On Nov. 15, the U.S. Supreme Court of the United States issued an order concerning the California Trucking Association's (CTA's) challenge to California's independent contractor law, AB 5. The Supreme Court's order invited the solicitor general (SG) of the United States to file a submission describing the federal government's position with respect to this case and the question CTA posed to the court that the Federal Aviation Administration Authorization Act of 1994 pre-empts AB 5.
The CTA, which Ogletree Deakins represents in this litigation, obtained a preliminary injunction in January 2020 that enjoined the state of California from enforcing AB 5 against motor carriers. Earlier this year, the 9th U.S. Circuit Court of Appeals reversed the injunction order but agreed to leave the injunction in place pending the Supreme Court's review. CTA filed a petition for certiorari (review) this summer. There was strong support for CTA's petition, with several groups filing amicus briefs that describe AB 5's anticipated harmful impact to the transportation industry, which comprises a vital part of the economy that relies on motor carriers that use independent owner-operators to provide trucking services.
In the Nov. 15 order, the Court also asked for the SG's view in a recent 9th Circuit airline case involving federal pre-emption of California meal and rest period rules. It is not uncommon for the Supreme Court to seek the views of the federal government concerning cases that involve federal pre-emption before deciding whether to grant or deny review.
The SG does not have a deadline to submit the views of the federal government, but it is expected to be several months before the submission is filed. The CTA will also be able to submit a response to the SG's submission. If the briefing is complete by spring 2022, it is possible the court will decide whether to grant or deny review before the end of the Supreme Court's term in late June or early July. If the court grants review, it would almost certainly not consider the case on the merits until the next term, which begins in October 2022.
The preliminary injunction against California's enforcement of AB 5 against motor carriers will remain in place until the court's final determination in this matter, which, as noted, will likely be several more months and possibly more than a year from now.
Robert Roginson and Alexander Chemers are attorneys with Ogletree Deakins in Los Angeles. © 2021 Ogletree Deakins. All rights reserved. Reposted with permission.
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