          United States Court of Appeals
                      For the First Circuit

No.  13-2307

               MASSACHUSETTS DELIVERY ASSOCIATION,

                      Plaintiff, Appellant,

                                v.

                         MARTHA COAKLEY,
     Attorney General of the Commonwealth of Massachusetts,

                       Defendant, Appellee. 


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon.  Denise J. Casper, U.S. District Judge]



                              Before

                        Lynch, Chief Judge,
                Ripple* and Selya, Circuit Judges. 



     David C. Casey, with whom Christopher B. Kaczmarek, Stephen T.
Melnick, and Littler Mendelson, P.C. were on brief for appellant. 
     Kate Comerford Todd, Steven P. Lehotsky, National Chamber
Litigation Center, Inc., James C. Rehnquist, Kate E. MacLeman,
William M. Jay, and Goodwin Procter LLP on brief for the Chamber of
Commerce of the United States of America, amicus curiae. 
     Wesley S. Chused and Looney & Grossman LLP on brief for
Massachusetts Motor Transportation Association, amicus curiae. 
     Peter Sacks, State Solicitor, with whom Martha Coakley,
Attorney General of Massachusetts, and Pierce O. Cray, Kate J.
Fitzpatrick, and Douglas S. Martland, Assistant Attorneys General,
were on brief for appellee. 


     *
      Of the Seventh Circuit, sitting by designation. 
     Scott L. Nelson, Adina H. Rosenbaum, and Public Citizen
Litigation Group on brief for Public Citizen, Inc., amicus curiae. 
     Harold   L.   Lichten,    Shannon   Liss-Riordan,   Catherine
Ruckelshaus, and National Employment Law Project on brief for
Massachusetts Employment Lawyers Association and the National
Employment Law Project, amici curiae. 




                       September 30, 2014
          LYNCH, Chief Judge.      The Federal Aviation Administration

Authorization Act ("FAAAA") preempts any state law "related to a

price, route, or service of any motor carrier . . .  with respect to

the transportation of property."          49 U.S.C. § 14501(c)(1).    In a

previous appeal in this case, we held, contrary to the district

court, that abstention under Younger v. Harris, 401 U.S. 37 (1971),

was not appropriate and remanded.  Mass. Delivery Ass'n v. Coakley,

671 F.3d 33 (1st Cir.  2012) (hereinafter, "MDA I").           The question

now presented is whether the express preemption provision of the

FAAAA   preempts   one    prong   of   the   Massachusetts   Independent

Contractor Statute, Mass. Gen. Laws ch.  149, § 148B(a)(2), which

requires that workers perform a service "outside the usual course

of the business of the employer" to be classified as independent

contractors.    The district court held that Section 148B(a)(2)

escapes FAAAA preemption.      Finding that the district court did not

sufficiently credit the broad language and legislative history of

the FAAAA's express preemption provision, we reverse and remand. 

                             I.   Background

          The Massachusetts Delivery Association ("MDA") is a non-

profit trade organization representing same-day delivery companies

in Massachusetts.  The MDA filed this action for a declaration that

the "B Prong" of Section 148B is preempted by the FAAAA, and for an

injunction barring the Attorney General from enforcing it against

the MDA's members.        The MDA used one member company, X Pressman


                                   -3-
Trucking & Courier, Inc. ("Xpressman"), as an exemplar for the

purposes of this litigation. 

           Like    other   members,      Xpressman   relied   heavily   on

independent contractors to provide same-day delivery services to

its customers in Massachusetts and throughout New England.  Roughly

58 couriers provide delivery services for Xpressman's clients as

independent contractors.      Xpressman's independent contractors are

paid for each completed delivery, rather than by the hour or week,

and they do not receive benefits such as health insurance or

retirement.        Xpressman has only 6 full-time and 2 part-time

employees to oversee its administrative and warehouse functions. 

No employees perform courier functions. 

