Jaswinder Singh v. Uber Technologies Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-1397

_____________

JASWINDER SINGH,

on behalf of himself and all those similarly situated,

v.

UBER TECHNOLOGIES INC

Jaswinder Singh,

Appellant

______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. Action No. 3-16-cv-03044)

District Judge: Honorable Freda L. Wolfson

______________

Argued April 26, 2019

Before: GREENAWAY, JR., SHWARTZ, and PORTER,

Circuit Judges.

(Filed: September 11, 2019)

______________

Daniel A. Horowitz

Matthew D. Miller

Justin L. Swidler [ARGUED]

Swartz Swidler

1101 Kings Highway North

Suite 402

Cherry Hill, NJ 08034

Attorneys for Appellant

Theodore J. Boutrous, Jr.

Samuel E. Eckman

Theane D. Evangelis [ARGUED]

Gibson Dunn & Crutcher

333 South Grand Avenue

Los Angeles, CA, 90071

Joshua S. Lipshutz

Gibson Dunn & Crutcher

1050 Connecticut Avenue, N.W.

Washington, DC 20036

Paul C. Lantis

William J. Simmons

Littler Mendelson

1601 Cherry Street

Suite 1400, Three Parkway

Philadelphia, PA 19102

Attorneys for Appellee

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OPINION OF THE COURT

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2

GREENAWAY, JR., Circuit Judge.

Arbitration agreements are essentially contracts that

predetermine that a dispute between parties will be decided by

an arbitrator, rather than in court. In response to judicial

hostility toward these types of contracts, Congress passed the

Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16. The FAA

places certain arbitration agreements on equal footing with all

other contracts by requiring courts to enforce such agreements

according to their terms. Section 2 provides that the FAA

covers “a written provision in any maritime transaction or a

contract evidencing a transaction involving commerce,” id. §

2, but a provision in § 1 sets an outer limit, providing that

“nothing” in the FAA “shall apply to contracts of employment

of seamen, railroad employees, or any other class of workers

engaged in foreign or interstate commerce,” id. § 1 (“§ 1”).

This outer limit sets the stage for the case before us.

Jaswinder Singh brought this putative class action in the

Superior Court of New Jersey, Monmouth County, on behalf

of himself, and other similarly situated New Jersey Uber

drivers. He alleged that Uber Technologies, Inc. (“Uber”)

misclassified them as independent contractors as opposed to

employees, which resulted in their being deprived of overtime

compensation, and having to incur business expenses for the

benefit of Uber. Uber removed the case to federal court in the

District of New Jersey. It then moved for the District Court to

dismiss the case and compel Singh to have it decided by an

arbitrator, on the basis of an agreement to arbitrate. Singh

opposed the motion to compel arbitration on numerous

grounds, one of which was that the District Court did not have

the authority to compel arbitration under the FAA. He argued

that, to the extent that he had an agreement with Uber, it fell

3

within the ambit of the residual clause—the “any other class of

workers” portion—of § 1. In the least, Singh asked that he be

given the opportunity for discovery on the essential § 1 residual

clause inquiry, which is whether the class of workers to which

Singh belongs is “engaged in foreign or interstate commerce.”

Id.

The District Court granted the motion over Singh’s

objections. But it did not reach the engaged-in-interstate

commerce inquiry. Instead, the Court ruled that Singh did not

fall within the ambit of the residual clause of § 1 because that

clause only extends to transportation workers who transport

goods, not those who transport passengers. We disagree with

this reading. Consistent with our longstanding precedent, we

hold that the residual clause of § 1 may extend to a class of

transportation workers who transport passengers, so long as

they are engaged in interstate commerce or in work so closely

related thereto as to be in practical effect part of it. We will

therefore vacate the District Court’s order compelling

arbitration. In addition, because neither the Complaint nor

incorporated documents suffice to resolve the engaged-in-

interstate-commerce inquiry, we will remand this and the

remaining issues to the District Court for further proceedings

consistent with this opinion.

I. BACKGROUND

A. Legal

The FAA “place[s] arbitration agreements on equal

footing with all other contracts” by requiring courts to “enforce

[such] agreements according to their terms.” McDonald v.

Cashcall, Inc., 883 F.3d 220, 226 (3d Cir. 2018) (first

alteration in original) (citations omitted). So the statute

4

provides that, like any other contract, arbitration agreements

may be rendered unenforceable by grounds that exist at law or

in equity for revocation. See id.; 9 U.S.C. § 2. To the extent

that a particular ground implicates the threshold question of

whether the parties are bound by an agreement to arbitrate, it

is referred to as a gateway question of arbitrability and is

typically resolved in court. Howsam v. Dean Witter Reynolds,

Inc., 537 U.S. 79, 84 (2002); Chesapeake Appalachia, LLC v.

Scout Petroleum, LLC, 809 F.3d 746, 756 (3d Cir. 2016).

Although this is the typical route, the parties may

contract around it, and agree to have even these questions

decided by an arbitrator. To do so, the arbitration agreement

need only include a clause—a delegation clause—that reserves

arbitrability questions for an arbitrator to decide. Rent-A-

Center, West, Inc. v. Jackson, 561 U.S. 63, 70, 72 (2010)

(“Rent-A-Center”). Where such a clause is included, courts

cannot decide threshold questions of arbitrability “unless a

party challenge[s] the delegation clause [specifically] and the

court concludes that the delegation clause is not enforceable.”

MacDonald, 883 F.3d at 226 (citations omitted). The rationale

is that a delegation clause is severable from the underlying

arbitration agreement such that it is separately entitled to FAA-

treatment—that is, unless specifically (and successfully)

challenged, the clause is in and of itself treated as a valid

contract that must be enforced under the FAA’s enforcement

provisions. See Rent-A-Center, 561 U.S. at 72.

All of this, of course, assumes that the FAA controls.

But what if it does not? Or, more precisely, who gets to decide

the question of whether the FAA applies where there is a

delegation clause? During the pendency of this appeal, the

Supreme Court answered this question, holding that courts

must be the ones to determine whether an agreement is

5

excluded from FAA coverage even where there is a delegation

clause. New Prime Inc. v. Oliveira, 139 S. Ct. 532, 538 (2019).

Specifically, §§ 1 and 2 of the FAA identify the subset

of arbitration agreements covered by the statute. Since they

come before the FAA’s enforcement clauses under §§ 3 and

4—which authorize a court to stay a proceeding and compel

arbitration—the Supreme Court reasoned that §§ 3 and 4

cannot apply to an arbitration agreement that is excluded from

the FAA’s coverage by the terms of §§ 1 and 2. Id. at 537–38.

Pursuant to the rationale offered by Rent-A-Center, the Court

viewed a delegation clause as “merely a specialized type of

arbitration agreement,” and, as a result, held that the same

reasoning applied. Id. at 538.

This background sets the stage for our case: the contract

between the parties contains an arbitration provision and a

delegation clause. If the contract is covered by the FAA, these

provisions might combine to require the parties to have much

of their dispute resolved by an arbitrator. However, the parties

disagree over whether their contract is excluded from the FAA

under the residual clause of § 1.

B. Procedural

1. Proceedings in the District Court

Singh brought this putative class action in the Superior

Court of New Jersey, Monmouth County, on behalf of himself

and other similarly situated New Jersey Uber drivers. He

alleged that Uber misclassified them as independent

contractors as opposed to employees, and that, as a result, Uber

deprived them of overtime compensation, and required them to

incur business expenses for the benefit of Uber. Uber removed

6

the action to federal court in the District of New Jersey. It then

moved to dismiss the action and compel arbitration pursuant to

the arbitration provision of an agreement between the parties

called the Rasier Software Sublicense Agreement (“Rasier

Agreement”).

