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 Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

_________

BRIEF OF AIRLINES FOR AMERICA AS AMICI

CURIAE IN SUPPORT OF PETITIONER

_________

Patricia N. Vercelli

Riva Parker

AIRLINES FOR AMERICA

1275 Pennsylvania Ave. NW

Washington, DC 20004

Ishan K. Bhabha

Counsel of Record

Marc L. Warren

Laurel Raymond

JENNER & BLOCK LLP

1099 New York Ave. NW

Suite 900

Washington, DC 20001

(202) 639-6000

ibhabha@jenner.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................... iii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ........................................ 2

BACKGROUND ON THE COMMERCIAL

AVIATION INDUSTRY ................................................. 4

ARGUMENT ...................................................................... 9

I.

II.

Congress Has Recognized The Importance

Of Arbitration For Labor Disputes In The

Aviation Industry ................................................... 9

A.

The RLA Reflects A Congressional

Preference For Arbitration Of

Labor Disputes In The Aviation

Industry ..................................................... 10

B.

Expanding

The

FAA’s

Transportation Worker Exemption

Creates

A

Regulatory

Gap

Congress Did Not Intend ........................ 13

Clear And Uniform Rules Are Critical To

Realizing The Benefits Of Arbitration For

The Commercial Aviation Industry................... 15

A.

The Seventh Circuit’s Test Injects

Uncertainty Into The Industry And

Creates An Exception That

Swallows The Rule ................................... 17

ii

B.

This

Court

Should

Adopt

Petitioner’s Interpretation Of § 1’s

Residual Clause ........................................ 24

CONCLUSION ................................................................ 26

iii

TABLE OF AUTHORITIES

CASES

Brotherhood of Locomotive Engineers and

Trainmen (General Committee of

Adjustment, Central Region) v. Union

Pacific Railroad Co., 879 F.3d 754 (7th

Cir. 2017) .................................................................. 11

Brotherhood of Railroad Trainmen v.

Chicago River & Indiana Railroad Co.,

353 U.S. 30 (1957) .................................................... 11

Brotherhood of Railroad Trainmen v.

Jacksonville Terminal Co., 394 U.S. 369

(1969) ........................................................................ 11

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

105 (2001) ........................................................ passim

Consolidated Rail Corp. v. Railway Labor

Executives’ Ass’n, 491 U.S. 299 (1989) ................ 12

Crooms v. Southwest Airlines Co., 459 F.

Supp. 3d 1041 (N.D. Ill. 2020) ................................ 14

Eastus v. ISS Facility Services, Inc., 960

F.3d 207 (5th Cir. 2020) .................................... 18, 19

Harper v. Amazon.com Services, Inc., 12

F.4th 287 (3d Cir. 2021) .......................................... 17

Hawaiian Airlines, Inc. v. Norris, 512 U.S.

246 (1994) ................................................................. 12

International Ass’n of Machinists, AFLCIO v. Central Airlines, Inc., 372 U.S.

682 (1963) ................................................................. 10

iv

New Prime Inc. v. Oliveira, 139 S. Ct. 532

(2019) ........................................................................ 10

Rittmann v. Amazon.com, Inc., 971 F.3d

904 (9th Cir. 2020), cert. denied, 141 S.

Ct. 1374 (2021) ............................................. 16, 17, 25

Stolt-Nielsen

S.A.

v.

AnimalFeeds

International Corp., 559 U.S. 662 (2010) .............. 9

Waithaka v. Amazon.com, Inc., 966 F.3d 10

(1st Cir. 2020), cert. denied, 141 S. Ct.

2794 (2021) ............................................................... 22

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

798 (7th Cir. 2020) ................................................... 16

STATUTES

9 U.S.C. § 1 ...................................................................... 2

45 U.S.C. § 155 .............................................................. 12

Railway Labor Act, Pub. L. No. 74-487,

ch. 166, 49 Stat. 1189 (1936) ................................... 10

OTHER AUTHORITIES

Airports in Georgia: Primary Commercial

Airports in Georgia, AirportFlyer.com,

https://bit.ly/3rQD8Gk (last visited Jan.

26, 2022) ...................................................................... 8

Alaska Airlines, Cities Served, https://bit.

ly/3KKQP26 (last visited Jan. 26, 2022)................. 7

Bureau of Transportation Statistics, Air

Carrier Financial Reports (Form 41

Financial

Data),

https://bit.ly/

3KLKTpD (last visited Jan. 27, 2022) .................... 7

v

Bureau of Transportation Statistics, Air

Cargo Summary Data (All) October

2002-October 2021: Summary Table of

Cargo

Revenue

Tons

Enplaned

https://bit.ly/3G8lW4c (last visited Jan.

