court my name is eric miller and i represent appellant airlines for america in denying a motion for a plenary injunction against the enforcement of the part of seattle's minimum wage rules the district court relied primarily on its legal conclusion that palin had failed to establish a likelihood of success on the merits and that conclusion is erroneous for two reasons either one of which would be a basis for reversal the first is that under washington law the port of seattle already into an act in force third party employment standards and the second is that the standards that were enacted in this case which directly target employees providing airline services are preempted by the airline deregulation act and beginning with the state law question and it's common ground among the parties i think that there is no express grant of statutory authority in washington law to the port of seattle to regulate third party employment standards and so the who is the washington supreme court going to decide this question or if they're deciding a related question provide sufficient guidance such that it answers the imply power question in our case that the question presented here is not already to enact this so maybe we should hold on this case and wait for that decision before we decide i think that you know in the exercise of this court's discretion i'd that could well be an appropriate course so that i case was argued a year ago over a year ago now any indication of when the rulings going to come down on that no the decisions are issued on thursdays and it didn't come out this morning so there's really no way for us to know but it could be at any time and i it's not certain that either the city or the port has authority as it could be that the authority resides only in the state legislature and it wouldn't be surprising to learn that that know there are some matters with respect which  submission and making a decision in our case given that that the ordinance wouldn't take effect until the supreme court rules and the efforts anyway that's right and of course we are you know we are concerned about  what once the supreme court rules that will start the forty five day clock before these rules go into effect but assuming that a decision can be reached him before  then that there is no downside to waiting for the state supreme court to rule on that issue could you also move to delay imposition beyond any changes beyond the forty five days if this case were still pending but we i mean we and then the answer is that the power does not exist so the regime and or washington law for you know civil entities is quite different from the more familiar necessary and proper clause under the federal constitution where there's a very deferential review of congress judgment on the quest ordinances for the management government and use of any properties under state control it reads like a pretty proud grant of power doesn't it well it does except for those the last words in the phrase that you're on a read which are critical and that is government and use of airport properties and one needs to read that i think in context and when you look at it in conjunction with the other the other that the rest of that provision on the other provisions that surround it which are about leases you charging people free of buying and selling property it's all very narrowly tied to the government of property but it's clear that they're using this property to run an airport and you can't run an airport with an out employing people so why isn't the idea that they are obviously going to run an airport and they have the power to do so why doesn't that include setting rules for how you employ people well that they have course have the power to set rules for their own employees and they do that but  and they have power to set rules for what third party employees do with airport property and indeed that's when you look at the rules that they've already enacted you know most of them are of that nature there are no rules of the road for driving on the rules that say that when you're fueling a plane you have to fire extinguisher nearby those are all rules that regulate what people do with property that are there they think these other rules are something to promote safety why isn't it like how you drive on the  grant of authority to enact social welfare legislation at the airport on the theory that you know you know if conditions are better at the airport then things will be better for a park property and that under washington laws is clearly not a permissible line of reasoning because again the court to stress these powers need to be nearly construed it's also it could i ask a different question here so i don't see how you've shown a referable harm and if you don't have a showing of reparable harm i don't see how you can get an injunction and i'm not sure why we need to say anything else in this case don't you just lose because you don't have a reparable harm and we don't have to get to any of these difficult legal questions on the merits and we do have irreparable harm what is the rep for america's members and in the contract as it were the airlines and the service providers within the contract will have to raise wages and will be paying out higher wages now ordinarily a monetary injury is not irreparable and that's because ordinarily you if you win the case you can recover what you paid to the defendant but we're not paying the higher wages to the port of seattle we're paying and thousands of employees and even if there were some legal principle that would allow us to get recoupment from them as a practical matter it would simply not be possible to recover the increased wages from these many thousand point have you shown that you couldn't somehow sue the port if they make you pay this higher wage you have these damages for having paid them