Amicus Curiae Brief — Amazon.com, Inc., et al., Petitioners v. Bernadean Rittmann, et al.

No. 20-622

IN THE

Supreme Court of the United States

___________

AMAZON.COM, INC., et al.,

Petitioners,

v.

BERNADEAN RITTMANN, individually and on behalf

of all others similarly situated, et al.,

___________

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

___________

December 9, 2020

CORY L. ANDREWS

Counsel of Record

JOHN M. MASSLON II

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org

QUESTION PRESENTED

Whether package-delivery drivers who use their

personal vehicles to make purely intrastate

deliveries are “engaged in foreign or interstate

commerce” to exempt their claims from arbitration

under § 1 of the Federal Arbitration Act.

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................. iv

INTERESTS OF AMICI CURIAE .......................... 1

STATEMENT OF THE CASE ................................ 2

SUMMARY OF ARGUMENT................................. 4

REASONS FOR GRANTING THE PETITION ..... 6

I.

REVIEW IS NEEDED TO CONFIRM THAT ONLY

CLASSES OF WORKERS WHO TRANSPORT

BULK GOODS ACROSS BORDERS ARE

COVERED BY FAA §1.......................................... 6

II. REVIEW IS NEEDED BECAUSE THERE IS NO

PRINCIPLED WAY TO APPLY FAA § 1 TO

ONE WHO DOES NOT TRANSPORT BULK

GOODS ACROSS BORDERS ................................. 15

CONCLUSION ...................................................... 20

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

Allied-Bruce Terminix Companies. v. Dobson,

513 U.S. 265 (1995) .............................................. 7

Amalgamated Ass’n St. Elec. Ry. & Motor

Coach Emp. of Am. v. Penn. Greyhound

Lines, Inc.,

192 F.2d 310 (3d Cir. 1951) ......................... 11, 12

Asplundh Tree Expert Co. v. Bates,

71 F.3d 592 (6th Cir. 1995) ................................ 12

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) .............................................. 6

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) ........................ 7, 8, 13, 14, 18

Cole v. Burns Int’l Sec. Servs.,

105 F.3d 1465 (D.C. Cir. 1997) .......................... 12

DIRECTV, Inc. v. Imburgia,

136 S. Ct. 463 (2015) ............................................ 1

Epic Sys. v. Lewis,

136 S. Ct. 1612 (2018) .......................................... 1

Hill v. Rent-A- Ctr., Inc.,

398 F.3d 1286 (11th Cir. 2005) .............. 14, 16, 19

Jarecki v. G.D. Searle & Co.,

367 U.S. 303 (1961) .............................................. 7

Lenz v. Yellow Transp., Inc.,

431 F.3d 348 (8th Cir. 2005) ........................ 16, 17

Olmstead v. United States,

277 U.S. 438 (1928) ............................................ 17

v

Page(s)

Palcko v. Airborne Express, Inc.,

372 F.3d 588 (3d Cir. 2004) ............................... 16

Panhandle Oil Co. v. Miss. ex rel. Knox,

277 U.S. 218 (1928) ............................................ 17

Pryner v. Tractor Supply Co.,

109 F.3d 354 (7th Cir. 1997) .............................. 18

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ........................................ 16

Shearson/Am. Exp. Inc. v. McMahon,

482 U.S. 220 (1987) .............................................. 1

Southern S.S. Co. v. NLRB,

316 U.S. 31 (1942) ................................................ 9

Tenney Eng’g, Inc. v. United Elec. Radio

& Mach. Workers,

207 F.2d 450 (3d Cir. 1953) ................... 12, 13, 16

United States v. Pinto,

875 F.2d 143 (7th Cir. 1989) .............................. 17

Wallace v. Grubhub Holdings, Inc.,

970 F.3d 798 (7th Cir. 2020) .............................. 12

CONSTITUTIONAL PROVISIONS:

U.S. Const. art. I § 8, cl. 10 ................................... 10

STATUTES:

9 U.S.C. § 1 ..................................................... passim

9 U.S.C. § 2 ...................................................... 3, 5, 6

Crimes Act of April, 30 1790, 1 Stat. 112 ............. 10

Act of July 20, 1790, 1 Stat. 131 ............................. 9

vi

Page(s)

Shipping Commissioners Act of 1872,

17 Stat. 262 ........................................................ 10

LEGISLATIVE MATERIALS:

Joint Hearings on S. 1005 and H. R. 646

before the Subcommittees on the Judiciary,

68th Cong., 1st Sess. (1924) ........................... 4, 11

MISCELLANEOUS:

Matthew W. Finkin, Workers’ Contracts under

the United States Arbitration Act: An Essay

in Historical Clarification, 17 Berkeley J.

