FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHEL VALIENTE; ASHRAF AIAD, on 

behalf of themselves and all others similarly 

situated, 

Plaintiffs-Appellants, 

 v. 

SWIFT TRANSPORTATION CO. OF 

ARIZONA, LLC, a Delaware limited 

liability company, 

Defendant-Appellee.

No. 21-55456 

D.C. No. 

2:19-cv-04217-VAP-KK 

OPINION

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted August 4, 2022

Pasadena, California

Before: Consuelo M. Callahan and Holly A. Thomas, Circuit Judges, and Diane J. 

Humetewa,* District Judge.

Opinion by Judge H.A. Thomas;

Dissent by Judge Humetewa

* The Honorable Diane J. Humetewa, United States District Judge for 

the District of Arizona, sitting by designation.

FILED

NOV 23 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
SUMMARY**

Preemption / Motor Carrier Safety Act

The panel affirmed the district court’s summary judgment in favor of Swift 

Transportation Co. of Arizona, LLC in a class action brought by former hourly truck 

drivers for Swift Transportation (“Plaintiffs”) alleging violations of California’s 

meal and rest break (“MRB”) rules and derivative state-law claims.

In 2018, the Federal Motor Carrier Safety Administration (FMCSA) decided to 

preempt California’s MRB rules with respect to truck drivers subject to federal 

regulations. In International Brotherhood of Teamsters, Local 2785 v. Federal 

Motor Carrier Safety Administration, 986 F.3d 841, 846 (9th Cir. 2021), this Court 

held that the agency’s decision was a lawful exercise of its power under the Motor 

Carrier Safety Act of 1984. Here, the panel addressed the question left open by 

International Brotherhood and held that the preemption decision also barred 

plaintiffs from proceeding with lawsuits that commenced before the decision was 

made.

Plaintiffs argued that the presumption against retroactive application of laws 

operates here to allow their lawsuit to proceed despite the FMSCA’s preemption of 

California’s MRB rules. The panel applied the retroactivity test set forth in Landgraf 

v. USI FilmProducts, 511 U.S. 244, 263-64, 280 (1994). Under step one of the twostep test, the panel held that because Congress clearly intended for the FMSCA to 

have the power to halt enforcement of state laws, and because the FMSCA intended 

for this particular preemption determination to apply to pending lawsuits, the 

FMSCA’s decision prohibits present enforcement of California’s MRB rules 

regardless of when the underlying conduct occurred. The panel held that it need not 

reach the second step of the Landgraf analysis.

Dissenting, District Judge Humetewa agreed with the majority that resolution of 

the issue required an analysis under the Landgraf retroactivity test, but she disagreed 

as to the conclusions reached in applying the framework to the question raised 

here. Unlike the majority, she did not find any language in the Motor Carrier Safety 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
Act of 1984 showing Congress’s express intent to grant the FMCSA authority to 

promulgate rules that apply retroactively. Judge Humetewa also disagreed with the 

majority’s holding that it was unnecessary to reach Landgraf’s second step. She 

would reverse the district court’s order granting summary judgment for Swift 

Transportation and allow Plaintiffs’ MRB claims arising prior to the date of the 

preemption decision to proceed.

COUNSEL

Deepak Gupta (argued) and Gregory A. Beck, Gupta Wessler PLLC, Washington, 

D.C.; James R. Hawkins and Gregory Mauro, James Hawkins APLC, Irvine, 

California; Stanley D. Saltzman, Marlin & Saltzman LLP, Agoura Hill, California; 

Louis M. Benowitz, Smith & Benowitz, Sherman Oaks, California; Joshua Cohen 

Slatkin, Law Offices for Joshua Cohen Slatkin, Los Angeles, California; for 

Plaintiffs-Appellants.

Paul S. Cowie (argued), Robert E. Mussig, and John D. Ellis, Sheppard Mullin 

Richter & Hampton LLP, San Francisco, California, for Defendant-Appellee.

