Respondents Brief — Air Transport Association of America, Inc., dba Airlines for America, Petitioner v. The Washington Department of Labor & Industries, et al.

Supreme Court briefJan 28, 2022

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No. 21-627

In the Supreme Court of the United States

AIR TRANSPORT ASS’N OF AMERICA, INC., DBA

AIRLINES FOR AMERICA,

PETITIONER,

WASHINGTON DEP’T OF LABOR & INDUS.; JOEL SACKS,

DIRECTOR OF THE WASHINGTON DEPARTMENT OF

LABOR & INDUS.; ASS’N OF FLIGHT ATTENDANTS–

COMMC’N WORKERS OF AMERICA, AFL-CIO,

RESPONDENTS.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF WASHINGTON’S BRIEF IN OPPOSITION

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

Counsel of Record

ANASTASIA R. SANDSTROM

Senior Counsel

TERA M. HEINTZ

PETER B. GONICK

Deputy Solicitors General

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

noah.purcell@atg.wa.gov

QUESTION PRESENTED

Does the Airline Deregulation Act preempt a

generally applicable Washington sick-leave law that

has no significant impact on airline prices, routes, or

services?

TABLE OF CONTENTS

INTRODUCTION ........................................................1

STATEMENT OF THE CASE ....................................3

Washington Voters Adopted the State’s

Paid Sick-Leave Law to Protect

Workers, Families, and Public Health.............3

Washington’s Sick-Leave Law Has at

Most Imperceptible and Attenuated

Effects on Airline Prices, Routes,

or Services .........................................................6

Washington’s law applies to only

a single airline, Alaska Airlines,

and imposes only minimal new

duties on the company ...........................6

State paid-and-protected-leave

laws do not significantly impact

prices, routes, or services .......................8

Delays caused by alleged sick-leave

abuse or short calls are “virtually

imperceptible” ......................................10

The District Court and Court of Appeals

Ruled that the Airlines Could Not

Demonstrate Washington’s Sick-Leave

Law Causes Significant Impacts to

Prices, Routes, or Services under the

Airline Deregulation Act ................................13

REASONS TO DENY REVIEW ............................... 15

The Ninth Circuit’s Airline Deregulation

Act Analysis Comports with this Court’s

Preemption Decisions .....................................16

iii

The Airlines’ Attempt to Manufacture

a Circuit Split Does Not Warrant

Review .............................................................23

The Ninth Circuit Correctly Applied

This Court’s Precedent in Finding

No Preemption ................................................30

This Case Is a Poor Vehicle and the

Question Presented is Oft and

Recently Denied ..............................................33

This Court’s Decision Should Not Wait

for Bernstein ....................................................34

CONCLUSION .......................................................... 35

TABLE OF AUTHORITIES

Cases

Abdu-Brisson v. Delta Air Lines, Inc.

128 F.3d 77 (2d Cir. 1997) .....................................28

Air Transp. Ass’n of Am. v.

City & County of San Francisco

266 F.3d 1064 (9th Cir. 2001) .......................... 21-22

Air Transp. Ass’n of Am., Inc. v. Healy

No. 18-cv-10651-ADB, 2021 WL 2256289

(D. Mass. June 3, 2021) ................................... 29-30

Amerijet Int’l, Inc. v. Miami-Dade County, Fla.

627 F. App’x 744 (11th Cir. 2015),

cert. denied, 578 U.S. 976 (2016) ...........................34

Anderson v. Am. Airlines, Inc.

2 F.3d 590 (5th Cir. 1993)......................................26

Bedoya v. Am. Eagle Express Inc.

914 F.3d 812 (3d Cir. 2019),

cert. denied, 140 S. Ct. 102 (2019) ............. 22, 28, 34

Bernstein v. Virgin America, Inc.

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

petition for cert. filed sub nom.

Virgin America, Inc. v. Bernstein

No. 21-260 (U.S. Aug. 19, 2021) .................. 2, 22, 34

Bostain v. Food Express, Inc.

159 Wash. 2d 700, 153 P.3d 846 (2007) ..................6

Branche v. Airtran Airways, Inc.

342 F.3d 1248 (11th Cir. 2003) ..............................28

Burnside v. Simpson Paper Co.

123 Wash. 2d 93, 864 P.2d 937 (1994) ....................6

Cal. Div. of Lab. Standards Enf’t v.

Dillingham Constr. N.A., Inc.

519 U.S. 316 (1997) ................................................16

Cal. Trucking Ass’n v. Bonta

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

petition for cert. filed

No. 21-194 (U.S. Aug. 11, 2021) ...... 2, 20, 22, 25-26

Cal. Trucking Ass’n v. Su

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

cert. denied, 139 S. Ct. 1331 (2019) .................22, 34

Campbell v. Vitran Express, Inc.

582 F. App’x 756 (9th Cir. 2014)

cert. denied, 575 U.S. 996 (2015) ...........................34

Costello v. BeavEx, Inc.

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

cert. denied, 137 S. Ct. 2289 (2017) .................27, 34

Dan’s City Used Cars, Inc. v. Pelkey

569 U.S. 251 (2013) ..........................................16, 21

DeCanas v. Bica

424 U.S. 351 (1976) ................................................16

Delta Air Lines, Inc. v.

N.Y.C. Dep’t of Consumer Affs.

__ F. Supp. 3d __, No. 17-CV-1343,

2021 WL 4582138 (E.D.N.Y. Sept. 30, 2021) ........29

DiFiore v. Am. Airlines, Inc.

646 F.3d 81 (1st Cir. 2011) .............................. 24-25

Dilts v. Penske Logistics, LLC

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

cert. denied, 575 U.S. 966 (2015) .... 14-16, 18-20, 22

Egelhoff v. Egelhoff ex rel. Breiner

532 U.S. 141 (2001) ................................................21

Gary v. Air Grp., Inc.

397 F.3d 183 (3d Cir. 2005) ...................................28

Godfrey v. Oakland Port Servs. Corp.

230 Cal. App. 4th (2014)

cert. denied, 577 U.S. 922 (2015) ...........................34

Koutsouradis v. Delta Air Lines, Inc.

427 F.3d 1339 (11th Cir. 2005) ..............................27

MacMillan-Piper Inc. v. Emp. Sec. Dep’t

1 Wash. App. 2d 1055 (2017)

cert. denied, 139 S. Ct. 605 (2018) .........................34

Mass. Delivery Ass’n v. Healy

821 F.3d 187 (1st Cir. 2016) ..................................25

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

976 F.3d 1016 (9th Cir. 2020) ................................20

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) ............................... 14-16, 18-21

N.Y. State Conf. of Blue Cross &

Blue Shield Plans v. Travelers Ins. Co,

514 U.S. 645 (1995) ................................................17

Nw., Inc. v. Ginsberg

572 U.S. 273 (2014) ................................................19

Ortega v. J.B. Hunt Transp., Inc.

694 F. App’x 589 (9th Cir. 2017)

cert. denied, 138 S. Ct. 2601 (2018) .......................34

vii

Parise v. Delta Air Lines, Inc.

141 F.3d 1463 (11th Cir. 1998) ..............................28

People ex rel. Harris v. Pac Anchor Transp., Inc.

59 Cal. 4th 772 (2014)

cert. denied, 547 U.S. 1153 (2015) .........................34

People v. Superior Ct. of Los Angeles Cnty.

57 Cal. App. 5th 69 (2020)

cert. denied sub nom

Cal. Cartage Transp. Express v. California

142 S. Ct. 76 (2021) ................................................34

Pike v. Bruce Church, Inc.

397 U.S. 137 (1970) ................................................33

Rice v. Sioux City Mem’l Park Cemetery, Inc.

349 U.S. 70 (1955) ..................................................23

Rowe v. N.H. Motor Transp. Ass’n

552 U.S. 364 (2008) ......................... 13-15, 18-23, 25

S.C. Johnson & Son, Inc. v.