           However, Xpressman argues that, under Massachusetts law,

it is required to designate the couriers as employees rather than

as independent contractors.  Section 148B sets up a three-part test

to   differentiate    employees   from    independent   contractors,    as

follows:

           For the purpose of this chapter and chapter
           151, an individual performing any service,
           except as authorized under this chapter, shall
           be considered to be an employee under those
           chapters unless:

                  (1) the individual is free from control
                  and direction in connection with the
                  performance of the service, both under
                  his contract for the performance of
                  service and in fact; and




                                      -4-
                (2) the service is performed outside the
                usual course of the business of the
                employer; and,

                (3) the individual is customarily engaged
                in an independently established trade,
                occupation, profession or business of the
                same nature as that involved in the
                service performed. 

Mass. Gen. Laws ch.  149, § 148B(a) (2004).       The MDA argues that the

couriers will always fail the "B Prong," or the second requirement,

of Massachusetts's test for independent contractors, since these

contractors perform delivery services within the usual course of

business for the delivery companies. 

           The legislative purpose of Section 148B is "to protect

employees from being deprived of the benefits enjoyed by employees

through their misclassification as independent contractors."           MDA

I, 671 F.3d at 36-37 (quoting Somers v. Converged Access, Inc., 911

N.E.2d 739, 749 (Mass. 2009)).      An "employee" classification under

Section 148B triggers legal requirements on the "employers" under

various wage and employment laws.1       See id. at 36.    If an employing

entity   improperly   classifies   an     employee   as   an   independent

contractor under Section 148B, a variety of sanctions is available. 




     1
         The parties dispute which Massachusetts statutes are
triggered by the classification of a courier as an employee,
instead of an independent contractor.  We previously noted that the
classification was relevant for chapters 62B, 149, 151, and 152 of
the Massachusetts General Laws.      MDA I, 671 F.3d at 36.      The
Attorney General disagrees with our inclusion of chapters 62B and
152, but concedes the remaining chapters are applicable. 

                                   -5-
Id. at 37.      Actions for failure to comply with Section 148B can be

pursued by the Commonwealth, or by the employees themselves.                   Id.

              According to the MDA, being forced to treat the couriers

as   employees,        rather    than    independent      contractors,     "would

profoundly alter Xpressman's business model as well as the prices,

routes and services it offers customers."                Xpressman has provided

evidence   as    to    the    changes    that   would   ensue    to   recruiting,

interviewing, and hiring; the need for human resources management;

and the increased compensation, fringe benefits, and taxes.                     It

provided evidence that routes would also change since couriers

treated as employees would have to drive to and from Xpressman's

facility, would have less flexibility to accept short routes, and

could   not    drive    the     long   routes   without    a   mandatory   break. 

Finally, Xpressman contends that it would no longer be able to

provide on-demand services with employees.                 "All told, converting

independent contractor-couriers to employees would nearly double

Xpressman's labor costs . . .  annually." 

              The FAAAA expressly preempts certain state laws relating

to motor carriers.         Specifically, the FAAAA states:

              Except as provided in paragraphs (2) and (3),
              a State, political subdivision of a State, or
              political authority of 2 or more States may
              not enact or enforce a law, regulation, or
              other provision having the force and effect of
              law related to a price, route, or service of
              any motor carrier (other than a carrier
              affiliated with a direct air carrier covered
              by section 41713(b)(4)) or any motor private


                                         -6-
           carrier, broker, or freight forwarder with
           respect to the transportation of property. 

49 U.S.C. § 14501(c)(1) (2005). 

           The MDA moved for summary judgment, arguing that the

FAAAA preempts the B Prong, the second requirement, of Section

148B. The Attorney General cross-moved for summary judgment on all

counts, arguing that the case does not present a justiciable case

or controversy.  In the event that summary judgment was not granted

in her favor, the Attorney General argued that the FAAAA does not

preempt Section 148B and asked for additional discovery pursuant to

Federal Rule of Civil Procedure 56(d).              The Attorney General

subsequently moved to compel additional deposition time under

Federal   Rule   of   Civil   Procedure     30(d)(1),   and   the    further

production of documents. 

           The   district     court    found   a   justiciable      case   or

controversy and denied the Attorney General's cross-motion for

summary judgment on this ground.         The district court held that the

FAAAA does not preempt Section 148B, and dismissed the MDA's

preemption claims on the merits.             Finally, the district court

denied as moot the Attorney General's motion to compel since it

sought information solely related to the now-dismissed preemption

claims.    The MDA appealed the district court's holding. 




