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Old 07-30-2021, 10:12 AM
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Default 9th circuit denies Airlines for America…

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Bernstein v. Virgin America, Inc. (rehearing)

U.S. Court of Appeals for the Ninth Circuit

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Ninth Circuit denies en banc rehearing, rejecting argument that federal law preempts California’s meal and rest break requirement in the aviation context


July 20, 2021Click here to view the opinion.
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Old 07-31-2021, 10:25 AM
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Interesting reversal. Case closed.

Under the US Constitution Congress is free to regulate commerce under the Commerce Clause. Absent Congressional regulation, States are free to regulate, as long as the State's Regulation DOES NOT unduly burden and discriminate against interstate commerce. "Dormant" refers to the absence of Federal Regulation.
• In the absence of Federal Regulation, State Regulation of commerce is PRESUMED valid if:
• (1) There is NO discrimination against out-of-state "interests;"
• (2) The regulation DOES NOT unduly burden interstate commerce; AND
• (3) The regulation DOES NOT apply to wholly extraterritorial activity.

"The panel rejected Virgin’s contention that federal law preempted California’s meal and rest break requirement in the aviation context because federal law occupied the field. Specifically, the panel held that field preemption under the Federal Aviation Act was not necessarily limited to state laws that regulate aviation safety."
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Old 08-04-2021, 10:18 AM
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Originally Posted by METO Guido View Post
Interesting reversal. Case closed.

Under the US Constitution Congress is free to regulate commerce under the Commerce Clause. Absent Congressional regulation, States are free to regulate, as long as the State's Regulation DOES NOT unduly burden and discriminate against interstate commerce. "Dormant" refers to the absence of Federal Regulation.
• In the absence of Federal Regulation, State Regulation of commerce is PRESUMED valid if:
• (1) There is NO discrimination against out-of-state "interests;"
• (2) The regulation DOES NOT unduly burden interstate commerce; AND
• (3) The regulation DOES NOT apply to wholly extraterritorial activity.

"The panel rejected Virgin’s contention that federal law preempted California’s meal and rest break requirement in the aviation context because federal law occupied the field. Specifically, the panel held that field preemption under the Federal Aviation Act was not necessarily limited to state laws that regulate aviation safety."
Very well said! 👍

I have a relative who is a judge on the 9th circut. He was not on this case.
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Old 08-04-2021, 06:50 PM
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The 9th is routinely overturned...2nd highest according to Ballotpedia:
https://ballotpedia.org/SCOTUS_case_...7_-_Present%29
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Old 08-05-2021, 06:08 AM
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Originally Posted by Hawkerdriver1 View Post
I have a relative who is a judge on the 9th circut. He was not on this case.
Originally Posted by Electrickjet View Post
The 9th is routinely overturned...2nd highest according to Ballotpedia:
Mack daddy of all circuit benches. 12,000 appeals handled each year on average. 29 full time judges, 18 part time retirees (2 Nixon). 24 of them nominated by R presidents. Per 1,000 cases selected for SCOTUS calendars, the 9th Circuit is 2.5 times likely as other courts to see decisions reversed. Controversial for its immense population, diversity and geographical jurisdiction.

Field preemption occurs when federal regulations so completely occupy a field that it is reasonable to infer Congress’s intent to exclusively regulate the field. To open the door for states to overlay FARs with home grown compliance statutes of their own affection seems Byzantine if that is what's happening here?
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Old 08-05-2021, 07:23 AM
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Originally Posted by METO Guido View Post
Mack daddy of all circuit benches. 12,000 appeals handled each year on average. 29 full time judges, 18 part time retirees (2 Nixon). 24 of them nominated by R presidents. Per 1,000 cases selected for SCOTUS calendars, the 9th Circuit is 2.5 times likely as other courts to see decisions reversed. Controversial for its immense population, diversity and geographical jurisdiction.

Field preemption occurs when federal regulations so completely occupy a field that it is reasonable to infer Congress’s intent to exclusively regulate the field. To open the door for states to overlay FARs with home grown compliance statutes of their own affection seems Byzantine if that is what's happening here?
Correction… of the 29 full time judges (i.e. not senior judges - who are retired, with some willing to hear a few cases when needed), 16 were nominated by D presidents, 13 were nominated by R presidents (10 of those by Trump. Before his nominations it was more heavily D leaning).
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Old 08-05-2021, 07:25 AM
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Originally Posted by METO Guido View Post
Mack daddy of all circuit benches. 12,000 appeals handled each year on average. 29 full time judges, 18 part time retirees (2 Nixon). 24 of them nominated by R presidents. Per 1,000 cases selected for SCOTUS calendars, the 9th Circuit is 2.5 times likely as other courts to see decisions reversed. Controversial for its immense population, diversity and geographical jurisdiction.

