Petition for Writ of Certiorari — Sierra Nevada Transportation, Inc., Petitioner v. Nevada Transportation Authority

NO. 23-_____

In the

Supreme Court of the United States

SIERRA NEVADA TRANSPORTATION, INC.,

Petitioner,

v.

NEVADA TRANSPORTATION AUTHORITY,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Mark Wray

Counsel of Record

LAW OFFICES OF MARK WRAY

608 Lander Street

Reno, NV 89509

(775) 348-8877

mwray@markwraylaw.com

January 12, 2024

SUPREME COURT PRESS

Counsel for Petitioner

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

Does a federally-licensed limousine company state

a valid claim for relief under 42 U.S.C. §§ 1983 and

1985 against state regulators for violating the dormant

Commerce Clause, where the company attempts to

provide ground transportation to airline passengers in

the stream of commerce as one leg of a passenger’s

continuous, pre-arranged interstate trip and state

regulators prevent the federally-licensed company

from providing its passenger services because it does

not possess a state-issued certificate of public necessity

and convenience.

ii

PARTIES TO THE PROCEEDINGS

Petitioner and Plaintiff-Appellant below

●

Sierra Nevada Transportation, Inc.

Respondent and Defendant-Appellee below

●

Nevada Transportation Authority (“NTA”)

iii

CORPORATE DISCLOSURE STATEMENT

Petitioner Sierra Nevada Transportation, Inc.

submits this Corporate Disclosure Statement pursuant

to Supreme Court Rule 29.6.

Petitioner is a corporation organized under the

laws of Nevada. Sierra Nevada Transportation, Inc.

does not have corporate parents.

No publicly-held corporation owns 10% or more of

the stock of Sierra Nevada Transportation, Inc.

iv

LIST OF PROCEEDINGS

U.S. Court of Appeals for the Ninth Circuit

No. 22-15823

Sierra Nevada Transportation Inc., Plaintiff-Appellant,

v. Nevada Transportation Authority, Division of the

Nevada Department of Business and Industry,

Defendant-Appellee.

Date of Final Opinion: October 18, 2023

_________________

U.S. District Court for the District of Nevada

No. 3:21-cv-00358-LRH-CLB

Sierra Nevada Transportation Inc., Plaintiff, v. Nevada

Transportation Authority, Division of the Nevada

Department of Business and Industry, Defendant.

Date of Final Order: May 18, 2022

v

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDINGS ......................... ii

CORPORATE DISCLOSURE STATEMENT ........... iii

LIST OF PROCEEDINGS ......................................... iv

TABLE OF AUTHORITIES ..................................... vii

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 1

STATEMENT OF THE CASE .................................... 2

REASONS FOR GRANTING THE PETITION ....... 14

CONCLUSION.......................................................... 26

vi

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Memorandum Opinion, U.S. Court of Appeals for

the Ninth Circuit (October 18, 2023) ................. 1a

Partial Concurrence and Partial Dissent,

Justice Koh (October 18, 2023) .......................... 8a

Order, U.S. District Court for the District of

Nevada (May 18, 2022) .................................... 14a

Statutory Provisions ............................................... 29a

42 U.S.C. § 1983 .............................................. 29a

42 U.S.C. § 1985 ............................................... 29a

First Amended Complaint for Declaratory and

Injunctive Relief (September 20, 2021) ........... 32a

vii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Airline Transportation Inc. v. Tobin,

198 F.2d 249 (4th Cir. 1952) ............................. 17

Ashcroft v. Iqbal,

556 U.S. 662, 129 S.Ct. 1937 (2009) ........... 20, 25

Bell Atl. Corp. v. Twombly,

550 U.S. 544, 127 S.Ct. 1955 (2007) ........... 20, 25

Charter Limousine, Inc. v. Dade County Board

of County Commissioners, 678 F.2d 586

(5th Cir. 1982) ....................................... 17, 18, 24

Dennis v. Higgins,

498 U.S. 439, 111 S.Ct. 865,

112 L.Ed.2d 969 (1991) ..................................... 15

East West Resort Transportation v. Binz,

494 F.Supp.2d 1197 (D. Colo. 2007) ................. 18

Kleenwell Biohazard Waste & General Ecology

Consultants, Inc. v. Nelson, 48 F.3d 191

(9th Cir. 1995) ................................................... 23

Nat’l Pork Producers Council v. Ross,

6 F.4th 1021 (9th Cir. 2021).............................. 25

Pennsylvania Public Utility Commission v.

