,
342 F.3d 1248, 1255 (11th Cir. 2003) (state law
preempted “if it has a sufficient—i.e., significant—impact on … services”).
Each of these state laws had a significant effect on
carrier prices, routes, or services. But each of the
preemption claims would nevertheless be rejected in
the Ninth Circuit, merely because those laws are generally applicable and thus do not “bind” carriers to a
“particular” price, route, or service. Thus, the basic
rule for preemption under the ADA depends entirely
on the happenstance of geography. That state of affairs is intolerable, especially when (as here) one of
Congress’s principal purposes in enacting the ADA
was to ensure uniformity in regulation rather than local balkanization. Morales, 504 U.S. at 378; see also
Rowe, 552 U.S. at 373. Only this Court can resolve
the conflict and bring the lower courts back in line
with its own preemption jurisprudence.
B. The Question Presented Is Exceptionally
Important
1. The proper test for ADA preemption is an issue
of exceptional public importance. The number of recent cases considering the scope of that provision and
its FAAAA analogue reflects that importance. See,
e.g., Bernstein, 3 F.4th at 1141; Cal. Trucking, 996
24
F.3d at 658-59; Ward, 986 F.3d at 1243; App. 5a-6a;
Delta, 2021 WL 4582138, at *5-11; Healy, 2021 WL
2256289, at *10-12. So too does the sheer number of
amici who have criticized the Ninth Circuit’s anomalous rule, including the federal government and more
than a dozen states arguing in favor of preemption.
See Br. for Georgia, et al. as Amicus Curiae (“States
Amicus Br.”), Virgin Am., Inc. v. Bernstein, No. 21-260
(U.S. Sept. 22, 2021); Br. for the United States as
Amicus Curiae (“U.S. Amicus Br.”), Bernstein v. Virgin Am., Inc., No. 19-15382, 2019 WL 4307414 (9th
Cir. Sept. 3, 2019).
Indeed, the importance of the ADA’s preemptive
scope is self-evident, both in general and as applied to
laws like the PSL.
As a general matter, the Ninth Circuit’s test—
which, again, substantially narrows the ADA’s
preemption provision by removing generally applicable laws from its scope—undermines Congress’s express purpose in enacting the ADA, i.e., to deregulate
the commercial aspects of aviation so that prices,
routes, and services would be set by “competitive market forces.” Morales, 504 U.S. at 378. By all accounts,
the ADA has been a resounding success. But by reducing the ADA’s preemption provision to a virtual
nullity and only prohibiting direct regulation, the
panel’s decision and the Ninth Circuit rule it perpetuates threaten to erase these gains, and will clearly
frustrate Congress’s goal of creating a uniform, efficient, and affordable system of interstate transportation.
That general concern is especially acute when it
comes to state laws (like the PSL) that not only raise
25
airline prices, but that directly interfere with airline
routes and services by forcing delays and cancelations. As the federal government has explained, “delays in one airport—due to any cause—can easily
snowball into delays at other airports throughout the
country.” U.S. Amicus Br. at *21. If flights are delayed (or cancelled) in Washington (or other states)
because of insufficient flight crew, the result will be
delays nationwide. Id.; see also States Amicus Br. at
7-14 (expressing concern that Ninth Circuit’s preemption test will harm commerce nationwide). If state
laws are to have such far-reaching extraterritorial effects on interstate commerce, then it should be this
Court that says so.
2. The importance of the question presented is
heightened because of the Ninth Circuit’s parallel
construction of the Dormant Commerce Clause. If the
ADA is to be so narrowly construed as to exclude generally applicable laws regardless of their effect on carrier prices, routes, and services, then the natural alternative to challenge such laws would be the
Dormant Commerce Clause. After all, because of the
inherently interstate and commercial nature of air
transportation, a state law that has a substantial effect on air carrier prices, routes, or services will by
definition have a substantial effect on interstate commerce. And the Dormant Commerce Clause invalidates even facially neutral state laws (like the PSL)
when their burden on interstate commerce “is clearly
excessive in relation to the putative local benefits.”