Trans. Corp. of Am., Inc.

697 F.3d 544 (7th Cir. 2012)..................................27

Schwann v. FedEx Ground Package Sys., Inc.

813 F.3d 429 (1st Cir. 2016) ............................ 25-26

Travel All Over the World, Inc. v.

Kingdom of Saudi Arabia

73 F.3d 1423 (7th Cir. 1996) ..................................27

Ward v. United Airlines, Inc.

986 F.3d 1234 (9th Cir. 2021) ................................22

Watson v. Air Methods Corp.

870 F.3d 812 (8th Cir. 2017) ..................................29

viii

Wellons v. Nw. Airlines, Inc.

165 F.3d 493 (6th Cir. 1999) ..................................28

Witty v. Delta Air Lines, Inc.

366 F.3d 380 (5th Cir. 2004) ..................................26

Rules

Rule 10(a)................................................................... 29

Statutes

29 U.S.C. § 2611(2)(D) ...............................................32

29 U.S.C. § 2651(b) ....................................................32

49 U.S.C. § 41713(b) ..................................................16

Airline Deregulation Act of 1978 (ADA)

Pub. L. No. 95-504,

92 Stat. 1705 ............... 1-2, 13, 15-17, 20, 22, 28, 33

1988 Wash. Sess. Laws 1094 (ch. 236, § 1)................. 8

Wash. Rev. Code § 49.12.270 ......................................8

Wash. Rev. Code § 49.46.200 ......................................3

Wash. Rev. Code § 49.46.210 ........................ 3, 7-8, 31

Other Authorities

Am. Law Inst., Restatement (Second) of

Conflict of Laws (1971) ............................................6

Ctrs. for Disease Control & Prevention,

COVID-19: Travel (updated Jan. 10, 2022),

https://www.cdc.gov/coronavirus/

2019-ncov/travelers/index.html ...............................5

Fed. Aviation Admin., Air Traffic by the Numbers

(last modified Nov. 2, 2021), https://www.faa.gov/

air_traffic/by_the_numbers/ ..................................12

Wash. State Dep’t of Health, Isolation and

Quarantine for COVID-19,

https://www.doh.wa.gov/Emergencies/

COVID19/CaseInvestigationsand

ContactTracing/IsolationandQuarantine

forCOVID19 (last visited Jan. 25, 2022) .................4

INTRODUCTION

This case satisfies none of the Court’s criteria

for granting certiorari. The unpublished opinion

below faithfully applies this Court’s cases, creates no

conflict among lower courts, affects only one employer,

and addresses an issue on which this Court has

recently and frequently denied review. The Court

should again deny review here.

Washington voters enacted a minimum wage

and paid sick-leave law in 2016. Because the law’s

application turns largely on where employees are

based, only a single airline is subject to the law:

Washington-based Alaska Airlines.

Petitioner (“the Airlines”) sued, claiming the

law violates the Airline Deregulation Act (ADA), but

the trial court rejected that argument, finding the law

has no significant impact on airline routes, prices, or

services. Pet. App. 37a. The court of appeals affirmed.

The Airlines now claim that the court of

appeals ruling contravenes this Court’s precedent, but

this Court has never invalidated a generally

applicable state law regulating wages or paid leave

under the ADA or similar statutes. And the court of

appeals faithfully applied this Court’s precedent.

The Airlines also allege a shallow split among

lower courts about how to interpret the ADA, but that

is incorrect. The Airlines allege a real split only with

decisions of the First Circuit, but the decisions they

cite emphasized how intensely factbound they were,

and the First Circuit has approvingly cited Ninth

Circuit cases interpreting this statute. Any seeming

tension is because of the differences in the state laws

being challenged and the different factual records

before the courts. The cases that petitioner alleges

created this split are nearly a decade old, yet this

Court has denied certiorari in a dozen cases during

that period alleging preemption on similar grounds.

See infra p. 34 note 10.

In any event, the split alleged by the Airlines

has no effect on the outcome of this case, making this

a terrible vehicle to address this issue. The Airlines

claim that the ADA preempts “any state law with a

significant impact on prices, routes, and services,”

Pet. at 2, and that the Ninth Circuit has rejected this

rule. But the district court explicitly found that in

this case petitioner failed to prove that Washington’s

law “has a ‘significant impact’ on routes, prices, or

services.” Pet. App. 37a. Thus, even if this Court were

to agree that there is a split of authority and agree

that the Airlines are right about which side is correct,

the outcome here would remain the same.

Because the alleged split has no impact on the

outcome here, there is also no reason to hold this case

until the Court decides whether to grant certiorari in

recent cases raising similar issues where the Court

has called for the views of the Solicitor General.

Bernstein v. Virgin America, Inc., 3 F.4th 1127, 1141

(9th Cir. 2021), petition for cert. filed sub nom. Virgin

America, Inc. v. Bernstein, No. 21-260 (U.S. Aug. 19,

2021); Cal. Trucking Ass’n v. Bonta, 996 F.3d 644, 656

(9th Cir. 2021), petition for cert. filed, No. 21-194

(U.S. Aug. 11, 2021). Even if the Court granted review

in those cases (which it should not), the Court’s

resolution would not alter the outcome here.

The Court should deny certiorari.

STATEMENT OF THE CASE

Washington Voters Adopted the State’s

Paid Sick-Leave Law to Protect Workers,

Families, and Public Health

In 2016, Washington voters passed an initiative

granting paid sick-leave benefits to Washington

employees, finding that “[t]he demands of the

workplace and of families need to be balanced to

promote public health, family stability, and economic

security.” Wash. Rev. Code §§ 49.46.200, .210.1 Under

the law, all Washington-based employees must accrue

at least one hour of paid sick leave per forty hours

worked. Wash. Rev. Code § 49.46.210(1)(a). Nothing

in the law targets or mentions airlines or treats them

differently from other employers. Employees may

use sick leave for care of themselves and their

families, for domestic violence leave, or due to school

or business closures by public health officials.

Wash. Rev. Code § 49.46.210(1).

Paid sick leave allows employees to recover

more quickly from illness and avoid infecting

others. CA9.ER.840, 844-45, 865; CA9.SER.047, 051.

“Medical professionals and public health experts

consistently recommend that sick people stay home

until symptoms subside[.]” CA9.ER.864. The current

pandemic underscores the social benefits of doing so.

Employees are more likely to stay home when sick if

they know they won’t be disciplined for doing so.

See CA9.ER.865, 867. Protected leave also enables an

1 The last publication of the Washington Revised Code

was in 2020.

employee to see a doctor for early intervention or

preventive care, allowing better health outcomes and

reduced medical costs. CA9.ER.865, 873.

Paid sick leave is especially important for

workers whose jobs require them to interact with

many others, like flight attendants. Airline executives

uniformly agree that flight crew must not fly while

sick. CA9.SER.014, 017-18, 024, 103, 137-39. The

nature of flight attendants’ jobs increases the risks of

contracting and transmitting illness. Pet. App. 34a.

Flight attendants are especially vulnerable to

contracting illnesses due to confined working

quarters, continual close contact with passengers, an

environment of recirculated air, irregular work

schedules,

and

interrupted

sleep

patterns.

See CA9.ER.864, 870-71. Flight attendants also pose

risk for community spread of illness through the

nature of their duties, requiring them to move

throughout the aircraft, interact closely with

passengers, and handle items handled by passengers.

CA9.ER.864, 871.recent study suggests that sick

flight attendants are 6.6 times more likely than a sick

passenger to infect someone else on a flight.

CA9.ER.864.