Richard Pianka, ATA Litigation Center, Arlington, Virginia, for Amici Curiae 

American Trucking Associations Inc. and California Trucking Association.
2 

H.A. THOMAS, Circuit Judge:

In 2018, the Federal Motor Carrier Safety Administration (FMCSA) decided 

to preempt California’s meal and rest break rules (MRB rules) with respect to truck 

drivers subject to federal regulations. In International Brotherhood of Teamsters,

Local 2785 v. Federal Motor Carrier Safety Administration, we held that the 

agency’s decision was a lawful exercise of its power under the Motor Carrier 

Safety Act of 1984 (MCSA). 986 F.3d 841, 846 (9th Cir. 2021). We left open, 

however, the question whether the preemption decision bars plaintiffs from 

proceeding with lawsuits that commenced before the decision was made. See id. at

858 n.5 (“We . . . do not consider the retroactivity issue.”). Today we answer that 

question in the affirmative.

I.

Because we discussed at length the history of the FMCSA’s decision to 

preempt California’s MRB rules in International Brotherhood, 986 F.3d at 846–48,

we only briefly recount that history here. Congress passed the MCSA in 1984 to 

“promote the safe operation of commercial motor vehicles.” Id. at 846 (quoting

Pub. L. No. 98-554, § 202, 98 Stat. 2832 (originally codified at 49 U.S.C. app. 

2501)). The Act granted the Secretary of Transportation the authority to decide that 

“[a] State may not enforce a State law or regulation on commercial motor vehicle 
3 

safety.” 49 U.S.C. § 31141(a), (c). Pursuant to statutory criteria, the Secretary can 

“void any State law or regulation on commercial motor vehicle safety” that “has no 

safety benefit or would cause an unreasonable burden on interstate commerce.”

City of Columbus v. Ours Garage & Wrecker Serv., 536 U.S. 424, 441 (2002) 

(quoting 49 U.S.C. § 31141(a), (c)). The Secretary delegated this preemption 

authority to the FMCSA. 49 C.F.R. § 1.87(f).

The FMCSA has twice considered whether to preempt California’s MRB 

rules in the context of the trucking industry. See Int’l Brotherhood, 986 F.3d at 

848. In 2008, the agency rejected a preemption petition from a group of motor 

carriers because the MRB rules were not related to “commercial motor vehicle 

safety.” Id. (citing Petition for Preemption of California Regulations on Meal 

Breaks and Rest Breaks for Commercial Motor Vehicle Drivers; Rejection for 

Failure to Meet Threshold Requirement, 73 Fed. Reg. 79,204, 79,204–06 (Dec. 24, 

2008)). In 2018, two trucking industry groups petitioned the FMCSA to revisit its 

2008 decision. Id. This time, the agency granted the petition, deciding on 

December 28, 2018, that “California may no longer enforce the MRB Rules with 

respect to drivers . . . subject to [the] FMCSA’s . . . rules.” California’s Meal and 

Rest Break Rules for Commercial Motor Vehicle Drivers, 83 Fed. Reg. 67,470, 

67,480 (Dec. 28, 2018). It is this determination that we ultimately upheld in 

International Brotherhood.
4 

II.

Plaintiffs Johel Valiente and Ashraf Aiad are former hourly truck drivers for 

Defendant Swift Transportation Co. On October 16, 2018, before the agency 

issued the preemption decision, Plaintiffs filed a class action lawsuit against Swift

alleging violations of California’s MRB rules and derivative state-law claims.

After we issued our decision in International Brotherhood, the district court called 

for supplemental briefing on whether the preemption decision affected Plaintiffs’ 

claims. After briefing, the court held that, in the wake of the FMCSA’s 

determination, it “ha[d] no authority to enforce the regulations upon which 

Plaintiffs’ meal and rest break claims rest.” Because the entirety of Plaintiffs’ suit 

depended on the preempted MRB rules, the district court sua sponte granted 

summary judgment to Swift in all respects and dismissed the suit.