Emp. & Lab. L. 282 (1996) ........................... 10, 11

Dennis R. Nolan & Roger I. Abrams, American

Labor Arbitration: The Early Years, 35 U. Fla.

L. Rev. 337 (1983) ................................................ 8

Antonin Scalia, The Rule of Law as a Law of

Rules, 56 U. Chi. L. Rev. 1175 (1989)................ 17

Victor E. Schwartz & Christopher E. Appel,

Setting the Record Straight About the Benefits

of Pre-Dispute Arbitration, WLF Legal

Backgrounder (June 7, 2019)............................... 1

Ahmed A. White, Mutiny, Shipboard Strikes,

and the Supreme Court’s Subversion of New

Deal Labor Law, 25 Berkeley J. Emp. &

Lab. L. 275 (2004) .......................................... 9, 10

1

INTERESTS OF AMICI CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. WLF promotes free

enterprise, individual rights, limited government,

and the rule of law. It appears often as amicus

curiae in important Federal Arbitration Act (FAA)

cases. See, e.g., Epic Systems Corp. v. Lewis, 136 S.

Ct. 1612 (2018); DIRECTV, Inc. v. Imburgia, 136 S.

Ct. 463 (2015). And WLF has published many papers

by outside experts on arbitration. See, e.g., Victor E.

Schwartz & Christopher E. Appel, Setting the Record

Straight About the Benefits of Pre-Dispute

Arbitration, WLF Legal Backgrounder, www.bit.

ly/2Z6rKqg (June 7, 2019).

Allied Educational Foundation is a nonprofit

charitable and educational foundation based in

Tenafly, New Jersey. Founded in 1964, AEF

promotes education in diverse areas of study,

including law and public policy. It has appeared as

amicus curiae many times in this Court.

The FAA “establishes a federal policy favoring

arbitration.” Shearson/Am. Exp. Inc. v. McMahon,

482 U.S. 220, 226 (1987). It requires, in §2, that most

people comply with their arbitration agreements.

The FAA contains a discrete exemption, in §1, for a

No party’s counsel authored any part of this brief. No

person or entity, other than amici and their counsel, helped pay

for the brief’s preparation or submission. At least ten days

before the brief’s due date, counsel for amici notified each

party’s counsel of record of his intent to file an amicus brief.

Each party’s counsel of record has consented to the filing.

*

2

few categories of transportation workers. Congress

included the exemption not to excuse these classes of

workers from arbitration, but merely to enable them

to arbitrate through other congressionally created

channels. The respondents here are not subject to an

alternative channel of this sort; they just want to get

out of arbitration altogether. They seek to gut the

federal policy in favor of arbitration by expanding

the §1 exemption far beyond its proper bounds.

The courts below rewarded the respondents’

efforts. Amici urge this Court to intervene and set

things right.

STATEMENT OF THE CASE

Sometimes called “the everything store,”

Amazon sells a vast array of goods through its

website, www.amazon.com. It crowdsources delivery

of some of these goods through its Amazon Flex

smartphone app. Using this app, an independent

contractor can agree to pick up and deliver items

locally for Amazon. The independent contractor uses

her own mode of transportation, sets her own

schedule, and decides which packages to deliver.

Each person who partakes in Amazon Flex e-signs

an Independent Contractor Terms of Service that

contains an arbitration clause.

The respondents made local deliveries

through Amazon Flex. They sued Amazon under the

Fair Labor Standards Act, the California Labor

Code, and Washington state and Seattle municipal

wage-and-hour laws. Amazon moved to compel

arbitration, arguing that the respondents must

honor the arbitration clause in the Independent

3

Contractor Terms of Service. Amazon invoked §2 of

the FAA, which says that an otherwise valid

arbitration clause in a “contract evidencing a

transaction involving commerce” is “enforceable.” 9

U.S.C. § 2.