ICC, 812 F.2d 8 (D.C. Cir. 1987) ....................... 17

South Dakota v. Wayfair,

138 S.Ct. 2080 (2018) ........................................ 23

Southerland v. St. Croix Taxicab Association,

315 F.2d 364 (3rd Cir. 1963) ................. 17, 23, 24

The Daniel Ball,

77 U.S. 10 Wall. 557 (1870) .............................. 16

viii

TABLE OF AUTHORITIES – Continued

Page

Toye Bros., Yellow Cab Company v. Irby,

437 F.2d 806 (5th Cir. 1971) ............................. 24

United States v. Yellow Cab Co.,

332 U.S. 218, 67 S.Ct. 1560,

91 L.Ed 2010 (1947) .................. 15, 16, 18, 19, 23

Walters v. Am. Coach Lines of Miami, Inc.,

575 F.3d 1221 (11th Cir. 2009) ......................... 18

CONSTITUTIONAL PROVISIONS

U.S. Const., art. I, § 8, cl. 3....................................... 12

STATUTES

28 U.S.C. § 1254(1) ..................................................... 1

28 U.S.C. § 1331 ........................................................ 12

42 U.S.C. § 1983 ......................................... i, 12, 15, 18

42 U.S.C. § 1985 ..................................................... i, 15

42 U.S.C. § 1988 .......................................... 2, 3, 12, 18

49 U.S.C. § 13101 .................................................. 8, 10

NRS 706.151(e) ........................................................... 8

NRS 706.1511(7) ......................................................... 5

NRS 706.391 ............................................................... 6

NRS 706.391(5)(b) ................................................... 7, 8

JUDICIAL RULES

Fed. R. Civ. P. 12(b)(6) .............................................. 13

Sup. Ct. R. 29.6 .......................................................... iii

ix

TABLE OF AUTHORITIES – Continued

Page

REGULATIONS

49 CFR Part 350 ....................................................... 21

49 CFR Part 365 ................................................. 21, 22

49 CFR Part 399 ....................................................... 21

1

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit is reported at Sierra Nev.

Transp., Inc. v. Nev. Transp. Auth., No. 22-15823, 2023

U.S. App. LEXIS 27677, 2023 WL 6871575 (9th Cir Oct.

18, 2023).

The order of the district court is reported at

Sierra Nev. Transp., Inc. v. Nev. Transp. Auth., No.

3:21-cv-00358-LRH-CLB, 2022 U.S. Dist. LEXIS 89309,

2022 WL 1569191 (D. Nev. May 18, 2022).

JURISDICTION

The opinion of the court of appeals was entered

on October 18, 2023. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the interpretation and implementation of Article I, Section 8, Clause 3 of the

United States Constitution:

The Congress shall have Power . . . To regulate

Commerce with foreign Nations, and among the

several States, and with the Indian Tribes.

(“Commerce Clause”).

2

The case also involves application of 42 U.S.C.

§§ 1983 and 1988, which remedy violations of rights

secured by the Constitution and laws of the United

States by persons acting under the color of state law.

(App.29a).

STATEMENT OF THE CASE

Petitioner is a federally-licensed motor carrier

operating an airport limousine service providing ground

transportation to and from Reno Tahoe International

Airport, Sacramento International Airport, San Francisco International Airport and various private jet

centers in both Nevada and California. App.34a.

Petitioner’s clients are third party booking companies who book ground transport for flight crews and

airline passengers as the beginning or ending leg of

a pre-arranged, continuous interstate trip. Because

Petitioner operates almost exclusively through thirdparty pre-booking only, to and from airports only,

Petitioner does not advertise or operate as a taxi

service for the public, and does not pick up random

fares for trips to points around town. App.34a.

In the case of Reno Tahoe International Airport,

Petitioner’s business consists of three types of bookings:

(a) airline crews scheduled through a company

in New York;

(b) out-of-state business and vacation travelers

booked by travel agents or other third party

companies;

3

(c) and on very rare occasions, trips prearranged

and paid for in advance directly by the

passenger.

Id.

Virtually all of Petitioner’s business is ground

transport of airline crews and business or vacation

travelers booked through third party travel agencies

or companies. Rarely does any passenger directly book

and pre-pay for a trip. App.36a.

In the case of airline crews, Petitioner’s pick-ups

are scheduled by a company in New York that contracts directly with the airlines. Petitioner typically

picks up the airline crew at Reno airport as scheduled

and transports the crew to a hotel in Reno, returning

as scheduled to transport the crew back to the airport.

The New York company takes all reservations and

sends Petitioner a schedule two weeks in advance for

the following month. For example, Petitioner receives

the schedule for the entire month of February on January 15th. The New York company bills the airlines

and pays Petitioner about 30 to 45 days after the

month is complete. App.34a.

In the case of prearranged trips booked by travel

agencies or other third parties for out-of-state business

and vacation travelers, these trips are booked through

national and international third-party ground transportation companies, travel agents, casinos, medical

transportation providers and others. The travel is

arranged and paid for by the third-party companies.

The third-party company sends Petitioner a schedule

for transporting the client to and from the airport in

Reno. On occasion the schedule will consist of a pickup at Reno airport and travel to a hotel, then at a later

4

time in the same day or next day, a pick-up from the

hotel for a meeting, and from the meeting back to the

airport. Occasionally, when conventions are in town,

a charter is pre-arranged, weeks to a few days in

advance, as directed, for a 6-to-12 hour block each day

for several days and then back to the airport. In the

case of Harrah’s Casino at Lake Tahoe, for example,

Harrah’s prearranges a package which includes a

pick-up at Reno airport to the hotel and then the

return trip to the airport. All travel for these customers

is billed to the third-party companies and Petitioner

is paid 30-45 days after the end of the month in which

the trips occur. App. 35a.