We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s 

grant of summary judgment de novo. Stephens v. Union Pac. R.R. Co., 935 F.3d 

852, 854 (9th Cir. 2019). Whether a statute or agency decision applies retroactively 

is a question of law that we also review de novo. Elim Church of God v. Harris, 

722 F.3d 1137, 1140 (9th Cir. 2013).

III.

Plaintiffs argue that the presumption against retroactive application of laws

operates here to allow their lawsuit to proceed despite the FMCSA’s preemption of
5 

California’s MRB rules. They contend that the language of the MCSA—that “[a] 

State may not enforce a State law or regulation on commercial motor vehicle safety 

that the Secretary of Transportation decides under this section may not be 

enforced,” 49 U.S.C. § 31141(a)—is insufficiently specific to operate retroactively.

Swift, for its part, argues that the plain language of both the MCSA and the 

preemption decision bar continuation of Plaintiffs’ lawsuit.

Our analysis of these arguments is guided by the retroactivity test set forth in 

Landgraf v. USI Film Products, 511 U.S. 244, 263–64, 280 (1994). In Landgraf, 

the Supreme Court provided a framework for reconciling any tension between two 

general rules: first, that “a court is to apply the law in effect at the time it renders 

its decision,” and second, that “[r]etroactivity is not favored in the law” due to 

considerations of “fair notice, reasonable reliance, and settled expectations.” Id. at

264, 270. The Court traced the anti-retroactivity principle to the common law,

noting that it “has consistently been explained by reference to the unfairness of 

imposing new burdens on persons after the fact.” Id. at 270. On the other hand, 

changes in law “that merely removed a burden on private rights by repealing a 

penal provision (whether criminal or civil)” were understood to operate 

retroactively, “preclud[ing] punishment for acts antedating the repeal.” Id. at 270–

71.
6 

To assess whether a change in law applies retroactively to a pending lawsuit, 

Landgraf directs that we apply a two-step test. First, we determine “whether 

Congress has expressly prescribed the statute’s proper reach.” Id. at 280. If the 

relevant change in law is the result of an agency action, we must find both 

congressional authorization for the agency to impose retroactive rules and agency 

intent for the rules in question to apply retroactively. Elim, 722 F.3d at 1141. If 

Congress has clearly authorized retroactive agency action, and the agency has 

expressed intent to act retroactively, our inquiry is at an end, and we apply the 

change in law regardless of when the lawsuit was filed or when the underlying 

conduct occurred.

If, however, either Congress’ or the agency’s intent is not clear, we proceed 

to the next step. There, we assess whether the action would have an impermissible

retroactive effect, i.e., whether it would “impair[] vested rights acquired under 

existing laws, or create[] a new obligation, impose[] a new duty, or attach[] a new 

disability, in respect to transactions or considerations already past.” I.N.S. v. St. 

Cyr, 533 U.S. 289, 321 (2001) (quoting Landgraf, 511 U.S. at 269). If the action 

would have such an effect, we apply the change in law only prospectively. Elim, 

722 F.3d at 1141.
7 

Applying the Landgraf test is not always straightforward. “Any test of 

retroactivity will leave room for disagreement in hard cases.” Reyes v. Garland, 11 

F.4th 985, 990 (9th Cir. 2021) (quoting Landgraf, 511 U.S. at 270).

IV.

Because Congress intended for the FMCSA to have the power to halt 

enforcement of state laws, and because the FMCSA intended for this particular 

preemption determination to apply to pending lawsuits, the FMCSA’s decision 

prohibits present enforcement of California’s MRB rules regardless of when the 

underlying conduct occurred. See Landgraf, 511 U.S. at 280.