In response, the respondents invoked §1,

known as the “transportation-worker exemption.” It

says that the FAA does not govern “contracts of

employment of seamen, railroad employees, or any

other class of workers engaged in foreign or

interstate commerce.” Id. § 1. The respondents

argued that they fall within the §1 exemption.

The district court accepted the respondents’

argument and denied Amazon’s motion to compel

arbitration. In its view, Amazon is “in the business

of shipping goods across state lines.” (Pet. App. 84a.)

So long as the respondents “deliver packaged goods

that are shipped from around the country and

delivered to the consumer,” the district court held,

they fall within the § 1 exemption. (Id. at 82a.)

A divided panel of the Ninth Circuit affirmed.

Insisting that the respondents “need not cross state

lines” to be considered “engaged in foreign or

interstate commerce” under § 1, the panel majority

held that §1’s exemption “can be reasonably read to

include workers employed to transport goods that

are shipped across state lines.” (Pet. App. 12a.)

Rather than focusing on the respondents’ exclusively

intrastate activities (i.e., those activities in which

the “workers” were “engaged”), the majority

emphasized the global reach of Amazon’s retail

“commerce.” (Id. at 22a.)

4

Judge Bress dissented. Section 1, he insisted,

turns not on the reach of the employer’s business

activities, but on the “broad type of work” a given

category of worker performs. (Pet. App. 50a-51a.)

Whereas “‘seamen’ and ‘railroad employees’

traditionally operate across international and state

boundaries,” Amazon’s “local delivery drivers” do

not. (Id. at 51a-53a.) The panel majority, he

explained, had embraced factors with “no apparent

basis in the statute.” (Id. at 56a.)

SUMMARY OF ARGUMENT

Litigation is expensive. It’s expensive for

businesses, which must pay lawyers to argue and

employees to miss work to testify. It’s expensive for

consumers and workers, who cover businesses’ costs

through higher prices and lower wages. It’s

expensive for the judiciary, which must pay for

“judges, attendants, light, heat, and power—and

even ventilation in some courthouses.” Joint

Hearings on S. 1005 and H. R. 646 before the

Subcommittees on the Judiciary, 68th Cong., 1st

Sess. (1924) (statement of Charles L. Bernheimer).

And it’s expensive for the average citizen; for just as

corporate litigation expenses are really consumer

and worker expenses, the judiciary’s expenses are

really taxpayer expenses.

It’s no mystery, then, why Congress passed

the FAA. Courts had long refused to enforce most

arbitration agreements, and this meant that more

disputes remained in litigation. To save people time,

money, and trouble, Congress empowered them to

enforce otherwise valid clauses, in contracts

“involving commerce,” that require streamlined

5

private dispute resolution—arbitration. 9 U.S.C. § 2.

But the FAA contains a qualification. It does not

govern “contracts of employment of seamen, railroad

employees, or any other class of workers engaged in

foreign or interstate commerce.” 9 U.S.C. § 1.

Contrary to the view of the respondents and

the Ninth Circuit, §1 is not the product of Congress’s

desire to excuse transportation workers—and, for

some peculiar reason, them alone—from honoring

arbitration agreements. Rather, §1 exists because

Congress expected certain classes of transportation

workers to engage in arbitration governed by other

federal laws. When Congress enacted the FAA,

seamen and railroad workers were subject to their

own federal arbitration regimes. Congress exempted

these classes of workers from the FAA to ensure that

the FAA did not disrupt those distinct systems of

alternative-dispute-resolution. (The seamen had, in

fact, lobbied for this special treatment.)

As for §1’s residual clause—the carveout for

“other class[es] of workers engaged in foreign or

interstate commerce”—it covers only those workers

whom Congress expected would get their own federal

arbitration law. This means workers precisely

analogous to seamen and railroad employees. It

means workers who (1) traverse national and

international

shipping

lanes

and

(2) might

reasonably be expected to cause major economic

disruption through labor action. It means, in short,

workers who regularly carry goods, in bulk, across

interstate or foreign borders.