In a few isolated instances, Petitioner has been

called directly by passenger who is traveling from outof-state who wishes to prearrange ground transportation from the airport to a hotel or resort, or the

passenger is already in the Reno area and wishes to

prearrange transportation to the airport to fly out-ofstate. In most cases such arrangements are made

weeks or months in advance, though they are sometimes arranged a day or two in advance. Nevertheless,

the pick-up is prearranged and paid for in advance as

one leg of a continuous interstate trip. App.36a.

Reno is close to Lake Tahoe, on the border of

California and Nevada. Petitioner may transport a

particular passenger from the Reno airport to a

destination that is either on the California or Nevada

side of Lake Tahoe. If the prearranged ground transportation is from the Reno airport to the Nevada side of

the lake, Petitioner’s ground transport leg may be entirely within a single state, but for the passenger, the

ground transportation is the conclusion of a continuous,

interstate journey, prearranged and paid for through

5

a third-party booking company, that began in another

state and ended in Lake Tahoe, Nevada. The ground

transport therefore is but a segment of a single trip in

interstate commerce. App.36a.

The Nevada Transportation Authority (“NTA”)

is a Nevada state agency responsible, inter alia, for

issuing a “Certificate of Public Necessity and Convenience” to motor carriers involved in intrastate

commerce. Per Nevada statute, it is unlawful for any

fully regulated motor carrier to operate intrastate

without the NTA certificate. App.41a.

As the name implies, “Certificate of Public

Necessity and Convenience” is more than a mere

license. It is a crime in Nevada to operate without

one of these certificates while conducting intrastate

transportation. Intrastate means any point-to-point

transportation within Nevada, i.e., not crossing a

state line (see discussion below, regarding the Gravel

memo).

Three political appointees who serve at the pleasure

of the Nevada governor decide who gets the Certificate

of Public Necessity and Convenience. NRS 706.1511(7).

Before granting a certificate, they hold a hearing at

which the applicant must prove the following:

(a) The applicant is financially and operationally fit, willing and able to perform the

services of a common motor carrier and that

the operation of, and the provision of such

services by, the applicant as a common motor

carrier will foster sound economic conditions

within the applicable industry (emphasis

added);

6

(b) The proposed operation or the proposed

modification will be consistent with the legislative policies set forth in NRS 706.151 (one

of the five legislative policies is (emphasis

added):

To discourage any practices which would

tend to increase or create competition that

may be detrimental to the traveling and

shipping public or the motor carrier business within this State.

(c) The granting of the certificate or modification will not unreasonably and adversely

affect other carriers operating in the territory for which the certificate or modification is

sought (emphasis added);

(d) The proposed operation or the proposed

modification will benefit and protect the

safety and convenience of the traveling and

shipping public and the motor carrier business

in this State;

(e) The proposed operation, or service under

the proposed modification, will be provided

on a continuous basis;

(f) The market identified by the applicant

as the market which the applicant intends to

serve will support the proposed operation or

proposed modification (emphasis added);

and

(g) The applicant has paid all fees and costs

related to the application.

See NRS 706.391.

7

The applicant bears the burden to satisfy each of

these findings. NRS 706.391(5)(b). Thus, to obtain a

certificate, Petitioner and federally-licensed carriers

like Petitioner must prove to the NTA board that their

provision of ground transport services will contribute

to “sound economic conditions,” will be supported by

the market, will not create “detrimental” competition

and will not harm anyone else already in the market.

The statutory scheme plainly is intended to protect the chosen few who already have received the

blessing of a certificate from the NTA, and to allow

board members wide discretion to bestow their largesse

on certain newcomers with whom they find favor.

A reasonable and objective person could fairly

conclude that the latitude afforded to the NTA board

by the statutory scheme in Nevada opens the door to

personal bias and favoritism. Be that as it may,

Petitioner’s principal, Priscilla Wilson, has not been

one of the chosen ones to receive a certificate. Petitioner’s First Amended Complaint points out that

through her predecessor company, Ms. Wilson attempted without success over a period of years to obtain a

Certificate of Public Convenience Necessity and Convenience. App.41a.

The First Amended Complaint alleges the obstacles

posed by the statutory procedure for obtaining a

Certificate of Public Necessity and Convenience, the

difficulty in trying to gain the favor of the NTA, and

the consequent significant burden on interstate

commerce that results. App.41a.

Petitioner and other federally-licensed carriers

operating in Nevada in the same manner as Petitioner

who cannot obtain a Certificate of Public Necessity

8

and Convenience from the NTA face the constant

threat that vehicles will be impounded, drivers detained,

and companies fined for allegedly being engaged in

intrastate commerce without the permission of the

NTA. App.46a. These are not mere threats; Petitioner

and others similarly situated have had passenger

trips interrupted, vehicles impounded, and impound

fees and fines imposed. Id. (see also discussion, infra).

