Amicus Curiae Brief — Southwest Airlines Co., Petitioner v. Latrice Saxon

No. 21-309

IN THE

Supreme Court of the United States

___________

SOUTHWEST AIRLINES CO.,

Petitioner,

v.

LATRICE SAXON,

___________

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Seventh Circuit

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

___________

September 27, 2021

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 workers who load or unload goods from

vehicles that travel in interstate commerce, but who

do not physically transport such goods themselves,

are “engaged in foreign or interstate commerce” so

that their claims are exempt from arbitration under

§ 1 of the Federal Arbitration Act.

iii

TABLE OF CONTENTS

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

INTERESTS OF AMICUS CURIAE ...................... 1

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

SUMMARY OF ARGUMENT................................. 3

REASONS FOR GRANTING THE PETITION ..... 6

I.

REVIEW IS NEEDED TO CONFIRM THAT

ONLY CLASSES OF WORKERS WHO

TRANSPORT GOODS ACROSS BORDERS ARE

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

II. REVIEW IS NEEDED BECAUSE THERE IS NO

PRINCIPLED WAY TO APPLY FAA § 1 TO

THOSE WHO DO NOT TRANSPORT GOODS

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

CONCLUSION ...................................................... 19

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

Allied-Bruce Terminix Cos. v. Dobson,

513 U.S. 265 (1995) .............................................. 6

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

Coach Emp. of Am. v. Penn. Greyhound

Lines, Inc.,

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

Asplundh Tree Expert Co. v. Bates,

71 F.3d 592 (6th Cir. 1995) .......................... 11, 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, 12, 13, 14, 17

Cole v. Burns Int’l Sec. Servs.,

105 F.3d 1465 (D.C. Cir. 1997) .......................... 11

DIRECTV, Inc. v. Imburgia,

577 U.S. 47 (2015) ................................................ 1

Epic Sys. v. Lewis,

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

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

398 F.3d 1286 (11th Cir. 2005) .............. 13, 14, 18

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

Palcko v. Airborne Express, Inc.,

372 F.3d 588 (3d Cir. 2004) ............................... 15

v

Page(s)

Pryner v. Tractor Supply Co.,

109 F.3d 354 (7th Cir. 1997) .............................. 17

Rittmann v. Amazon.com,

971 F.3d 904, 917 (9th Cir. 2020) ...................... 15

Rojas v. TK Commc’ns, Inc.,

87 F.3d 745 (5th Cir. 1996) ................................ 11

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .................................. 15, 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, 15

United States v. Pinto,

875 F.2d 143 (7th Cir. 1989) .............................. 16

CONSTITUTIONAL PROVISION:

U.S. Const. art. I § 8, cl. 10 ..................................... 9

STATUTES:

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

9 U.S.C. § 2 ........................................ 1, 2, 4, 6, 7, 12

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

Crimes Act of April, 30 1790, 1 Stat. 112 ............... 9

vi

Page(s)

LEGISLATIVE MATERIAL:

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

before the Subcommittees on the Judiciary,

68th Cong., 1st Sess. (1924) ........................... 3, 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

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).......... 16, 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 AMICUS 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 in

important Federal Arbitration Act (FAA) cases. See,

e.g., Epic Systems Corp. v. Lewis, 138 S. Ct. 1612

(2018); DIRECTV, Inc. v. Imburgia, 577 U.S. 47

(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).

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 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 respondent

here is not subject to an alternative channel of this

sort; she just wants to avoid arbitration altogether.

She seeks to gut the federal policy in favor of

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

person or entity, other than Washington Legal Foundation and

its counsel, helped pay for the brief’s preparation or

submission. After timely notice, all parties consented to the

filing of this brief.

*

2

arbitration by expanding the § 1 exemption far

beyond its proper bounds.

The

Seventh

Circuit

rewarded

the

respondent’s efforts. This Court should intervene

and set things right.

STATEMENT OF THE CASE

Southwest Airlines operates the nation’s

largest passenger airline. Southwest employs the

respondent as a Ramp Agent Supervisor at Chicago’s

Midway Airport. There she supervises and trains a

team of Ramp Agents who load and unload

passenger baggage for departing and arriving

airplanes. Though she occasionally assists her

subordinates by handling baggage on a limited basis,

she does not physically transport goods interstate or

even supervise others who physically transport

goods interstate.

The respondent sued Southwest for disputed

wages under the Fair Labor Standards Act.

Southwest moved to compel arbitration, arguing that

the respondent must honor her agreement to

arbitrate wage disputes arising from her

employment. Southwest 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 respondent 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.

3

The respondent argued that she falls within the § 1

exemption.