Section 1 simply accommodates existing or

expected federal arbitration laws tailored to specific

6

classes of workers in the transportation sector. And

because §1 fulfills this singular purpose, there is no

principled way to stretch its application. Although

some judge-made tests, including the Ninth

Circuit’s, purport to expand the exemption beyond

those engaged in the interstate and international

transportation of goods, these contrived standards

defy statutory text and context, produce inconsistent

results, and serve no end set forth by Congress.

To prevent this misguided view from

metastasizing any further, this Court should grant

review and clarify the scope of the §1 exemption. The

question presented is vital to the many businesses

and workers who, relying on the FAA, have agreed to

arbitrate their disputes.

REASONS FOR GRANTING THE PETITION

I.

REVIEW IS NEEDED TO CONFIRM THAT ONLY

CLASSES OF WORKERS WHO TRANSPORT

GOODS IN BULK ACROSS BORDERS ARE

COVERED BY FAA §1.

Section 2 of the FAA empowers a party to

enforce an (otherwise valid) arbitration clause in “a

contract evidencing a transaction involving

commerce.” 9 U.S.C. § 2. Congress enacted a statute

able to thwart the “great variety” of “devices and

formulas” that judges “hostil[e] towards arbitration”

had used to “declar[e] arbitration against public

policy.” AT&T Mobility LLC v. Concepcion, 563 U.S.

333, 342 (2011). And it used broad terms

(“evidencing” a transaction “involving” commerce)

because it wanted the FAA to extend as far as the

federal legislative power under the Commerce

7

Clause can go. Allied-Bruce Terminix Companies v.

Dobson, 513 U.S. 265, 277 (1995). In short, Congress

wanted the FAA to govern most arbitration clauses.

Most, but not all. Section 1 of the FAA

withdraws from the statute’s coverage “contracts of

employment of seamen, railroad employees, or any

other class of workers engaged in foreign or

interstate commerce.” 9 U.S.C. § 1. As shown below,

that exemption sweeps much more narrowly than

the Ninth Circuit’s panel majority contends.

First, §2 is framed much more broadly than

§1. Section 2 extends the FAA to a contract

“involving” commerce, while § 1 removes it from a

contract of employment signed by certain classes of

workers “engaged in” foreign or interstate commerce.

The “open-ended” §2 is limited by the “narrower” §1.

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 118

(2001). This manifests an intent to withdraw only a

small sliver of contracts from the FAA’s purview.

After all, if Congress had wanted the FAA to have a

narrow ambit—if it had wanted it to apply, say, only

to contracts between merchants—it could have

simply said so in the first place. It would have made

no sense for Congress to craft a narrow statute by

the circuitous method of (1) writing a sweeping

clause, and then (2) cutting that clause to the bone

with another, almost equally sweeping clause.

What’s more, under the venerable statutory

canon noscitur a sociis, “a word is known by the

company it keeps.” Jarecki v. G.D. Searle & Co., 367

U.S. 303, 307 (1961). Section 1 lists seamen, railroad

employees, and others “engaged in” foreign or

interstate commerce. The section’s more general

8

category (“any other class of workers engaged in

foreign or interstate commerce”) is “controlled and

defined” by the examples that precede it (“seamen”

and “railroad employees”). Circuit City, 532 U.S. at

114-15. So §1 governs seamen, railroad employees,

and others like them. Others, that is, who engage in

bulk foreign or interstate shipping like seaman and

railroad employees do. Section 1 is a discrete

carveout for a small subset of transportation

workers.

But why would Congress want to protect

commercial arbitration to the fullest extent possible,

except when it comes to nationwide transportation,

the very lifeblood of commerce? The answer is

revealed by a closer look at Congress’s decision to

single out rails and sails. Why were railroad

employees and seamen singled out? Special reasons

applied to each group—reasons that point to §1’s

exceedingly limited role in Congress’s arbitration

scheme.

Start with the railroads. “Before the modern

highway system, railroads were the only practical

means of long-distance transportation.” Dennis R.

Nolan & Roger I. Abrams, American Labor

Arbitration: The Early Years, 35 U. Fla. L. Rev. 337,

382 (1983). And “railroad employees were among the

first to organize nationally.” Id. The railroads were

thus both a keystone of the economy and a hotbed of

labor friction. No surprise, then, that the national

government spotted the need for streamlined dispute

resolution for the rail industry long before it spotted

the need for it in the wider market. “Reacting to a

drastic increase in [railroad worker] strikes,

President Grover Cleveland recommended to

9

Congress in 1886 the creation of a permanent board

for voluntary arbitration of railroad labor disputes.”