It is particularly important for sick employees

to remain home during the pandemic. The

Washington Department of Health requires at least

five days of isolation for employees who contract

COVID-19.2 Public officials direct sick people to stay

2 Wash. State Dep’t of Health, Isolation and Quarantine

for COVID-19, https://www.doh.wa.gov/Emergencies/COVID19/

CaseInvestigationsandContactTracing/IsolationandQuarantinef

orCOVID19 (last visited Jan. 25, 2022).

home when sick. The CDC also directs people with

COVID-19 to stay home and not travel.3 Failing

to follow advice against travel when sick “prolongs

recovery and spreads disease.” CA9.ER.864.

But without protected leave, employees are more

likely to work while sick, harming their recovery

and increasing the risk of community spread.

See CA9.ER.840, 844-45, 867-68; CA9.SER.047, 051.

While the COVID-19 pandemic has underscored the

risks of discouraging employees from taking time off

work for illness, this is nothing new. Approximately

twenty-six million employed Americans were infected

at the height of the 2009 worldwide H1N1 pandemic,

of which seven million were infected with the H1N1

virus by coworkers coming to work sick. CA9.ER.869.

Experts have concluded that air travel caused the

spread of SARS in 2003 and H1N1 in 2009.

CA9.ER.870-71.

Paid-and-protected-leave laws not only benefit

employees and the public, but also employers. Such

laws lead to “higher morale and productivity, less

absenteeism, and lower rates of turnover.”

CA9.ER.875. Adequate ability to take sick leave also

leads to better employee retention and increased

profits. CA9.ER.875. And because staying home when

sick helps prevent the spread of disease, employers

also avoid costs associated with ill staff members,

which also benefits the State by reducing burdens

to state-funded workers’ compensation systems.

CA9.ER.876.

3 Ctrs. for Disease Control & Prevention, COVID-19:

Travel (updated Jan. 10, 2022), https://www.cdc.gov/coronavirus/

2019-ncov/travelers/index.html.

Washington’s Sick-Leave Law Has at Most

Imperceptible and Attenuated Effects on

Airline Prices, Routes, or Services

Washington’s sick-leave law affects only one

employer and imposes minimal new obligations on the

company. More generally, expert testimony and

quantitative data show that sick-leave laws like

Washington’s have trivial, if any, impacts on prices,

routes, or services.

Washington’s law applies to only a

single airline, Alaska Airlines, and

imposes only minimal new duties on

the company

The record here shows Alaska Airlines is the

only airline subject to Washington’s sick-leave law.

CA9.ER.964.

To determine if Washington law applies to an

employee, the Washington Department of Labor

and Industries applies the Washington-based

employee test. Pet. App. 8a, 25a. That test examines

whether the employee has the “most significant

relationship” with Washington in comparison with

other jurisdictions. CA9.ER.962; CA9.SER.220;

see Am. Law Inst., Restatement (Second) of Conflict of

Laws § 9 (1971); Bostain v. Food Express, Inc.,

159 Wash. 2d 700, 721, 153 P.3d 846 (2007); Burnside

v. Simpson Paper Co., 123 Wash. 2d 93, 100, 864 P.2d

937 (1994); see Pet. App. 15a-16a.

Washington considers Alaska Airlines’ flight

attendants to be covered by Washington law even

though they spend a portion of their time in

other jurisdictions because these employees are

most connected to Washington. CA9.SER.030-032;

Pet. App. 16a. Washington has not reached the same

conclusion as to employees of any other airline.

CA9.SER.961.

The new law imposes minimal obligations on

Alaska Airlines beyond what its existing policies

provided, though these small changes offer important

benefits to workers and public health. For example,

even before enactment of Washington’s law, Alaska

Airlines provided paid sick leave to virtually all

of its flight crew employees. Pet. App. 5a. While

Alaska Airlines previously required 180 days

of probationary employment before leave could be

taken, Washington’s new law applies after 90 days of

employment, ensuring that newer employees are

not required to work while ill. Wash. Rev. Code

§ 49.46.210(1)(d); CA9.SER.042-43.

Before the law, Alaska Airlines did not

discipline its pilots for using sick leave, but did

discipline flight attendants for taking sick leave by

assessing “points.” CA9.SER.044, 879; Pet. App. 13a.

An accumulation of points leads to discipline or

termination. CA9.SER.149, 044. Such disciplinary

systems create incentives to work while ill to avoid

accruing “points.” See CA9.ER.865, 867. The new

law addresses this problem by prohibiting employers,

like Alaska Airlines, from disciplining an employee

simply for taking leave authorized by law. Wash. Rev.

Code § 49.46.210(3).

While Washington’s sick-leave law prohibits

an employer from disciplining an employee for using

sick leave while ill, nothing in the law prohibits

an employer from imposing discipline for improper

or unauthorized use of sick leave. CA9.ER.969.

The law also allows an employer to require reasonable

notice from employees before taking leave.

Wash. Rev. Code § 46.46.210(1)(f ). While the law

restricts

employers

from

requiring

medical

verification from the employee until an employee

has been absent from work for three workdays,

Wash. Rev. Code § 49.46.210(1)(g), this rule will have

no impact on Alaska Airlines because the company

has a policy of not requiring doctors’ notes as a general

principle. CA9.SER.143-44; Pet. App. 14a.

State paid-and-protected-leave laws

do not significantly impact prices,

routes, or services

For decades, airlines have operated in a

regulatory environment of differing national, state,

and local pay protections and leave laws, and there is

no credible evidence that state paid-leave laws

significantly impact airline prices, routes, or services.

For example, since 1988, Alaska Airlines has

complied with Washington’s Family Care Act,

which allows employees to use existing leave to care

for sick family members without discipline.

Wash. Rev. Code § 49.12.270; 1988 Wash. Sess. Laws

1094 (ch. 236, § 1); see also CA9.SER.134, 147-48.

Alaska Airlines has admitted that enactment of the

law caused no operational difficulties for the airline

and that it has not closed any flight crew base,

changed any route, or increased any fare due to

compliance with the law. CA9.SER.056-57, 059, 134,

136. Nor has Alaska Airlines identified increased

delay as an operational impact of its compliance with

the family-care sick-leave law. See CA9.ER.262-92.

Other airlines similarly report insignificant

impacts of complying with state sick-leave laws. For

example, American Airlines follows Massachusetts’

and Los Angeles’ paid-and-protected-leave laws and

has a system of tracking the requirements of these

laws. CA9.SER.097-100, 104-05. American Airlines

assesses no disciplinary points to Massachusetts

flight crew for sick-leave use. CA9.SER.107-08. Yet

American Airlines’ vice president of operations and

crew performance, Charles Schubert, was unaware of

sick leave usage causing American Airlines to close

any flight crew base, change any route, or increase

any fare. CA9.SER.409-10; see also CA9.SER.091-92.

According to Mr. Schubert, American Airlines does

not consider the economics of sick leave when deciding

where to fly: “It is not germane to the conversation.

It’s not going to have an impact as to where we fly or

where we don’t fly.” CA9.SER.401.

Southwest Airlines has also developed tools to

handle compliance and track leave for different

jurisdictions. CA9.SER.160, 416-17. Although

Southwest Airlines complies with sick-leave laws in

Baltimore, Oakland, Atlanta, and Los Angeles, its

senior director of crew support and in-flight

operations could not identify any operational impacts

related to compliance with any jurisdiction’s

sick-leave laws, and as such, did not identify that

compliance with existing sick-leave laws caused

delay or cancellations. CA9.ER.247-55; CA9.SER.157,

418-21. Similarly, he could not identify any decision

by Southwest Airlines not to fly a particular route

because of application of a particular jurisdiction’s

sick-leave law. CA9.SER.154, 159, 416.

United Airlines likewise has not reported that

compliance with state sick-leave laws has caused

operational impacts such as delays or cancellations.

See CA9.ER.524-45. Nor has it attributed any base

closures, fare changes, or route changes to compliance

with sick-leave laws. CA9.SER.178, 183-84. United

Airlines does not supply data about sick-leave use to

those in charge of setting fares. CA9.SER.174-75, 185.