The First Amended Complaint alleges that generally, the federal regulatory scheme for motor carriers

promotes competition in interstate commerce, encourages free market entry and requires less ongoing

regulatory compliance, in comparison to the highly

restrictive regulatory scheme adopted by the state of

Nevada and administered and enforced by the NTA.

App.40a. “Trying to get a permit to operate from the

NTA is only one of many daunting obstacles under a

system that values protectionism over competition.”

App.41a. For example, Ms. Wilson was able to obtain

and to maintain a federal license but not a state

Certificate of Public Necessity and Convenience. Id.

The First Amended Complaint alleges that under

the Nevada regulatory framework, the NTA oversees

a system that considers competition as potentially

“detrimental to the . . . motor carrier business” in the

state (NRS 706.151(e)). Hence, while obtaining federal

licensing is relatively simple, the state imposes difficult,

costly, and time-consuming hurdles to obtaining a

certificate of public necessity and convenience or a

permit to operate as a contract carrier. App.41a.

The NTA’s enforcement policy prevents Petitioner

from taking advantage of the benefits to be expected

as a federally licensed motor carrier, set forth in the

National Transportation Policy at 49 U.S.C. § 13101,

9

such as the opportunity to make the most productive

use of its equipment resources, the opportunity to

earn adequate profits, and the opportunity to be a part

of a sound, safe, and competitive privately owned motor

carrier system. App.48a.

Petitioner is subject to ongoing harm to its business due to its inability to solicit customers for additional contracts for the transportation of passengers

which involve ground transport between the airport

and a point in Nevada. (First Amended Complaint, ¶ 37,

App.48a).

A notable aspect of this particular case is that historically, the NTA did not attempt to enforce its

regulatory powers against interstate motor carriers

such as Petitioner. This policy changed dramatically

on July 15, 2019. App.42a. On that date, Dave Gravel,

a supervisory investigator for the NTA, sent out an

email which stated in relevant part:

I’m sending you a quick email to let you know

that our agency has had much discussion

about interstate versus intrastate transportation – especially when it involves the airport.

We have had some lengthy internal discussions, and what we have decided will be

our enforcement direction moving forward is

this:

ANY land transportation which begins in

Nevada (even if it is at the Airport) and

terminates at another location in Nevada

(even if THAT is at the airport) will be

considered INTRAstate transportation (Point

to point within Nevada) – subject to citation

and the impoundment of the vehicle used for

10

any non-certificated carrier. I believe that

you were previously given an opinion that if

the pickup or drop off was at the Airport for

an out-of-state traveler, and that land transportation was pre-arranged to go to or arrive

from a hotel in Nevada, that would be considered interstate transportation. This opinion

will not be the [sic] our enforcement stance

moving forward.

Please understand that after much discussion,

that is not going to be the view of our agency

moving forward, and we will immediately

begin enforcing the Nevada Statutes in the

manner described – which is ANY point to

point trips within Nevada require certification

from the Nevada Transportation Authority.

Although you may feel differently, I feel it is

important for you to understand how our

enforcement will be handled moving forward.

Id.

Petitioner’s predecessor entity was Lakeshore

Enterprises, Inc. (“Lakeshore”). App.43a. In response

to the Gravel email, Lakeshore petitioned the board of

commissioners of the NTA, challenging the constitutionality of the new policy on the basis that Lakeshore

was engaged in interstate, rather than intrastate,

commerce, and citing the relevant Commerce Clause

case authorities. Lakeshore requested a declaratory

order or advisory opinion from the NTA Board of Commissioners. Id.

At the hearing on Lakeshore’s request before the

3-member board on July 22, 2020, the board voted to

deny Lakeshore’s request for a declaratory order or

11

advisory opinion. App.44a. At the conclusion of the

hearing, the board chairman told Lakeshore’s counsel:

As I said at the beginning of this discussion,

we do not have jurisdiction to interpret federal law that may be subject to more than

one interpretation. So why don’t you go to

District Court, ask for a dec relief action, that

will exhaust your administrative remedies,

then you take that up to the federal court. I

mean, I’m not going to tell you how to practice law but that’s what I would do.

On July 12, 2020, Petitioner had picked up a

flight crew at Reno airport according to Petitioner’s

standard prearranged contract with the New York

company that books ground transportation to the

crew’s hotel. For this trip, the NTA issued Petitioner

a citation for not having a certificate of public convenience and necessity. At the ensuing hearing, proof

was shown that the passengers were pilots, though

they were deadheading and thus not wearing uniforms.

The board’s rationale for issuing the fine was that the

flight crew was not in uniform and thus there was no

way for the NTA to know whether the passengers

were actually pilots. But at the hearing, the board

imposed a $1,000 fine against Petitioner, with full

knowledge that the passengers were a flight crew.

On July 6, 2021, NTA investigators observed a

vehicle owned and operated by Sunset Limousine

(“Sunset”) at Reno airport. Sunset operates in interstate

commerce by providing limousine service for passengers

with prearranged payment through third parties for

completing interstate trips, in essentially the same

manner as Petitioner. In his report, the NTA investigator stated that Sunset’s owner “has been advised

12

several times that he is not to provide intrastate

passenger transportation services to include point to

point transportation from the Reno Tahoe International Airport to another location within the state

of Nevada.” After detaining the vehicle, two NTA

investigators confronted the female passenger, who

advised them that she had made arrangements through

a travel agency for transportation from Reno airport

to Edgewood Resort at Lake Tahoe, Nevada. Her

statement was confirmed by paperwork in the vehicle.