                                      -7-
                        II.    Justiciability

          In her brief, the Attorney General argues that the

district court erred in ruling that the MDA alleged a justiciable

case or controversy.    The Attorney General failed to cross-appeal

the district court's ruling on this issue.       Generally, "[a] party

who neglects to file a cross-appeal may not use his opponent's

appeal as a vehicle for attacking a final judgment in an effort to

diminish the appealing party's rights thereunder."      Sueiro Vázquez

v. Torregrosa de la Rosa, 494 F.3d 227, 232 (1st Cir.  2007)

(quoting Figueroa v. Rivera, 147 F.3d 77, 81 (1st Cir.  1998)). 

Here, however, we will review the Attorney General's argument since

it concerns our own jurisdiction as well.           See, e.g., United

Seniors Ass'n, Inc. v. Philip Morris USA, 500 F.3d 19, 23 (1st Cir. 

2007). 

          The Attorney General argues that the "MDA essentially

seeks an advisory opinion on whether one prong of section 148B's

three-prong test is preempted."     There is no dispute that in order

to classify its couriers as independent contractors, the MDA must

satisfy all three prongs of the Massachusetts statute.  The MDA has

made no showing, however, as relates to Prong A or Prong C.      Even

if we hold Prong B preempted, according to the Attorney General,

the couriers may still be classified as employees. 

          The divide between a valid declaratory judgment and an

invalid advisory opinion can be narrow.         See MedImmune, Inc. v.


                                  -8-
Genentech, Inc., 549 U.S. 118, 127 (2007).                  "Basically, the

question in each case is whether the facts alleged, under all the

circumstances,    show    that   there   is   a   substantial   controversy,

between parties having adverse legal interests, of sufficient

immediacy and reality to warrant the issuance of a declaratory

judgment."     Id. (quoting Md. Cas.  Co. v. Pac.  Coal & Oil Co., 312

U.S. 270, 273 (1941)). 

             The MDA's complaint alleges that "[b]ecause many MDA

members engage independent contractor delivery drivers or contract

with entities that engage independent contractor delivery drivers,

they arguably violate the Statute and this places them in peril of

an enforcement action and civil actions by private parties."              This

peril is not remote or speculative as evidenced by the three MDA

members who were defendants in state civil suits brought by private

parties for misclassification under Section 148B. See MDA I, 671

F.3d at 39. 

             A decision on Prong B would lift a bar to couriers'

classification as independent contractors even if it does not

conclusively    resolve   their   classification.         In   Weaver's   Cove

Energy, LLC v. Rhode Island Coastal Resources Management Council,

589 F.3d 458 (1st Cir.  2009), we held that a plaintiff could

challenge two regulatory barriers in the process of obtaining

authorization for a Liquified Natural Gas terminal, even if more

remained.  See id. at 467-69.  Resolution of these two requirements


                                    -9-
would be neither "advisory" nor "irrelevant," we held, since they

"would cease to be barriers to ultimate approval of the project." 

Id. at 469.     Likewise, review of Prong B is not advisory since it

stands as a barrier to individual couriers' classification as

independent contractors. 

                                III.    Preemption

             The MDA challenges the district court's formulation of

the preemption test under the FAAAA and its application to Section

148B.     Since     federal     preemption    is    a   question   of   statutory

construction, we review these issues de novo.                    DiFiore v. Am. 

Airlines, Inc., 646 F.3d 81, 85 (1st Cir.  2011). 

             "Congressional intent is the principal resource to be

used in defining the scope and extent of an express preemption

clause."  Brown v. United Airlines, Inc., 720 F.3d 60, 63 (1st Cir. 

2013).     We must "focus first on the statutory language, 'which

necessarily contains the best evidence of Congress' pre-emptive

intent.'"     Dan's City Used Cars, Inc. v. Pelkey, 133 S. Ct.  1769,

1778 (2013) (quoting CSX Transp.,  Inc. v. Easterwood, 507 U.S. 658,

664 (1993)).        We may also consider the clause's purpose, history,

and the surrounding statutory scheme.               Brown, 720 F.3d at 63. 