After reviewing the data from several airlines,

long-time airline expert Robert Mann concluded that

“airlines are successfully managing crew resources

under the auspices of differing state and local leave

laws.” CA9.SER.494-95. “[A]irlines operate across the

nation and the world, and have adapted to many

different wage and hour laws, labor protective

practices, minimum wage, and taxing laws across

those jurisdictions. Yet the airline industry continues

to thrive . . . .” CA9.SER.490; see also CA9.SER.440.

The Airlines’ expert likewise could not identify

any current problems from Alaska, American,

Southwest, or United due to compliance with state

paid-leave laws. See CA9.ER.474. Instead, he opined

only that there could be future negative effects from

such laws. CA9.ER.474. Similarly, none of the airlines

have identified any concrete difficulty in identifying

the applicable law, or any burden in applying

Washington’s sick-leave law to Washington-based

employees.

Delays caused by alleged sick-leave

abuse or short calls are “virtually

imperceptible”

Airlines have dealt with varying state laws

governing use of sick leave for years and have

established strategies to address flight crew absences,

including for managing absences for “short calls.”

CA9.SER.161-62, 485-89. Regardless of sick-leave

laws, “call outs tend to spike on weekends, holidays,

and the days before and after weekends and holidays.”

Pet. 11; see also CA9.SER.161-62, 485-89. Airlines

allocate resources accordingly.

Airlines, for example, often replace sick

crewmembers with healthy flight crew from their

reserves and other sources, and use sophisticated

tools to anticipate reserve levels and manage

scheduling demands. CA9.SER.463-65, 102, 155-56,

186, 212-13. For example, an airline may increase its

number of reserve flight crew, use managers to cover

shifts, or move personnel to different bases to cover

projected absences. CA9.ER.240; CA9.SER.167-69,

214; Pet. App. 32a.

As expanded sick-leave laws have taken effect

across the country, impacts on airline operations have

been virtually non-existent. For example, the Airlines’

own expert concluded that after New York adopted a

paid sick-leave law in 2015, there was no statistically

significant impact on flight delays for Virgin America

for over two years. CA9.SER.227, 285-86, 290. While

the same expert found a 1.2 percent increase in delays

for a few months starting two years after the law took

effect, this increase in delays coincided with a period

of turmoil at Virgin America because of the merger of

Virgin America and Alaska Airlines and Alaska

Airlines’ decision to cut reserve pools and close the

flight attendant base in New York. Pet. App. 31a.

Where airlines have alleged delays caused by paid

sick-leave laws, the same pattern has held true:

increases in delays coincide not with new laws taking

effect, but with disruptions like labor disputes or

peaks in flu season. CA9.SER.314-15, 482-85.4

Allegations of increased delay also must be

considered in context. Nearly three million

passengers fly per day in the United States,5 and

airlines have long operated at overall delay rates

of 15-20 percent. Pet. App. 31a. In part for these

reasons, Mr. Mann, reported that the Airlines’

claimed delay “would be virtually imperceptible.”

CA9.SER.343. Because of longstanding policy

decisions by the Airlines that have nothing to do with

state leave laws, “[o]ver a period of decades, the

American flying public has become conditioned and

habituated to airline flight delays, and tolerates flight

delays for all sorts of reasons, with wide variability in

flight-by-flight on-time performance.” CA9.SER.344.

In other words, airlines have long tolerated delays

based on their own economic decisions, building such

delays into their business models. CA9.SER.438,

448-51.

4 For example, the Airlines offer the anecdotal opinion of

an American Airlines executive who attributed increased

sick-leave usage to Massachusetts’ sick-leave law. Pet. 15;

CA9.ER.239; CA9.SER.112. But the executive could not quantify

this increase and conceded that Charlotte, a city with no

sick-leave law, also showed a notable increase in sick leave

during the same period. CA9.SER.113-14. The Airlines also point

to ground operations in Los Angeles (Pet. 15-16), but problems

there were attributed to a long-standing labor dispute

(CA9.SER.482-85), and did not involve air flight operations.

5 Fed. Aviation Admin., Air Traffic by the Numbers

(last modified Nov. 2, 2021), https://www.faa.gov/air_traffic/

by_the_numbers/.

The District Court and Court of Appeals

Ruled that the Airlines Could Not

Demonstrate Washington’s Sick-Leave

Law Causes Significant Impacts to Prices,

Routes, or Services under the Airline

Deregulation Act

The Airlines sued Washington to enjoin

enforcement of Washington’s sick-leave law.

Pet. App. 11a. The district court granted summary

judgment to Washington. Pet. App. 12a.

The district court found that the ADA did not

preempt Washington’s law because the airlines failed

to “show that [Washington’s law] has a ‘significant

impact’ on routes, prices, or services.” Pet. App. 37a

(quoting Rowe v. N.H. Motor Transp. Ass’n, 552 U.S.

364, 371 (2008)).

The district court ruled that, given the scant

and short-term increase in any delays experienced by

Virgin America in New York, there was no evidence

that sick-leave laws substantially increased delay.

Pet. App. 37a-38a.

The district court observed that, to the extent

that Washington’s law “may have some impact on sick

leave abuse, the Airlines have tools to feasibly

mitigate these effects.” Pet. App. 32a. It noted that the

Airlines currently tolerate a 15-20 percent delay rate

for a variety of reasons, and to make sure delays are

not pushed beyond that range, the Airlines analyze

sick-leave trends and allocate resources accordingly.

Pet. App. 32a. “For example, the Airlines may

increase the number of reserve flight crew, prohibit

flight attendants from trading trips, or, in extreme

situations, offer pay incentives for employees to cover

for absent coworkers.” Pet. App. 32a. The district

court also rejected the Airlines’ commerce clause

claim. Pet. App. 32a-33a.

The court of appeals affirmed in an

unpublished memorandum opinion. Pet. App. 9a. The

Airlines raised an ADA argument in four pages at the

end of their sixty-one page opening brief. Given this

cursory argument, the unpublished decision

unsurprisingly did not analyze ADA preemption law

in detail, but followed this Court’s established law in

Morales and Rowe, 552 U.S. at 370-71, as well as

Ninth Circuit law in Dilts v. Penske Logistics, LLC,

769 F.3d 637, 645 (9th Cir. 2014), cert. denied,

575 U.S. 966 (2015), holding that “[s]tate laws that

affect rates, routes, or services in ‘too tenuous, remote,

or peripheral a manner’ are not preempted.” Pet. App.

5a (quoting Morales v. Trans World Airlines, Inc.,

504 U.S. 374, 390 (1992)). It noted that generally

applicable labor regulations that apply to airline

employees in the same way that they apply to

all members of the public are typically “too tenuously

related to airlines’ services to be preempted.”

Pet. App. 5a-6a. It concluded that Washington’s law

was not preempted because it did “not regulate the

airline-customer relationship or otherwise bind

the airlines to a particular price, route, or service.”

Pet. App. 5a-6a (citing Bernstein, 3 F.4th at 1141

(quoting Dilts, 769 F.3d at 646)).

The court of appeals also rejected the Airlines’

commerce clause argument. Pet. App. 6a-9a. “A 1.2

percentage point increase in flight delays—with many

of those delays lasting fewer than fourteen minutes—

is not a substantial burden . . . particularly for an

industry that anticipates delays at much higher rates

under ordinary circumstances.” Pet. App. 7a.

The court of appeals similarly rejected the

argument that airlines cannot comply with multiple

state laws. Pet. App. 8a. Based on the evidence

presented, Washington’s law would apply “primarily

if not solely” to Alaska Airlines, and the Airlines had

not presented “concrete examples of Alaska Airlines

employees who would be covered by multiple paid sick

leave laws” if the Airlines were to comply with

Washington’s law. Pet. App. 8a.