26, 2022) ...................................................................... 5

Federal Aviation Administration, Air

Traffic by the Numbers, https://bit.ly/

3g2pees (last visited Jan. 26, 2022)..................... 5, 6

Federal Aviation Administration, Air

Traffic by the Numbers (Aug. 2020),

https://bit.ly/3u5nRnG.............................................. 6

Federal Aviation Administration, FAA

APO-100, Cost of Delay Estimates: 2019

(2020), https://bit.ly/3KOws3W ............................. 11

Federal Aviation Administration, FAA

Aerospace Forecast, Fiscal Years 20212041, https://bit.ly/3u3Z6Ij ...................................... 4

Federal Aviation Administration, The

Economic Impact of Civil Aviation on

the U.S. Economy (Jan. 2020),

https://bit.ly/3r4gvii .............................................. 5, 6

Hawaiian Airlines, North

America,

https://bit.ly/3Ayekqm (last visited Jan.

26, 2022) ...................................................................... 8

IATA, Aviation Safety, https://bit.ly/

3H50Chb (last visited Jan. 27, 2022) ...................... 7

JetBlue, Destinations: United States,

https://bit.ly/3G5PGP9 (last visited Jan.

26, 2022) ...................................................................... 8

vi

Midway

Airport,

(@fly2midway),

Instagram, https://bit.ly/340zce7 (last

visited Jan. 27, 2022)............................................... 22

Southwest

Media,

System

Map,

https://bit.ly/3rVhReA (revised June

2021) ............................................................................ 7

United, Newsroom Corporate Fact sheet,

https://bit.ly/32D3SkY (last visited Jan.

26, 2022) ...................................................................... 8

U.S. Census Bureau, U.S. and World

Population

Clock,

https://bit.ly/

3HcS5bZ (last visited Jan. 26, 2022) ...................... 4

Greg Wolf, Ted Stevens Anchorage

International Airport Serves the World,

Alaska

Business

(Feb.

2019),

https://bit.ly/3u0TXkv ............................................ 23

1

INTEREST OF AMICI CURIAE 1

Founded in 1936, Airlines for America (A4A) is

the oldest and largest airline trade association in the

United States. A4A represents ten passenger and cargo

airlines nationwide: Alaska Airlines, American Airlines,

Atlas Air, Delta Air Lines, FedEx, Hawaiian Airlines,

JetBlue Airways, Southwest Airlines, United Airlines,

and United Parcel Service. Together, A4A’s members

directly employ more than 80% of the airline industry’s

750,000 workers. And in 2020, A4A’s passenger carrier

members and their marketing partners carried more

than 227 million passengers—approximately 70% of the

annual total—and A4A’s all-cargo and passenger

members together carried 80% of U.S. airlines’ total

cargo.

As part of its core mission, A4A has long

advocated laws and regulations promoting the stable,

uniform, and predictable rules necessary for efficient

and safe air-transportation. The Seventh Circuit’s

decision below threatens that mission by imposing a

malleable and unpredictable standard for determining

when an employee is a transportation worker exempt

from arbitration under § 1 of the Federal Arbitration

Act. A4A’s members operate in numerous states every

1

Pursuant to this Court’s Rule 37.6, counsel for amici curiae

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than amici

curiae, their members, or their counsel has made a monetary

contribution intended to fund the preparation or submission of this

brief. Both parties have consented in writing to the filing of this

amicus.

2

day, employing many workers who—like Respondent

here—do not cross state lines or move people or cargo

even on an intrastate leg of an interstate journey. Those

workers and the airlines alike benefit from uniform

alternative-dispute-resolution programs to resolve their

disputes efficiently. Contrary to Congress’ intent, the

Seventh Circuit’s approach disregards those uniform

programs in favor of unpredictable state-by-state

inquiries. Amicus A4A thus has a very significant

interest in the outcome of this case and believes its

perspectives as to the practical realities of the airline

industry will aid the Court in its consideration of the

question presented.

SUMMARY OF ARGUMENT

This case presents an opportunity for the Court

to clarify the meaning of Section 1 of the Federal

Arbitration Act’s (FAA) exemption from arbitration for

“seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce.” 9

U.S.C. § 1. In resolving this question, the Court can put

to rest an issue that has bedeviled the Courts of Appeals

and complicated employer-employee relations in direct

opposition to the goals of the FAA.

Arbitration is a vital means of resolving

employer-employee disputes in the airline industry, and

Congress understood as much when it passed the FAA

in 1925 and extended the Railway Labor Act (RLA) to

cover air transportation workers in 1936. These two acts

operate in concert to provide the efficient and fair

resolution of numerous employment disputes in the

3

aviation industry. This form of dispute resolution is

critical to the industry’s successful functioning, itself a

major contributor to the U.S. economy.