             The FAAAA states: "[A] State . . .  may not enact or

enforce a law . . .  related to a price, route, or service of any

motor    carrier    .    .    .    with   respect     to   the   transportation   of

property."      49 U.S.C. § 14501(c)(1) (emphasis added).  The first


                                       -10-
phrase, "related to a price, route, or service," is borrowed from

the   earlier    Airline      Deregulation      Act    ("ADA")   and    interpreted

identically.       See Rowe v. N.H. Motor Transp.  Ass'n, 552 U.S. 364,

370 (2008).  The second phrase, "with respect to the transportation

of property," is unique to the FAAAA.                  See Dan's City, 133 S. Ct. 

at 1778. 

            We hold that the district court incorrectly applied the

first clause, and incorrectly interpreted the second clause.                           It

read the first clause too narrowly, and the second clause too

broadly.     We consider each in turn. 

            A.    Related to a Price, Route, or Service

                       1.     Broad Standard

            To trigger preemption under the FAAAA, a state law must

"relate[] to a price, route, or service" of a motor carrier.                          49

U.S.C. § 14501(c)(1).            "The phrase 'related to' . . .  embraces

state laws 'having a connection with or reference to' carrier

'rates, routes, or services,' whether directly or indirectly." 

Dan's   City,    133    S.   Ct.     at   1778   (quoting    Rowe,      552    U.S.    at

370)(internal quotation marks omitted).  Under this rubric, a state

statute    is    preempted     if   it    expressly      references,     or    has     a

significant impact on, carriers' prices, routes, or services.                         See

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 388 (1992). 

            The "related to" test is purposefully expansive.                           In

Morales, the Court first explained that a statute relates to


                                         -11-
prices, routes, or services if it "ha[s] a connection with or

reference to" the same.          504 U.S. at 384.           The Court held that

guidelines governing airlines triggered preemption under the ADA

because they expressly referenced fares, but also because they had

a   "forbidden    significant      effect    upon   fares."     Id.     at    388. 

            Congress used the same language as found in the ADA when

writing the FAAAA and intended to incorporate the Morales Court's

"broad preemption interpretation."              Rowe, 552 U.S. at 370 (quoting

H.R.   Conf.      Rep.   103-677,    at    83    (1994),    reprinted    in     1994

U.S.C.C.A.N. 1715, 1755).        As such, the Court has applied the same

sweeping test to the "related to" language in the FAAAA.                     Id. at

370-71.      In Rowe, the Court held that a Maine law regulating the

delivery of tobacco to customers within the state was preempted

under the FAAAA, in part, because it had a "'significant' and

adverse 'impact' in respect to the federal Act's ability to achieve

its pre-emption-related objectives."              Id. at 371-72. 

            Recently, the Supreme Court highlighted the breadth of

the test when it held that a common law claim for breach of an

implied   covenant      "relates    to"     airlines'     prices,    routes,    or

services.       Northwest, Inc. v. Ginsberg, 134 S. Ct.  1422, 1430-31

(2014).      The Court's analysis focused not on the claim in the

abstract, but on the underlying facts.               See id.   The Court found

that the claim "clearly has such a connection" since it sought

respondent's reinstatement in Northwest's frequent flyer program. 


                                      -12-
Id.    at   1430.      "[T]he   Northwest    program     is    connected    to   the

airline's 'rates' because the program awards mileage credits that

can be redeemed for tickets and upgrades."                    Id. at 1431.        "The

program is also connected to 'services,' i.e., access to flights

and to higher service categories."           Id.

             There is, however, a necessary limit to the scope of

FAAAA preemption.        We have previously noted that "countless state

laws have some relation to the operations of airlines and thus some

potential effect on the prices charged or services provided." 