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
But as the decision below and others demonstrate, see
Pet. for Certiorari, Delta Air Lines, Inc. v. Oman, No.
26
21-396 (Sept. 9, 2021), the Ninth Circuit has not only
precluded ADA preemption claims for generally applicable laws but has at the same time made it all but
impossible to prevail on a Dormant Commerce Clause
challenge to those same laws. That parallel development makes it all the more important for this Court
to ensure that the ADA is construed consistent with
its broad scope.
This case demonstrates the point. A4A brought
not only an ADA but also a Dormant Commerce
Clause challenge to the PSL. A4A’s summary judgment evidence showed that compliance with laws like
the PSL resulted in a 1.2 percentage point increase in
flight delays, translating into hundreds of thousands
of delayed passengers nationwide. Yet the court below held that this increase in delays as a matter of
law was “not a substantial burden on interstate commerce for dormant Commerce Clause purposes.” App.
7a. That decision is irreconcilable with this Court’s
cases,6 not to mention common sense. Delays affecting hundreds of thousands of passengers a year
clearly represent a substantial burden on interstate
commerce—especially at the summary judgment
stage where the evidence must be construed in A4A’s
6 See, e.g., Kassel v. Consol. Freightways Corp. of Del., 450 U.S.
662, 674 (1981) (invalidating state law regulating truck length
because it “engenders inefficiency and added expense”); Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 438, 445-46
(1979) (similar); S. Pac. Co. v. State of Ariz., ex rel. Sullivan, 325
U.S. 761, 772 (1945) (invalidating state law restricting the
length of trains passing through the state because it would “delay” interstate traffic, impede “efficient operation,” and increase
“operating costs”).
27
favor.
In truth, though, there is no reason for courts to
engage in a Dormant Commerce Clause analysis in
this context. The whole point of an express preemption provision like the ADA’s is to invalidate state
laws that have a substantial effect on air carrier
prices, routes, and services—that is, on interstate
commerce—without any need to engage in Pike balancing. But the Ninth Circuit’s exceedingly narrow
approach to the Dormant Commerce Clause reinforces the importance of properly construing the ADA
and ensuring that Congress’s wildly successful effort
to establish market competition and regulatory uniformity is not undermined by judicial fiat.
C. This Case Presents An Ideal Vehicle
Through Which To Resolve The Conflict
Over The Question Presented
This petition presents an ideal vehicle through
which to resolve the question presented and the related circuit conflict. That is because the question
presented is outcome-determinative. If the Court
granted certiorari and adopted (for example) the First
Circuit’s standard, it would have to reverse.
Two recent district court decisions involving ADA
preemption challenges to nearly identical sick-leave
laws in other states—Massachusetts and New York
City—demonstrate the outcome-determinative nature of the circuit conflict.
1. Like Washington here, Massachusetts argued
that its paid sick-leave law was immune from ADA
preemption because it did not “directly regulate[] how
an airline provides services, sets prices, or chooses
28
routes (as opposed to merely regulating how airlines
behave as employers).” Healy, 2021 WL 2256289, at
*10. The district court rejected the State’s argument
precisely because the First Circuit’s test for ADA and
FAAAA preemption is to the contrary. Id.; see also id.
at *12 (noting that the First Circuit had rejected “the
attorney general’s request for a categorical rule
against preemption of background labor laws” like the
Ninth Circuit’s (quotations omitted)). And while the
Ninth Circuit held under its “binds to” test that Washington was entitled to judgment as a matter of law,
the Massachusetts district court denied summary
judgment and set the case for trial so the court could
evaluate the “impact” of the Massachusetts paid sickleave law “on airline operations.” Id. at *9, 12.