The language of the MCSA is clear: A state “may not enforce” preempted 

laws. 49 U.S.C. § 31141(a). Any court decision giving effect to California’s MRB 

rules would thus contravene the statute.1 Although Plaintiffs urge us to apply a 

presumption against retroactivity, as we discussed above, this presumption is only 

1 The majority of the district courts to analyze this question have concluded that 

they do not have the power to enforce the MRB rules. See, e.g., Salter v. Quality 

Carriers, Inc., No. 20-cv-00479, 2021 WL 5049054, at *9 (C.D. Cal. Oct. 27, 

2021); Hinds v. FedEx Ground Package Sys., Inc., No. 18-cv-01431, 2020 WL 

12048882, at *10 (N.D. Cal. June 1, 2020); Ayala v. U.S. Xpress Enters, Inc., No. 

EDCV 16-137, 2019 WL 1986760, at *3 (C.D. Cal. May 2, 2019); but see North v. 

Superior Hauling & Fast Transit, Inc., No. EDCV 18-2564, 2019 WL 6792816, at 

*3 (C.D. Cal. May 31, 2019) (allowing plaintiffs’ lawsuit to proceed because the 

court “[wa]s unable to identify . . . clear statutory authority granting the Secretary 

of Transportation the authority to promulgate retroactive preemption 

determinations”); Garcia v. Superior Court, 80 Cal. App. 5th 63, 70 (2022) 

(holding that the preemption decision “does not apply to bar claims arising from 

conduct that occurred prior to the decision”).
8 

relevant where Congress’ intent is not clear. See Landgraf, 511 U.S. at 264. Where 

Congress has been clear—as in this case—its intent controls. See id.

The FMCSA’s preemption decision largely mirrors the language of the 

MCSA in declaring that “California may no longer enforce the MRB Rules.” 83 

Fed. Reg. at 67,480. While Plaintiffs argue that the words “no longer . . . suggest[]

only a future effect,” we do not read the language so narrowly. Nor do these words

render the FMCSA’s decision ambiguous. Taken in context, they simply mean 

what they say: that the preemption decision is to have immediate effect upon a 

state’s or court’s power with respect to the MRB rules. This language, like that of 

the MCSA, thus prohibits enforcement of the MRB rules no matter when a 

challenge to those rules arises. The agency has therefore clearly expressed its intent 

to act retroactively.

That the MCSA and the agency’s preemption decision do not explicitly 

reference retroactivity is of no moment. A court’s decision to enforce a statute or 

agency rule is inherently backward-looking. Making such a decision requires the 

court to compare conduct that has already occurred to standards set forth in the 

relevant legal authority. If the court finds a discrepancy between the past conduct 

and the relevant legal standard, it exercises its power in law or equity to enforce 

the standard. Here, the MCSA and the preemption decision deprive the state, and 

by extension courts enforcing state law, of this power by stating that they “may 
 9 

not” or “may no longer” enforce the MRB rules in the context of the trucking 

industry. As the Court made clear in Landgraf, new rules that “speak to the power 

of the court rather than to the rights or obligations of the parties,” such as 

jurisdictional rules, apply even to pending cases without provoking retroactivity 

concerns. See 511 U.S. at 274.

Our interpretation of the preemption decision at issue here accords with 

principles of federalism and the logic animating the doctrine of preemption. We 

have described preemption as a doctrine establishing that “state and local laws are 

not enforceable if they impinge upon an exclusive federal domain.” Lockheed Air 

Terminal, Inc. v. City of Burbank, 457 F.2d 667, 670 (9th Cir. 1972). An entity 

attempting to enforce a preempted law “has attempted to exercise power which it 

does not possess because of an express or implied denial of that authority in the 

Constitution, valid federal laws and regulations promulgated thereunder, or valid 

treaties.” Id. When we declare a state law preempted, that “judgment renders the 

law unenforceable even in the case before us. We, as judges, cannot enforce the 

state law because the ‘Laws of the United States’ are ‘supreme’ and displace 

the ‘Laws of any State to the Contrary.’” Close v. Sotheby’s, Inc., 909 F.3d 1204, 

1209 (9th Cir. 2018) (quoting U.S. Const. art. VI, cl. 2). 