The two investigators impounded the vehicle and

issued a citation for operating without a certificate of

public necessity from the NTA.

Also on July 6, 2021, on a round trip pre-arranged

and paid for by Harrah’s Casino, Petitioner picked up

an NBC employee at Reno airport who had flown in

from Portland for the celebrity golf tournament at Lake

Tahoe, Nevada. Petitioner provided the ground transportation for the NBC official up to Lake Tahoe. On

the return trip on July 12, 2021 for his flight back to

Portland, the NTA detained Petitioner’s driver and

impounded the vehicle at the airport while issuing a

citation fine for allegedly engaging in intrastate transportation without having a certificate of public

convenience and necessity from the NTA.

On August 13, 2021, Petitioner filed a complaint

for declaratory relief and injunction in U.S. District

Court for the District of Nevada. The District Court

had jurisdiction of this action under 28 U.S.C. § 1331

because this action arises under the Constitution and

laws of the United States, specifically, the United

States Constitution, Article I, Section 8, Clause 3

(“Commerce Clause”) and 42 U.S.C. §§ 1983 and 1988,

which remedy violations of rights secured by the Con-

13

stitution and laws of the United States by persons

acting under the color of state law.

The District Court granted the NTA’s motion to

dismiss Petitioner’s First Amended Complaint, with

prejudice, pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The court’s decision distinguished

between airline employees and airline passengers. It

reasoned that flight crews are employees of the airline.

Contracting for flight crews’ ground transport “directly

involve[s] interstate travel” and thus cannot be regulated by the NTA, the court held. In contrast, ground

transport of passengers who travel on the same plane

as the flight crew does not involve “a contract with an

interstate transportation provider to accommodate its

employees” and is intrastate commerce that the NTA

can regulate. The court also found that because the

NTA asserted in the litigation that it does not enforce

its laws against transporting flight crews, Petitioner

could not state a claim for relief against the NTA as to

the flight crews. The District Court then entered its

judgment dismissing the entire action.

On appeal to the Ninth Circuit Court of Appeals,

the appeals court affirmed by a 2-1 vote.

The Ninth Circuit majority held that Petitioner

lacked standing to appeal the district court’s ruling as

to the airline crews, because even though trips involving flight crews involve interstate commerce, the NTA

had asserted in the litigation that the NTA would not

enforce state laws where a flight crew was being

transported. The dissenting judge pointed out that

notwithstanding the NTA’s litigation position, the

NTA’s policy as stated in the Gravel email made no

exception for flight crews. The dissenter further

observed that Petitioner’s pleading showed that the

14

NTA had in fact issued a $1,000 fine against Petitioner

following a hearing in which the board acknowledged

that the passengers being transported were a flight

crew.

As to passengers, the court unanimously said it

would “assume, without deciding” that Petitioner’s

“prearranged transportation of out-of-state passengers

from the Reno airport to destinations in Nevada and

back constitutes interstate commerce.” Even so, the

court ruled, Petitioner’s First Amended Complaint did

not state a claim under the Commerce Clause because

the State of Nevada has concurrent power with the

federal government to regulate commerce, so long as

the state’s regulations do not discriminate against

interstate commerce and do not impose undue burdens

on interstate commerce. The court held that neither

discrimination nor an undue burden were present

here, and that the NTA’s regulation of Petitioner

effectuated a legitimate local interest (public safety)

with effects on interstate commerce that were only

“incidental”.

REASONS FOR GRANTING THE PETITION

This petition for writ of certiorari should be

allowed because the Ninth Circuit has decided an

important federal question in a way that conflicts with

relevant decisions of this Court and with the decisions

of other circuit courts involving the same important

matter.

When this action was filed in 2021, Petitioner

justifiably thought that it had well-established prece-

15

dent to follow in pursuing a declaratory and injunctive

relief claim against the NTA under 42 U.S.C. §§ 1983

and 1985 for violation of the Commerce Clause. There

is no question that rights under the Commerce Clause

may be enforced under § 1983. Dennis v. Higgins, 498

U.S. 439, 442, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991).

Respectfully, despite the decision of the 9th Circuit

almost 90 days ago, Petitioner still believes that its

First Amended Complaint states a valid claim for

relief against the NTA.

The chief precedent that guided Petitioner in

pursuing this case—this Court’s decision in United

States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560,

91 L.Ed 2010 (1947) – was followed in decisions of the

3rd, 4th, 5th, 11th and D.C. Circuit Courts of Appeal

and federal district courts. Each court of appeal and

district court decision involved fact patterns so similar to

Petitioner’s circumstances that it seemed inevitable

that the reasoning from Yellow Cab would be applied

in this case to reach the conclusion that the NTA

violated the Commerce Clause by prosecuting Petitioner

for lawfully engaging in interstate commerce as a federally-licensed motor carrier at Reno Tahoe International Airport. At the very least, Petitioner did not

anticipate a court sustaining a challenge to Petitioner’s

pleading for failure to state a claim on the facts of this

case.