In response to the motion, Singh argued that there was

no valid agreement between Uber and him, and, even if there

was, he was not bound by its arbitration provision for four

reasons: (1) Uber failed to meet its burden to show that the

provision was a constitutional waiver of the Seventh

Amendment right to a jury trial; (2) the provision is excluded

under the residual clause of § 1 of the FAA; (3) the provision

violated the National Labor Relations Act (“NLRA”), the

Norris-LaGuardia Act, and the New Jersey Wage and Hour

Law (“NJWHL”); and (4) the provision was unconscionable.

As to the residual clause of § 1 of the FAA specifically,

Singh argued that he had at least put forth enough to warrant

discovery on the question. He relied on our decision in

Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d

764 (3d Cir. 2013), to support this argument. There, we

recognized that our precedents suggested two possible

standards under which a motion to compel arbitration could be

decided—the motion to dismiss standard or the summary

judgment standard. Id. at 771–72. The two differ significantly,

as we accept as true the facts established by the pleadings—the

complaint and incorporated documents—when deciding the

former, but, for the latter, we require the party opposing the

motion to submit evidence, which is typically obtained through

discovery. See id. at 772 (citing Fed. R. Civ. P. 56(c)(1)(A)).

We held that the motion to dismiss standard applies to a

motion to compel arbitration where a party’s claims are

7

“subject to an enforceable arbitration clause”—that is, where

the existence of a valid agreement to arbitrate between the

parties is apparent from the face of the complaint or

incorporated documents. Id. at 774, 776. “But if the complaint

and its supporting documents are unclear” as to whether the

parties agreed to arbitrate, “or if the plaintiff has responded to

a motion to compel arbitration with additional facts sufficient

to place the agreement” in dispute, a “restricted inquiry into

factual issues [is] necessary . . . .” Id. at 774–75 (emphases

added) (internal quotation marks and citations omitted). The

motion to compel arbitration is judged under a summary

judgment standard if it is renewed after this inquiry. Id. at 775.

Uber asked the Court to reject this request for discovery

on the grounds that the residual clause of § 1 of the FAA only

applies to transportation workers that transport goods, the

parties’ agreement states that the FAA would govern, and that,

even if the FAA did not govern, the result would be the same

under the New Jersey Arbitration Act (“NJAA”), N.J. Stat.

Ann. §§ 2A:23B-1 to -32. In addition, Uber put forth that the

parties’ agreement contained a valid delegation clause, which,

unless successfully challenged, required that all the issues

Singh raised regarding the validity of their arbitration

agreement—including the § 1 residual clause issue—be

decided by an arbitrator.

The District Court ruled in Uber’s favor, without

addressing the discovery or delegation clause arguments.

It recognized that the parties had “agree[d] to have

[threshold issues] decided by an arbitrator through the

inclusion of a delegation clause within the arbitration

agreement,” App. 7, but nonetheless proceeded to address four

of the five issues presented by Singh. It determined that the

8

delegation clause was valid, that the parties had in fact entered

into a valid and enforceable arbitration agreement, and that the

residual clause of § 1 of the FAA does not extend to

transportation workers who transport passengers. It also found

that the arbitration provision did not violate the NLRA or the

other labor-related statutes, and was not unconscionable. It did

not decide whether the parties’ dispute fell within the scope of

the arbitration provision, on the basis that the delegation clause

required that this determination be “reserved for the arbitrator.”

App. 28.

2. Proceedings on Appeal

Singh appealed the District Court’s § 1 determination,

its determination that the arbitration provision did not violate

the NJWHL, its failure to address his Seventh Amendment

argument, and its rulings on unconscionability.1 In its response

brief on appeal, Uber primarily argued that Singh had waived

any issue as to the enforceability of the delegation clause, and,

as such, all of the issues Singh raises on appeal must be decided

by an arbitrator. Given New Prime, Uber now concedes that a

court has to resolve Singh’s § 1 argument as an antecedent

matter.

1

After the District Court’s decision, the Supreme Court

issued a ruling that foreclosed Singh’s NLRA and Norris-

LaGuardia Act arguments. In particular, the Supreme Court

held that the NLRA fell short of reflecting a clear and manifest

intent by Congress to displace the FAA, and that, “just as under

the NLRA, the [Norris-LaGuardia Act] does not conflict with

Congress’s directions favoring arbitration.” See Epic Sys.

Corp. v. Lewis, 138 S. Ct. 1612, 1624–30 (2018).

9

Section 1 of the FAA requires that we determine

whether the agreement between Singh and Uber qualifies as a

“contract[] of employment of seamen, railroad employees, or

any other class of workers engaged in foreign or interstate

commerce.” 9 U.S.C. § 1. Of course, there is no dispute as to

whether Uber drivers like Singh are seamen or railroad

employees. Rather, the dispute centers on § 1’s residual

clause—the “any other class of workers” portion—with Uber

arguing that the agreement between it and Singh does not

qualify as a “contract of employment,” Appellee Resp. Br. 19–

20, and, even if it did, Singh does not belong to a class of

workers engaged in interstate commerce because such drivers

transport passengers, and not goods, and they do so “only

locally,” Appellee Resp. Br. 20–26. New Prime eliminated

Uber’s “contract of employment” argument, see New Prime,

139 S.Ct at 541 (“Congress used the term ‘contracts of

employment’ in a broad sense to capture any contract for the

performance of work by workers.” (emphasis in original)), so

we are left with its transportation-of-goods and “engaged in

interstate commerce” arguments.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28

U.S.C. §§ 1332(d) and 1453, and we have jurisdiction under

28 U.S.C. § 1291. We review the District Court’s order

compelling arbitration de novo, since it presents a question of

law. Reading Health Sys. v. Bear Stearns & Co., 900 F.3d 87,

100 n. 61 (3d Cir. 2018). We apply the same standard as the

District Court, so “we are first obliged to determine which

standard should have been applied.” Guidotti, 716 F.3d at 772.

10

A. The Framework for Deciding Which Standard

Recall that the two options are the motion to dismiss

standard under Rule 12(b)(6) and the summary judgment

standard under Rule 56, and that we set forth a framework for

determining which should apply to a motion to compel

arbitration in Guidotti. The centerpiece of that framework is

whether the existence of a valid agreement to arbitrate is

apparent from the face of the complaint or incorporated

documents. Id. at 774–76.

This is so because it represents a balancing of the

competing purposes of the FAA by fostering “efficient and

speedy dispute resolution” tempered by the “important aim” of

“enforc[ing] . . . private agreements” and the “significant role

courts play in interpreting the validity and scope of contract

provisions . . . .” Id. at 773 (internal quotation marks and

citations omitted). Notably, juxtaposed with Congress’s

“declaration of a liberal federal policy favoring arbitration

agreements,” id. (internal quotation marks and citation

omitted), § 4 of the FAA establishes that a court must be

“satisfied that the making of the agreement for arbitration or

failure to comply therewith is not in issue” before “mak[ing]

an order directing the parties to proceed to arbitration . . . .” 9

U.S.C. § 4. Thus, we determined that the interest in speedy

resolution needs no tempering where “the affirmative defense

of arbitrability of claims is apparent on the face of a complaint”

(or incorporated documents). Id. at 773–74 (internal quotation

marks and citation omitted). However, we recognized that “a

more deliberate pace is required” where the motion “does not

have as its predicate a complaint with the requisite clarity” as

to whether “the parties agreed to arbitrate.” Id. at 774 (internal

quotation marks and citation omitted).