DiFiore, 646 F.3d at 86.  State laws whose effect is only "tenuous,

remote, or peripheral" are not preempted.              See Rowe, 552 U.S. at

371 (quoting Morales, 504 U.S. at 390).  In Morales, the Court thus

dismissed concerns that the ADA would preempt state laws against

gambling or prostitution.          504 U.S. at 390.            In Rowe, the Court

suggested that a "state regulation that broadly prohibits certain

forms of conduct and affects, say, truckdrivers, only in their

capacity as members of the public (e.g., a prohibition on smoking

in certain public places)" would not be preempted.                   552 U.S. at

375. 

             The    Attorney   General   argues   for    a     categorical      rule

against preemption of "background" labor laws, drawing on certain

cases.       The Attorney General proffers "a sensible rubric" to

confine     FAAAA   preemption:   "background     state       statutes    are    not

preempted if they are generally applicable and not directed to a


                                     -13-
particular area of federal authority."           Thus, "general State

employment statutes and other State background laws [are] per se

'tenuous' and 'remote.'"         According to the Attorney General,

"Section 148B's definition of 'employee' is the quintessential

'background law' that applies to every industry in the Commonwealth

and that arises in an area -- general employment law -- that is

separate and distinct from the regulation of inter-firm competition

that concerned Congress in the FAAAA." 

             Some courts have indeed used the language of "background"

laws as a shorthand for laws that are found to be too tenuous,

remote, or peripheral to carriers' prices, routes, or services to

satisfy the "related to" test.         While we have never used that

language and do not find such language particularly helpful, we

describe the cases. 

             In Dilts v. Penske Logistics, LLC, No.  12-55705, 2014 WL

4401243 (9th Cir.  Sept. 8, 2014), for example, the Ninth Circuit

found that "generally applicable background regulations that are

several steps removed from prices, routes, or services, such as

prevailing wage laws or safety regulations, are not preempted." 

Id. at *7.      These laws may have some effect on prices, routes, or

services, but that effect is insufficient to trigger federal

preemption.        See   id.    The   Ninth   Circuit   determined   that

California's meal and rest break laws were "broad laws applying to

hundreds of different industries with no other forbidden connection


                                  -14-
with prices, routes, and services."            Id. (alterations omitted)

(internal quotation marks omitted).          The Ninth Circuit concluded

that "[t]he FAAAA does not preempt California's meal and rest break

laws as applied to Defendants, because those state laws are not

'related to' Defendants' prices, routes, or services."  Id. at *10. 

               The Attorney General also relies on S.C. Johnson & Son,

Inc. v. Transport Corp. of America,        Inc., 697 F.3d 544 (7th Cir. 

2012).2       There, the Seventh Circuit considered the plaintiffs'

claims for fraudulent misrepresentation by omission, conspiracy to

commit fraud, criminal conspiracy to violate Wisconsin's bribery

statute,       and   Wisconsin's   state   equivalent   of   the   federal

racketeering statute.         Id. at 557-58.     The Seventh Circuit held

that the first two claims were preempted, as a matter of law, since

they "relate sufficiently to rates, routes, or services."           Id. at

557.        The latter two claims were not preempted since they were too

tenuously related to the regulation of the prices, routes, and



       2
         A district court in the Northern District of Illinois
recently cited S.C. Johnson & Son, Inc. v. Transport Corporation of
America, Inc. when holding that a state labor law, which included
the definition of an independent contractor, was not preempted
under the FAAAA.  Costello v. BeavEx Inc., No.  12 C 7843, 2014 WL
1289612, at **3, 5-7 (N.D. Ill. Mar. 31, 2014).  The court found
that the Illinois Wage Payment and Collection Act ("IWPCA") "fits
the mold of a 'background law.'"  Id. at *6. " The law applies to
all employers and employees in Illinois and lays out guidelines
for, among other things, pay periods, deductions from wages, and
avenues to pursue in the event of employment disputes."  Id. Like
all economic regulation, the IWPCA may "play[] a role in setting
the market price," but "[t]his is not sufficient to support
preemption."  Id. (citing S.C. Johnson, 697 F.3d at 558). 

                                    -15-
services of the trucking industry.           Id. at 558-60.        The Seventh

Circuit characterized them as "state laws of general application

that provide the backdrop for private ordering."                  Id. at 558. 