Yellow Cab was decided by this Court in 1947. At

that time, many different railway companies had

stations in Chicago. Passengers arriving at one station

would take a taxi to another railway station to

continue their travels. The oft-quoted portion of this

Court’s opinion states:

16

The transportation of such passengers and

their luggage between stations in Chicago is

clearly a part of the stream of interstate

commerce. When persons or goods move from

a point of origin in one state to a point of

destination in another, the fact that a part of

that journey consists of transportation by an

independent agency solely within the

boundaries of one state does not make that

portion of the trip any less interstate in

character. The Daniel Ball, 10 Wall. 557,

565. That portion must be viewed in its relation to the entire journey rather than in

isolation. So viewed, it is an integral step in

the interstate movement. (Emphasis added).

Yellow Cab, at 228-229, 67 S.Ct. at 1566, 91 L.Ed. at

2019. Yellow Cab established the principle that the

interstate nature of ground transport as part of a

passenger’s interstate rail journey is to be considered

from the perspective of the passenger and in relation

to the entire journey of that passenger. Yellow Cab

endorsed a view of interstate commerce that is “an

intensely practical concept drawn from the normal

and accepted course of business.” Id. at 231, 67 S.Ct.

1567, 91 L.Ed. 2020. This practical view was to be

from the perspective of the passenger, not from the

perspective of the employees of the train or taxi

carrying the passenger. This basic principle from

Yellow Cab has been lost by the NTA as its policy

draws an unwarranted distinction between employees

of the interstate carrier and its passengers (see discussion below).

Following the lead of Yellow Cab, the Fourth Circuit

in Airline Transportation Inc. v. Tobin, 198 F.2d 249

17

(4th Cir. 1952) held that a company that contracted

with three airlines, which made 26 interstate flights

per day into and out of the Raleigh-Durham Airport,

to provide airline passengers with limousine transport

between North Carolina cities and the airport was

operating in interstate commerce and thus subject to

the Fair Labor Standards Act. The Third Circuit in

Southerland v. St. Croix Taxicab Association, 315 F.2d

364 (3rd Cir. 1963) held that transporting passengers

between the airport and their hotels in St. Croix pursuant to prearranged contracts with third parties,

including travel agents and others, was the continuation

of an interstate trip and that the attempt to restrict

transportation from the airport solely to a local taxi

company registered with the territorial government

violated the Commerce Clause of the United States

Constitution. The Fifth Circuit in Charter Limousine,

Inc. v. Dade County Board of County Commissioners,

678 F.2d 586 (5th Cir. 1982) held that a limousine

service operating through a nationwide system that

scheduled pickups of passengers arriving on interstate

flights whose ground transportation was prepaid as

part of a tour package or other prearrangement was

operating within the stream of interstate commerce

and Dade County’s attempt to allow only a local taxi

company to operate at the airport violated the Commerce Clause. The D.C. Circuit held in Pennsylvania

Public Utility Commission v. ICC, 812 F.2d 8 (D.C.

Cir. 1987) that a limousine company that provided

ground transportation pursuant to a contract with

United Airlines to take flight crews from the airport

to overnight accommodations in the same state was

interstate commerce and exempt from the state’s

ability to regulate. The Eleventh Circuit in Walters v.

Am. Coach Lines of Miami, Inc., 575 F.3d 1221, 1224-

18

25 (11th Cir. 2009) held that a private motor carrier

holding all necessary authorizations from the Federal

Motor Carrier Safety Administration and providing

single-state transportation between the cruise ship

and hotels and airports pursuant to written contracts

with the cruise lines was operating in interstate

commerce because the ground transportation was but

one segment in a continuous interstate or international move.

In an on-point district court decision which

incorporates the reasoning of Yellow Cab and its

progeny, the court in East West Resort Transportation

v. Binz, 494 F.Supp.2d 1197 (D. Colo. 2007) observed

that the federally-licensed motor carrier of passengers

operating exclusively in Colorado, who provided transportation to and from Denver International Airport

and Eagle Airport to and from various Colorado ski

resorts was operating in interstate commerce. The

state attempted an enforcement action against the

carrier for charging and advertising rates different than

those approved and on file with the state. The carrier

sued for declaratory relief pursuant to 42 U.S.C. § 1983

and sought attorney’s fees pursuant to 42 U.S.C.

§ 1988 for violation of its rights under the Commerce

Clause on the basis that the state lacked jurisdiction

because its authority was pre-empted by federal law.

The court granted the declaratory relief sought by the

carrier, noting that “[t]here is no genuine dispute here

that passengers traveling from outside of Colorado to

a ski resort do not end their journey at the airport,

they end their interstate journey at the resort . . . This

kind of prearranged system, like that in Charter

Limousines, is sufficiently linked to the overall interstate journey to qualify as interstate.”