The court of appeals denied the Airlines’

en banc petition, with no judge requesting a vote on

rehearing. Pet. App. 2a.

REASONS TO DENY REVIEW

The Airlines seek to manufacture a reviewable

conflict here by mischaracterizing the unpublished

opinion’s condensed analysis as rejecting this Court’s

established ADA case law and creating a new

preemption test governing all generally applicable

laws. But the court below did no such thing. It did not

draw a dividing line between generally applicable and

non-generally applicable laws at all. Rather, it

followed the analysis of this Court in Morales and

Rowe and the Ninth Circuit’s prior analysis in Dilts,

to “draw a line between laws that are significantly

‘related to’ rates, routes, or services, even indirectly,

and thus are preempted, and those that have ‘only a

tenuous, remote, or peripheral’ connection to rates,

routes, or services, and thus are not preempted.”

Dilts, 769 F.3d at 643 (quoting Rowe, 552 U.S. at 371).

Only in “borderline cases” in which the law has no

significant connection to rates, routes, and services

does the Ninth Circuit examine whether the law

nevertheless has a forbidden “significant impact” on

rates, routes, and services by “binding” carriers to

particular rates, routes, and services. Contrary to the

Airlines’ argument, this analysis is entirely consistent

with this Court’s preemption cases and the decisions

of other circuits. The factbound application of this

decade-old framework to a Washington law with

“virtually imperceptible” impacts on airlines’ prices,

routes, or services does not warrant review.

The Ninth Circuit’s Airline Deregulation

Act Analysis Comports with this Court’s

Preemption Decisions

Contrary to the Airlines’ characterization, the

Ninth Circuit faithfully follows this Court’s ADA

preemption case law. The Ninth Circuit recognizes

that ADA preemption of state laws “ ‘related to

a price, route, or service of [an air] carrier’ ” is

“deliberately expansive.” Dilts, 769 F.3d at 643

(quoting 49 U.S.C. § 14501(c)(1); Morales, 504 U.S.

at 384)); 49 U.S.C. § 41713(b). But this “does not mean

the sky is the limit.” Dan’s City Used Cars, Inc. v.

Pelkey, 569 U.S. 251, 260 (2013).6 As noted in

analyzing ERISA preemption, because “everything

is related to everything else,” California Division

of Labor Standards Enforcement v. Dillingham

Construction N.A., Inc., 519 U.S. 316, 335 (1997)

(Scalia, J., concurring), an overly expansive

6 This broad scope of preemption must still be analyzed

against the backdrop of states’ broad authority under its police

powers to adopt protective regulations for employees. DeCanas

v. Bica, 424 U.S. 351, 356 (1976).

interpretation of “related to” preemption language

would exempt airlines and other carriers from

virtually all state regulation, including obligations

falling on all members of the public such as paying

state taxes or complying with state labor or safety

regulations. See N.Y. State Conf. of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655

(1995) (“If ‘relate to’ were taken to extend to the

furthest stretch of its indeterminacy, then for all

practical purposes pre-emption would never run its

course . . . .”). There is no evidence Congress intended

such expansive preemption of generally applicable

laws as to airlines.

In drawing the line between state laws having

a “significant impact” on rates, routes, or services and

state laws with only remote or attenuated impacts,

this Court has identified four principles governing its

ADA preemption analysis:

(1) state enforcement actions having a

connection with, or reference to, carrier rates,

routes or services are pre-empted;

(2) such pre-emption may occur even if a state

law’s effect on rates, routes or services is only

indirect;

(3) it makes no difference whether a state

law is consistent or inconsistent with federal

regulation; and

(4) pre-emption occurs at least where state

laws have a significant impact related to

Congress’s deregulatory and pre-emptionrelated objectives.

Rowe, 552 U.S. at 370-71 (cleaned up) (quoting

Morales, 504 U.S. at 384-90).7 Laws are not

preempted, however, if they have “only a ‘tenuous,

remote, or peripheral’ ” effect. Id. at 371

(quoting Morales, 504 U.S. at 390).

While the unpublished decision below did not

detail each step of this analysis, it explicitly followed

and applied Rowe and Morales, as well as Dilts.

See Pet. App. 5a. Dilts explains that in determining

preemption, courts first determine whether a state

law has a forbidden “significant impact” by examining

the state law’s connection to prices, routes, or services.

Dilts, 769 F.3d at 645 (quoting Rowe, 552 U.S.

at 370-71). In analyzing this connection, the Ninth

Circuit notes that state laws are more likely to have a

“significant impact” on prices, routes, and services

and to be preempted “when they operate at the point

where carriers provide services to customers at

specific prices.” Id. at 646.

Dilts analyzed the Supreme Court cases cited

by the Airlines here as illustrating the principle

that laws with significant point-of-service impacts

are more likely to be preempted than background

regulations several steps removed from the

Rowe is a Federal Aviation Administration

Authorization Act case; the FAAAA has substantially similar

language to the ADA, and the courts use the case for both

interchangeably. Rowe, 552 U.S. at 370.

customer-facing relationship. For example, in

Northwest, Inc. v. Ginsberg, 572 U.S. 273, 284-85

(2014), this Court held that an airline customer’s

claim for breach of an implied covenant stemming

from the termination of his frequent flyer account was

“related to” prices, routes, and especially services

because frequent flyer credits could be redeemed for

free or reduced-cost services and because the state law

claim would enlarge the contractual relationship

between the carrier and its customer. Likewise, in

Morales, the state law explicitly referenced airfares

and established “binding requirements as to how

tickets may be marketed if they are to be sold at given

prices,” which in turn dictated whether such services

could be offered at all and at what fares. Morales,

504 U.S. at 388-90. Similarly, in Rowe, this Court

determined that the FAAAA preempted a state law

requiring tobacco retailers to use a specific delivery

service and thus “regulate[d] a significant aspect of

the motor carrier’s package pickup and delivery

service,” thereby “freez[ing] into place services that

the market would not otherwise provide.” Dilts, 769

F.3d at 645-46 (citing Rowe, 552 U.S. at 372). In such

cases, “the existence of a price, route or service [was]

essential to the law’s operation,” thereby significantly

impacting prices, routes, or services. Dilts, 769 F.3d

at 646 (alteration in original) (quoting Air Transp.

Ass’n of Am. v. City & County of San Francisco, 266

F.3d 1064, 1071 (9th Cir. 2001)).

Contrary to the Airlines’ claim, the Ninth

Circuit has recognized that even generally applicable

laws having significant impacts on rates, routes, or

services, such as laws significantly impacting the

airline-customer relationship, are preempted under

the ADA. The Ninth Circuit has thus embraced rather

than “outright rejected” this Court’s analysis in

Morales and Rowe. See Pet. 2.

The Ninth Circuit has explained that only in

“ ‘borderline’ cases” in which a law does not refer

directly to rates, routes, or services, “the proper

inquiry is whether the provision, directly or indirectly,

binds the carrier to a particular price, route or service

and thereby interferes with the competitive market

forces within the industry.” Dilts, 769 F.3d at 646

(quoting Am. Trucking Ass’n v. City of Los Angeles,

660 F.3d 384, 397 (9th Cir. 2001)). The Court made

clear that this analysis does not apply to all generally

applicable laws, but only those “generally applicable

background regulations that are several steps removed

from prices, routes, or services, such as prevailing

wage laws or safety regulations.” Id. at 646 (emphasis

added). As confirmed in Bonta, “[w]hat matters is not

solely that the law is generally applicable, but where

in the chain of a motor carrier’s business it is acting

to compel a certain result . . . and what result it is

compelling.” Cal. Trucking Ass’n v. Bonta, 996 F.3d

644, 656 (9th Cir. 2021), petition for cert. filed,

No. 21-194 (U.S. Aug. 11, 2021) (alteration in original)

(quoting Cal. Trucking Ass’n v. Su, 903 F.3d 953, 966

(9th Cir. 2018), cert. denied, 139 S. Ct. 1331 (2019)).