The district court rejected the respondent’s

construction of § 1 and dismissed the complaint. The

“linchpin for classification as a ‘transportation

worker,’” the court explained, is “actual transportation.” (Pet. App. 37a.) Because the respondent

does not “physically transport goods at all, let alone

out-of-state,” the court held that she falls outside the

§ 1 exemption. (Id. at 39a.) “[M]erely handling

goods” that may travel interstate, the court

concluded, is not enough. (Id. at 37a.)

The Seventh Circuit reversed. Rather than

focusing on the respondent’s exclusively intrastate

work activities (i.e., the activities in which the

“worker” was “engaged” under § 1), the appeals court

focused on the vehicle into which the goods were

being moved. Because the “act of loading cargo onto

a vehicle to be transported interstate is itself

commerce,” the court reasoned, “cargo-loading work

is interstate or foreign commerce.” (Pet. App. 10a.)

As a result, the court held, the respondent’s duties

as Ramp Agent Supervisor qualify as “actual

transportation.” (Id. at 10a.)

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

4

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 courts to

enforce otherwise valid clauses, in contracts

“involving commerce,” that require streamlined

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 Seventh Circuit’s elastic

reading, § 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 carve out.)

5

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 or special remedial scheme. 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, unionized 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

classes of unionized 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

Seventh Circuit’s, purport to expand the exemption

beyond those actively 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 so many

businesses and workers who, relying on the FAA,

have agreed to arbitrate their disputes.

6

REASONS FOR GRANTING THE PETITION

I.

REVIEW IS NEEDED TO CONFIRM THAT ONLY

CLASSES OF WORKERS WHO TRANSPORT

GOODS 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 the

statute 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

Clause can go. Allied-Bruce Terminix Cos. 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 cuts much more narrowly than the

respondent and the Seventh Circuit contend.

First, Congress framed § 2 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.

7

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

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 seamen and

railroad employees do. Section 1 is a discrete

carveout for narrow classes 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

8

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

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 same 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 labor grievances for unionized railway

9

workers. 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 keen

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)

(“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

10

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.

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

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

11

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

context 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 lobbying 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.,

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” 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 (1) their own

unique federal arbitration scheme (in the case of the

RLA and unionized railway workers) or (2) a

specialized federal scheme governing wages, hours,

and working conditions (in the case of the seamen).

And this is essentially how many 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.” Rojas v. TK Commc’ns, Inc., 87 F.3d 745,

748 (5th Cir. 1996); see also, e.g., Cole v. Burns Int’l

Sec. Servs., 105 F.3d 1465, 1470-72 (D.C. Cir. 1997)

(collecting cases); Asplundh Tree Expert Co. v. Bates,

12

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,

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.

The Court noted the distinction between § 2’s use of

the broad “involving commerce” and § 1’s use of the

narrower “engaged in commerce,” 532 U.S. 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

13

workers’ industries. Id. at 120. “It is reasonable to

assume,” Circuit City explained, “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

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 across national or international

borders, as seamen and railroad employees do. Those

are the only kinds of workers who might generate

the type of labor issues that would spur Congress to

pass “specific 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

14

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’

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. Hill’s analysis is even

more clear-cut in this case. After all, the respondent

doesn’t actually transport anything; she remains

fixed at all times on the ground at Midway airport.

In sum, the crucial factor driving the creation

of § 1 (other than straight special-interest lobbying

for seamen) was whether a distinct federal scheme

existed, or was likely to arise, for a given class of

state- or foreign-boundary-crossing transportation

workers. Properly read, § 1 does not cover mere

‘goods handlers’ who never even transport goods. It

governs only seamen, railroad employees, and others

15

whose primary job is to transport goods across state

or foreign borders.

II. REVIEW IS NEEDED BECAUSE THERE IS NO

PRINCIPLED WAY TO APPLY FAA § 1 TO THOSE

WHO DO NOT TRANSPORT GOODS 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 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,

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 fall within the § 1 exemption? Is it enough

to merely work for a business whose products are

part of the flow of commerce? Rittmann v.

Amazon.com, 971 F.3d 904, 917 (9th Cir. 2020). 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

16

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 the respondent relied on

below. Lenz puts forth eight “non-exclusive” 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

“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 statutory 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

17

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, 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.

The Court is not free to choose among a

panoply of policy goals because § 1 contains no 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 sectors 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 [FAA].” 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

18

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

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 discrete classes of transportation

workers with their own distinct federal remedial

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 across state or

national borders.

*

*

*

In sum, not even a worker who occasionally

crosses state lines falls within § 1, properly

understood. Hill, 398 F.3d at 1288-90. Surely the

respondent, a non-unionized, Chicago-based Ramp

Agent Supervisor who remains grounded at all

times, likewise falls well outside the exemption. Like

most other workers, she must honor her arbitration

agreement under the FAA. But not every court of

19

appeals embraces this commonsense construction. To

clear up this state of confusion, this Court’s

intervention is sorely needed.

CONCLUSION

The petition should be granted.

Respectfully submitted,

September 27, 2021

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