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A similar balancing is required with respect to the issue

presented here. Indeed, like the agreement-to-arbitrate issue

posed in § 4 of the FAA, the applicability of the residual clause

of § 1 is not merely “presumed to be [a] question[] for judicial

determination.” See id. at 773 (citation omitted). Rather, New

Prime establishes that a court must be satisfied that this clause

does not apply before making an order that the parties proceed

to arbitration pursuant to §§ 3 and 4 of the FAA. We therefore

determine that a “restricted inquiry” may be necessary to

resolve a motion to compel arbitration that presents an issue

regarding the applicability of the residual clause of § 1.

Specifically, where the issue of whether the residual

clause of § 1 of the FAA applies arises in a motion to compel

arbitration, the motion to dismiss standard applies if the

complaint and incorporated documents provide a sufficient

factual basis for deciding the issue. But where those

documents do not, or the plaintiff responds to the motion with

additional facts that place the issue in dispute, “the parties

should be entitled to discovery on the question of arbitrability

before a court entertains further briefing . . . ,” with an

application of the summary judgment standard to follow. Id.

at 776 (alteration in original) (internal quotation marks and

citation omitted).

B. Standard Applied by the District Court

Here, the District Court’s view was that the residual

clause of § 1 of the FAA does not extend to transportation

workers who transport passengers. So, to decide the § 1

residual clause inquiry, the fact that Uber drivers transport

passengers need only have been apparent from the face of the

Amended Complaint, from an exhibit attached to the Amended

Complaint, as a matter of public record, or from documents

12

incorporated or explicitly relied upon in the Amended

Complaint. See Guidotti, 716 F.3d at 772. Setting aside the

affidavit submitted by Uber as not qualifying as any of these,

the Amended Complaint and the Rasier Agreement each

independently establish that Uber drivers transport passengers.

See, e.g., Amended Compl. ¶ 18, ECF No. 7 (“Defendant offers

customers the ability to hail a car service driver via a mobile

application.” (emphasis added)); Rasier Agreement, App. 42

(characterizing Uber drivers as “providers of . . . peer-to-peer

. . . passenger transportation services . . .”) (emphasis added)).

Along those lines, the affidavit submitted by Singh in his

response to Uber’s motion does not place this issue in dispute,

but further establishes that Uber drivers transport passengers.

See, e.g., Singh Decl. ¶ 28 (“I regularly picked up customers .

. .”).

We therefore view the District Court’s decision as

applying a motion to dismiss standard on the issue of whether

the residual clause of § 1 of the FAA applies to transportation

workers that transport passengers.

III. DISCUSSION

For our part, as we alluded to, whether the residual

clause of § 1 applies in this case and operates to exclude the

Rasier Agreement (including the arbitration provision and

delegation clause) from FAA coverage is really a two-part

inquiry asking (1) if § 1 only applies to transportation workers

who transport goods, or also those who transport passengers,

and (2) whether Singh belongs to a class of workers that are

engaged in interstate commerce. The latter question is reached

only if the former is answered in the affirmative.

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(A) We part company with the District Court and so

answer: the residual clause of § 1 is not limited to

transportation workers who transport goods, but may also

apply to those who transport passengers, so long as they are

engaged in interstate commerce or in work so closely related

thereto as to be in practical effect part of it.

(B) We then return to the Guidotti framework to

determine whether the engaged-in-interstate-commerce

inquiry can be resolved from the pleadings, and if so, whether

Singh’s submissions in response to the motion to compel

arbitration operate to place the issue in dispute. Since neither

the Amended Complaint nor incorporated documents suffice

for determining whether Singh belongs to a class of workers

that are engaged in interstate commerce or sufficiently related

work, we will ultimately remand for the District Court to

examine the issue, with instruction to permit limited discovery

before entertaining further briefing. If Uber chooses to reassert

its motion after this discovery is completed, the District Court

shall apply the summary judgment standard under Federal Rule

of Civil Procedure 56 and decide only this aspect of the § 1

residual clause inquiry, which will be dispositive as to whether

the FAA applies.2

2

Because the motion to dismiss the case and compel

arbitration was filed before discovery, and this case involves

consideration of a threshold issue concerning whether the FAA

even applies, Judge Shwartz does not agree that the framework

set forth in Guidotti is applicable but agrees that the case

should be remanded to allow the parties to conduct discovery

on whether Singh belongs to a “class of workers engaged in

14

And (C) we ultimately do not reach the remaining issues

raised by the parties because they are contingent on the FAA’s

applicability.

A. Transportation Workers who Transport

Passengers May be § 1 Exempt

1. Workers who Transport Passengers May be § 1

Exempt

Section 1 of the FAA provides that “nothing” in the

FAA “shall apply” to “contracts of employment of seamen,

railroad employees, or any other class of workers engaged in

foreign or interstate commerce.” 9 U.S.C. § 1. In our en banc

decision in Tenney Engineering, Inc. v. United Electrical

Radio & Machine Workers of America, (U.E.) Local 437, 207

F.2d 450, 452 (3d Cir. 1953), we held that, under the rule of

ejusdem generis,3 the residual clause of this provision only

includes those other classes of workers “who are actually

engaged in the movement of interstate or foreign commerce or

in work so closely related thereto as to be in practical effect

part of it.” In so holding, we reaffirmed our previous decisions

in Amalgamated Association Street Electric Railway & Motor

Coach Employees of America, Local Div. 1210 v. Pennsylvania

foreign or interstate commerce” for purposes of determining

whether the FAA exemption applies.

3

This is a statutory canon through which, “when a

statute sets out a series of specific items ending with a general

term, [the] general term is confined to covering subjects

comparable to the specifics it follows.” Hall St. Assocs., L.L.C.

v. Mattel, Inc., 552 U.S. 576, 586 (2008).

15

Greyhound Lines, 192 F.2d 310 (3d Cir. 1951) (“Greyhound

I”) and Pennsylvania Greyhound Lines v. Amalgamated

Association of Street, Electric Railway & Motor Coach

Employees of America, Division 1063, 193 F.2d 327 (3d Cir.

1952) (per curiam) (“Greyhound II”). Those cases held that

the collective bargaining agreement between a union and bus

line employees qualified as a contract of employment of a class

of workers engaged in interstate commerce. See Greyhound I,

192 F.2d at 313; Greyhound II, 193 F.2d at 328.

In Tenney, we had occasion to reconsider our holdings

in Greyhound I and Greyhound II. Then-Chief Judge Biggs

concurred in the judgment, but proposed that we should

overturn those decisions on two fronts: first, he argued that a

collective bargaining agreement should not be considered a

contract of employment, and second, that the residual clause of

§ 1 should encompass both those engaged in transporting

goods in foreign or interstate commerce and those, such as

manufacturing workers, that are engaged in the production of

goods for interstate commerce. Tenney, F.2d 454–55 (Biggs,

C.J., concurring). We did not adopt either view, but instead

affirmed Greyhound I and Greyhound II, characterizing the bus

line employees as “being directly engaged in the channels of

interstate transportation just as are railroad workers.” Id. at

453 (emphasis added).

Nearly fifty years later, the Supreme Court reached the

same conclusion, and held that the residual clause of § 1 only

operates to exclude from FAA coverage “contracts of

employment of transportation workers” who are engaged in

interstate commerce. Circuit City Stores, Inc. v. Adams, 532

U.S. 105, 118–19 (2001); see also Palcko v. Airborne Express,

Inc., 372 F.3d 588, 593 (3d Cir. 2004) (“[T]he Supreme

Court’s later decision in Circuit City essentially affirmed [our]

16

analysis [in Tenney].”). The Circuit City Court was presented

with the question of whether the residual clause of § 1 applies

to all contracts of employment, or simply those of

transportation workers. To resolve it, it took the textualist

approach we applied in Tenney, reasoning that, because the

phrase “any other class of workers engaged in . . . interstate

commerce” constitutes a residual clause following explicit

references to “seamen” and “railroad employees,” the maxim

of ejusdem generis requires that it be construed to only

embrace “objects similar in nature to those objects enumerated

by the preceding specific words.” Circuit City, 532 U.S. at

114–15. As such, the Court held that the residual clause of § 1

only exempts the contracts of employment of transportation

workers. Id. at 119; see also New Prime, 139 S. Ct at 538

(“In Circuit City, we acknowledged that ‘Section 1 exempts

from the [Act] . . . contracts of employment of transportation

workers.’” (citation omitted)).