In Circuit City Stores, Inc. v. Adams, 532 U.S.

105 (2001), this Court instructed courts to construe the

FAA’s transportation worker exemption narrowly

given its “explicit reference to ‘seamen’ and ‘railroad

employees,’” id. at 114. Nonetheless, in the decision

below, the Seventh Circuit held that § 1 covers airline

cargo loaders and their supervisors, like Respondent,

simply because their work is “so closely related to

interstate transportation as to be practically a part of it.”

Pet. App. 10a; see also id. at 19a (acknowledging that

Respondent’s work is not the same as transportation in

interstate commerce but finding that such “closely

related work is interstate transportation”).

The indeterminacy of the Seventh Circuit’s

standard invites costly line-drawing inquiries and will

result in the proliferation of unnecessary litigation from

a statute meant to avoid it. The consequences of

uncertainty over the meaning of § 1 are indisputable.

Indeed, they are already occurring, as evidenced by the

number of cases challenging the application of the FAA

to various classes of workers, and the breadth of the

tests circuit courts have devised to answer the

concomitant questions. Not only is this confusion costly

in terms of judicial and party resources, but some of the

courts below, including the Seventh Circuit, have

adopted broad, unclear tests that potentially sweep

hundreds of thousands of workers out from FAA

coverage. When federal law gives way, that still leaves

4

the question of arbitrability under state law. The result

is at best a dizzying patchwork of rules undermining the

efficiency that agreements to arbitrate are designed to

promote. At worst, the result is unfairness among

similarly situated employers and employees and

disruption in the aviation industry, a consequence that

Congress meant to prevent.

In resolving this case, this Court should clarify

the scope and meaning of the FAA’s residual exemption

to provide much-needed predictability and stability for

employers and employees alike. Consistent with the

text of the FAA, the Court should adopt the Petitioner’s

proposed test and hold that the § 1 exemption reaches

only classes of workers that actually move goods or

people through the channels of foreign or interstate

commerce. This clear-cut rule is not only consistent with

Congressional intent; it will provide the practical

certainty that is needed for the airline industry to

continue its vital operations.

BACKGROUND ON THE COMMERCIAL

AVIATION INDUSTRY

The U.S. aviation industry connects every aspect

of modern American life. In 2019, U.S. commercial air

carriers transported over 800 million people—well over

twice the U.S. population—over more than 29 million

square miles of U.S. airspace.

Federal Aviation

Administration, FAA Aerospace Forecast, Fiscal Years

2021-2041, at 14, https://bit.ly/3u3Z6Ij; U.S. Census

Bureau, U.S. and World Population Clock,

https://bit.ly/3HcS5bZ (last visited Jan. 26, 2022);

5

Federal Aviation Administration, Air Traffic by the

Numbers, https://bit.ly/3g2pees (last visited Jan. 26,

2022) (“FAA by the Numbers”). Each day, 2.9 million

passengers and their baggage fly into and out of U.S.

airports. FAA by the Numbers.

The way in which air travel is emmeshed in

modern life becomes even clearer when one moves

beyond passenger travel. In 2020, U.S. aircrafts carried

63,000 tons of cargo per day through the air. If you order

goods online, chances are they spent time on an aircraft

in their journey to your door. If you shop at brick-andmortar stores, it is very likely that those goods as well

travelled to your location via aircraft. During 2020, air

travel accounted for 30% of total U.S. imports—$708

billion—and 32% of total U.S. exports—$453 billion.

Bureau of Transportation Statistics, Air Cargo

Summary Data (All) October 2002-October 2021:

Summary Table of Cargo Revenue Tons Enplaned

https://bit.ly/3G8lW4c (last visited Jan. 26, 2022) (daily

number derived by dividing 2020 data by 365). In short,

it is nearly impossible to live in the modern world and

not rely on commercial air travel.

It is hardly surprising, therefore, that aviation

has a substantial impact on the U.S. economy. Aviation

accounts for more than 5% of the U.S. Gross Domestic

Product, contributes $1.8 trillion in total economic

activity and supports nearly 11 million U.S. jobs.

Federal Aviation Administration, The Economic Impact

of Civil Aviation on the U.S. Economy 5 (Jan. 2020),

https://bit.ly/3r4gvii (“FAA Economic Impact Report”).

Air transportation is the 7th leading contributor to

6

overall productivity in the United States. Id. Per A4A’s

calculations, every additional $1 of airline revenue ties

to roughly $3.78 in additional U.S. GDP, and every U.S.

airline job helps support an estimated nine U.S. jobs

outside the industry (calculations based on data from

FAA Economic Impact Report).

