The U.S. Supreme Court is currently considering whether to review two major Ninth Circuit preemption cases with significant implications for the transportation industry. In California Trucking Ass’n v. Bonta, a federal district court in California issued an injunction barring enforcement of AB5, California’s statutory ABC employment classification test that effectively extends coverage of California’s wage and hour laws to owner-operators working in the state. The district court concluded that AB5 was likely preempted by the Federal Aviation Administration Authorization Act (FAAAA), which bars states from enforcing laws that “relate to” a motor carrier’s prices, routes, or services. The Ninth Circuit reversed but kept the injunction in place while the California Trucking Association seeks review in the Supreme Court. On November 15, 2021, the Supreme Court invited the Solicitor General, the federal government’s Supreme Court representative, to weigh in with the government’s view of the case. The Court similarly invited the Solicitor General to file a brief in Virgin America v. Bernstein, another Ninth Circuit preemption case challenging that court’s restrictive approach to preemption.

The Supreme Court is also considering whether to review the Ninth Circuit’s decision in C.H. Robinson v. Miller. In that case, a federal district court held that the FAAAA preempted a plaintiff’s claim that a freight broker negligently selected an unsafe motor carrier. The Ninth Circuit agreed with the district court that the negligent selection claim “related to” the broker’s services, but held that common law negligence claims against brokers are not preempted because they fall within the FAAAA’s “safety exception.” Like it did in Bonta and Bernstein, the Supreme Court asked the Solicitor General to file a brief expressing the government’s opinion on whether to accept review of the case. It is unlikely the Solicitor General will file briefs in any of these cases until early next year.