2. Uber Does Not Convince Us Otherwise

With the foregoing in tow, Uber endeavors to convince

us that the residual clause of § 1 should not apply to

transportation workers sufficiently engaged in interstate

commerce, but rather only those who transport goods in

interstate commerce.

a.

i.

Uber’s preferred course is not the text. On its face,

nothing in the residual clause of § 1 suggests that it is limited

to those who transport goods, to the exclusion of those who

17

transport passengers. In fact, the text indicates the opposite.4

Recall that the provision excludes “contracts of employment of

. . . any other class of workers engaged in foreign or interstate

commerce,” 9 U.S.C. § 1 (emphasis added), and that the

decision to narrow this clause to only transportation workers is

premised on the textual canon of interpretation, ejusdem

generis. In this context, this means that the residual clause of

§ 1 only includes those workers that are engaged in foreign or

interstate commerce in a manner similar to seamen and railroad

employees.

With that in mind, Uber cannot direct us to any

contemporary statutes or sources that define the terms

“seamen” and “railroad employees” to only include those who

transport goods. To the contrary, in its efforts to offer a

rationale for why Congress might have created a carve-out for

4

In this regard, we share our concurring colleague’s

inclination that, standing alone, the term “commerce” does not

inhere a goods-versus-passengers distinction. But ending the

analysis there would be inconsistent with our decision in

Tenney as well as the Supreme Court’s in Circuit City. Neither

turned on the meaning of the term “commerce” in a vacuum.

Indeed, had either done so, the residual clause of § 1 would

likely not have been limited to the employment contracts of

transportation workers. This is obviously not the case, and

ejusdem generis’s invocation is the culprit. See Circuit City,

532 U.S. at 114–16 (rejecting the notion that §§ 1 and 2 are

“coterminous” because “[c]onstruing the residual phrase to

exclude all employment contracts fails to give independent

effect to the statute’s enumeration of the specific categories of

workers which precedes it” (emphasis added)).

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seamen and railroad employees, the Circuit City Court

referenced two contemporary statutes: the Transportation Act

of 1920 and the Railway Labor Act of 1926. Circuit City, 532

U.S. at 121. Each purported to resolve disputes between

carriers and their employees and, in so purporting, defined

“carrier” to include “sleeping car compan[ies],” which are

railway passenger cars.5 Transportation Act of 1920, Pub. L.

No. 66-152, § 300(1), 41 Stat. 456, 469; Railway Labor Act of

1926, Pub. L. No. 69-257, § 1, 44 Stat. 577, 577 (codified and

later repealed at 45 U.S.C. § 651).

In addition, the Supreme Court acknowledged the broad

sweep of these terms in New Prime. There, New Prime had

argued that the term “contracts of employment” does not

extend to independent contractor agreements. New Prime, 139

S.Ct at 538–39. However, the residual clause of § 1 purports

to apply to the contracts of employment of “any other class of

workers,” which is indisputably broader than those of

employees and suggests that independent-contractor

agreements were to be encompassed. Id. at 542. To overcome

5

The Transportation Act of 1920 and the Railway Labor

Act of 1926 also each defined “carrier” to include “any carrier

by railroad, subject to the Interstate Commerce Act” (“ICA”)

excluding local electrical rails. 41 Stat. 456, § 300(1); 44 Stat.

577, § 1, 46 U.S.C.§ 651 (repealed). The provision of the ICA

in turn applied “to any common carrier or carriers engaged in

the transportation of passengers or property wholly by railroad,

or partly by railroad and partly by water . . .” between states.

ICA, Pub. L. No. 49-104, § 1, 24 Stat. 379, 379 (1887).

19

that, New Prime pointed out that § 1 enumerates the contracts

of employment of “seamen” and “railroad employees,” which

it argued included “only employees in 1925.” Id. (emphasis in

original). The Court rejected this argument, characterizing it

as “rest[ing] on a precarious premise,” because, “[a]t the time

of the [FAA]’s passage,” even “shipboard surgeons who

tended to injured sailors were considered ‘seamen’ . . . .” Id.

at 542–43.6 The Court also referenced the Transportation Act

of 1920’s definition of “railroad employees” and the 1898

Erdman Act’s “equally broad understanding” of the term, the

latter of which encompassed “all persons actually engaged in

any capacity in train operation or train service of any

description.” Id. at 543 n.12 (emphasis added).7

6

The cases that the Court cited in support of this

proposition also clearly contemplated the presence of seamen

on passenger ships. See The Sea Lark, 14 F.2d 201, 201–02

(W.D.Wash.1926) (describing cooks, surgeons, and bartenders

as seamen, and holding that musicians on a boat used for

excursions were seamen); The Buena Ventura, 243 F. 797, 799

(S.D.N.Y. 1916) (discussing a case that “held that a warranty

to carry ‘30 seamen besides passengers’ meant that the 30

seamen included a cook, a surgeon, and other employe[e]s”

(citation omitted)); Allan v. State S.S. Co., 30 N.E. 482, 483–

84 (1892) (discussing the duty arising from Great Britain’s

Passenger Act of 1855 of “defendant[,] a common carrier of

passengers,” to employ a shipboard surgeon with an

appropriate supply of medicines).

7

As the Court explained, the Erdman Act was “enacted

to address disruptive railroad strikes at the end of the 19th

century.” New Prime, 139 S. Ct. at 543.

20

Thus, if anything, a textual approach to the residual

clause of § 1 suggests that it extends to both transportation

workers who transport goods as well as those who transport

passengers.

ii.

Precedent also fails to give Uber succor on this point.

All sides agree that, as it stands, our decisions in Tenney,

Greyhound I, and Greyhound II are unequivocal that the

residual clause of § 1 excludes the contracts of employment of

transportation workers who transport passengers from the

FAA. Equally, Circuit City essentially affirmed our ruling in

Tenney that the residual clause of § 1 of the FAA operates to

exclude the contracts of employment of transportation

workers. And, to some extent, New Prime affirmed our

Greyhound rulings that the term “contract of employment”

includes more than employment contracts in the modern, strict

sense. New Prime Inc., 139 S. Ct. at 539 (explaining that, at

the time of the FAA’s enactment, “dictionaries tended to treat

‘employment’ more or less as a synonym for ‘work[,’ and] . . .

did [not] distinguish between different kinds of work or

workers.”).

b.

So Uber clings to inapposite dicta and legislative

history, to no avail.

i.

It first ventures into Supreme Court dicta from Circuit

City. Specifically, in setting forth the issue presented on

appeal, the Supreme Court briefly reiterated the circuit split

21

between the Ninth Circuit and most other circuits, including

ours. It described most circuits as having concluded that the

residual clause of § 1 only excludes “transportation workers,

defined, for instance, as those workers ‘actually engaged in the

movement of goods in interstate commerce.’” Circuit City,

532 U.S. at 112 (citations omitted). The District Court doubled

down on this characterization, and further asserted that “[t]o

date, virtually every circuit having considered the issue has

found that [the residual clause of § 1] only applies to those

employees who are actually engaged in the movement of goods

as opposed to the transportation of people, in interstate

commerce.” App. 17. On this basis, the District Court sided

with Uber and disregarded our precedent as outdated and

unintentional. See App. 18 n.8 (setting aside Greyhound I and

Greyhound II as “primarily deal[ing] with the issue of whether

a collective bargaining agreement constitutes a contract of

employment—not whether employees who transport people,

as opposed to goods, fall within the scope of [§ 1].”).