Correspondingly, the operations of U.S. aviation

are immense and complex. There are 19,633 airports in

the United States, 5,082 of which are public. FAA by the

Numbers. At any given moment, there are over 5,000

aircraft in the skies. Federal Aviation Administration,

Air Traffic by the Numbers 9 (Aug. 2020),

https://bit.ly/3u5nRnG. Across the United States, air

traffic controllers handle over 45,000 flights every day.

FAA by the Numbers. A plane and crew regularly begin

their day in one corner of the country, spend it in

another, and end it in a third.

Keeping this operation running smoothy and

safely relies on myriad workers spread among a wide

range of roles. Though some of the jobs central to U.S.

commercial aviation happen in the air, most airline

employees work on the ground. Airlines employ

customer service agents, who work at airports checking

in customers and handling baggage at ticket counters

and gates; operations agents who take tickets before

passengers board the plane and monitor and adjust the

proper weight and balance of the aircraft; customer

representatives, who work the phones and make

reservations and changes; mechanics who ensure that

the machinery and technology remain fully functioning;

and supervisors who ensure that this fleet of workers

7

keeps running smoothly—to give but a few examples.

Altogether, the work of these employees has made

commercial air travel the safest form of transportation.

See, e.g., IATA, Aviation Safety, https://bit.ly/3H50Chb

(last visited Jan. 27, 2022).

In total, U.S. aviation directly employs 750,000

workers. According to one A4A member passenger

airline, nearly 60% of their workers are employed in

ground-based roles. This is consistent with industrywide data: the average U.S. passenger aircraft, for

example, supports 70-75 full time equivalent (FTE)

employees. Bureau of Transportation Statistics, Air

Carrier Financial Reports (Form 41 Financial Data),

https://bit.ly/3KLKTpD (last visited Jan. 27, 2022)

(breakdown of employees derived comparing employee

categories). Of these, 14% are pilots, 25% are flight

attendants, 10% are maintenance, 16% fleet service (e.g.,

ramp/cargo workers); 17% are passenger service, and

18% are managerial, administrative, or otherwise

employed. Id. The percentage of employees laboring

entirely on the ground is even higher for cargo planes,

which do not require flight attendants.

Because the industry’s product is travel, the

country’s aviation workers are located across every

state in the nation. Southwest Airlines, for example,

flies to 103 domestic destinations spread across 45 of the

50 states.

Southwest Media, System Map,

https://bit.ly/3rVhReA (revised June 2021). Alaska

Airlines flies to 38 states. Alaska Airlines, Cities Served,

https://bit.ly/3KKQP26 (last visited Jan. 26, 2022).

United Airlines serves 252 United States airports.

8

United,

Newsroom

Corporate

Fact

sheet,

https://bit.ly/32D3SkY (last visited Jan. 26, 2022).

JetBlue flies to destinations in 33 states. JetBlue,

Destinations: United States, https://bit.ly/3G5PGP9

(last visited Jan. 26, 2022). Hawaiian Airlines flies

between 10 states. Hawaiian Airlines, North America,

https://bit.ly/3Ayekqm (last visited Jan. 26, 2022).

Altogether, A4A’s member airlines serve every

state in the nation; a single airline will employ groundbased workers across numerous states. The variation

does not end there. Single states house airports that

range in size from massive international hubs to regional

mainstays. Georgia, for example, is home to HartsfieldJackson Atlanta International Airport (ATL), which is

the United States’ busiest airport with tens of millions

of enplanements per year, and also to seven other

commercial airports that range from just over one

million enplanements to just over ten thousand per year.

Airports in Georgia: Primary Commercial Airports in

Georgia, AirportFlyer.com, https://bit.ly/3rQD8Gk (last

visited Jan. 26, 2022). Airlines regularly fly connection

flights between large hubs like ATL and regional

airports, both within their state and across state lines.

Delta’s operations in ATL, to give one example, are by

necessity far different from their operations at

Burlington International Airport in Burlington,

Vermont.

And even within one airport, traffic varies

depending on the day of the week and the time of the

year. The busiest day for passenger travel is Friday; the

least busy is Saturday—and it is no secret that travelling

9

the day before Thanksgiving is far different than

travelling on any given Wednesday. A4A’s member

airlines thus face complex staffing choices and require a

dynamic staffing model that is sufficient to meet variable

customer demands, all the while keeping air travel safe

and on time.

ARGUMENT

I.

Congress Has Recognized The Importance Of

Arbitration For Labor Disputes In The

Aviation Industry.

Congress has long recognized how important it is

that airlines, as with other essential transportation

employers, be able to resolve labor disputes efficiently

and fairly through arbitration. Arbitration features

“lower costs, greater efficiency and speed, and the

ability to choose expert adjudicators to resolve

specialized disputes.”

Stolt-Nielsen S.A. v.