19

When Petitioner filed the instant case and cited

the foregoing authorities, the NTA responded with a

peculiar stance. The NTA argued that Petitioner’s

transporting of flight crews between the Reno Airport

and points in Nevada was interstate commerce, while

transporting passengers who traveled on the same

interstate flight was not. The distinction the NTA

drew between flight crews and airline passengers

was, and is, legally without precedent. Creating this

dichotomy spawned a host of irreconcilable problems

that have infected this case ever since (see discussion,

below). The district court’s and Ninth Circuit’s failures

to reject the NTA’s stance outright is a paramount and

compelling reason for the intervention of this Court to

state the law and reconcile the Ninth Circuit with the

rest of the circuit courts of appeal.

Rather than directly address the obvious conflict

between the NTA’s stance and the federal precedents

including Yellow Cab and its progeny, the district

court’s decision simply avoided mentioning the federal

precedents. Petitioner then argued on appeal to the

Ninth Circuit that the district court’s adoption of the

NTA’s strange line-drawing between flight crews and

passengers was contrary to the Yellow Cab and the

circuit courts of appeals decisions that follow Yellow

Cab.

The Ninth Circuit had a clear opportunity to

follow Yellow Cab and adopt the position of all the

other circuits by holding that since the NTA acknowledged that pre-booked ground transport of flight

crews constitutes interstate commerce, then so does

pre-booked ground transport of the interstate passengers.

20

The Ninth Circuit majority passed. Rather than

directly address the NTA’s legally baseless distinction

between flight crews (interstate) and passengers

(intrastate), the Ninth Circuit tried to circumvent the

problem entirely by holding that that Petitioner

lacked standing to raise any issue about flight crews,

since the NTA’s litigation posture was that the NTA

would never prosecute Petitioner for transporting a

flight crew anyway. The majority’s tactic sparked a

strong and excellent dissent on the standing issue.

The dissenting judge pointed out that Petitioner clearly had standing to sue for violation of the Commerce

Clause respecting the flight crews. The dissent properly

noted that the NTA’s written policy of prosecuting

“ANY” “intrastate” trips does not contain any exception

for flight crews. She cited to the First Amended Complaint in which Petitioner had plausibly pleaded as a

matter of fact that the NTA had fined Petitioner

$1,000 for transporting a flight crew after the NTA’s

policy was announced. By basing its decision on

assumed facts that were contradictory to the plausiblypleaded First Amended Complaint, the majority had

violated cardinal rules of pleading that this Court

promulgated in Bell Atl. Corp. v. Twombly, 550 U.S.

544, 127 S.Ct. 1955 (2007) and Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S.Ct. 1937 (2009). The dissenter

was of course outvoted, but her analysis on the standing ruling is correct beyond reproach.

The problem that permeates the Ninth Circuit’s

position, and which compels its review by this Court,

is that the Ninth Circuit majority’s decision, in contrast

to every other circuit, adopts the inherently illogical

distinction between ground transport of flight crews

versus passengers. The absurdity of this distinction is

21

exposed by the NTA’s and the Ninth Circuits “public

safety” argument.

Initially, lest it be overlooked, the First Amended

Complaint alleges that Petitioner is licensed by the

Federal Motor Carrier Safety Administration. The

pleading further alleges that the FMCSA has safety

rules, some which are found in 49 CFR Parts 350-399,

while commercial regulations for for-hire transportation of passengers are found in 49 CFR Part 365,

among other places. So “public safety” is covered by

the FMCSA regulations.

Next, the Ninth Circuit decision accepts the NTA’s

position on the one hand that Petitioner has a Constitutional right under the Commerce Clause to transport

flight crews to and from the airport. On the other

hand, the Ninth Circuit in this case holds that Petitioner

supposedly has no Commerce Clause right to transport

the passengers under its federal motor carrier license,

and must submit to state regulation, because the state

has the right to enforce its “public safety” regulations

concurrent with federal regulations. But the flight

crews are traveling in the same vehicles, with the

same drivers, headed to the same or similar destinations

as the passengers. To be genuine and sincere, the

state’s interest in “public safety” must be the same for

the pilots as the passengers. If the federally-licensed

Petitioner can safely transport the flight crews without

having a Certificate of Public Necessity and Convenience, then it can safely transport the passengers.

Further, the Ninth Circuit’s decision engrafts a

“public safety” justification for state regulation of

Petitioner which, respectfully, cannot be justified by

the facts of this case. The decision cites case law

holding that “the Commerce Clause generally does not

22

preempt state licensing requirements related to public

safety.” (App.6a). The Ninth Circuit decision then

states “The NTA’s licensing requirement is ‘state

legislation in the field of safety where the propriety of

local regulation has long been recognized.” Id.

The Ninth Circuit’s description of the state’s

interest in requiring Petitioner to obtain a Certificate

of Public Necessity and Convenience as being “licensing

requirements related to public safety” clearly is inapt.