The preemption context is thus different from other circumstances under 

which statutes and agency rules are created, amended, or eliminated. For instance, 
10 

in Martin v. Hadix, cited by Plaintiffs at oral argument, a new statute set a 

“substantive limit[]” on the award of attorney’s fees, and there was no 

“unambiguous directive”—indeed there was no directive at all—to apply either the 

new version of the statute or the old one. 527 U.S. 343, 353–54 (1999); see also

Scott v. Boos, 215 F.3d 940, 944 (9th Cir. 2000) (holding that a new statute

eliminating a predicate for civil RICO claims did not prescribe any temporal 

reach). Here, on the contrary, Congress has explicitly given the FMCSA authority

to void state laws, and we have upheld the FMCSA’s decision to do so with respect 

to California’s MRB rules. See generally Int’l Brotherhood, 986 F.3d at 858.

* * *

We need not reach the second step of the Landgraf analysis: Congress and 

the FMCSA have spoken with a clear voice in prohibiting enforcement of 

California’s MRB rules. Allowing Plaintiffs to move forward with their claims 

would require this Court to act in opposition to that decree. The district court’s 

decision dismissing this suit is therefore

AFFIRMED.
11 

Valiente v. Swift Transp. Co., No. 21-55456

HUMETEWA, District Judge, dissenting:

I agree with the majority that resolution of this issue requires an analysis 

under the Landgraf retroactivity test. Landgraf v. USI Film Products, 511 U.S. 

244 (1994) (requiring assessment to determine when retroactive application of a 

rule is warranted or when it would violate principles of “fairness dictat[ing] that 

individuals should have an opportunity to know what the law is and to conform 

their conduct accordingly”). I respectfully disagree as to the conclusions reached 

in applying that framework to the question before us. 

Unlike the majority, I do not find any language in the Motor Carrier Safety 

Act of 1984 (MCSA) showing Congress’s express intent to grant the Federal 

Motor Carrier Safety Administration (FMCSA) authority to promulgate rules that 

apply retroactively. Our precedent says that “[t]he first step in the Landgraf

analysis is a determination of whether the statute contains an express statement on 

its proper temporal reach.” Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1187 (9th 

Cir. 2016) (citing Landgraf, 511 U.S. at 280) (emphasis added). Unlike other 

federal preemption statutes, section 31141(a) of the MCSA does not say anything 

about a temporal reach. Compare e.g., 49 U.S.C. § 20106(b)(2) (limiting the 

Federal Railroad Safety Act’s preemption provision “to all pending State law 

causes of action arising from events or activities occurring on or after January 18, 
12 

2022”); 15 U.S.C. § 7902(b) (requiring dismissal of any civil action preempted by 

the Protection of Lawful Commerce in Arms Act “that is pending on October 26, 

2005”). The MCSA simply states that “[a] State may not enforce a State law or 

regulation on commercial motor vehicle safety that the Secretary of Transportation 

decides under this section may not be enforced.” 49 U.S.C. § 31141(a) (emphasis 

added). The majority says the statute’s temporal reach is “clear” because the 

proscription that a state “may not enforce” a rule means that “any court decision 

giving effect to California’s MRB rules would contravene the statute.” But this 

interpretation of “may not enforce” requires one to imply a meaning into the statute 

that there should be no temporal limit to the agency’s decision to preempt a state 

law. This approach is contrary to our precedent, which instructs us to apply a 

strong presumption against applying laws retroactively in the absence of 

Congress’s “express command” otherwise. Landgraf, 511 U.S. at 280; see also 

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (finding “a statutory 

grant of legislative rulemaking authority will not, as a general matter, be 

understood to encompass the power to promulgate retroactive rules unless that 

power is conveyed by Congress in express terms”). By collapsing the distinction 

between a grant of authority to issue a preemption decision and a grant of authority 
13 

to apply a preemption decision retroactively, the majority sidesteps the first 

Landgraf query that requires us to ask whether the latter is stated in express terms.2