AnimalFeeds Int’l Corp., 559 U.S. 662, 685 (2010).

These attributes of arbitration are particularly

important given the complexity of aviation operations

and the centrality of aviation to the nation’s economy.

The FAA, enacted in 1925, “seeks broadly to

overcome judicial hostility to arbitration agreements.”

Cir. City Stores, 532 U.S. at 118 (quotation marks

omitted). Though the FAA exempts “seamen, railroad

employees, or any other class of workers engaged in

foreign or interstate commerce,” this carve-out does not

represent a policy against arbitration for transportation

workers. Far from it. As this Court noted in Circuit City

Stores, Congress calibrated the § 1 exemption to account

10

for existing “federal legislation providing for the

arbitration of disputes between seamen and their

employers” and the anticipated “imminent” “passage of a

more comprehensive statute providing for the mediation

and arbitration of railroad labor disputes”—namely the

Railway Labor Act (RLA), enacted in 1926. 532 U.S. at

121; see also New Prime Inc. v. Oliveira, 139 S. Ct. 532,

537 (2019) (noting that as of the adoption of the FAA,

“Congress had already prescribed alternative

employment dispute resolution regimes for many

transportation workers”). A closer examination of these

two statutes makes clear Congress’s desire for the broad

use of arbitration in the aviation industry.

A.

The RLA Reflects A Congressional

Preference For Arbitration Of Labor

Disputes In The Aviation Industry.

In 1936, Congress extended the RLA to cover air

carriers and their employees. Railway Labor Act, Pub.

L. No. 74-487, ch. 166, 49 Stat. 1189 (1936) (codified at 45

U.S.C. § 151 et seq.); see also Int’l Ass’n of Machinists,

AFL-CIO v. Cent. Airlines, Inc., 372 U.S. 682, 685 (1963)

(explaining that the “general aim” of extending the RLA

to cover the aviation industry “was to extend to air

carriers and their employees the same benefits and

obligations available and applicable in the railroad

industry”). As this Court has recognized, “[r]ailway

(and airline) labor disputes typically present problems of

national magnitude. A strike in one State often

paralyzes transportation in an entire section of the

United States, and transportation labor disputes

frequently result in simultaneous work stoppages in

11

many States.” Bhd. of R.R. Trainmen v. Jacksonville

Terminal Co., 394 U.S. 369, 381 (1969) (footnote

omitted); see also Bhd. of Locomotive Eng’rs &

Trainmen (Gen. Comm. of Adjustment, Cent. Region) v.

Union Pac. R.R. Co., 879 F.3d 754, 755 (7th Cir. 2017)

(“No one wants to see the nation’s transportation

network brought to a standstill because of labor

conflict.”).

The aviation industry, and the country writ large,

have experienced first-hand the wide-reaching results of

protracted labor disputes between management and

employees in the commercial aviation industry. When

employers are locked in disputes with employees, air

travel does not go smoothly—and when air travel does

not go smoothly, planes do not fly on time, or fly at all.

Disputes can impact aircraft safety and the U.S.

economy. In 2019, delays in the U.S. commercial airline

industry cost the United States $33 billion dollars.

Federal Aviation Administration, FAA APO-100, Cost

of

Delay

Estimates:

2019

(2020),

https://bit.ly/3KOws3W.

Congress enacted the RLA “to bring about stable

relationships between labor and management” in the

transportation industry. Bhd. of R.R. Trainmen v.

Chicago River & Ind. R.R. Co., 353 U.S. 30, 40 (1957). At

the “heart” of the RLA is the duty “to settle all disputes

… to avoid any interruption to commerce or to the

operation of any carrier growing out of any dispute

between the carrier and the employees thereof.” Bhd. of

R.R. Trainmen, 394 U.S. at 378 (quoting 45 U.S.C.

§ 152).

Accordingly, the RLA establishes a

12

“comprehensive framework for resolving labor

disputes” featuring “mandatory arbitral mechanism[s]

for the ‘prompt and orderly settlement’” of disputes.

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252

(1994) (quoting 45 U.S.C. § 151).

The RLA establishes two different disputeresolution schemes, one for so-called “major disputes”

and one for so-called “minor disputes.” In both types of

disputes, the RLA reflects a strong preference for

arbitration. Major disputes relate to “‘the formation of

collective agreements or efforts to secure them,’” while

minor disputes arise “out of grievances or out of the

interpretation or application of agreements concerning

rates of pay, rules, or working conditions.” Consol. Rail

Corp. v. Ry. Lab. Execs.’ Ass’n, 491 U.S. 299, 302 (1989)

(quotation marks omitted). For major disputes, parties

must engage in bargaining and mediation before the

National Mediation Board, but if that fails, the RLA

requires that the Board “as its final required action…to

induce the parties to submit their controversy to

arbitration.” 45 U.S.C. § 155. For minor disputes, the

preference for arbitration is even stronger. Minor

disputes are subject to “compulsory and binding

arbitration” before an adjustment board, which has

“exclusive jurisdiction.” Consol. Rail, 491 U.S. at 30304. “Judicial review of the arbitral decision is limited.”