Field preemption occurs when federal regulations so completely occupy a field that it is reasonable to infer Congress’s intent to exclusively regulate the field. To open the door for states to overlay FARs with home grown compliance statutes of their own affection seems Byzantine if that is what's happening here?
Not overlaying FARS at all. Just applying the same workers rights rules as with other employers who operate in the state.

Basically, Congress opened the door for this when they let California set what became National auto fuel efficiency and pollution standards.
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Old 08-05-2021, 10:54 AM
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Originally Posted by Excargodog View Post
Not overlaying FARS at all. Just applying the same workers rights rules as with other employers who operate in the state.

Basically, Congress opened the door for this when they let California set what became National auto fuel efficiency and pollution standards.
"the panel held that it was physically possible to comply with federal regulations prohibiting a duty period of longer than fourteen hours and California’s statutes requiring ten-minute rest breaks and thirty-minute meal periods at specific intervals. The panel held further that Virgin’s obstacle preemption argument mischaracterized the relevant federal regulation and improperly dismissed the possibility of increasing flight attendant staffing on longer flights. Contrary to Virgin’s characterization, the relevant regulations defined safety duties for a minimum number of flight attendants. The panel agreed with the district court, which held that airlines could comply with both the Federal Aviation Administration safety rules and California’s meal and rest break requirements by staffing longer flights with additional flight attendants in order to allow for duty-free breaks. Finally, the meal and rest break requirements were not preempted under the Airline Deregulation Act."

I think Virgin's argument has merit. FARs with respect to rest requirements for required crewmembers, including other relevant aspects of aviation safety during periods of elapsed block time, as assigned, preempts CA's code. This is a real concern for many operators. What's to prevent other states from imposing any number of added codicils for protection of flight and cabin crew…rights? How do you develop manuals referenced to code when no one knows which regulatory source takes precedence? If you want to revise legalities for the operation of domestic airliners, got to be done through the Fed.

Last edited by METO Guido; 08-05-2021 at 11:09 AM.
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Old 08-05-2021, 11:37 AM
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Originally Posted by METO Guido View Post
"the panel held that it was physically possible to comply with federal regulations prohibiting a duty period of longer than fourteen hours and California’s statutes requiring ten-minute rest breaks and thirty-minute meal periods at specific intervals. The panel held further that Virgin’s obstacle preemption argument mischaracterized the relevant federal regulation and improperly dismissed the possibility of increasing flight attendant staffing on longer flights. Contrary to Virgin’s characterization, the relevant regulations defined safety duties for a minimum number of flight attendants. The panel agreed with the district court, which held that airlines could comply with both the Federal Aviation Administration safety rules and California’s meal and rest break requirements by staffing longer flights with additional flight attendants in order to allow for duty-free breaks. Finally, the meal and rest break requirements were not preempted under the Airline Deregulation Act."

I think Virgin's argument has merit. FARs with respect to rest requirements for required crewmembers, including other relevant aspects of aviation safety during periods of elapsed block time, as assigned, preempts CA's code. This is a real concern for many operators. What's to prevent other states from imposing any number of added codicils for protection of flight and cabin crew…rights? How do you develop manuals referenced to code when no one knows which regulatory source takes precedence? If you want to revise legalities for the operation of domestic airliners, got to be done through the Fed.


The FARS specify a minimum rest requirement, not a maximum one.

(4) No certificate holder may assign, nor may any flight crewmember perform any flight time with the certificate holder unless the flight crewmember has had at least the minimum rest required under this paragraph.
If the CBA may require crew rest requirements stricter than the FARS - and a number do - why shouldn’t that be possible for state law?
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Old 08-05-2021, 12:31 PM
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Originally Posted by Excargodog View Post
The FARS specify a minimum rest requirement, not a maximum one.

If the CBA may require crew rest requirements stricter than the FARS - and a number do - why shouldn’t that be possible for state law?
CBA's are ratified via NMB collective bargaining. They're legally binding on both parties and provide for compensation penalties as well grievance resolution. But they won't be found in CFR or subject to FAA LOIs. FARs drive manual and SMS compliance. Max & min limitations in every corner, as you well know. I see this more like the part in Raiders of the Lost Ark where they put a stick in the ground in the map room. Only when Jones deciphers its length as specified in the sand hieroglyphics correctly does the sunlight point accurately to the Well of Souls. CA is run like ancient Egypt. (Insert laugh track)
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