Id. at 382.

The resulting law—and a series of others—

failed to stem the strikes. Id. at 382-85. But

Congress kept trying. For decades—up to and

through 1925, the year the FAA was passed—

Congress collaborated with the railroads and their

workers to create a special rail-industry arbitration

regime. Around the very time Congress was

considering the FAA, in fact, “railway executives and

union officials” were holding “a series of conferences

aimed at drafting a new law.” Id. at 386. This

resulted in the Railway Labor Act of 1926—a law

that stuck. It created a comprehensive process for

resolving railroad labor grievances. Id. at 386-87.

The law even banned strikes “over certain grievance

disputes.” Id. at 387. It would, of course, have made

no sense for Congress to disrupt the delicate

negotiations underlying this law by slapping the

FAA on the railroads.

The reason seamen are mentioned in §1 is

more obvious still. From the beginning of the

republic, the federal government had taken a close

interest in maritime working conditions. For

instance, the First Congress “enacted protective

legislation giving seamen the right to written

employment contracts * * * [and] protection from

onboard debt collection.” Ahmed A. White, Mutiny,

Shipboard Strikes, and the Supreme Court’s

Subversion of New Deal Labor Law, 25 Berkeley J.

Emp. & Lab. L. 275, 292 (2004) (discussing Act of

July 20, 1790, 1 Stat. 131, 131-35); see also Southern

S.S. Co. v. NLRB, 316 U.S. 31, 38-39 (1942)

10

(“Workers at sea have been the beneficiaries of

extraordinary legislative solicitude[.] * * * The

statutes of the United States contain elaborate

requirements with respect to such matters as their

medicines, clothing, heat, hours and watches, wages,

and return transportation to this country if destitute

abroad.”).

The First Congress also regulated the earliest

form of maritime alternative-dispute-resolution—

better known as mutiny—through its power “to

define and punish * * * Felonies committed on the

high Seas.” U.S. Const. art. I § 8, cl. 10. “If any

seaman shall * * * make a revolt in the ship,”

declared the Crimes Act of 1790, he “shall be deemed

* * * a pirate and a felon, and * * * shall suffer

death.” 1 Stat. 112, 114. Despite this and other

punitive laws, robust “labor protest” was “a common

feature of shipboard life in the nineteenth and early

twentieth centuries.” White, supra, at 299-301. By

1925, therefore, seamen (like railroad workers) were

both highly organized and the subject of several

federal labor laws. See id. at 305. As far back as

1872, in fact, Congress had provided seamen a

distinct form of arbitration, overseen by “shipping

commissioners,” in many ports. See Shipping

Commissioners Act of 1872, 17 Stat. 262, 267

(Sec. 25).

Nor is that all. The president of the

International Seamen’s Union lobbied to exempt

seamen from the FAA. Matthew W. Finkin, Workers’

Contracts under the United States Arbitration Act:

An Essay in Historical Clarification, 17 Berkeley J.

Emp. & Lab. L. 282, 284-85 (1996). He feared that,

given then-existing quirks of admiralty law, seamen

11

were especially vulnerable to hidden arbitration

clauses. Id. at 286. He feared too that, unlike other

workers, seamen (and railway laborers) were

subject, if they ignored such a clause, to being

“forcibly returned to work.” Id. at 287. And he

believed that the courts, which had historically

viewed seamen as “wards of the admiralty,” treated

his constituents with special favor. Id. at 287-88.

The seamen’s exemption from the FAA thus has all

the marks of a legislative compromise extracted by

an interest group—and limited to that group’s

unique circumstances.

It is true that, in a letter to Congress

supporting passage of the FAA, then-Secretary of

Commerce Herbert Hoover wrote: “If objection

appears to the inclusion of workers’ contracts in the

law’s scheme, it might be well amended by stating

‘but nothing herein contained shall apply to

contracts of employment of seamen, railroad

employees, or any other class of workers engaged in

interstate or foreign commerce.’” Joint Hearings on

S. 1005 and H. R. 646, supra. But the context

discussed above confirms that Hoover, in referring to

“workers’ contracts,” was most likely just responding

to the special needs of a few discrete transportation

industries (and the special pleading of the seamen in

particular).