Id. at 304.

13

B.

Expanding The FAA’s Transportation

Worker

Exemption

Creates

A

Regulatory Gap Congress Did Not

Intend.

The RLA applies only to the transportation

industry’s union-represented employees—and so does

not reach the nonunion or management employees like

Respondent here. Were respondent a ramp agent as

opposed to a ramp supervisor, her claims would

indisputably be subject to mandatory arbitration as a

“minor dispute” under the RLA. The FAA closes the

gap: upon promotion to supervisor, Saxon signed an

alternative dispute resolution agreement to submit to

individual arbitration and became subject to the FAA.

Pet. App. 26a.

Within the transportation industry, arbitration is

the rule by Congressional design. Respondent is asking

to be the exception. In so doing, she asks the Court to

pry open a regulatory gap Congress never intended.

Construing § 1’s exemption too broadly creates myriad

problems of workability and fairness, as the facts of this

case alone make clear. “Ramp supervisors and ramp

agents alike spend a significant amount of their time

engaged in physically loading baggage and cargo onto

planes.” Pet. App. 10a. Because the Seventh Circuit

believes “that cargo-loading work is interstate or foreign

commerce,” it held that Saxon would be exempt from

mandatory arbitration of her dispute under the FAA.

Yet the employment disputes of the ramp agents she

works alongside—whose job is actually loading the

cargo—are subject to mandatory arbitration under the

14

RLA. See Pet. App. 9a (explaining that the act of cargo

loading “is officially the role of the ramp agents, not the

supervisors”); see also Crooms v. S.W. Airlines Co., 459

F. Supp. 3d 1041, 1046-47 (N.D. Ill. 2020) (holding that in

a different dispute with Southwest that began when she

worked as a ramp agent, Saxon was “represented by the

Union” and therefore subject to arbitration under the

RLA, and also noting that the complained-of conditions

were the same for ramp agents and supervisors). Yet the

Seventh Circuit leaves open the question of “whether

supervision of cargo loading alone would suffice.” Pet.

App. 10a. Under this reasoning, Saxon is exempt from

arbitration only because she sometimes does the very

same work as employees for which Congress expressly

provided compulsory arbitration. This is the very

definition of treating similarly situated employees

differently.

Not only would weakening the FAA create

different treatment for employees based on a job title as

opposed to the tasks they perform, but it would also lead

to differential treatment based on state of residence.

Airline employees covered under the FAA sign

substantially similar arbitration agreements, regardless

of the state in which they work. But when workers are

exempt from the FAA, the inquiry over arbitrability does

not end there—instead, courts and litigants must turn to

difficult choice-of-law questions, a panoply of state

arbitration statutes and, depending on the claim, state

employment laws. Indeed, this Court has recognized that

the benefits of arbitration agreements “may be of

particular importance in employment litigation” because

of “the difficult choice-of-law questions that are often

15

presented in disputes arising from the employment

relationship…and the necessity of bifurcation of

proceedings in those cases where state law precludes

arbitration of certain types of employment claims but

not others.” Cir. City Stores, 532 U.S. at 123 (citing

Egelhoff v. Egelhoff, 532 U.S. 141, 149 (2001) for its

explanation of possible “choice-of-law problems”

presented by state laws affecting administration of

Employment Retirement Income Security Act of 1974

plans). For the airline industry, expanding the FAA’s

residual exemption would result in a dizzying array of

litigation, substantial litigation costs for airlines and

employees alike, and the risk that similarly situated

employees would be treated differently based on

geographic accident.

Congress did not intend this result. The residual

exemption to § 1, as a carve-out to a liberal arbitration

scheme, ought to “be afforded a narrow construction,” as

this Court has previously instructed. Cir. City Stores,

532 U.S. at 113. Anything else will disrupt employers’

carefully crafted arbitration procedures, create

distinctions without differences between employees, and

subvert Congress’s balanced, uniform protections for

the nation’s transportation industry.

II.

Clear And Uniform Rules Are Critical To

Realizing The Benefits Of Arbitration For The

Commercial Aviation Industry.

Just as it is critical that § 1 of the FAA “be

afforded a narrow construction,” it must also be given a

“precise reading.” Cir. City Stores, 532 U.S. at 118-19.