2. In the analogous New York City litigation, the
district court went farther and granted the carrier
summary judgment. Like Massachusetts, New York
City argued that its paid sick-leave law was immune
from preemption under the Ninth Circuit’s “binds to”
test, and expressly invoked the Ninth Circuit’s “on
point” decision in this case. Delta, 2021 WL 4582138,
at *6-7. Like the Massachusetts court, the New York
court rejected the argument. “The Court decline[d] to
follow the Ninth Circuit’s decision” because the Ninth
Circuit’s test conflicts with the test in other circuits
and because it is “[in]consistent with the Supreme
Court’s holding in Morales.” Id. at *7. Instead, the
court held that the law was preempted because its
“potential impact goes directly to the availability of
flight attendants, and thus on-time flights, a core service of the airline,” and because “the Act threatens to
subject Delta to a patchwork of state laws that will
29
undermine its ability to compete in a deregulated
marketplace, the purpose for which the ADA was enacted.” Id. at *9, 11.
D. The Decision Below Is Incorrect
It should go without saying at this point that the
decision below was also quite wrong. As explained
above, the Ninth Circuit applied the wrong legal
standard. See supra Part I.A.1. The question, even
for laws of general applicability, is not whether the
law “binds” carriers to any particular price, route, or
service. Rather, the question is simply whether the
PSL would have a “significant impact” on prices,
routes, or services, “even if a state law’s effects on
rates, routes, or services is ‘is only indirect.’” Rowe,
552 U.S. at 370-71 (quoting Morales, 504 U.S. at 386).
If the Ninth Circuit had applied the proper standard, it at least would have denied the State’s motion
for summary judgment, as the Massachusetts and
New York City cases illustrate. A4A introduced substantial summary judgment evidence showing that
the inevitable effect of applying the PSL to flight crew
will be flight delays and cancellations. This evidence
took the form of both expert and lay testimony and
was based in part on natural experiments—namely,
airlines’ efforts to comply with similar laws in other
jurisdictions. A4A’s expert, for example, conducted
multiple regression analyses and concluded that Virgin America’s attempts to comply with New York’s
paid sick-leave law caused a statistically significant
increase in crew-related flight delays and cancellations, ultimately leading Virgin America to close its
New York base. See supra at 14-15; see also App. 7a
(recognizing that Virgin America experienced a 1.2
30
percentage point increase in delays). And based on
more than a century of combined personal experience,
including experience with similar laws in other jurisdictions, A4A’s fact witnesses testified that the PSL
would have exactly these effects. Supra at 15-16.
A4A’s summary judgment evidence also showed
that subjecting airlines to an ever-expanding patchwork of state and local laws will massively burden airline operations. Just consider the following few examples. Oregon allows employers to request medical
verification when they reasonably suspect abuse,
ORS 653.626(3)(b), while Washington does not, WAC
296-128-750; see also, e.g., Md. Code Lab. & Empl. § 31305(g)(1) (medical verification allowed after “two
consecutive scheduled shifts”). While Washington
sets the minimum increment of leave at one hour,
WAC 296-128-630(4), San Diego sets it at two, S.D.
Mun. Code § 39.0105(h), and Maryland sets it at four,
Md. Code Lab. & Empl. § 3-1305(e)(2). Under the
PSL, employees are entitled to use sick leave on the
90th day of their employment, WAC 296-128-630(2),
but in New Jersey the rule is 120 calendar days,
N.J.S.A. § 34:11D-2(a), in Connecticut the rule is 680
working hours, Conn. Gen. Stat. § 31-57s(b), and in
Vermont the rule is one year, 21 V.S.A. § 482(b). In
Washington, an employee can use paid sick leave to
care for an ill sibling or grandparent, RCW
49.46.210(2)(e), (g), but that is not a permitted use in
Massachusetts, 940 CMR 33.02. And so on—states
and localities prescribe different rules for permitted
uses, accrual, carryover, verification, notification, etc.
ER796-827.
