Solicitor General recommends Supreme Court deny review of AB 5 independent contractor law

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Updated May 25, 2022

The U.S. Solicitor General on Tuesday filed a brief to the U.S. Supreme Court recommending that the High Court deny a review of the California Trucking Association’s (CTA) case challenging California’s AB 5 law that would effectively put a halt to the traditional leased owner-operator model in the state.

The AB 5 law, which institutes the restrictive ABC test for determining independent contractor status, took effect in California in January 2020. A federal district court, however, granted an injunction that exempted the trucking industry from the law.

CTA argued that the 1994 Federal Aviation Administration Authorization Act (FAAAA or F4A) bars states from enacting laws that interfere with “routes, prices and services” of motor carriers.

The State of California appealed the injunction, and a panel of the U.S. Court of Appeals for the Ninth Circuit in April 2021 reversed the injunction. CTA then appealed to the U.S. Supreme Court, and the injunction was allowed to remain in place until the case played out. In response to CTA’s petition, the Supreme Court last November asked the Solicitor General to file a brief on whether the Court should hear the case.

“Although the circuits have reached differing outcomes with respect to FAAAA preemption of the ABC test as codified under the laws of various states, those case-specific decisions do not create a conflict warranting this Court’s review,” the Solicitor General wrote in its brief. “Moreover, the interlocutory posture of this case and the need to resolve a threshold issue of state law -- namely, whether motor carriers and owner-operators may fall within the  business-to-business exemption under California law -- make this case a poor vehicle in which to address the question presented. Further review is unwarranted.”

Transportation legal firm Scopelitis, Garvin, Light, Hanson & Feary said in a "Law Alert" Tuesday that while the Solicitor General’s brief “is very influential and often tracks the Court’s ultimate determination,” the decision still comes down to the High Court and requires four Justices to vote to hear the case.

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“Nevertheless, this is not a positive development in the effort to reverse the Ninth Circuit opinion,” Scopelitis added.

Joe Rajkovacz, director of governmental affairs and communications for the Western States Trucking Association (WSTA), said after speaking with WSTA's lawyers, it is "probably best to say people should take the brief with a grain of salt."

Rajkovacz added that, given the Solicitor General was nominated to her position by President Biden, "it's no surprise to anyone that the Solicitor General ... would submit a brief only organized labor would applaud.

"This is an administration that is a proponent of the PRO Act that would essentially federalize AB 5. Many of the Justices will be aware of this dynamic, and the brief can be basically ignored by a majority. Only four Justices have to agree to take the case. That’s about the only good thing to this brief is now this is wholly in the hands of the Justices whether to grant or deny" review of the case.

As for the next steps in the case, CTA and the State of California have 14 days to file supplemental briefs responding to the Solicitor General’s brief. The petition will be considered at the Supreme Court’s next conference, at least two weeks from now.

“Given the timing, it is possible that the petition will not be considered before the Court recesses for the summer at the end of June, in which case the next currently scheduled conference is Oct. 6,” Scopelitis noted.