if you succeed ultimately in showing that that was improper why can't you receive recover it from the port the size of the porch has not identified and we're not aware of any you know again if we're talking about the state law violation any principle of state law that would give us a cause of action against a governmental entity for that it's their burden to show referable harm right and i'm not even sure i saw any analysis in your briefing you talked about how it would be so dispersed among the employees  would be difficult but i didn't even see really a discussion of your analysis of why you couldn't try to see the port well they did because no state law creates a cause of action for the suit against a governmental entity for you know expenses incurred  complying with a statute that's later found to be invalid so i mean that's that's true all the argument that there is is to point out that there is no there is no legal principle that would allow us further reparable harm in the renegotiation of contracts under collective bargaining agreements that would be required that one though i didn't understand why you couldn't just have a clause in the collective bargaining agreement you're negotiating that says this is only good  but if it's not agreed to like we are legally obligated once the rules go into effect to the paying the higher wages it's not something we can negotiate over it's something that we are legally obligated to pay but this is really speculative i'm just not sure you've shown that you  the excess wages paid out but thousands of employees and i think the sticking with a collective bargaining agreement point for a moment it's really not speculative to say that you know if the law goes into effect we will have a legal obligation to pay out higher wages that will that will have to be reflected in any collective bargaining agreement that's negotiated and we do not have a right under the n r a or the railway labor act  our position that the district or to abused its discretion and weighing the other plenary injunction factors so if you agree with us on an everything well let's say i agree with you on the state for you but only on the state law question then you should weighing of the factors in light of that holding shift gears for a second can the poor take action through its lease negotiation powers that it could not take by amending the general rules and regulations  as a matter of state law yes it can and if the port had tried to impose this as a condition of the leases i think our challenge to it would be much much more difficult but of course if they tried to impose it as a condition of good morning or honors paul or as for the port of seattle let me first address your b f food question because i don't believe that the decisions from court will actually answer the persist sorry precise question that is presented here certainly if the supreme court holes that the city of sea tac has jurisdiction over the port of seattle then that decides basically moot this this whole question because then the rules and regulations go out the door under the way they've been adapted but what's not before the state supreme court is the question in terms of authority presented here that is whether the port of seattle to pursue safety and security concerns under the revised airport act allows them as a means to do so to adopt the regulations that they have to reduce employee turnover and to improve training with the purpose of improving safety and security that issue's not going to be addressed by the washington supreme court or any reason for us not to wait and see well the only reason not to wait and see is is the possibility that this whole issue can be mooted if the city of sea tac is allowed to impose its police power on the port seattle the i guess the question then becomes the concern that they've raised that they'll be a forty five day period between that decision and the implementation of the regulations by the port of seattle that's probably a sufficient time to address whatever issues remain if this is not mooted if it's mooted then the whole case goes away so conceivably that that is that is true but i do think that the point that you raised your honor about the lack of showing irreparable injury indicate that there's no reason to overturn district court in this case and to allow any point to go after to recover the excess late if they end up prevailing in the event that the plume injunction isn't issued well i think i think your honor i mean first of all they'll be a period of time forty five days to implement i think that the airlines are sophisticated parties they can figure out how to address whatever labor issues they have in order to protect themselves and i will admittedly i have not looked at and i'm not going to do the research for them for the plaintiffs as to whether or not they can sue the port of seattle to try to recoup recover that there may or may not be some theory but i am not going to i don't know the answer to that question as i understand it the you know the parties are preparing to are in the process of exchanging documents we're preparing to do depositions to go to the questions for example of the impact of the regulations on on prices routes and services so there is discovery could update one hundred twenty days before february twenty eighth so that's i think the end of october if i am remembering correctly so there is a discovery kind of date and they do think we you know would would all benefit by moving this case forward so that  if the if a case is not mooted by the state supreme court then we can proceed to have this case tried in adjudicated in a timely fashion without having to rush it all within forty five days i'm going to the merits i think that the you know what the case is that the i'm sorry to do this i don't know if you can hardly get out of