 

Notably, the district court here did not undertake a Landgraf analysis as to 

whether it was appropriate to apply the FMCSA’s Preemption Decision 

retroactively. Instead, the district court sua sponte granted summary judgment to 

Defendant because the court had “no authority to enforce the regulations upon 

which Plaintiffs’ meal and rest break claims rest.” In doing so, the district court 

anchored its ruling on the “litany of cases . . . echoing this point.” That “litany of 

cases,” however, found Landgraf and retroactivity to be irrelevant to the issue. 

The Central District of California was one of the first district courts to 

address whether pending California MRB claims survived the FMCSA’s 

Preemption Decision. In holding that they did not, the court in Ayala v. U.S. 

Xpress Enters, Inc. found “the issue of retroactive effect [to be] irrelevant” to the 

survival of the plaintiffs’ state law claims following the Preemption Decision 

because the court was without authority to enforce the regulations under the 

statute. No. EDCV 16-137, 2019 WL 1986760, at *3 (C.D. Cal. May 2, 2019). 

2

 The title of § 31141(a) also does not support the majority’s interpretation. By 

titling the section “Preemption after decision,” Congress evinced an intent that 

FMCSA’s rules should only have prospective effect. 49 U.S.C. § 31141(a) 

(emphasis added); Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d 1163, 1172 (9th Cir. 

2013) (“Though a statute’s title ‘can be used to resolve[] ambiguity,’ it ‘cannot 

control the plain meaning of a statute.’”) (quoting Or. Pub. Util. Comm’n v. 

Interstate Commerce Comm’n, 979 F.2d 778, 780 (9th Cir. 1992)). 
14 

Following Ayala, the majority of district courts faced with the issue (including this 

district court) sidestepped the Landgraf analysis entirely by citing to Ayala’s 

reasoning that courts are without authority to enforce state laws preempted by the 

FMCSA, even as applied to claims arising before the FMCSA’s Preemption 

Decision. See, e.g., Robinson v. Chefs’ Warehouse, Inc., No. 15-cv-05421, 2019 

WL 4278926, *4 (N.D. Cal. Sept. 10, 2019) (finding Ayala’s conclusions “sound 

and fully applicable here”); Salter v. Quality Carriers, Inc., No. 20-cv-00479, 2021 

WL 5049054, at *9 (C.D. Cal. Oct. 27, 2021) (agreeing “with the reasoning of the 

Ayala line of cases” that retroactivity is irrelevant); Hinds v. FedEx Ground 

Package Sys., Inc., No. 18-cv-01431, 2020 WL 12048882, at *10 (N.D. Cal. June 

1, 2020) (joining the Ayala line of cases to conclude that the plaintiffs’ rests and 

meal break claims were preempted).3

 Having reached their conclusions without 

making the requisite queries under Landgraf—which even the majority agrees is 

required here—I find these cases unpersuasive.4

 

3 Notably, the claims in these cases arose after the FMCSA’s 2008 decision that 

found the agency lacked the authority to preempt California’s MRB claims, see 

Petition for Preemption of California Regulations on Meal Breaks and Rest Breaks 

for Commercial Motor Vehicle Drivers; Rejection for Failure to Meet Threshold 

Requirement, 73 Fed. Reg. 79,204, 79,204–06 (Dec. 24, 2008), but before the 2018 

FMCSA Preemption Decision that reversed the 2008 decision. 

4 The one district court to engage in the Landgraf analysis could find nothing in the 

statute granting the FMCSA authority to promulgate retroactive rules. See North v. 

Superior Hauling & Fast Transit, Inc., No. EDCV 18-2564, 2019 WL 6792816, at 
15 

Moreover, even if, as the majority suggests, authority to promulgate 

retroactive rules could be implicitly read into the statutory language, it is not clear 

from the plain language of the FMCSA’s Preemption Decision that the ruling is to 

apply retroactively. Elim Church of God v. Harris, 722 F.3d 1137, 1141 (9th Cir. 