So the keys to understanding §1 of the FAA

are (1) the unique situation of (and lobbying by)

seamen and (2) “the existence of administrative

rather than judicial machinery for settlement of

labor disputes” involving seamen and railroad

workers. Amalgamated Ass’n St. Elec. Ry. & Motor

Coach Emp. of Am. v. Penn. Greyhound Lines, Inc.,

12

192 F.2d 310, 313 (3d Cir. 1951). Congress

understood, above all, that including sea and rail

workers in the FAA “would have created pointless

friction” and “wasteful duplication” in “already

sensitive area[s].” Id. Once these driving forces are

accounted for, the scope of §1 becomes clear. It was

meant to apply, at most, to workers in cross-border

bulk shipping industries subject, or likely to become

subject (hence the “other class of workers” residual

clause), to their own unique federal arbitration

schemes.

And this is essentially how most federal courts

have come to understand §1. The exemption applies,

in these courts’ view, to workers “actually engaged in

the movement of goods in interstate commerce.”

Wallace v. Grubhub Holdings, Inc., 970 F.3d 798,

801 (7th Cir. 2020) (citation omitted); see also, e.g.,

Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 147072 (D.C. Cir. 1997) (collecting cases); Asplundh Tree

Expert Co. v. Bates, 71 F.3d 592, 598-601 (6th Cir.

1995) (collecting yet other cases).

Given the context discussed above—context

confirmed by an early authority on this topic, Tenney

Engineering, Inc. v. United Electrical Radio &

Machine Workers, 207 F.2d 450, 452-53 (3d Cir.

1953)—it’s clear that “workers engaged in the

physical movement of goods” does not mean workers

“engaged” in such “movement” in some loose chainof-causation sense. It means, rather, workers

“engaged directly” (id. at 452) in such movement—

workers whose primary role is literally to carry

goods, in bulk, across state lines or foreign

boundaries. See, e.g., Asplundh, 71 F.3d at 600-01

(holding that §1 governs “seamen, railroad workers,

13

and any other class of workers actually engaged in

the movement of goods in interstate commerce in the

same way that seamen and railroad workers are”)

(emphasis added). At most §1 might stretch, some of

these courts conclude, to “work so closely related” to

such shipping “as to be in practical effect part of it,”

Tenney, 207 F.2d at 452—a problematic construction

addressed separately below.

A “narrow construction” of “the § 1 exclusion”

has prevailed before this Court, too, in Circuit City,

532 U.S. at 119. The Court noted the distinction

between §2’s use of the broad “involving commerce”

and §1’s use of the narrower “engaged in commerce,”

id. at 118; and it stressed the importance of reading

“other class of workers” in line with “seamen” and

“railroad employees,” id. at 114-15. It also endorsed

the view that Congress’s decision “to exempt [from

the FAA] the workers over whom the commerce

power [i]s most apparent” arose from the special

status of those workers’ industries. Id. at 120. “It is

reasonable to assume,” Circuit City explains, “that

Congress excluded ‘seamen’ and ‘railroad employees’

from the FAA for the simple reason that it did not

wish to unsettle established or developing statutory

dispute resolution schemes covering specific

workers.” Id. at 121. The “other class of workers”

clause, under this reading, covers only those

“transportation workers” who, being themselves

engaged in the “free flow of goods” across borders,

might, like seamen and railroad employees, get a

federal arbitration law of their own. Id.

The question in Circuit City was whether “all

employment contracts are excluded from the FAA”

by §1. Id. at 110-11. In answering “no,” the Court

14

needed merely to declare that §1 “exempts from the

FAA only contracts of employment of transportation

workers.” Id. at 119. The Court had no need to take

the next step and clarify which transportation

workers—that question is squarely presented here.

But the import of Circuit City’s statutory analysis is

unmistakable: §1 should apply to only those workers

who transport goods in bulk across national or

international borders, as seamen and railroad

employees do. Those are the only kinds of workers

who might generate the kind of labor issues that

would spur Congress to pass “specific [arbitration]

legislation” (id. at 121), as it did for the seamen and

the railroad employees.