The facts of this case are that the NTA is barring

Petitioner from transporting passengers to and from

Reno Airport without a state-issued Certificate of

Public Necessity and Convenience. As explained above,

the Certificate of Public Necessity and Convenience is

a protectionist piece of state legislation in favor of

existing holders of certificates. An applicant motor

carrier has to prove its entry into the market will not

harm (be overly competitive with) other motor carriers,

that there is space for the new business in the market

and that “sound economic conditions with the applicable

industry” support issuance of the certificate. Yes,

amongst the standards, the NTA board is to consider

whether issuance of the certificate would “benefit and

protect the safety and convenience of the traveling

and shipping public and the motor carrier business in

this State,” but the statute’s purpose is to protect

existing players already in the market from new

competition, not to provide for enforcement of any

“public safety” standards. It is called a “Certificate of

Public Necessity and Convenience” because the NTA

board issues the certificate when it decides that a new

entrant into the market has carried its burden to show

that the new business is a public necessity and that

23

the new entrant will make transportation more

convenient for the public.

Understandably, the Ninth Circuit’s decision in

this case did not adopt the NTA’s and district court’s

incorrect positions that transporting interstate passengers between the airport and a point in Nevada is

“intrastate” commerce. The court said it would “assume,

without deciding” that transportation of the passengers

was interstate in nature. Of course, other circuits

following Yellow Cab have all uniformly decided it is

interstate commerce. However, in the instant case the

Ninth Circuit still held that Petitioner failed to state

a claim for relief because the Ninth Circuit has held

that “the Commerce Clause generally does not preempt state licensing requirements related to public

safety.” Kleenwell Biohazard Waste & General Ecology

Consultants, Inc. v. Nelson, 48 F.3d 191, 392, 398 (9th

Cir. 1995). Even if Kleenwell accurately stated the

law, it would be inapplicable here. A Certificate of

Public Necessity and Convenience is not a state

licensing requirement related to public safety, it is a

bottleneck created by the state of Nevada which allows

the state to prevent Petitioner, Sunset Limousine, and

others similarly situated from providing their services

to the interstate traveling public. As such, it is a perfect

example of a significant and impermissible burden on

interstate commerce. South Dakota v. Wayfair, 138

S.Ct. 2080, 2090-91 (2018).

The Ninth Circuit opinion in Kleenwell is out of

step with the other circuits. In Southerland, the court

held:

To force an individual engaged in an interstate

journey which includes transportation by

plaintiff’s vehicle to abandon that transpor-

24

tation for which he has paid and which will

provide him with the type of vehicle and

insurance protection which he desires and

employ a local taxicab operator who may well

not provide him with either is clearly to

impose an unwarranted burden on the

interstate commerce involved.

Southerland, at 369. The Third Circuit thus holds that

the act of violating the Constitutional rights of the

traveling public itself is an unwarranted burden on

interstate commerce.

Similarly, in Charter Limousine, the motor carrier

argued that Dade County’s total prohibition of its

right of access to the airport constituted an unreasonable burden on interstate commerce:

Charter’s operations are similar to those set

forth in Southerland. See also, Toye Bros.,

Yellow Cab Company v. Irby, 437 F.2d 806

(5th Cir. 1971). It is the conclusion of this

Court that Charter’s prearrangements place

their operations within the stream of

interstate commerce, even though they take

place wholly within a single state. The Court

concludes, as did the district court, that the

restrictions placed upon Charter by the Dade

County Commission constitute an unreasonable burden upon interstate commerce.

Charter Limousine, at 589. The Fifth Circuit thus

interprets the dormant Commerce Clause consistently

with the Third Circuit, and differently than the Ninth

Circuit does in this case.

Even prior Ninth Circuit precedent undercuts the

Ninth Circuit’s holding in this case that there is no

25

significant burden on interstate commerce caused by

the NTA’s enforcement policy and the requirement of

obtaining a Certificate of Public Necessity and

Convenience. In Nat’l Pork Producers Council v. Ross,

6 F.4th 1021 (9th Cir. 2021), the court noted that the

Ninth Circuit cases hold that only state regulation of

activities that are inherently national or require a

uniform system of regulation violates the dormant

Commerce Clause. Id. at 1031. “The ‘small number’ of

cases dealing with ‘activities that are inherently national

or require a uniform system of regulation’ generally

concern taxation or interstate transportation.” Id.

(emphasis added). This case fits that description.

At its most basic level, the Ninth Circuit has dismissed Petitioner’s First Amended Complaint, with

prejudice, for failure to state a claim. A claim for relief

satisfies federal pleadings standards when the plaintiff pleads “enough facts to state a claim to relief that

is plausible on its face.” Twombly, at 570. “A claim has

facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the

misconduct alleged.” Iqbal, at 678. The First Amended

Complaint satisfies these standards. The Ninth Circuit

decision in this case conflicts with prior decisions of

this Court and with the precedents of all the other

circuits by holding otherwise.

26

CONCLUSION

For the above and foregoing reasons, Petitioner

respectfully requests the issuance of a writ of certiorari

to the United States Court of Appeals for the Ninth

Circuit.

Respectfully submitted,

Mark Wray

Counsel of Record

LAW OFFICES OF MARK WRAY

608 Lander Street

Reno, NV 89509

(775) 348-8877

mwray@markwraylaw.com

Counsel for Petitioner

January 16, 2024