And the Ninth Circuit has emphasized that it

misrepresents Ninth Circuit case law to suggest

that only laws that “bind” carriers to a particular

price, route, or service are preempted. See Miller v.

C.H. Robinson Worldwide, Inc., 976 F.3d 1016,

1024-25 (9th Cir. 2020).

The Ninth Circuit’s approach is entirely

consistent with this Court’s cases. As this Court

recognized in Rowe, the scope of preemption of laws

“related to a price, route, or service” does not

ordinarily preempt laws “broadly prohibit[ing] certain

forms of conduct” by both carriers and other

businesses alike. Rowe, 552 U.S. at 368, 375. Such

laws are often too “tenuous, remote, or peripheral” to

warrant preemption. Id. at 371 (quoting Morales,

504 U.S. at 390). Similarly, in Dan’s City, this Court

explained

that

generally

applicable

zoning

regulations “fall[ ] outside the [FAAAA’s] preemptive

sweep,” even if such regulations effectively determine

“the physical location of motor-carrier operations.”

Dan’s City, 569 U.S. at 264. In this Court’s view, such

background laws would not sufficiently relate to the

motor carrier’s prices, routes, or services to warrant

preemption. Id.

This analysis also comports with this Court’s

ERISA preemption case law, cited by this Court in

analyzing whether a law is “related to” a price, route,

or service. Morales, 504 U.S. at 384 (citing ERISA

preemption case law to interpret meaning of “related

to” under ADA); see also Air Transp. Ass’n of Am.,

266 F.3d at 1071-72. This Court has found ERISA

preemption under similar preemption language when

a state law “binds” an ERISA plan administrator to a

particular action. E.g., Egelhoff v. Egelhoff ex rel.

Breiner, 532 U.S. 141, 147 (2001) (“The statute binds

ERISA plan administrators to a particular choice of

rules for determining beneficiary status.”).8

This analysis is also used in other circuits to

assess preemption under the FAAAA. The Third Circuit, for

instance, instructs that the “courts should consider whether the

law binds the carrier to provide a particular price, route, or

The Airlines assert that the Ninth Circuit has

held that generally applicable laws are not preempted

as a categorical “rule” and that the court’s approach

has rendered the ADA a “virtual nullity.” Pet. 4,

18-19, 24. But this is rank mischaracterization: Ninth

Circuit cases hold directly to the contrary. See, e.g.,

Dilts, 769 F.3d at 643 (finding preemption for “laws

that are significantly ‘related to’ rates, routes, or

services, even indirectly, and thus are preempted”)

(emphasis added)); Ward v. United Airlines, Inc.,

986 F.3d 1234, 1243 (9th Cir. 2021) (holding state law

not preempted where airline did not present evidence

that “increased costs would have a ‘significant impact’

on its prices, routes, or services”); Su, 903 F.3d at 960

(“Our task, then, is to discern on which side [the law

at issue] falls: a forbidden law that significantly

impacts a carrier’s prices, routes, or services; or, a

permissible one that has only a tenuous, remote, or

peripheral connection.”); see also Bernstein, 3 F.4th

at 1141 (quoting Dilts and Rowe to look at significant

impact); Bonta, 996 F.3d at 659-60 (disagreeing that

independent contractor law had a “significant effect

on prices, routes, and services”).

Contrary to the Airline’s argument, the Ninth

Circuit’s “binds to” approach is just one analytical

tool for determining whether a generally applicable

labor law is too attenuated from prices, routes, or

services to warrant preemption. Air Transp. Ass’n of

Am., 266 F.3d at 1071-72; see also Pet. App. 6a (citing

Bernstein, 3 F.4th at 1141 (quoting Dilts, 769 F.3d at

646)). Faced with a generally applicable labor law

service.” Bedoya v. Am. Eagle Express Inc., 914 F.3d 812, 822

(3d Cir. 2019).

several steps removed from airline prices, routes, or

services, the Ninth Circuit properly assesses whether

a law is too attenuated from prices, routes, and

services to warrant preemption by examining what

the law actually compels. Where a background labor

law is not significantly connected to prices, routes,

and services, but applies to airlines and airline

employees in the same way that it applies to members

of the general public, the connection is too attenuated

to support preemption.

The Airlines’ Attempt to Manufacture a

Circuit Split Does Not Warrant Review

Contrary to the Airlines’ claims, there is no

“embarrassing conflict of opinion and authority”

warranting this Court’s review. See Rice v. Sioux City

Mem’l Park Cemetery, Inc., 349 U.S. 70, 79 (1955).

Instead, the alleged circuit split cited by the Airlines

is similarly based on the Airlines’ mischaracterization

of Ninth Circuit law as adopting a “categorical rule”

that generally applicable laws are not preempted

absent a “binding” impact. Pet. 4; see also Pet. 3, 8, 20.

The Ninth Circuit has never adopted such a rule.

Consistent with this Court’s precedent, the Ninth

Circuit has held only that generally applicable labor

laws that are several steps removed from prices

routes, and services are less likely to “relate to” prices,

routes, and services than laws that significantly

impact how an airline interacts with its customers.

The Ninth Circuit has held that with such background

labor or safety laws, the critical question is what the

law actually requires, to use Rowe’s phrasing

(552 U.S. at 372-73, 376), and whether it directly or

indirectly compels a change in prices, routes, or

services.

Other circuit courts are in accord. All circuits

distinguish between laws significantly connected with

prices, routes, and services that are thus preempted

and laws that are too tenuously connected to justify

preemption. All courts hold that both direct and

indirect state regulation can be subject to preemption,

and that generally applicable laws can be preempted.

To the extent there is any difference among circuit

decisions, it is in the labeling of the analytical tools to

determine the degree of relatedness.

The Airlines assert the First Circuit “rejects a

‘binds to’ preemption test.” Pet. 21-22 (citing DiFiore

v. Am. Airlines, Inc., 646 F.3d 81, 86-88 (1st Cir. 2011);

Schwann v. FedEx Ground Package Sys., Inc.,

813 F.3d 429, 438-39 (1st Cir. 2016); Mass. Delivery

Ass’n v. Healey, 821 F.3d 187, 191-92 (1st Cir. 2016));

see also Pet. 3. But these decisions do not even

mention the “binds to” language, much less reject it.

For example, DiFiore cited approvingly Ninth Circuit

cases as confirming the First Circuit’s “view that the

Supreme Court would be unlikely—with some

possible qualifications—to free airlines from most

conventional common law claims for tort, from

prevailing wage laws, and ordinary taxes applicable

to other businesses.” DiFiore, 646 F.3d at 87.

In finding the skycap tipping law at issue preempted,

the court concluded the tipping law had a direct and

significant connection to rates and services. As

explained by the court, “the tips law as applied here

directly regulates how an airline service is performed

and how its price is displayed to customers—not

merely how the airline behaves as an employer or

proprietor. To avoid having state law deem the

curbside check-in fee a ‘service charge’ would require

changes in the way the service is provided or

advertised.” Id. at 88 (emphasis added). DiFiore thus

aligns with the Ninth Circuit analysis in determining

whether a state law significantly relates to a price,

route, or service by examining whether the law

regulates an airline’s relationship to its customers.

Pet. App. 6a; Bonta, 996 F.3d at 657.

As to Schwann and Healy, neither mentions a

“binds to” analysis or rejects it. Schwann dealt with

a labor law that “in substance, bar[red] FedEx from

using any individuals as full-fledged independent

contractors to perform that service,” which the court

cited as the basis for finding preemption. Schwann,

813 F.3d at 437. The court examined whether the

state law “mandat[ed]” a result that would interfere

with services, which is entirely consistent with Rowe,

Egelhoff, and the Ninth Circuit approach. Id. at 439.