2013) (when assessing whether agency action applies retroactively, a court must 

look for both congressional intent authorizing retroactive actions on the agency’s 

part, and the agency’s intent for its action to apply retroactively). The Preemption 

Decision provides that “California may no longer enforce the [MRB rules] with 

respect to drivers of property-carrying [commercial motor vehicles] subject to 

FMCSA’s [hours of service] rules.” Similar to section 31141(a), the language that 

the FMCSA chose to use in crafting its decision—that California may “no longer” 

enforce the MRB Rules—“strongly suggests prospective, not retroactive, 

application.” North, 2019 WL 679816, at *9. See also Garcia v. Superior Court, 

80 Cal. App. 5th 63, 69 (2022) (agreeing with North that the language “may no 

longer enforce” strongly suggested only prospective application), review denied

(Sept. 14, 2022). As with the language of section 31141(a), the plain language of 

the FMCSA’s Preemption Decision does not reflect an express intent that the 

ruling is to apply retroactively. 

*3 (C.D. Cal. May 31, 2019) (noting that neither the court nor the parties could 

identify “clear statutory authority granting the Secretary of Transportation the 

authority to promulgate retroactive preemption determinations”). 
16 

Because neither Congress’s intent to allow FMCSA to act retroactively nor 

FMCSA’s intent for the Preemption Decision to apply retroactively is express, I 

also disagree with the majority that it is unnecessary to reach Landgraf’s second 

step. Where the intent of Congress or the agency is unclear as to its intentions, 

Landgraf instructs that a court must then assess whether the action would have an 

impermissible retroactive effect. 511 U.S. at 280; Mejia v. Gonzales, 499 F.3d 

991, 997 (2007). In assessing the retroactive effect of a new rule, a court must 

determine “whether it would impair rights a party possessed when he acted, 

increase a party’s liability for past conduct, or impose new duties with respect to 

transactions already completed.” Landgraf, 511 U.S. at 280. “If so, then in 

keeping with [the] traditional presumption against retroactivity,” courts “presume 

that the statute does not apply to that conduct.” Martin v. Hadix, 527 U.S. 343 

(1999). 

The district court here found that the FMCSA’s Preemption Decision barred 

Plaintiffs from continuing to litigate claims arising from pre-existing rights that 

unquestionably existed at the time they were filed. In the past, we have found that 

new rules have retroactive effect when they extinguish pre-existing causes of 

action. See e.g., Beaver, 816 F.3d at 1187–88 (finding “the 2014 Amendment 

would have retroactive effect because it would extinguish Defendants’ liability 

under ILSA . . . thus depriving Plaintiffs of a pre-existing cause of action”); Scott 
17 

v. Boos, 215 F.3d 940, 945 (9th Cir. 2000) (finding statutory amendment had 

retroactive effect where it “deprive[d] plaintiffs of the right to bring securities 

fraud based RICO claims”). Here, no one disputes that Plaintiffs had a right to 

bring a cause of action against Defendant for violation of California’s MRB rules 

before the FMCSA’s Preemption Decision. Following the agency’s determination 

and the district court’s sua sponte order, Plaintiffs did not. This deprivation 

unquestionably impairs Plaintiffs’ rights and is sufficient to show retroactive effect 

under the second step of the Landgraf test. Beaver, 816 F.3d at 1188. 

Accordingly, and for the foregoing reasons, I respectfully dissent. In the 

absence of express language otherwise, “considerations of fair notice, reasonable 

reliance, and settled expectations” warrant that the FMCSA’s Preemption Decision 

only have prospective effect. Scott, 215 F.3d at 945 (citing Landgraf, 511 U.S. at 

270). I would therefore reverse the district court order granting summary judgment 

for Defendant and allow Plaintiffs’ MRB claims arising prior to the date of the 

Preemption Decision to proceed.