Phrased another way, they were "background laws" that affected the

costs of inputs to market transactions, such as labor, capital, or

technology.  Id. "[L]aws that regulate these inputs operate one or

more steps away from the moment at which the firm offers its

customer a service for a particular price."            Id.

             The Attorney General's proposed construct, however, runs

counter   to   Supreme   Court   precedent       broadly    interpreting   the

"related to" language in FAAAA.        In the first articulation of the

test, the Morales Court dismissed the idea that a state statute

must regulate or specifically address the airline industry in order

to be preempted.  504 U.S. at 385-86. " Besides creating an utterly

irrational loophole (there is little reason why state impairment of

the federal scheme should be deemed acceptable so long as it is

effected by the particularized application of a general statute),

this notion similarly ignores the sweep of the 'relating to'

language."      Id. at 386.    The error of the Attorney General's test

is   perhaps   best   highlighted   by     the   Court's    recent   decision

concerning a state law claim for breach of an implied covenant of

good faith and fair dealing.  See Northwest, 134 S. Ct.  at 1430-31. 

This generally applicable state common law claim would fail the




                                    -16-
Attorney General's "sensible rubric," and yet, the Court found that

it "clearly" satisfied the "related to" test, id. at 1430. 

              In addition, the Attorney General's construct is not

supported by the jurisprudence in this circuit.                         In DiFiore, we

recognized that some cases would fall beyond the scope of FAAAA

preemption, but never suggested a categorical rule.                        See 646 F.3d

at 87.    More recently, in Bower v. Egyptair Airlines Co., 731 F.3d

85 (1st Cir.  2013), we held that the plaintiff's common law tort

claims   of    interference       with     custodial      relations,       negligence,

negligent infliction of emotional distress, and loss of filial

consortium      were     preempted       by    the     ADA     since     they   related

sufficiently to the service of an air carrier.                    Id. at 93, 98.         We

noted that a "state law may be preempted even if it is indirectly

or generally applicable."            Id. at 95. 

              Finally, the Attorney General's construct is contradicted

by the very cases on which she relies.                          The Seventh Circuit

disclaimed any notion of "a simple all-or-nothing question."                           See

S.C. Johnson, 697 F.3d at 550. "[ I]nstead, the court must decide

whether the state law at issue falls on the affirmative or negative

side of the preemption line."               Id.    A careful analysis of two of

the   claims    at     issue    showed   the     label    of    "background"     to    be

warranted      given    their    tenuous      effect     on    prices,    routes,     and

services.       See id. at 558-60.         The Seventh Circuit found two other

claims, for fraudulent misrepresentation by omission and conspiracy


                                         -17-
to commit fraud, sufficiently related to rates, routes, or services

to trigger preemption, despite their general applicability.  Id. at

557. 

           Further, in Dilts, the Ninth Circuit recognized that

generally applicable statutes, "broad laws applying to hundreds of

different industries," could be preempted if they have a "forbidden

connection with prices, routes, and services."             See    2014 WL

4401243, at *7 (alterations omitted).          "[T]hat is," the Ninth

Circuit specified, "those that do not directly or indirectly

mandate, prohibit, or otherwise regulate certain prices, routes, or

services [] are not preempted by the FAAAA."       Id.

           We refuse the Attorney General's invitation to adopt such

a   categorical   rule   exempting   from   preemption   all    generally

applicable state labor laws.       As evidenced by Northwest, we must

carefully evaluate even generally applicable state laws for an

impermissible effect on carriers' prices, routes, and services. 

The court must engage with the real and logical effects of the

state statute, rather than simply assigning it a label. 

                   2.     Application of the FAAAA to Section 148B

           The MDA argues that Section 148B's effective ban on the

use of independent contractors renders it preempted under either a

facial or an as-applied challenge.        The MDA argues that the FAAAA

preempts Section 148B on its face due to its logical effect on the

same-day delivery industry as a whole.       Since individual couriers


                                  -18-
necessarily act within the usual course of the business of their

employers, they must be deemed employees.         As such, Section 148B

"effectively prohibits motor carriers from engaging their couriers

as independent contractors." 