The court also acknowledged the outcome of the case

would likely be different if the airline were not bound

to change its service, citing a Seventh Circuit decision

finding no preemption where a carrier had the ability

to work around a labor rule, the law was narrower in

scope, and the carrier had failed to show that the law

would require a change in services provided by the

carrier. Id. at 440 n.8. Similarly, Healy merely noted

that the Massachusetts Attorney General believed the

First Circuit’s approach conflicted with the Ninth

Circuit’s approach. Healy, 821 F.3d at 192. The court

did not substantively address Ninth Circuit law at all,

much less reject it.

And contrary to the Airlines’ argument

(Pet. 22), the Ninth Circuit in Bonta did not concede a

circuit split over the “binds to” analysis. Instead, the

two circuits reached different conclusions applying

the same significant impact test (using different

nomenclature: “binds” for the Ninth Circuit and

“mandate” or “require[ ]” for the First Circuit).

Compare Bonta, 996 F.3d at 660-61, 663 with

Schwann, 813 F.3d at 436, 438-39. The applicable

tests were not different; the difference was the target

of the state law and the extent of the evidence of

significant impact. Differences in outcomes do not

show a conflict of law warranting review by this

Court.

The Airlines also claim a conflict between the

decision below and three cases from the Fifth,

Seventh, and Eleventh circuits, which found

preemption when the Ninth Circuit allegedly would

not. But the Airlines distort the holdings of these

cases. See Pet. 21-23.

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

Cir. 2004), Pet. 22, involved a claim challenging the

amount of legroom offered on airplanes, and thus

plainly impacted the relationship between an airline

and its customer at the point-of-service. Such a direct

regulation of airline-customer relationships has a

significant connection to airline services and prices

under both Ninth Circuit and Fifth Circuit law. Where

no such connection is shown, however, both circuits

examine whether a law is too remote to routes, rates,

or services to find preemption. Compare Anderson v.

Am. Airlines, Inc., 2 F.3d 590, 597 (5th Cir. 1993)

(ADA does not preempt state law claim that airline

retaliated against employee for filing workers’

compensation claim because the claim “is far too

remote to trigger pre-emption”) with Pet. App. 5a-6a.

There is no inconsistency between the Fifth Circuit’s

and Ninth Circuit’s approaches.

The Seventh Circuit’s cases likewise align with

Ninth Circuit precedent. Contra Pet. 22. Like the

Ninth Circuit, the Seventh Circuit holds that “state

actions that affect airline rates, routes, or services in

too tenuous, remote or peripheral a manner are not

expressly preempted by the ADA,” and that generally

applicable labor laws are not preempted simply by

imposing higher costs. Travel All Over the World, Inc.

v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1431

(7th Cir. 1996) (ADA did not preempt breach of

contract claim or defamation claim, but preempted

intentional tort related to ticketing); Costello v.

BeavEx, Inc., 810 F.3d 1045, 1054-55 (7th Cir. 2016),

cert. denied, 137 S. Ct. 2289 (2017). For example, in

Costello, the court explained that the FAAAA did not

preempt a law governing wage deductions because the

effect of the law on prices, routes, and services was too

tenuous, remote, or peripheral. Id. The Seventh

Circuit has also concluded that state labor laws are

not preempted simply because of increased costs that

could affect carrier prices and services. S.C. Johnson

& Son, Inc. v. Trans. Corp. of Am., Inc., 697 F.3d 544,

558 (7th Cir. 2012). The Ninth Circuit would likely

reach similar results.

The Eleventh Circuit case cited by the Airlines,

Koutsouradis v. Delta Air Lines, Inc., 427 F.3d 1339

(11th Cir. 2005), likewise does not present a conflict.

Pet. 23. That case found preemption in a lawsuit

stemming from a baggage-handling incident, again

addressing the heart of an airline’s customer-facing

services. Koutsouradis, 427 F.3d at 1344. The Ninth

Circuit would thus likely have similarly found the

claims preempted. Other Eleventh Circuit cases

confirm the compatibility of Eleventh Circuit and

Ninth Circuit approaches to ADA preemption in the

labor law context. See Branche v. Airtran Airways,

Inc., 342 F.3d 1248, 1260 (11th Cir. 2003) (state law

safety-related whistleblower claim not preempted

under the ADA because it would not affect airlines’

competitive decisions because all airlines must

comply with safety mandates even though safety

mandates may be tied to air carrier services);

Parise v. Delta Air Lines, Inc., 141 F.3d 1463, 1467-68

(11th Cir. 1998) (airline employee’s state age

discrimination claim not ADA-preempted).

Contrary to the Airline’s argument, the Ninth

Circuit’s approach to ADA preemption is not narrower

than other circuits. Contra Pet. 21. Like the Ninth

Circuit, most courts have held that background

employment laws lack a significant connection to

rates, routes, and services and thus are not preempted

under the ADA. In Abdu-Brisson v. Delta Air Lines,

Inc., 128 F.3d 77, 84 (2d Cir. 1997), for example, the

Second Circuit held that “[p]ermitting full operation

of New York’s age discrimination law will not affect

competition between airlines—the primary concern

underlying the ADA.” In Bedoya, the Third Circuit

held that the FAAAA did not preempt the state’s

employment classification test—a “backdrop” law

“steps removed” from prices, routes, or services.

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

824 (3d Cir. 2019), cert. denied, 140 S. Ct. 102 (2019);

see also Gary v. Air Grp., Inc., 397 F.3d 183, 189

(3d Cir. 2005). In Wellons v. Northwest Airlines, Inc.,

165 F.3d 493, 494-95 (6th Cir. 1999), the Sixth Circuit

rejected an ADA preemption challenge to a

Michigan statute prohibiting racial discrimination in

employment, “[b]ecause the plaintiff ’s claims bear

only the most tenuous relation to airline rates, routes,

or services.” And the Eighth Circuit in Watson v.

Air Methods Corp., 870 F.3d 812, 818-19 (8th Cir.

2017), held “that any effect of Missouri wrongfuldischarge claims on the contractual arrangement

between an air carrier and the user of its service is too

tenuous, remote, or peripheral to deem the claims

expressly pre-empted by the ADA.”

Tellingly, having failed to demonstrate a

genuine circuit split warranting review, the Airlines

rely heavily on an alleged conflict between the

decision below and two district court cases. Pet. 5, 21,

24, 28, 32 (citing Air Transp. Ass’n of Am., Inc. v.

Healy, No. 18-cv-10651-ADB, 2021 WL 2256289

(D. Mass. June 3, 2021); Delta Air Lines, Inc. v. N.Y.C.

Dep’t of Consumer Affs., __ F. Supp. 3d __, No. 17-CV1343, 2021 WL 4582138 (E.D.N.Y. Sept. 30, 2021)).

Even if the cases were genuinely in conflict, it would

not warrant review under this Court’s rules. See Rule

10(a). But there is no genuine legal conflict. Rather,

the cases represent different conclusions reached by

different jurists based on different state laws and

different evidence. In Delta Air Lines, for example, the

court cited the broad scope of the local sick-leave law

as significant to its preemption determination. There,

the law applied to “any flight attendant who, at any

point during the year works on a flight that lands in

or takes off from a New York City airport” (Delta Air

Lines, Inc., 2021 WL 4582138, at *11), whereas the

record here showed Washington’s law applied only to

Alaska Airlines. And in Healy, the court found only

that disputed issues of material fact existed about

whether impacts from the sick-leave law would be

significant enough to warrant preemption. Healy,

2021 WL 2256289, at *12. Such minor differences in

evaluating specific evidence do not represent genuine

conflicts of law warranting intervention by this Court.

The Ninth Circuit Correctly Applied This

Court’s Precedent

Finding No

Preemption

Washington’s sick-leave law bears at most a

trivial connection to airline prices, routes, and

services. In this fact-specific case, the court did not err

in finding no preemption.