16

Amorphous inquiries into whether a dispute is

arbitrable “call into doubt the efficacy of alternative

dispute resolution procedures adopted by many of the

Nation’s employers, in the process undermining the

FAA’s proarbitration purposes and ‘breeding litigation

from a statute that seeks to avoid it.’” Cir. City Stores,

532 U.S. at 123 (quoting Allied-Bruce Terminix Cos. v.

Dobson, 513 U.S 265, 275 (1995)).

Indeed, various circuit judges have already

warned of the undesirable consequences of misguided,

fact-specific tests. In an earlier Seventh Circuit case,

then-Judge Barrett underscored that without a focus on

“the worker’s active engagement in the enterprise of

moving goods across interstate lines,” as “Circuit City

demands,” the statute “would sweep in numerous

categories of workers whose occupations have nothing

to do with interstate transport—for example, dry

cleaners who deliver pressed shirts manufactured in

Taiwan and ice cream truck drivers selling treats made

with milk from an out-of-state dairy.” Wallace v.

Grubhub Holdings, Inc., 970 F.3d 798, 802 (7th Cir.

2020).

Other judges have likewise recognized the

dangers of a broad and unbounded test that could sweep

in thousands if not millions of workers and requires

“perplexing and costly factual inquiries that in turn

create uncertainty as to whether a dispute is arbitrable.”

Rittmann v. Amazon.com, Inc., 971 F.3d 904, 921 (9th

Cir. 2020) (Bress, J., dissenting), cert. denied, 141 S. Ct.

1374 (2021). In an increasingly global marketplace

where nearly every product contains, at the very least,

17

component parts that crossed state or country lines at

some point, failing to adhere to the text of § 1 invites

questions that are “more a matter of metaphysics than

legal reasoning” and which “have no right answer, at

least according to the tools available to lawyers and

judges.” Id. at 937 (Bress, J., dissenting); see also

Harper v. Amazon.com Services, Inc., 12 F.4th 287, 29899 (3d Cir. 2021) (Matey, J., concurring) (explaining that

in an “increasingly borderless commercial world,” the

breadth and corresponding uncertainty of the Third

Circuit’s standard “seems likely to stump both district

courts and litigants”).

Malleable standards “will inevitably mean more

complex civil litigation over the availability of a private

dispute resolution mechanism that is supposed to itself

reduce costs,” a result that is directly “contrary to the

FAA’s objective that the intended efficiencies of

arbitration should not be overwhelmed by the

inefficiency of litigation over whether a dispute is

arbitrable.” Rittman, 971 F.3d at 921, 937 (Bress, J.,

dissenting). Without course correction, the route ahead

will be costly and inefficient for litigants and courts

alike.

A.

The Seventh Circuit’s Test Injects

Uncertainty Into The Industry And

Creates An Exception That Swallows

The Rule.

Instead of a “precise” and “narrow” construction,

the Seventh Circuit’s interpretation of § 1 is costly, factintensive and leaves unclear which of the airline

18

industry’s myriad workers fall into the FAA’s residual

transportation worker exemption. Cir. City Stores, 532

U.S. at 113, 118-19.

The Seventh Circuit suggests that an employee is

a “transportation worker” for the purpose of this clause

so long as their work is “closely related” enough to

interstate

commerce

that

it

“is

interstate

transportation.” Pet. App. 19a. (emphasis added).

Under its reasoning, because Respondent’s work “both

immediately and necessarily precedes” interstate

transportation, it is itself interstate transportation—and

Respondent is exempt from the FAA. Pet. App. 19a.

This “know it when we see it” test is standardless and

unpredictable, turning on a court’s sense of when a job

that does not actually transport goods or passengers in

interstate

commerce

nonetheless

“is

actual

transportation.” Pet. App. 10a.

The impossible nature of the line-drawing

exercise the Seventh Circuit requires is readily

apparent when considering some of the many types of

workers that airlines employ.

Customer Service Agents, for example, take

tickets at the jetway before passengers board the plane.

Sometimes, as in Eastus v. ISS Facility Services, Inc.,

960 F.3d 207 (5th Cir. 2020), they are referred to as gate

or ticketing agents.

Nomenclature aside, these

employees may also help load baggage and monitor and

adjust the proper weight and balance of the aircraft.

Their work “immediately and necessarily” precedes the

interstate transportation of goods, and like ramp agent

19

supervisors, they sometimes assist with loading the

plane. See Eastus, 960 F.3d at 208 (describing the work

of Heidi Eastus, a gate agent supervisor, as

“supervis[ing] 25 part-time and 2 full-time ticketing and

gate agents” who “ticketed passengers, accepted or

rejected baggage and goods, issued tags for all baggage

and goods, and placed baggage and goods on conveyor

belts to transport for additional security screening and

loading,” and as necessary, “would herself handle

passengers’ luggage”). The Seventh Circuit insists that

just because airline ramp supervisors are considered

transportation workers “does not necessarily mean that

the work of a ticketing or gate agents [sic] qualify [as

well].” Pet. App. 19a. Yet simply because the Seventh

Circuit says so in dicta does not make it so. Disputes

over these types of line-drawing exercises will

proliferate given the size of the aviation industry

causing substantial costs to courts and airlines alike.