the blocks and we grabbed the messenger rather answer questions and then i appreciate that and i don't need an explanation to these next several questions i just would like a yes or no do you only contend that the port acted in a governmental capacity when it adopted the wage rule the i would like to explain the literal answer is no but principally yes spoken like a true will but that was the revised airport act i think which is if you look at the what the ports resolution is they cite the revised airport act and they also cite their powers under the port district act i think the revised airport act under the branson case in the way t revised airport act is drafted is a governmental capacity action the port district statute that gives ports the right to control their businesses that's a proprietary so i'm sorry to not give you a simple yes or no but principally the answer that power to adopt the right way drool is essential to the purpose of an airport yes or no well in terms of incentive there are many modes that can be utilized to secure safety and and security and under the branson court that decision and discretion is left to the airport's operator to decide the modes and means of carrying out the powers that are granted to it under the revised first of all there can't be any arbitrary action by the port we don't aren't arguing that we have unlimited arbitrary action what we have here is a six month study by the port that looked at conditions at the airport that looked at conditions at other airports how other airports have addressed issues related to safety and security particularly the san francisco airport which has a quality standards program which this is based on it's looked at academic studies about the effectiveness of those programs so in the context of the record here is meant of the way each regulation relates to use of a property be it relates to whether this is safe and secure property for the users of the property that is the people who are for travelling on air traffic for the people who are working there i mean if there's a security problem at the airport sea tac airport that has a major impact on the people who are using it and probably an on broader economy if you read it that broadly than what sort of actions would not be related to the use of the property at the airport i mean there are probably a million that would not be related to the use of the airport the poorly head on for one example so you can come up with that and trying to figure out where the limits are so if even that thing waits regulations but third party employees baggage handlers ramp operators like if your position is that that relates to safety three eight start management control of property at the airport what type of actions would not be related to the operation of the address regulation that people have to wear smiley face buttons i mean there there are a lot of things that could be related to my list that they could happen in real life in terms of the operation of an ongoing well it's maybe in seattle would be unrealistic for people to have to wear smiley face buttons like they did originate in seattle so you know i think i think that the question really is more fairly what you know whether or not this particular rule and regulation is is been shown to have some relationship to safety and security the idea that increasing wages and benefits increasing training leads to lower turnover is not something that's new and unique in this area it happens with unstudied with respect to the san francisco experience by c berkeley and there has been found to be a direct connection between increasing wages and benefits and training to lowering turnover which in turn has benefits in terms of lowering the number of security violations that occur at the airport is there in the washington case that talks about what deference we need to give to that explanation i mean do we just have to take it at face value and say they're saying it's about safety so we have to believe them our eyes are is it washing kaisa can guide us in this i think branson does gu this because what branson says is and this is you know specifically dealing with revised airport x branson says look if if if the the goal of what the airport operator is trying to do is permitted under the airport act we will not we the court will not second guess the means or the modes of the airport operator to achieve that goal and here again i think it to focus on the goal here is safety and security which don't one is argued is outside the power of an airport operator on the revised airport act to address and so this is a means that supported by a record that judge cohen our looked at and ruled as a matter in and determined as a matter of fact was sufficient to support the the effort to to achieve safety and in that finding by the judges entitle to a degree of deference and be only overturned by this court if it's clearly clearly erroneous but given the branson court's statement that the mint modes and methods which an airport operator achieves a legitimate goal of the airport act is something we are not going to second guess something we the court should not look into and particularly here where there is a sufficient record to demonstrate a connection between  improving wages improving training and lowering turnover and therefore low in the number of security violations buys by people who work at the airport what do i do with a november two thousand and eleven ports staff memo noting airports and other states that had adopted labor harmony plans were led by and i quote governing bodies that had general purpose government powers allowing them to articulate policies related to living wages and other social policies these are powers th support of seattle does not have and quote what changed well i think there are a couple of things that have changed first