Hill v. Rent-A-Center, Inc., 398 F.3d 1286

(11th Cir. 2005), reads Circuit City accurately. Hill

was an account manager for a furniture rental

company. Id. at 1288. As part of his job, he

sometimes delivered “goods to customers out of state

in his employer’s truck.” Id. He argued that §1

exempted him from arbitration with his employer.

After discussing Circuit City, however, Hill holds

that §1 does not cover workers who “incidentally

transported goods interstate as part of their job in an

industry that would otherwise be unregulated”—an

industry, that is, for which Congress would not

create “specific legislation.” Id. at 1289. “There is no

indication,” Hill continues,

that Congress would be any more

concerned about the regulation of the

interstate

transportation

activity

incidental to Hill’s employment as an

account manager, than it would in

regulating interstate ‘transportation’

15

activities of an interstate traveling

pharmaceutical

salesmen

who

incidentally delivered products in his

travels, or a pizza delivery person who

delivered pizza across a state line to a

customer in a neighboring town.

Id. at 1289-90. Exactly so.

In sum, the crucial factor driving the creation

of §1 (other than straight special-interest lobbying

for seamen) was whether a distinct federal scheme of

arbitration existed, or was likely to arise, for this or

that specific group of state- or foreign-boundarycrossing transportation workers. Properly read, §1

does not cover workers who engage in local delivery

or even in incidental boundary crossings. It governs

only seamen, railroad employees, and others whose

primary job is to transport goods in bulk across state

or foreign borders.

II. REVIEW IS NEEDED BECAUSE THERE IS NO

PRINCIPLED WAY TO APPLY FAA §1 TO ONE

WHO DOES NOT TRANSPORT GOODS IN BULK

ACROSS BORDERS.

What the statutory text and context establish,

logic confirms. There is no principled way to stretch

§1 beyond seamen, railroad employees, and other

workers who transport goods in bulk across borders.

To prevent Congress’s broad policy favoring

arbitration from unravelling one lawsuit at a time,

this Court should grant review.

“Judicial action must be governed by

standard, by rule, and [it] must be principled,

16

rational, and based upon reasoned distinctions found

in the Constitution or laws.” Rucho v. Common

Cause, 139 S. Ct. 2484, 2507 (2019). Yet by what

“standard” or “rule” is a judge to decide which

workers not literally engaged in cross-border

shipping are to fall within the §1 exemption? Is it

enough, as the decision below insists, to merely work

for a business whose products are part of the flow of

commerce? (Pet. App. 22a-25a.) Is it enough to work

closely with shippers while not transporting goods

oneself? Palcko v. Airborne Express, Inc., 372 F.3d

588, 593 (3d Cir. 2004); cf. Tenney, 207 F.2d at 452.

Is it enough to sometimes transport goods across

state lines? Hill, 398 F.3d at 1288-90. How close is

close enough? How often is often enough? And above

all: Why? No “principled, rational” basis can be

“found in the * * * law[]” for any of these tests.

Rucho, 139 S. Ct. at 2507. Each is unmoored from

the statute itself.

The apotheosis of this approach appears in

Lenz v. Yellow Transportation, Inc., 431 F.3d 348

(8th Cir. 2005)—a case cited by the Ninth Circuit

(Pet. App. 14a-15a). Lenz puts forth eight “nonexclusive” factors for “determining whether an

employee is so closely related to interstate commerce

that he or she fits within the § 1 exemption,” id. at

352. These factors include whether “the employee

handles goods that travel interstate” and whether a

“nexus * * * exists between the employee’s job duties

and the vehicle the employee uses in carrying out his

duties.” Id. Only one and a half of the Lenz factors

are rooted in §1. The full-credit factor is whether an

employee “is within a class of employees for which

special arbitration already existed when Congress

enacted the FAA.” Id. The half-credit factor is

17

“whether a strike by the employee would disrupt

interstate commerce,” id.—full credit being achieved

if one adds: “in a fashion that would likely spur

Congress to pass a unique alternative-disputeresolution mechanism for that employee and his

peers.”

“When an appellate judge says that the * * *

issue must be decided * * * by a balancing of all the

factors involved, he begins to resemble a finder of

fact more than a determiner of law.” Antonin Scalia,

The Rule of Law as a Law of Rules, 56 U. Chi. L.