           The MDA's amicus curiae,3 the Chamber of Commerce, argues

that "[a] state law specifying who must provide the service -- an

employee of the carrier -- is no different from regulating the

service   itself."     The   Attorney   General    contests   the   MDA's

characterization of the law as one that bans the use of individual

independent contractors.4

           The MDA also argues that the FAAAA preempts Section 148B

due to its impermissible effect on the prices, routes, and services

of Xpressman.     Preemption is implicated if the statute has a

forbidden significant effect on even one motor carrier.        See N.H.

Motor Transp.  Ass'n v. Rowe, 448 F.3d 66, 72-73 (1st Cir.  2006),

aff'd on other grounds sub nom.  Rowe v. N.H. Motor Transp.  Ass'n,

552 U.S. 364 (2008).  According to Xpressman, the re-classification



     3
       We express our appreciation to the several amici for their
assistance. 
     4
        At oral argument, the Attorney General argued that Section
148B did not operate as a bar to the classification of individual
couriers as independent contractors so long as the delivery company
arranged deliveries, and the courier performed the deliveries. 
This parses the issue too finely.  On the facts presently reflected
in the record, the couriers deliver packages for delivery
companies.  There can be no dispute that they act in the course of
business for the delivery companies, even if one performs the
deliveries and the other arranges the deliveries. 

                                -19-
of its 58 independent couriers as employees would change the routes

offered to customers, would preclude on-demand delivery services,

and would drastically increase Xpressman's costs and thus its

prices.    The Attorney General argues that the MDA "misstates or

overstates" this effect. 

          The district court held that Section 148B's "connection

to prices, routes and services is insufficient for the FAAAA

. . .  to preempt it."       The district court characterized Section

148B as a generally applicable wage law, and      noted, "[t]hat a

regulation on wages has the potential to impact costs and therefore

prices is insufficient to implicate preemption."         The district

court worried that "to find the 'FAAAA preempts wage laws because

they may have an indirect impact on [a motor carrier]'s pricing

decisions amounts to an invitation to immunize it from all state

economic regulation.'" 

          In so holding, the district court made several critical

errors.  First, a statute's "potential" impact on carriers' prices,

routes, and services can be sufficient if it is significant, rather

than tenuous, remote, or peripheral.     We have previously rejected

the contention that empirical evidence is necessary to warrant

FAAAA preemption, and allowed courts to "look[] to the logical

effect that a particular scheme has on the delivery of services or

the setting of rates."      Rowe, 448 F.3d at 82 n.14.    Second, this

logical effect can be sufficient even if indirect, as described


                                 -20-
above.    Far from immunizing motor carriers from all state economic

regulations, we are following Congress's directive to immunize

motor carriers from state regulations that threaten to unravel

Congress's purposeful deregulation in this area.         Finally, the

district court failed to consider the impact of the statute on

carriers' routes and services, and not merely their prices. 

           "Ultimately," the district court held, "the Statute's

effect on Xpressman's labor costs is immaterial."        "Even if the

impact was 'significant,' . . .  this would not change the fact that

the Statute does not relate to the 'movement of property.'"        In

essence, the district court found that its holding that Section

148B did not meet the second requirement, "with respect to the

transportation of property," obviated the need to investigate its

potential success on the first requirement.  Since we conclude that

the district court erred in its interpretation of the second

section of the FAAAA, a determination on the first requirement is

now necessary. 

           We express no view on the sufficiency of the evidence

before the district court.    In opposition to the MDA's motion for

summary judgment, the Attorney General had argued that it needed to

conduct additional discovery in order to develop facts necessary to

its opposition.    See Fed.  R. Civ.  P. 56(d).    The district court did

not reach the Rule 56(d) motion.        The district court ought to

decide this matter in the first instance and determine whether the


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Attorney General has met her burden of establishing the need for

additional discovery under Rule 56(d). 

           B.    With Respect to the Transportation of Property

           The FAAAA preempts state laws "related to a price, route,

or service of any motor carrier . . .  with respect to the

transportation of property."           49 U.S.C. § 14501(c)(1) (emphasis

added).     The district court interpreted the second phrase as

imposing   an    independent,   and    severe,   requirement   for   FAAAA

preemption.      The district court explained that, "[u]nlike the ADA,

FAAAA preemption applies only [] to state statutes regulating the

'transportation of property.'"          Since Section 148B "has a broad

application to a swath of state wage and hour laws, which, in turn,

apply to all employees regardless of the underlying industry," the

district court determined that Section 148B failed to relate

sufficiently to the transportation of property. 

