Ninth Circuit Court Rejects Emergency Appeal in Ports Case

The United States Court of Appeals for the Ninth Circuit has refused to enjoin the Ports of Los Angeles and Long Beach’s Concession Plans pending its review of whether a lower court should have halted the plans because of their likely pre-emption by the federal rates, routes, and services pre-emption provision.

Ruling that irreparable harm had not been shown, the court also refused to establish an emergency briefing schedule that could have led to a decision about injunctive relief prior to the plans’ Oct. 1 scheduled implementation date. Instead, the appeal of the injunction will proceed on a slower, but still expedited, schedule that should result in a decision by the appeals court by late November. In the meantime, motor carriers that wish to continue to do business at the ports will need to enter concession agreements to do so and take steps to satisfy the myriad regulatory requirements built into the concession agreements.

ATA will continue to vigorously pursue the appeal of the district court’s denial of the injunction and its principal holding that, although the plans impact motor carrier operations in ways that would otherwise trigger pre-emption, they are protected from the federal law’s pre-emptive effect because they include safety and security provisions. ATA will continue to argue that the concession plans as a whole, which amount to a broad re-regulation of the interstate trucking industry and which have very little to do with safety or security, cannot be saved by simply ascribing general safety and security purposes to them.

In a related matter, the Federal Maritime Commission has announced that it has initiated an investigation as to whether the concession plans violate the federal Shipping Act. The commission, noting that the act prohibits unreasonable preferences or imposing undue disadvantages on parties engaged in port operations, stated that it would focus its review on concession plan provisions that create an employee-driver mandate; establish incentive payments to some motor carriers; and deny access to other harbor-trucking providers. It is not yet clear what short-term effect the commission’s action will have on the Oct. 1 implementation of the plans.