We disagree.

As an initial matter, although “we pay due homage to

the Supreme Court’s well-considered dicta as pharoi that guide

our rulings,” our Court is bound by the holdings of Supreme

Court cases, not dicta. IFC Interconsult, AG v. Safeguard Int’l

Partners, LLC., 438 F.3d 298, 311 (3d Cir. 2006) (“IFC”)

(emphasis added). In IFC, we rejected a party’s argument that

the Supreme Court implicitly overturned our prior precedent

because it referred to that decision as being on the wrong side

of a circuit split. Id. at 310–11. Expelled in a footnote, we held

that this was “hardly a well-considered dictum[, as it] merely

illustrat[ed] a circuit split . . . .” Id. at 311.

22

The Circuit City dicta Uber relies on is of the same

token, for it also merely illustrates a circuit split. The language

appears in the section of the Court’s decision in which it

clarifies the issue before it as being whether the residual clause

of § 1 encompasses all contracts of employment, or only those

of transportation workers. Circuit City, 532 U.S. at 112–13.

The Court set out the division among the circuits by explaining

that, “[m]ost Courts of Appeals” had “conclude[d that] the

exclusion provision is limited to transportation workers,

defined, for instance, as those workers ‘actually engaged in the

movement of goods in interstate commerce.’” Circuit City,

532 U.S. at 112 (emphasis added) (internal quotation marks

and citations citation omitted). But the Ninth Circuit

interpreted the provision “to exclude all contracts of

employment from the reach of the FAA.” Id. The Supreme

Court’s only mention of these Courts of Appeals decisions in

the actual analysis is where the Court explains that its decision

that the residual clause of § 1 only extends to transportation

workers was in line with the majority view. See id.

Further, unlike IFC, the Court ultimately determined

that our precedent was on the right side of the split. It cited the

D.C. Circuit’s decision in Cole v. Burns International Security

Services, 105 F.3d 1465, 1471 (D.C. Cir. 1997), as indicating

the position of most Courts of Appeals. See Circuit City, 532

U.S. at 119. Notably, the portion of Cole that the Court

references string cites the prior Courts of Appeals decisions

that held the majority view, including our en banc decision in

Tenney. See Cole, 105 F.3d at 1471. The Supreme Court dicta

relied on by Uber is thus too far removed from what we would

characterize as well-considered. Circuit City did not overrule

our prior decisions.

23

We are also not persuaded that any decisions by our

sister circuits contradict ours in Tenney, Greyhound I, and

Greyhound II. Although Cole determined that the residual

clause of § 1 did not extend to a security guard at a train station

because he was not “engaged in the transportation of goods in

interstate commerce,” none of the Court of Appeals decisions

it cited held that the residual clause of § 1 only extended to

those who transported goods, and, as we set out earlier, Tenney

stood for the exact opposite proposition. Rather, like Cole, our

sister courts have only gone as far as to draw the line where

Circuit City did, despite passing references to goods.

Indeed, in one form or another, all were confronted with

the same question: whether the residual clause of § 1 covered

the contracts of employment of those who were not in the

transportation industry at all. See, e.g., Paladino v. Avnet

Comput. Techs., 134 F.3d 1054, 1061 (11th Cir. 1998)

(involving someone who provided technical support to

computer system salespeople) (Cox, J., concurring); Rojas v.

TK Communs., 87 F.3d 745, 747 (5th Cir. 1996) (involving a

disc jockey at a radio station); Asplundh Tree Expert Co. v.

Bates, 71 F.3d 592, 593–94, 596 (6th Cir. 1995) (involving the

controlling shareholder and chairman of a utility company);

O’Neil v. Hilton Head Hosp., 115 F.3d 272, 273–74 (4th Cir.

1997) (involving a respiratory therapist at a hospital);

Matthews v. Rollins Hudig Hall Co., 72 F.3d 50, 52, 53 n.3 (7th

Cir. 1995) (involving a consultant hired by a brokerage firm);

Miller Brewing Co. v. Brewery Workers Local Union No. 9,

AFL-CIO, 739 F.2d 1159, 1162 (7th Cir. 1984) (involving a

union representing the brewers in Milwaukee); Erving v.

Virginia Squires Basketball Club, 468 F.2d 1064, 1066 (2d Cir.

1972) (involving Julius Erving, the professional basketball

player famously known as “Dr. J.”). See also Lenz v. Yellow

24

Transp., Inc., 431 F.3d 348, 351 (8th Cir. 2005) (involving a

customer service representative for a transportation

company)8; Hill v. Rent-A-Center., Inc., 398 F.3d 1286, 1288

(11th Cir. 2005) (involving an account manager for a furniture

and appliance rental business).

ii.

As for legislative history, Uber returns us to Circuit

City, where the Supreme Court suggested that Congress might

have limited § 1 to seamen and railroad employees because

there were statutory dispute resolution schemes already in

place for such workers. Circuit City, 532 U.S. at 120–21.

Based on this suggestion, Uber argues that the absence of an

alternate dispute resolution scheme for Uber drivers means that

8

Uber relies heavily on Lenz, pointing out its various

references to “goods” in its analysis of whether a customer

service representative for a transportation company was a

transportation worker for purposes of FAA exemption. 431

F.3d at 352–53. Within the same analysis, the Lenz court

quoted another circuit court’s statement that “[n]umerous

courts” have defined “transportation workers” to include “bus

drivers and truck drivers.” Id. at 351 (quoting Am. Postal

Workers Union v. United States Postal Serv., 823 F.2d 466,

473 (11th Cir. 1987)). This seeming contradiction simply

demonstrates that the Lenz court, like all of the courts to

paraphrase Circuit City’s “goods” language in similar

circumstances, did not have the question of passengers versus

cargo before it, and simply used “goods” as a convenient

shorthand to discuss interstate commerce.

25

Congress did not intend § 1 to extend to such workers. The

problems are legion.

For one, prior to venturing into legislative history,

Circuit City makes clear that its decision did not at all rely on

this history, and cautioned against doing so where, as here, a

textual analysis is determinative. Id. at 119 (“As the

conclusion we reach today is directed by the text of § 1, we

need not assess the legislative history of the exclusion

provision.”). It then expressly noted that “the legislative record

on the § 1 exemption is quite sparse,” and comprises of

testimony before a Senate subcommittee, as opposed to

appearing in the official Senate and House Reports or arising

in a debate on the floor of either chamber. Id. at 120 (warning

that legislative history is “far more [problematic] when we

consult sources still more steps removed from the full Congress

and speculate upon the significance of the fact that a certain

interest group sponsored or opposed particular legislation”).

So, pressed by the respondent who argued that the

Court’s holding “attribute[d] an irrational intent to Congress,”

the Court merely speculated that one plausible explanation for

what otherwise seems like an out-of-place limitation is that, as

to these workers, Congress was certain that its commerce

power would extend, since it had previously regulated them.