The Airlines failed to show that Washington’s

law would have any significant impact on prices,

routes, or services. Industry insiders repeatedly

affirmed that existing sick-leave laws do not impact

prices, routes, or operations, including services.

CA9.SER.059, 091-92, 134, 136, 157, 159, 178, 183-84,

409-10, 418-21. And while the Airlines offered

anecdotal opinions that sick-leave laws can cause

delay, the quantitative evidence in the record

demonstrates otherwise. New York City’s paid

sick-leave law did not cause any statistically

significant increase in delay for two years, with only a

nominal 1.2 percentage-point increase in delays for

a short seven-month-period thereafter, which also

coincided with a period of significant operational

turmoil due to the airline’s merger. CA9.SER.227,

277, 285-86, 290. And a flu outbreak in April 2017

matched a spike in leave usage. CA9.SER.314-15.

The Airlines assert that “even a relatively small

(i.e., one percentage point) increase in delays will

delay thousands of passengers each day.” Pet. 11

(quoting CA9.ER.372). But neither their expert’s

report nor any other evidence showed that a

one-percentage-point increase in nationwide delays

would happen because of Washington’s law, which

the record here shows applies only to Alaska

Airlines. Any nationwide extrapolation from the short

and slight 2017 increase experienced by Virgin

America in New York (see Pet. 17) isn’t supported by

the record.

Even if such minimal delay could be shown, the

lower courts properly concluded that the impact still

would not be significant in context. The Airlines have

never denied that there is an average twenty-one

percent delay in the industry. CA9.SER.195-99, 236,

344. The airline industry has built delay into its

business model to maximize profits, CA9.SER.438,

448-51; it cannot then claim that the slightest delay

caused by laws aimed at protecting workers and

public health is debilitating.

And Washington’s law does not prevent airlines

from combatting sick-leave abuse. Washington’s law

allows an employer to discipline an employee who

abuses sick leave. CA9.ER.969. An employer may also

require flight crew to give reasonable notice before

taking leave. Wash. Rev. Code § 49.46.210(1)(f ). And

airlines can still use all the sophisticated tools

they currently employ to predict and manage

absences. CA9.ER.240; CA9.SER.102, 155-56, 167-69,

186, 212-14, 463-65. The Airlines noted that “sick

leave ‘call outs tend to spike on weekends, holidays,

and the days before and after weekends and

holidays.’ ” Pet. 11. This happens regardless of

whether there is a sick-leave law. CA9.SER.161-62,

485-89. Because it is predictable, the Airlines already

marshal resources to mitigate the effects of such

absences.

The Airlines’ other claims of significant impact

on routes, rates, or services are likewise meritless.

The Airlines’ claims that they can’t work with a

“patchwork” of laws are belied by facts they’ve

conceded. Pet. 30. The Airlines admitted to being able

to track and operate under the laws of multiple

jurisdictions, as they have for decades. CA9.SER.045,

058, 066-81, 097-100, 104-05, 133, 160, 230, 232,

416-17, 425. As multinational corporations, airlines

have long had to follow multiple jurisdictions’ laws for

workers’ compensation, unemployment, taxes, and

labor laws. Congress has shown no intent to limit

labor laws as applied to airlines. In fact, it has applied

the Family Medical Leave Act (FMLA) (29 U.S.C.

§ 2611(2)(D)) to airlines, which provides for unpaid

time off from work for illness and allows states to have

stronger laws governing “family or medical leave

rights.” 29 U.S.C. § 2651(b). Thus, airlines are already

required to follow different laws in different states

under the FMLA.

The

Airlines’

claims

about

increased

operational costs and speculative assertions about

reduced routes do not establish a reason for review.

Pet. 31. Nearly every state regulation involves costs,

and such operational costs are several steps removed

from prices, routes, and services. And airline

witnesses testified that their sick-leave usage

information isn’t even passed on to those who set fares

and that sick leave does not affect where airlines fly.

CA9.SER.174-75, 185, 401. As for the jurisdictions

with paid and protected sick-leave laws, not one

airline reported a reduction of routes as a result of the

leave law. The court below correctly concluded that

the specific evidence presented in this case did not

demonstrate a significant impact on prices, routes, or

services.9

This Case Is a Poor Vehicle and the

Question Presented is Oft and Recently

Denied

This case would be a poor vehicle for review

because resolution of the question presented would

not result in a different outcome. The Airlines seek a

determination that ADA preemption rests solely on

whether a law significantly impacts “rates, routes or

services,” and not whether the relevant law “binds”

airlines to a particular rate, route, or service. But the

district court explicitly held that the Airlines had

failed to “show that [Washington’s law] has a

‘significant impact’ on routes, prices, or services.”

Pet. App. 37a. Thus, a remand based on the Ninth

Circuit’s brief, unpublished reference to the “binds to”

analysis would be pointless, simply delaying the same

ultimate outcome.

Moreover, this Court has recently and

repeatedly denied review in cases claiming the same

circuit split alleged here about how to interpret the

ADA and similar statutes. Given that the Court has

denied review in at least a dozen cases in the last

9 The Airlines also appear to argue that because they lost

under the commerce clause, this means there is an ADA

violation. Pet. 25-27. Nonsense. If anything, losing the commerce

clause claim shows the minimal impact of Washington’s law. The

Airlines could not even show a substantial burden on commerce,

let alone on their prices, routes, and services. E.g., Pike v.

Bruce Church, Inc., 397 U.S. 137, 142 (1970).

decade addressing this topic,10 there is no reason to

grant review of an unpublished opinion where this

issue is irrelevant to the outcome.

This Court’s Decision Should Not Wait for

Bernstein

Contrary to The Airlines suggestion, Pet. 32-33,

this Court should not wait for the resolution in

Bernstein to resolve certiorari here. While the Court

should deny certiorari in both cases, there would be

no basis to grant certiorari here even if it is granted

in Bernstein. Given the district court’s explicit

conclusion that Washington’s law has no significant

impact on routes, prices, or services, Pet. App. 37a, a

remand here would simply delay the same ultimate

outcome. And the Ninth Circuit’s opinion, being

unpublished, will have no binding effect within the

10 See, e.g., People v. Superior Ct. of Los Angeles Cnty.,

57 Cal. App. 5th 69 (2020), cert. denied sub nom Cal. Cartage

Transp. Express v. California, 142 S. Ct. 76 (2021); Bedoya,

914 F.3d 812 (certiorari denied); Su, 903 F.3d 953 (certiorari

denied); MacMillan-Piper Inc. v. Emp. Sec. Dep’t, 1 Wash. App.

2d 1055 (2017), cert. denied, 139 S. Ct. 605 (2018); Costello,

810 F.3d 1045 (certiorari denied); People ex rel. Harris v. Pac

Anchor Transp., Inc., 59 Cal. 4th 772 (2014), cert. denied,

547 U.S. 1153 (2015); Ortega v. J.B. Hunt Transp., Inc.,

694 F. App’x 589 (9th Cir. 2017), cert. denied, 138 S. Ct. 2601

(2018); Amerijet Int’l, Inc. v. Miami-Dade County, Fla., 627

F. App’x 744 (11th Cir. 2015), cert. denied, 578 U.S. 976 (2016);

Godfrey v. Oakland Port Servs. Corp., 230 Cal. App. 4th (2014),

cert. denied, 577 U.S. 922 (2015); Dilts, LLC, 769 F.3d 637

(certiorari denied); Campbell v. Vitran Express, Inc., 582 F. App’x

756 (9th Cir. 2014), cert. denied, 575 U.S. 996 (2015).

circuit whether this Court reviews it or not. There is

thus no basis for certiorari regardless of what happens

in other pending cases.

CONCLUSION

For the foregoing reasons the petition should be

denied.

RESPECTFULLY SUBMITTED.