Page 23 - Arkansas Trucking Report Volume 23 Issue 2

It said state laws are preempted if they
have “a connection with” prices, routes
or services, even if “only indirect.” This “THE NINTH CIRCUIT HAS BEEN MISAPPLYING THE
was done in order to “avoid a patchwork SUPREME COURT’S PRECEDENT, AND SO I WOULD
of state laws, rules and regulations.” THINK THE SUPREME COURT WOULD WANT TO TAKE
California’s attack on trucking’s piece- THE OPPORTUNITY TO HELP THE NINTH CIRCUIT SET
rate payment system would not require
employers to pay employees more — just THE RECORD STRAIGHT THERE.”
differently, and with less incentives
for high-value activities. Meanwhile, —PRASAD SHARMA, AN ATTORNEY WITH
California’s rules added administrative SCOPELITIS GARVIN LIGHT HANSON & FEARY
burdens for tracking productive and
non-productive time.
It’s not yet known if the Supreme
Court will hear the case. According to and ADA cases, and they’ve narrowed Sharma said the Ninth Circuit has
www.uscourts.gov, the federal courts’ the scope of preemption… failed to appreciate the ruling’s impact
website, the Supreme Court is asked “The Ninth Circuit has been mis- on the trucking industry — at the same
to review more than 7,000 cases each applying the Supreme Court’s prece- time it is misinterpreting the law.
year and accepts between 100 and 150 dent, and so I would think the Supreme “The preemption is against state
of them. The court earlier had refused Court would want to take the opportu- laws that relate to motor carrier prices,
to hear the Dilts case, but J.B. Hunt is nity to help the Ninth Circuit set the routes or services,” he said. “And what
arguing that this case is more worthy of record straight there.” the state meal and rest break laws do is,
hearing for several reasons, including Sharma said resolving that conflict they say, ‘OK, you cannot provide ser-
the fact that J.B. Hunt is an interstate and settling a disputed part of the law vice, period, during these times that we
carrier, while the Penske case involved would be a reason the Supreme Court the state has decided employers need to
intrastate hauls in California. would take the case. provide employees breaks.’”
Prasad Sharma, an attorney with The Arkansas Trucking Association
the Scopelitis Garvin Light Hanson BUT WHEN? was one of 22 state trucking asso-
& Feary transportation law firm, said When that would happen is unclear. ciations that joined an amicus curiae
the case is “cert-worthy” because of its The Supreme Court is under no timeline (friend of the court) brief filed by the
national importance and because of or deadline to act. Typically, the justices American Trucking Associations. It
the conflict between the Ninth Circuit would schedule a conference to discuss argues that Congress passed the F4A to
and rulings from other courts, includ- the case’s merits and then might ask ensure motor carriers could implement
ing the Supreme Court. In 2014, the Solicitor General Noel Francisco for his efficient, standard business practices
Supreme Court reversed another Ninth recommendations — the solicitor general across the country after the industry
Circuit decision in a preemption case in being the official who represents the was deregulated. The brief argues that
Northwest, Inc. v. Ginsberg. That case federal government before the Supreme adding state meal and rest breaks to
was based on the Airline Deregulation Court. federal hours of service rules reduces
Act of 1978, but the language in the two The Supreme Court declined to hear productivity “in an industry where
laws — the ADA affecting airlines, the Penske’s appeal in the Dilts case after the carefully engineered logistical networks
F4A affecting trucking — is the same. solicitor general recommended against are crucial to the efficient movement
According to Sharma, “There are a hearing. However, that occurred with of freight.” Terminals were chosen so
other circuits that have understood a previous solicitor general during the driver breaks would coincide with other
from the plain language, legislative his- previous presidential administration. activities, such as loading and unload-
tory and from congressional intent, F4A Sharma said a new administration with ing at a dock. California’s rules could
preemption is intended to be broad in a new solicitor general might be more force carriers to create additional facili-
scope, and it’s intended to really foster inclined to say yes to what has proven to ties or relocate new ones.
the promotion of market forces in the be a recurring issue. “The result is a cascade of ineffi-
transportation industry to promote On preemption cases, the Supreme ciencies that would significantly reduce
efficiencies and innovation. …What Court does not necessarily fall along the services a carrier can offer under
the Ninth Circuit has done is they’ve liberal-conservative lines. In the Ginsberg the uniform federal regulations — pre-
applied a test that is out of step with case, the vote was 9-0. If the Supreme cisely the sort of state interference with
what even the Supreme Court has sug- Court takes the case, it could be a positive motor carrier services that the F4A was
gested should be the test in prior F4A omen for how it will rule, Sharma said. designed to prevent,” it said. ATR

ARKANSAS TRUCKING REPORT | Issue 2 2018 23