Id. at 120–121. Notably, “[b]y the time the FAA was passed,

Congress had already enacted federal legislation providing for

the arbitration of disputes between seamen and their

employers.” Id. at 121 (citations omitted); see also New Prime,

139 S. Ct at 537 (characterizing this portion of § 1 as a “very

particular qualification” that may be explained by the

“prescribed alternative employment dispute resolution regimes

for many transportation workers,” which Congress may not

have wished to “unsettle” (internal quotation marks omitted)

26

(quoting Circuit City, 532 U.S. at 121)). If attempting to infer

Congress’ intent from testimony before a subcommittee of one

chamber is “particularly problematic,” Circuit City, 532 U.S.

at 119, doing so from mere judicial speculation is at least

equally imprudent. We refuse to go down that road. Instead,

we read the passage cited by Uber as merely combatting the

argument that there is no plausible explanation for the residual

clause of § 1 to be limited to transportation workers.

Another roadblock for Uber’s view is that Uber has

never framed the issue as whether § 1 extends to Uber drivers

specifically, but rather as whether it extends to transportation

workers who transport passengers. This is what the District

Court focused on. However, Circuit City’s reference to the

dispute resolution schemes in place for “seamen” and “railroad

employees” squarely cuts against the notion that the residual

clause of § 1 only extends to those who transport goods. As

the Court acknowledged in New Prime, the statutes setting

forth some of these schemes covered employees in the broadest

sense, with no distinction between those engaged in

transporting goods versus passengers. See New Prime, 139

S.Ct. at 539–40.

Worse yet, the rationale Circuit City offers as

explaining why the residual clause of § 1 would be tethered to

the enumerated clauses listing “seamen” and “railroad

workers” suggests that the residual clause is not limited to only

those workers for whom a dispute resolution scheme exists.

On this point, Circuit City explains that, “[i]t would be rational

for Congress to ensure that workers in general would be

covered by the provisions of the FAA, while reserving for itself

more specific legislation for those engaged in transportation.”

532 U.S. at 121 (citation omitted). It then proceeds to describe

the 1936 amendment to the Railway Labor Act as such

27

legislation, recognizing that the amendment was to include “air

carriers and their employees.” Id. (citation omitted). Setting

aside that air carriers and their employees are invariably

engaged in the transportation of passengers, this explanation

suggests that air carriers and their employees were covered by

§ 1 even before the Railway Labor Act was amended—that is,

before a dispute resolution scheme existed for them.9

9

Uber attributed a contrary reading to an unreported

Northern District of California decision, Veliz v. Cintas

Corporation, 2004 WL 2452851 (N.D. Cal. 2004). But Veliz

did not suggest that the existence of special arbitration

legislation should be dispositive. Rather, as we conclude, this

decision recognized that the terms “seamen” and “railroad

employees” are broad. See id. at *4 (relying on the Jones Act

and Shipping Commissioners Act of 1872 definition of

“seamen” to conclude that “seamen, whether they are in the

business of goods or not, have been found to be exempted from

arbitration under the FAA § 1”); id. (concluding that the

definition of railroad employees “appears to be broad[,] . . .

because of subsequent judicial interpretation of the term . . . in

other federal statutes, such as the Transportation Act of 1920

and Railway Labor Act of 1926”).

As a result, Veliz merely suggests that the existence of

special arbitration legislation be one of the factors in

determining whether the residual clause of § 1 applies, in

conjunction with a non-exhaustive list of other characteristics

thought to be possessed by seamen and/or railroad employees.

See id. at *7. Some of these characteristics speak to a factual

universe that is beyond our own. See id. (suggesting that courts

also consider whether a strike by the employee would interrupt

28

*****

In the end, we remain unswayed by Uber’s attempt to

drive us towards its imagined sunset. Consistent with our

decisions in Tenney, Greyhound I, and Greyhound II, we hold

that the residual clause of § 1 of the FAA may operate to

exclude from FAA coverage the contracts of employment of

all classes of transportation workers, so long as they are

engaged in interstate commerce, or in work so closely related

thereto as to be in practical effect part of it.

B. The District Court Will Decide in the First Instance

Whether the Class of Workers to Which Singh

Belongs are Engaged in Interstate Commerce

1. Discovery is Warranted

Our analysis stops here. The District Court did not

determine whether Singh’s class of transportation workers is

engaged in interstate commerce or sufficiently related work,

interstate commerce). Interestingly, however, three of the five

Veliz factors that we can determine on the record before us cut

in favor of concluding that the residual clause of § 1 may

extend to drivers like Singh. See id. (consisting of whether “the

vehicle itself is essential to the commercial enterprise of the

defendant-employer,” “[t]he nexus between the employee’s

job and the vehicle,” “[w]hether the employee is employed in

the transportation industry,” “[w]hether the employee is

directly responsible for the transporting of goods in interstate

commerce,” and “[w]hether . . . special arbitration legislation

already existed at the time the FAA was enacted” (internal

quotation marks omitted)).

29

nor could it. At this stage, a court may only make that

determination if the complaint and incorporated documents

suffice. If not, or if so and Singh’s opposition to the motion to

compel arbitration places the issue in dispute, discovery must

be allowed before entertaining further briefing on the question.

The latter course is warranted here. Unlike the issue of

whether Uber drivers transport goods, the pleadings say little

about whether the class of transportation workers to which

Singh belongs are engaged in interstate commerce or

sufficiently related work. The Amended Complaint is devoid

of any facts pertaining to the issue. In addition, Singh’s

submissions in opposition to the motion further place the issue

in dispute—in his affidavit, he avers that he frequently

transported passengers on the highway across state lines,

between New York and New Jersey. Singh Decl. ¶ 28, 29,

App. 34.10

10

Uber sought to counter this averment by representing

to the Court that “the undisputed evidence demonstrates Uber

operates on a localized, city-by-city basis.” Appellee Suppl.

Br. 3–4 (citing App. 36). However, Uber’s only support for

this averment is the affidavit it submitted, which merely states

that “[t]he Uber App is available to riders and transportation

providers in over 150 cities across the country,” Colman Decl.

¶ 5, App. 36, and is beyond the scope of what a court may

consider at this stage.

30

2. We Reject the Parties’ Efforts to Restrict the Engaged-

In-Interstate Commerce Inquiry to Their Contract or

General Knowledge about the Nature of the Work

At argument, each party suggested that there was ample

basis to find in their respective favors. Singh suggested that

we look to what the contract of employment between the

parties contemplates as determinative on the engage-in-

interstate-commerce inquiry. He then argued that the Rasier

Agreement implicitly, but fairly, contemplated a relationship

with drivers across all fifty states, and that encompassed

interstate travel. Uber, on the other hand, suggested that we

look to whether the character of the work performed by the

workers was inherently local (presumably from our general

knowledge about these drivers), and argued that this is the case

with drivers like Singh, even if they cross state lines from time

to time.

We cannot endorse either view. Although § 1 excludes

the “contracts of employment” of certain workers, nothing

suggests that those contracts ought to be dispositive as to what

constitutes those workers. The Supreme Court’s efforts in New

Prime and Circuit City to determine what constituted seamen

and railroad employees are instructive on this point. In both

instances, the Court did not resort to the employment contract,

but rather contemporary dictionaries and statutes that

purported to define these workers. We recognize that the

inquiry regarding § 1’s residual clause asks a court to look to

classes of workers rather than particular workers and is thus

materially different than the Supreme Court’s efforts to define

seamen and railroad employees. But this difference does not

relegate a court to private contracts as its only source. Nor

31

must its analysis hinge on any one particular factor, such as the

local nature of the work.11

The inquiry remains whether Singh belongs to a class of

transportation workers engaged in interstate commerce or in

work so closely related thereto as to be in practical effect part

of it. This inquiry can be informed by various factors. The

District Court may thus be equipped with a wide variety of

sources, including, but not limited to and in no particular order,

the contents of the parties’ agreement(s), information

regarding the industry in which the class of workers is engaged,

information regarding the work performed by those workers,

11

Uber referenced the Eleventh Circuit’s decision in

Hill v. Rent-A-Center, Inc. as supporting its suggestion, and to

argue that a ruling in Singh’s favor would trigger a circuit split.