of all this is not an effort by the port to exercise a general police power to address wages generally this is an effort by the port to address security in a particular area of the airport the most secure area of the airport in addresses only i think twenty five percent of the workforce at the airport and it's specifically directed at something that with it that is within the power of the port as an operator of the airport to address which is safety and security we're not asking this court to affirm a general police power right to adopt all wage regulations anywhere on the airport sort of twenty five percent significant errors or another percentage that would relieve me to a different conclusion well i think it's a matter of putting in to contact the think the key significance is is this oriented toward safety and security by applying to the most secure areas of the airport i think it's clearly is so if the goal here is to increase a thousand security which is a legitimate goal under the revised airport act is a little bit legitimate goal that we would want all airport operators to be trying to achieve so when there's twenty or thirty percent i don't it's not determinative the point being is that it's not an overall effort to increase wages across the board it's an effort to deal with security and safety that has an impact on a discrete set of employees who work at the airport i'm going to ask you and try again to see if you can give me an example of a port action that would exceed the port state law authority to adopt needed rules to govern the use of the property can you give me any that and i don't want action that would violate a state or federal law can you give an example as well i mean forget the smiley face we have i guess i could start by pointing to a case that that was decided by the washes from court and that was an effort by the port of seattle to adopt an airport or service that is to take people from the airport to points within outside of the outside of the airport properties the state supreme court said no you can't do that that's not within your powers you have the powers implicit implied in the airport act to arrange for people to take passengers off site but you don't have the power port to actually go offsite yourself and run an safety and security rationale and think you'd have to have a different rationale i think that is something that probably is more appropriately negotiated as a matter of the least ten and i know that for example the port of seattle does negotiate with its food tenants to make require that they provide the same pricing at the airport that they do off airport so i think that's how the port of seattle has addressed that type of issue in the past and how they would be able to address it and in the future say again what the safety and security rationale is for increased wages well it's set forth in the presentation that was made to the port of seattle in in june and basically the findings that the staff found that's also supported by the findings of the berkeley study of san francisco is that you the most the highest percentage more than fifty percent greater violations of security breaches at the airport were committed by people within the first year of their employment and so as people are more senior if they stay longer then the tension issue to try to get to not experienced people to stay on i think the more exactly it's it's a retention issue you want to avoid turnover especially in that first year there are also training aspects to the regulations that would increase the ability of employees to respond to emergencies and make sure they understand what's going on but it's principally from part of it is that is the  on are looking at the port district statute they're not looking at the revised airport act and clearly the revised airport act is granting a much broader amount of power to the airport operator it applies not just to a port district that operates an air an airport bu also the cities and counties for example in spokane the air international airport there is run by the city and the county of spokane and they are restricted in their or given whatever powers they have to do that through the revised airport act so i think that they can bank cases in the other the reasoning that the port as are you advancing here that decision relation of come out the other way one could very easily argue in a legislative body could rationally find that having more people come to the airport in buses driven by professional drivers and fewer property the second and related point is the branson case that came up earlier branson involves setting concession fees for taxi operators and there was an express statutory grant of authority to set concession fees and the question was whether the port was allowed to set the fee as a percentage of gross receipts and it was in that context that the court said when there is a power the port has authority to select the mode and means by which the power will be exercised but you know the very fact that it took several pages several paragraphs of discussion to establish that the port authority to do what seems like a fairly obvious step carrying out an express grant emphasized repeatedly ian delts that you had a rule there applied to every industry in the state and when you have something that specifically targets airlines if you had a law that said you know the fa for san francisco to seattle has to be ten cents lower than it is that would clearly be preempted even though it's a very minimal effect so too when you have a special labor standards just for those who are providing airline services in that context you don't have to is preemption and be consistent absolutely your honor thank you thank you that's all right thank you very much for your arguments on both sides that they were both very helpful the matter smit