           In reaching this conclusion, the district court relied

heavily on the Supreme Court's recent decision in Dan's City, 133

S. Ct.  1769.  There, the Court considered state law claims based on

a New Hampshire statute that regulated the removal, storage, and

disposal of abandoned motor vehicles after they had been towed, id.

at 1776, and concluded that the state law claims were not preempted

under the FAAAA, id. at 1775.           The Court noted that the phrase,

"with respect to the transportation of property," in the FAAAA was

a "conspicuous" addition to the ADA preemption provision.             Id. at


                                  -22-
1778.    The Court stated that the second phrase "'massively limits

the scope of preemption' ordered by the FAAAA."                 Id.   "[F]or

purposes of FAAAA preemption, it is not sufficient that a state law

relates to the 'price, route, or service' of a motor carrier in any

capacity;      the     law   must   also    concern   a   motor   carrier's

'transportation of property.'"         Id. at 1778-79. 

              The district court's rule misreads the import of Dan's

City.    While Dan's City stated only that the law must "concern" a

motor carrier's transportation of property, the district court

required the law to "regulate" the motor carrier's transportation

of property.          Such a strict reading of the second phrase would

effectively nullify the expansive reading of the first phrase.               A

general statute, whose effect was indirect but significant, would

no   longer    be    preempted.      Although   the    Court   expressed   its

understanding that the second phrase "limits" the scope of FAAAA

preemption, it gave no indication that the second phrase in fact

overrules all earlier precedent on the first phrase.               Without a

clear statement from the Court, we cannot assume that its opinion

intended to do so. 

              Instead, we understand Dan's City to ensure that FAAAA

preemption does not apply when a state statute concerns motor

carriers in matters unrelated to the transportation of property. 

In Dan's City, the Court acknowledged that a tow truck qualifies as

a motor carrier, but stressed that the statute did not affect the


                                     -23-
operation of tow trucks.           133 S. Ct.  at 1776 n.1, 1779.          Instead,

the   statute     regulated      the    disposal   of   vehicles    after   their

transportation by towing had ended.  Id. at 1779.  The Court stated

"it is not sufficient that a state law relates to the 'price,

route, or service' of a motor carrier in any capacity; the law must

also concern a motor carrier's 'transportation of property.'"                   Id.

at 1778-79 (emphasis added). 

            This interpretation of the second phrase limits the scope

of FAAAA preemption, as noted by the Court in Dan's City.                       The

second phrase excludes from FAAAA preemption any state law that

affects a motor carrier's prices, routes, or services outside the

context of the transportation of property.                    The scope of FAAAA

preemption would be far broader if it encompassed state statutes

that affected motor carriers in any capacity.                 Instead, the FAAAA

is carefully tailored to preempt only those statutes that affect a

motor carrier's transportation of property.                   This excludes, for

example, statutes that affect a motor carrier's transportation of

passengers, statutes that affect a motor carrier's transportation

of garbage, or, like in Dan's City, statutes that relate to motor

carriers after the transportation of property has ended. 

            The facts of this case are a far cry from Dan's City. 

Section    148B   governs     the      classification   of    the   couriers   for

delivery   services.         It    potentially      impacts    the   services   the

delivery company provides, the prices charged for the delivery of


                                         -24-
property, and the routes taken during this delivery.        The law

clearly concerns a motor carrier's "transportation of property." 

The district court must address on remand whether this effect on

delivery companies' prices, routes, and services rises to the

requisite level for FAAAA preemption. 

                         IV.    Conclusion

          The FAAAA preempts state laws that "relate to" the

prices, routes, or services of a motor carrier "with respect to the

transportation of property."  We reverse and remand to the district

court to determine, consistent with the principles elucidated in

this opinion, whether Section 148B satisfies the broad preemption

test based on a review of the full record. 

          So ordered. 




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