However, the Eleventh Circuit was express that the residual

clause of § 1 did not apply in Hill because the employee at

issue—an account manager at Rent-A-Center—“[was] not a

transportation industry worker.” 398 F.3d at 1288. This was

premised on the fact that the account manager’s transportation

activities were incidental. Id. at 1289–90. The opposite is true

here—if anything is clear, it is that Uber drivers’ transportation

activities are more than incidental. It is the extent to which

their activities constitute engagement in interstate commerce

that is the question. On this question then, the notion of

incidental interstate travel does us no good. This is because,

even if we definitively drew the line at incidental interstate

travel (rather than viewing that as one, or even a primary

factor), the Amended Complaint and Rasier Agreement do not

provide us with the requisite facts to determine if incidental

travel is in fact what the class of transportation workers at issue

engage in.

32

and various texts—i.e., other laws, dictionaries, and

documents—that discuss the parties and the work.

We will therefore proceed with remanding this issue to

the District Court, along with instruction that it permit

discovery on the question before entertaining further briefing.

C. Remaining Issues

In one way or another, Singh’s arguments that the

arbitration agreement is unenforceable because of the Seventh

Amendment, the NJWHL, and New Jersey law on

unconscionability turn on the FAA’s applicability. We

therefore decline the parties’ invitation for us to opine on these

issues and leave it to the District Court to address any

remaining arguments it deems appropriate, once it determines

whether the FAA applies.

In that vein, we note that the District Court previously

found the delegation clause to be enforceable, and it

recognized that the clause reserved questions of arbitrability

for an arbitrator to decide. See App. 28. But the Court’s

opinion suggests that the only question it viewed as one of

arbitrability was “whether the parties’ disputes [fell] within the

scope of” their agreement to arbitrate. Id. Uber’s opening brief

properly takes issue with this narrow reading of the Rasier

Agreement’s delegation clause. See Rasier Agreement §

15.3(i), App. 56–57 (delegating “disputes arising out of or

relating to interpretation or application of [the] Arbitration

Provision, including enforceability, revocability, or validity”).

We instruct the District Court that, where the FAA is held to

apply, all other questions must be reserved for an arbitrator

unless it is determined that the question cannot be (as in the

33

case of the § 1 exemption/exclusion issue) or is not subject to

an enforceable delegation clause.

IV. CONCLUSION

For all the reasons set forth above, we will vacate the

order entered by the District Court and remand for further

proceedings consistent with this opinion.

34

PORTER, Circuit Judge, concurring in part and concurring in

the judgment.

I agree with the majority’s judgment and much of its

reasoning. I write separately, however, to explain why Uber’s

proposed goods-versus-passenger distinction does not track the

plain language of § 1 of the Federal Arbitration Act (“FAA”),

and to address some issues left on remand.

I

This appeal asks whether § 1’s residual clause—“any

other class of workers engaged in foreign or interstate

commerce”—includes workers who transport other people, or

only workers who transport physical goods. The majority holds

that it includes all transportation workers, no matter who (or

what) they transport. I concur, but I would reach this

conclusion for a different, simpler reason.1

1

The majority asserts that this Court answered this

question long ago, citing three of our decisions from the early

1950s. See Maj. Op. 14–15 (citing Amalgamated Ass’n of St.,

Elec. Ry. & Motor Coach Emp., Local Div. 1210 v. Pa.

Greyhound Lines (“Greyhound I”), 192 F.2d 310 (3d Cir.

1951); Pa. Greyhound Lines v. Amalgamated Ass’n of St., Elec.

Ry. & Motor Coach Emp., Div. 1063 (“Greyhound II”), 193

F.2d 327 (3d Cir. 1952); Tenney Eng’g, Inc. v. United Elec.

Radio & Mach. Workers, (U.E.) 437, 207 F.2d 450 (3d Cir.

1953)). I disagree that these cases answer the specific question

presented here.

Greyhound I addressed whether a collective bargaining

agreement was a “contract of employment” under § 1’s

exemption. 192 F.2d at 313. We held that it was. Id. We also

noted that, “while the situation existing in cases of seamen and

railroad employees clarifies the meaning of the statute[,] its

terms also include ‘any other classes of workers’ in interstate

commerce.” Id. at 313–14. The labor union of bus-line

employees, we said, was “[s]uch a class.” Id. at 314. Three

months later, in Greyhound II, we addressed the same question

for a “similar contract and a similar class of workers,” and

compelled the same result. 193 F.2d at 328.

Tenney addressed the issue decided nearly fifty years

later in Circuit City: “whether [the plaintiff]’s employees, who

1

When we interpret a statute, we start with its text. See,

e.g., Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 131 (3d Cir.

2017). Section 1 exempts from the FAA’s reach “contracts of

employment of seamen, railroad employees, or any other class

of workers engaged in foreign or interstate commerce.” 9

U.S.C. § 1. On its face, nothing in this text states any sort of

goods-passengers distinction.

Uber suggests that the phrase “engaged in foreign or

interstate commerce” is limited to the transportation of only

are engaged in the manufacture of goods for commerce and

plant maintenance incidental thereto, are to be regarded as a

‘class of workers engaged in foreign or interstate commerce’

within the meaning of the exclusionary clause.” See 207 F.2d

at 452. Presaging the Supreme Court in Circuit City, we held

that the residual clause “include[s] only those other classes of

workers who are likewise engaged directly in commerce[.]” Id.

And that meant “only those other classes of workers who are

actually engaged in the movement of interstate or foreign

commerce or in work so closely related thereto as to be in

practical effect part of it.” Id. In so holding, we distinguished

the two Greyhound cases, “the bus line employees in those

cases being directly engaged in the channels of interstate

transportation just as are railroad workers.” Id. at 453.

None of these cases addressed the specific goods-

versus-passengers question presented here. At most, they

might have assumed an answer. But it is nowhere evident that

the parties in those cases ever crossed swords on this issue,

which makes dictum of any discussion or implication from us

on the point. Nor did we state or imply that we had forever

settled the limits of § 1’s residual clause. So although generally

we are bound by earlier precedential decisions of this Court, I

would not turn sixty-year-old assumptions into binding

precedent. See Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363

(2006) (“[W]e are not bound to follow our dicta in a prior case

in which the point now at issue was not fully debated.”); Lopez

v. Monterey Cty., 525 U.S. 266, 281 (1999) (“[T]his Court is

not bound by its prior assumptions.”); Brecht v. Abrahamson,

507 U.S. 619, 630–31 (1993) (holding that when the Court has

“never squarely addressed the issue, and [has] at most assumed

the [legal conclusion], we are free to address the issue on the

merits”).

2

material goods. But that is nowhere in the provision’s plain

language. Instead, Uber would have us impliedly limit the

meaning of “commerce” in § 1 to the transportation of only

physical goods. That argument fails.

First, the term “commerce” is not normally limited to

the transportation of only physical goods, especially when

linked to Congress’s power under the Commerce Clause.2 See

Edwards v. California, 314 U.S. 160, 172 (1941) (“[I]t is

settled beyond question that the transportation of persons is

‘commerce’, within the meaning of that provision.”); United

States v. Hill, 248 U.S. 420, 423 (1919) (“[C]ommerce has

been held to include the transportation of persons and property

no less than the purchase, sale and exchange of

commodities.”); Hoke v. United States, 227 U.S. 308, 320

(1913) (“Commerce among the states, we have said, consists

of intercourse and traffic between their citizens, and includes

the transportation of persons and property.”).3

Second, Uber’s interpretation would give “commerce”

a different meaning in § 1 than it has in § 2. The latter invokes

Congress’s Commerce Clause power to set the broad reach of

2

This was the dominant understanding of “commerce”

when Congress passed the FAA in 1925. See, e.g., Commerce,

Bouvier’s Law Dictionary & Concise Encyclopedia (8th ed.