A4A’s evidence showed that tracking whether,
31
when, and to whom each of these different state and
local laws apply, and then tracking and monitoring
the use of different paid sick-leave benefits under
each jurisdiction’s regime, for thousands of flight
crew, will be as challenging as it sounds. See ER548;
ER527; ER260-61; ER250; ER241; ER473-79. And assuming compliance is possible at all, compliance costs
will be passed on in part to the flying public in the
form of operational disruption or higher prices,
ER356-57; ER466-68; ER526-28; ER239, 241-42, or
will require an airline to “reduce the number of existing flights it operates or discontinue routes that realize only marginal profit,” ER232; see ER232-33;
ER356-57, 368-69, 380; ER480-85, 491-92. This
threat is especially acute for remote communities
(like Barrow, Nome, and Sitka, to name a few) for
whom “Alaska Airlines is the only daily jet service
provider of both passenger and cargo transportation,
delivering essential medical supplies and specimens,
food, [and] U.S. mail.” ER264, ER 229-34. In other
words, the record here shows that airlines will be subject to the very type of “regulatory patchwork” that
Rowe held was “inconsistent with Congress’ major
legislative effort to leave such decisions, where federally unregulated, to the competitive marketplace.”
552 U.S. at 373.
The Ninth Circuit did not consider any of this evidence in its preemption analysis because it considered
it legally irrelevant. Under the “binds to” test, the
panel explained, “generally applicable labor regulations are too tenuously related to airlines’ services to
be preempted by the Act.” App. 5a-6a. “[B]ecause the
32
PSL does not regulate the airline-customer relationship or otherwise bind the airlines to a particular
price, route, or service, it [was] not preempted by the
ADA” as a matter of law, App. 6a, regardless of what
the evidence showed. Or, as the Delta court put it,
“the Ninth Circuit’s opinion is completely silent on
and indifferent to the ‘services’ that are potentially
impacted by the Washington state law, including the
actual impact the state law will have on services” because it “applie[d] a blanket rule that ‘generally applicable labor regulations’ are not preempted by the
ADA.” 2021 WL 4582138, at *7.
Certiorari should be granted and the decision below reversed.
II. THE COURT SHOULD IN THE ALTERNATIVE HOLD THIS PETITION PENDING
RESOLUTION OF BERNSTEIN
For the reasons just explained, this case presents
the Court with a perfect opportunity to address an important and outcome-determinative issue of federal
law on a fully-developed record. Rather than acting
on the petition now, however, the Court may wish to
hold this case pending resolution of the petition for
certiorari in Virgin America, Inc. v. Bernstein, No. 21260. That case raises the same basic legal question
as this one, but in the context of the California mealand-rest-break statute rather than the Washington
PSL. As A4A explained as amicus curiae in Bernstein,
the “binds to” rule’s application to meal-and-restbreak laws will result in major operational disruptions of the same sort as those described above. Br.
for Amici Curiae Airlines for America and International Air Transport Association, Virgin Am., Inc. v.
33
Bernstein, No. 21-260 (U.S. Sept. 22, 2021). Because
the Bernstein petition will be considered by the Court
before the petition here, the Court may decide that
the more prudent course is to hold this petition in
light of Bernstein. And, if the Court grants certiorari
and reverses the Ninth Circuit’s decision in Bernstein,
it should likewise grant the petition here, vacate the
decision below, and remand for the Ninth Circuit to
apply the correct legal standard under the ADA.
CONCLUSION
For the foregoing reasons, this Court should grant
the petition for a writ of certiorari.
Respectfully submitted,
ADAM P. KOHSWEENEY
KRISTIN MACDONNELL
O’MELVENY & MYERS LLP
Two Embarcadero Center
San Francisco, CA 94111
(415) 984-8700
HARRY J.F. KORRELL
JOHN HODGES-HOWELL
DAVIS WRIGHT TREMAINE
LLP
950 Fifth Ave., Ste. 3300
Seattle, WA 98104
(206) 622-3150
ANTON METLITSKY
Counsel of Record
O’MELVENY & MYERS LLP
7 Times Square
New York, NY 10036
ametlitsky@omm.com
(212) 326-2000
ROBERT A. SIEGEL
JASON ZARROW
O’MELVENY & MYERS LLP
400 S. Hope St., 18th Fl.
Los Angeles, CA 90071
(213) 430-6005
Counsel for Petitioner
October 27, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.