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Truckers Request Appellate Court Rehearing Over AB 5 Ruling

9th Circuit Court of Appeals ruled that truckers will no longer be exempt from AB 5 law last week

By Evan Symon, May 6, 2021 11:14 am

The California Trucking Association announced on Wednesday that they are requesting a rehearing over last weeks Appellate Court ruling over having truckers no longer being exempt from the AB 5 worker classification law.

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Truckers were exempted from AB 5, a law that reclassifies many independent contractors as employees, by a Los Angeles County Superior Court Judge shortly after the law came into effect in January 2020. The court found that the law violated the 1994 Federal Aviation Administration Authorization Act​ (FAAAA), effectively giving independent truckers the right to operate in every state to (1) make uniform federal laws possible for easy interstate commerce, and (2) to create fair competition.

However, the trucker exemption was soon challenged in higher courts by the  California attorney general and the International Brotherhood of Teamsters, leading to the exemption reversal last week. The 9th U.S. Circuit Court of Appeals ruled 2-1 that the FAAAA did not block them from being covered under the new law.

The judges were bitterly divided, with two saying that the FAAAA didn’t cover truckers, while the dissenting judge found that the truckers were pre-empted and may now face economic uncertainty.

“The California Trucking Association’s members will now suffer irreparable injury,” noted dissenting Appellate Court Judge Mark J. Bennett last Wednesday.

The CTA quickly reacted, following the ruling last week, trying to find the best option to reverse the Appellate ruling. This culminated in their decision on Wednesday to request an en banc rehearing.

The en banc request

“We continue to stand by our initial claim that the implementation of AB5’s classification test is preempted by federal law and is clearly detrimental to the long-standing and historical place California’s 70,000 owner-operators have had in the trucking industry,” said California Trucking Association CEO Shawn Yadon on Wednesday. “The California Trucking Association will take any and all legal steps necessary to continue this fight on behalf of owner-operators and motor carriers operating in California.”

An en banc rehearing is a rare Appellate Court maneuver where the Appellate ruling itself is brought up to be reheard before all Appellate Court judges on the bench. As the 9th Circuit Court of Appeals is the largest court such court in the country with 29 judges, an approved trucking en banc rehearing would have to bring all 29 together to hear the case.

“En banc rehearings are rare because you need to have such an extraordinary case to have one happen,” explained San Francisco-based lawyer Charlie Higgins to the Globe on Thursday. “You basically need to convince the Appellate Court for an appeal against a ruling made by them. It’s a lot of judges to bring together, so your case needs to be absolute and convincing that it deserves such a big second look.”

“If approved, the trucker en banc rehearing would have 29 Appellate judges rehear the case. Since 2019, the court has only allowed 16 cases to be heard en banc. And considering that 1,200 Appellate decisions are requested to go to an en banc trial each year in the 9th alone, the odds aren’t great.

“Considering the magnitude of this case, it’s likely that it will be heard in a court again to challenge the Appellate ruling, but the odds of it being picked up en banc aren’t great.”

The CTA will likely pursue higher  court action, such as through the Supreme Court, if the en banc request is not granted.

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7 thoughts on “Truckers Request Appellate Court Rehearing Over AB 5 Ruling

    1. P.S. And mind you, that’s 29 judges to make a single ruling on a single case! Unbelievable. The 9th circuit has to be split up, at the very least.

  1. “an approved trucking en banc rehearing would have to bring all 29 together to hear the case.” Actually, in the Ninth Circuit, “en banc” panels usually have ONLY 11 judges.

    1. CIRCUIT RULE 35-3. LIMITED EN BANC COURT
      The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel shall preside. (Rev. 1/1/06, 7/1/07)

  2. And would a 6-5 verdict be any more clear than a 15-14 decision? Even 11 is too many, imo.

  3. At least the truckers have an organization to fight on their behalf. AB5 really is an assault on older, retired people who just want to work a couple days a week to earn some cash. My previous employer would love to have me work a day or two when things get busy but can’t unless they offer me benefits. I don’t want benefits nor do I want to work half time. Thank you Lorena for screwing me and all the other retirees that just want to supplement their Social Security a bit. Ironically, Lorena’s Law was designed to reign in Uber drivers but they got an exemption.

    1. You are right, Michael. These Progressives (aka American Marxists) goal is to control through the use of hierarchical groups like unions (truckers, teachers). It’s easier for them to control the leaders of unions; rather than trying to manipulate individual voting members, which would be like trying to herd cats.

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