Ed. Note: This post first appeared on WLF’s Forbes.com contributor page, published on June 16, 2022.
Thanks to a far-reaching California law, a few federal judges, and the U.S. government, a small cadre of plaintiffs’ lawyers are on the brink of seizing substantial regulatory authority over the airline industry. American travelers, and the entire ecosystem of industries relying on travel and tourism as well, should be concerned. If the U.S. Supreme Court defers to the Justice Department’s newly adopted legal opinion and declines to review a Ninth Circuit labor-law decision on June 23, airfare increases and flight delays will soon follow.
State and Federal Rules
The lawsuit at issue in two airlines’ appeal to the Supreme Court, Bernstein v. Virgin American, involves flight attendants’ meal and rest breaks. The legal issue the airlines have asked the Court to resolve is whether the companies must comply with both California and federal standards for attendants’ breaks.
The plaintiffs represent a class of flight attendants who spent some part of their work time in California. They allege the airlines failed to abide by California Labor Code rules that mandate 30-minute meal breaks or 10-minute rest breaks every 3.5 to 5 hours. California courts have interpreted “break” to mean an employee is entirely off duty (not on call, even for emergencies) and can leave the worksite.
The federal rules for flight attendants’ duty periods are starkly different. Under the Airline Deregulation Act (ADA), the Federal Aviation Administration (FAA) limits attendants’ duty period to 14 hours, and airlines must allow at least a nine-hour rest period after every duty period. Though attendants can sit and eat during flights, FAA rules require that attendants be available (i.e. “on duty”) at all times.
The goal of the Airline Deregulation Act was to free air travel from the grip of onerous and inconsistent state laws keeping prices high and limiting the availability of rights and services. To accomplish that goal, Congress expressly preempted any state law that is “related to price, routes, or service of an air carrier.” The Supreme Court has construed the ADA’s preemption language as “deliberately expansive” and has held the provision preempts even state laws of general application that have a “significant impact” on airline prices, routes, or service. And the ADA has been a great success. Since the law’s enactment, the relative cost of flying has fallen by half, opening the skies to economy-boosting air traffic for many more travelers.
The Ninth Circuit Breaks Away
With the ADA’s broad federal preemption and supportive precedents on their side, the airlines must have felt like they held all the cards when they moved for summary judgment in federal district court. But the plaintiffs had an ace up their sleeve: an aberrant Ninth Circuit standard for when the ADA preempts general state laws. In a 2014 decision involving a different federal statute with an identical preemption clause, the Ninth Circuit held that if the relevant state law did not “bind the carrier to a particular price, route or service,” that law is not preempted.
Applying that more rigorous standard to California’s meal-and-rest-break rules, the district court here denied Virgin and Alaska’s motion. The court outrageously suggested that the companies could comply with both federal and state law by staffing flights with additional flight attendants. The court made no mention of the increased labor costs passengers would have to pay or the possibility of attendants taking up passenger seats. It is hard to imagine a better example of the kind of state regulation that Congress expressly preempted than a law that micromanages airlines’ flight staffing.
In reaching its conclusion, the Ninth Circuit dismissed the airlines’ argument—backed by the U.S. government—that the Ninth Circuit must apply the Supreme Court’s “significant impact” test for preemption and reverse the lower court. The government’s amicus brief argued “[t]here can be no serious question that applying California’s meal and rest break laws will have a significant impact on the market forces influencing carrier services and prices.” The government added that the only way airlines could comply with both FAA and California rules—granting breaks on the ground between flights—“would significantly interfere with th[e] complex choreography” of scheduling flights, leading to cascading delays.
The Ninth Circuit, doubling down on both its “bind the carrier” ADA preemption standard and the district court’s staffing suggestion, held that the flight attendants’ suit could proceed. The airlines filed a petition for a writ of certiorari at the Supreme Court on August 19, 2021. On November 15, the Court invited the Solicitor General to file a brief expressing the government’s views.
The Feds’ Disingenuous Legal Detour
The Solicitor General’s May 24, 2022 brief navigates through a dizzying path of twist and turns to come to a disappointing and rather surprising conclusion that the Supreme Court should deny certiorari.
The government agrees that the Ninth Circuit identified the wrong standard for ADA preemption to the California break law. But then the brief turns on its head and argues that the Ninth Circuit didn’t in fact apply the “bind the carrier” standard to find no preemption. So what standard did it apply? That’s not at all clear.
The Solicitor General also suggests that the Court grant cert, vacate Bernstein, and remand to the Ninth Circuit. The government asserts that if given a second chance to rethink the legal issues at stake, the Ninth Circuit just might discover a preemption work-around. How? The brief offers up a self-admitted “contestable” theory. The government acknowledges that meal or rest breaks while on the ground in California are not a feasible way to comply with state and federal rules. But the brief suggests that flight attendants could take their off-duty breaks while on-duty during flights and still fulfill their FAA-required safety duties.
The government realizes that in-flight disruptions may result, so, in a remarkable footnote, the brief announces that the Transportation Department “is prepared to facilitate discussions outside of this litigation with the airlines, unions, and States.” Instead of a cert grant, a summit?
What would that summit accomplish? Plaintiffs’ lawyers surely know that break means the worker will have no responsibilities during off-duty time and can leave the premises (and presumably, that’s exactly what their clients want).”FAA rules stand in the way of the former, gravity the latter. The airlines’ supplemental brief stated the obvious quite well: flight attendants “‘cannot take a brief walk’ at 30,000 feet.”
The government also fails to grasp (or is consciously oblivious to) just how far plaintiffs’ lawyers will ride these meal-and-rest-break claims if the Court denies review. In addition to a steady flow of flight-attendant claims, one could envision break lawsuits on behalf of pilots and ground-crew members. As noted in an amicus brief signed by nineteen states in support of certiorari, pilots and ground crew have already brought such claims in California. Is the ADA really supposed to let pilots go off-duty during a flight? Are airlines supposed to add extra pilots to every flight—and at a time of crippling nationwide pilot shortages, no less? Will the federal government’s summit include a crash course on how to fly a plane?
Why has the federal government gone from its crystal-clear view of ADA preemption in the Ninth Circuit to (with apologies to Steely Dan) the pretzel logic of its Supreme Court brief? And why would the Transportation Department and the FAA, whose lawyers signed on to the Solicitor General’s brief, be willing to share airline regulatory authority with self-deputized California private attorneys general?
Given the ramifications detailed above, greater protection of consumers certainly cannot be the reason. The more likely explanation is one the Solicitor General did not offer in her Bernstein brief but did in another Supreme Court brief where the government reversed another preemption position: “[i]n light of … the change in Administration.” Read our commentary about the Solicitor General’s flip-flop in Monsanto v. Hardeman here.
The Supreme Court should see through the federal government’s transparent attempt to help its political allies by mucking up the airlines’ compelling case for certiorari. The millions who travel and work in the airline and tourism industries are counting on it.