1914) (“The term ‘commerce’ comprehends more than a mere

exchange of goods; it embraces commercial intercourse in all

its branches, including transportation of passengers[.]”);

Commerce, Black’s Law Dictionary (2d ed. 1910)

(“Intercourse by way of trade and traffic between different

peoples or states and the citizens or inhabitants thereof,

including … the transportation of persons as well as of goods,

both by land and by sea.”); Henry C. Black, Handbook of

American Constitutional Law § 104, at 189 (2d ed. 1897)

(“[Commerce] is not limited to the transportation of freight, but

extends equally to passenger traffic.”).

3

In fact, the issue here is analogous to that presented

long ago in Gibbons v. Ogden, 22 U.S. 1 (1824). There, the

Supreme Court held that “commerce” is more than the mere

“interchange of commodities,” but includes passenger

transport by steamboat. See id. at 189.

3

the FAA: “A written provision in … a contract evidencing a

transaction involving commerce to settle by arbitration a

controversy….” 9 U.S.C. § 1 (emphasis added); see Allied-

Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 277 (1995)

(holding that, in § 2, the phrase “involving commerce” shows

Congress’s “intent to exercise [its] commerce power to the

full”). Section 1, in turn, carves out certain contracts from the

FAA’s scope: “nothing herein contained shall apply to

contracts of employment of … any other class of workers

engaged in … interstate commerce.” 9 U.S.C. § 1 (emphasis

added).

The Supreme Court has ascribed different meanings to

the modifiers “involving” in § 2 compared with “engaged in”

in § 1—the latter reflecting a “narrower” exercise of

Congress’s power—but the nature of the “commerce” in both

sections is the same. See Circuit City Stores, Inc. v. Adams, 532

U.S. 105, 115, 118 (2001) (“The plain meaning of the words

‘engaged in commerce’ is narrower than the more open-ended

formulations ‘affecting commerce’ and ‘involving

commerce.’” (citation omitted)). Indeed, it must be the same

because the Court held the subject constant to interpret the

differing modifiers. See id. at 115–17. And rightly so, given

that identical words in the same statute usually have identical

meanings. See United States v. EME Homer City Generation,

L.P., 727 F.3d 274, 294 (3d Cir. 2013) (citing IBP, Inc. v.

Alvarez, 546 U.S. 21, 34 (2005)); United States v. Torres, 383

F.3d 92, 102 (3d Cir. 2004).

Uber concedes (as it must) that “commerce” in § 2

includes the transportation of passengers. (Otherwise, Uber

would be unable to invoke the FAA in the first place.) Having

thus conceded, Uber undermines its contention that

“commerce” in § 1 does not also include passenger-

transporting activities. In short, the plain language of the FAA

does not allow for the implied distinction Uber tries to draw.

II

After deciding that passenger-transporting drivers may

fit within § 1’s exemption, the majority declares that its

analysis has ended. Yet the majority continues in section

III.B.2 to discuss in detail aspects of the issue that we are

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remanding: whether Singh belongs to a “class of workers

engaged in … interstate commerce.” 9 U.S.C. § 1. The

majority says this question “can be informed by various

factors,” and directs the District Court to permit discovery

“before entertaining further briefing.” Maj. Op. 29. In my

view, this discussion is unmoored from relevant precedent,

tends to undermine settled principles of arbitration, and may

unnecessarily cloud the remaining issues on remand. So I do

not join section III.B.2 of the majority’s opinion, but write

separately to make two points.

First, I disagree that the parties must jump right into

discovery on remand. The Supreme Court has repeatedly

emphasized that “[t]he [FAA] calls for a summary and speedy

disposition of motions or petitions to enforce arbitration

clauses.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 29 (1983); see id. at 22 (noting “Congress’s

clear intent, in the [FAA], to move the parties to an arbitrable

dispute out of court and into arbitration as quickly and easily

as possible.”). In light of this overarching goal and the parties’

clear agreement to arbitrate their disputes, if there exists a valid

alternative basis on which the District Court could compel

arbitration, it may be more efficient to decide that question

first, before allowing discovery on the § 1 issue. See, e.g.,

Palcko v. Airborne Exp., Inc., 372 F.3d 588, 596 (3d Cir. 2004)

(enforcing FAA-exempt arbitration agreement under state

law); Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1472 (D.C.

Cir. 1997) (“[W]e have little doubt that, even if an arbitration

agreement is outside the FAA, the agreement still may be

enforced and the arbitrator’s award still may be subject to

judicial review.”); Valdes v. Swift Transp. Co., Inc., 292 F.

Supp. 2d 524, 528–29 (S.D.N.Y. 2003) (collecting cases);

Mason-Dixon Lines, Inc. v. Local Union No. 560, Int’l Bhd. of

Teamsters, 443 F.2d 807, 809 (3d Cir. 1971) (“In our view, the

effect of Section 1 is merely to leave the arbitrability of

disputes in the excluded categories as if the Arbitration Act had

never been enacted.”).

Second, our decision here does not allow for wide-

ranging discovery whenever the § 1 exemption is at issue. The

majority seems equivocal on this point—describing the

relevant inquiry as both “restricted” and informed by “a wide

variety of sources.” Maj. Op. 11, 29. But abundant precedent

5

makes clear that any discovery on factual predicates to

arbitration must be a narrow, focused examination. See, e.g.,

Moses H. Cone, 460 U.S. at 22–23 (allowing “only restricted

inquiry into factual issues”); Guidotti v. Legal Helpers Debt

Resolution, LLC, 716 F.3d 764, 774 (3d Cir. 2013) (allowing

only “limited discovery” on a “narrow issue” (internal

quotation marks and citation omitted)); cf. Blair v. Scott

Specialty Gases, 283 F.3d 595, 609 (3d Cir. 2002)

(“[D]iscovery is ordinarily not undertaken at such an early

stage of a proceeding that is governed by an arbitration

agreement.”).

The need to limit any pre-arbitration discovery is

amplified here because of the shifted burden of proof and the

open legal question of what it means to belong to a “class of

workers engaged in … interstate commerce” under § 1. In

Guidotti, for example, the discovery focused on whether the

parties had specifically agreed to the arbitration clause at issue.

That was a well-defined factual question governed by definite

state-law contract principles. See 716 F.3d at 780. In that and

similar situations, the burden of proof stays with the party

seeking arbitration, which provides a natural incentive for

efficient discovery and motions practice. See, e.g., Ashbey v.

Archstone Prop. Mgmt., Inc., 785 F.3d 1320, 1323 (9th Cir.

2015).

Here, by contrast, things are reversed. Singh bears the

burden on remand to show why the District Court should

should not compel arbitration under the FAA, which may

create inefficient incentives in discovery. See Green Tree Fin.

Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000) (“[T]he party

resisting arbitration bears the burden of proving that the claims

at issue are unsuitable for arbitration.”); Gay v. CreditInform,

511 F.3d 369, 379 (3d Cir. 2007); Johnson v. W. Suburban

Bank, 225 F.3d 366, 370–71 (3d Cir. 2000). And the contours

of the § 1 question—whether Singh belongs to a “class of

workers engaged in … interstate commerce”—remain

undefined: Singh has not yet attempted to define the relevant

§ 1 “class of workers,” and his affidavit that triggers our

extension of Guidotti asserts only that he drove passengers

from the Newark Airport to New York.

6

For these reasons, although I concur in the judgment

and agree with much of the majority opinion, I do not join

section III.B.2.

7