Rev. 1175, 1182 (1989). Because “each judge” will

“use[] his favorite factors in every case,” there will

“be no common ground.” United States v. Pinto, 875

F.2d 143, 145 (7th Cir. 1989). Judges inevitably will

apply disparate policies and reach inconsistent

results. A basic aspect of justice is the like treatment

of like cases. “And the trouble with the discretionconferring approach to judicial law making is that it

does not satisfy this sense of justice very well.”

Scalia, supra, 56 U. Chi. L. Rev. at 1178. Although

“we will have * * * balancing modes of analysis with

us forever,” those modes should “be avoided where

possible.” Id. at 1187. By introducing a balancing

test where none is needed, Lenz sows confusion

where there can, and should, be clarity.

True enough, many “distinctions of the law

are distinctions of degree,” Panhandle Oil Co. v.

Miss. ex rel. Knox, 277 U.S. 218, 223 (1928) (Holmes,

J., dissenting), and “courts are apt to err by sticking

too closely to the words of a law where those words

import a policy that goes beyond them,” Olmstead v.

United States, 277 U.S. 438, 469 (1928) (Holmes, J.,

dissenting). But this is not such a case. It is not as if

18

“we must consider * * * two objects of desire both of

which we cannot have and make up our minds which

to choose.” Id. The Court is not “free to choose

between two principles of policy,” id., because §1

lacks within itself any such dueling policies. There is

only, on the one hand, a law that “seeks broadly to

overcome

judicial

hostility

to

arbitration

agreements,” Circuit City, 532 U.S. at 118, and, on

the other, a narrow exemption for “the workers over

whom the commerce power [i]s most apparent”; an

exemption that can be explained only as a carveout

for discrete industries with “established or

developing statutory dispute resolution schemes

covering specific workers,” id. at 120-21. Expanding

§1 beyond those “specific workers”—beyond seamen,

railroad workers, and other border-hopping

transporters—“would not answer to any concern

expressed to or by Congress in the debates leading

up to the passage of the arbitration act.” Pryner v.

Tractor Supply Co., 109 F.3d 354, 358 (7th Cir.

1997).

This Court should not permit the lower courts

to engage in a flight of logical fancy to extend §1; it

should, if anything, intervene and deploy some

common sense to constrain it. Yates v. United States,

574 U.S. 528 (2015), offers an exemplary model. “To

prevent federal authorities from confirming that he

had harvested undersized fish” in federal waters,

Yates “ordered a crew member to toss the suspect

catch into the sea.” Id. at 531. Yates was convicted of

knowingly destroying a “tangible object” in violation

of 18 U.S.C. § 1519. “A fish,” a plurality of the Court

wrote, “is no doubt an object that is tangible” Id. at

532. Case closed? No, the plurality said, because

§1519 “was enacted as part of the Sarbanes-Oxley

19

Act of 2002, 116 Stat. 745, legislation designed to

protect investors and restore trust in financial

markets

following

the

collapse

of

Enron

Corporation.” Id. To count the tangible object “fish”

as a “tangible object” under §1519 “would cut §1519

loose from its financial-fraud mooring.” Id. “Mindful

that in Sarbanes-Oxley, Congress trained its

attention on corporate and accounting deception and

cover-ups,” the plurality construed “tangible object”

to include only items that can be “used to record or

preserve information.” Id.

Mindful that in §1 Congress fixed its attention

on transportation workers with their own distinct

federal arbitration schemes, this Court should grant

review and construe “any other class of workers

engaged in foreign or interstate commerce” to

include only those who regularly transport goods in

bulk across state or national borders.

*

*

*

In sum, not even a worker who makes

occasional deliveries across state lines falls within

§1, properly understood. Hill, 398 F.3d at 1288-90.

Surely the respondents, who made only local, purely

intrastate deliveries, likewise fall well outside the

exemption. Like most other workers, they must

honor their arbitration agreements under the FAA.

But not every court of appeals embraces this

commonsense construction. To clear up this state of

confusion, the Court’s intervention is sorely needed.

20

CONCLUSION

The petition should be granted.

Respectfully submitted,

December 9, 2020

CORY L. ANDREWS

Counsel of Record

JOHN M. MASSLON II

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

candrews@wlf.org