On March 3, 2014, the U.S. Court of Appeals for the Ninth Circuit is set to hear oral argument in two cases addressing whether California’s meal and rest break requirements are preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA) when applied to motor carriers. The cases are Dilts v. Penske Logistics, LLC, and Campbell v. Vitran Express.

The FAAAA provides in relevant part that “a State . . . may not enact or enforce a law . . . related to a price, route, or service” of a motor carrier transporting property. Dilts involves drivers making residential appliance deliveries, and Campbell involves “city/local” drivers transporting a variety of cargo for Vitran. The federal district courts for the Southern District of California, in  Dilts, and the Central District of California, in Campbell, held that the FAAAA preempted enforcement of the meal and rest break requirements because the breaks would impact the “price, route, or service” of motor carriers, and dismissed the plaintiffs’ claims. The plaintiffs appealed to the Ninth Circuit.

Although the cases had been fully briefed, on January 27, 2014, the Ninth Circuit issued an order inviting the Department of Transportation (DOT) to provide its views on two issues:

• Its current position on whether the FAAAA preempts California’s meal and rest break laws as applied to motor carriers; and
• The level of deference owed to: (a) the DOT’s published Notice of Rejection of Petition for Preemption,¹ which held that the FAAAA does not preempt California’s meal and rest break laws; and (b) the DOT’s position in briefs submitted to the court in this case.

On February 18, 2014, the United States filed its amicus curiae brief, opposing FAAAA preemption of California’s meal and rest break requirements and supporting reversal in both cases. The DOT acknowledged in its brief that the FAAAA “is intended to deregulate the motor carrier industry and to promote maximum reliance on competitive market forces” and should be read broadly. Nevertheless, it argued, the FAAAA does not preempt the break laws at issue, primarily because those requirements are laws of general applicability not specifically targeted toward the motor carrier industry. In particular, the DOT argued, the FAAAA’s preemptive reach should be distinguished from that of the similarly worded Airline Deregulation Act applicable to air carriers.

The DOT’s brief in Dilts and Campbell is notable in several respects. First, in taking the position that preemption under the FAAAA should be narrower than under the Airline Deregulation Act, the DOT departed sharply from the position it has taken in a number of other federal cases in which it has filed amicus briefs urging that the two statutes be interpreted to have identical preemptive reach. Second, the DOT argued that its position on the preemptive reach of the FAAAA should be given deference by the courts based largely on its expertise in regulation and interpretation of motor carrier safety under the Federal Motor Carrier Safety Act (FMCSA). The FMCSA, however, is not at issue in Dilts or Campbell, and is a statutory scheme entirely distinct from the FAAAA. The DOT has never regulated or administered the FAAAA, nor had any statutory authority to do so. 

The plot continues to thicken, as on February 19, the day after filing its brief, the DOT filed a motion with the Ninth Circuit requesting 10 minutes of time to participate in oral argument of the two cases on March 3, 2014.

¹ 73 Fed. Reg. 79,204, 79,206 (Dec. 24, 2008).