Customer assistance representatives help check

in customers’ baggage at kiosks, review customers’

documents, and accept customers’ self-tagged baggage.

Again, their work “necessarily precedes” the movement

of planes across the border. Are they “transportation

workers” under the FAA?

The ground operations crew loads and unloads

customers’ bags, operates ground-based vehicles,

coordinates aircraft service, helps prepare aircraft

cabins for departure, and assists with ramp-service

duties, including waste disposal. Do their duties

overlap with the duties of employees who have cargo

20

handling control such that they would fall into the

exemption in the Seventh Circuit?

Aircraft maintenance technicians service

planes, doing everything from preventive maintenance

and inspections to replacing and repairing parts.

Would the Seventh Circuit think that their work “is

interstate transportation”? Pet. App. 19a. Certainly,

they are an “essential” part of the transportation of the

goods on board, and in many cases, their work

“immediately and necessarily precedes the moment

the vehicle and goods cross the border.” Id. But

mechanics do not travel in interstate commerce

themselves in their professional capacity, nor do they

transport passengers. How the Seventh Circuit would

categorize their position is simply unclear.

Ground

service equipment technicians

troubleshoot, repair, and perform preventive

maintenance on ground service equipment. Though

unlike the aircraft mechanics, they do not work on the

actual vehicle that crosses borders, nonetheless their

work is essential to airline operations and without

them, no planes could safely take off or land. Is their

work any less “closely related” to transportation?

Facility maintenance technicians maintain

airlines’ buildings and troubleshoot electrical

(including high-voltage) issues. As with ground

service equipment technicians, their work enables,

and is essential to, aircraft travel and the commerce it

supports. Do they fall into the exemption under the

Seventh Circuit’s approach? Likely not, but will

21

airlines be forced to contend with an employee-byemployee inquiry into each task a technician

performed to determine whether disputes can be

arbitrated?

Fleet service agents handle items on and off

aircraft, including carts, containers, and trucks. They

receive, weigh, document, and deliver cargo to and

from warehouses and loading docks and transport

items between terminals and aircraft. These agents

do not move goods across borders in interstate

commerce—but their job does essentially involve

“[l]oading and unloading cargo onto a vehicle so that it

may be moved interstate.” Pet. App. 10a. Are they

transportation workers under the Seventh Circuit’s

test—or is there a distinction between fleet service

agents and ramp cargo loaders such that one’s work

“is transportation” in the way that the other’s is not?

The uncertainty of this standard makes it

extremely likely that similarly situated employees will be

treated differently in different places. Suppose that the

Western District of Wisconsin decides that in addition to

ramp supervisors like Respondent here, the work of

aircraft mechanics is “closely related” enough to

interstate

commerce

that

it

“is

interstate

transportation,” while the Southern District of Indiana

disagrees? Should an airline litigate the disputes of their

aircraft mechanics at Dane County Regional Airport in

Madison in the courts, but arbitrate the disputes of

employees in the same job description who work at

Indianapolis International Airport? Or, what if the

disagreement

arises

within

the

District

of

22

Massachusetts?

Where does that leave relations

between aircraft mechanics at Boston’s Logan Airport

versus the mechanics in Indianapolis—though both sets

of mechanics may do the same job, for the same airline,

at large air travel hubs? See, e.g., Waithaka v.

Amazon.com, Inc., 966 F.3d 10, 20 & n.9 (1st Cir. 2020)

(reserving the question of whether workers are

“practically a part” of interstate transportation such as

workers “servicing cars or trucks used to make

deliveries” fall under the FAA’s § 1 exemption), cert.

denied, 141 S. Ct. 2794 (2021).

Moreover, though the Seventh Circuit insists that

its test evaluates “the broader occupation, not the

individual worker,” Pet. App. 5a, it in fact requires

individualized assessment for each employee. Under its

reasoning, Saxon is exempt from arbitration because she

periodically loads and unloads cargo, even though it is

not in her job description as a supervisor. Pet. App. 9a10a. Would this also be the case for airline ramp

supervisors at a less busy airport, where an airline ramp

supervisor may not be required to pitch in and handle

cargo, the way they are at Chicago’s Midway airport—

which bills itself as one of the world’s “Busiest Square

Miles”? Midway Airport, (@fly2midway), Instagram,

https://bit.ly/340zce7 (last visited Jan. 27, 2022). Would

these two workers, employed by the same carrier, with

identical job titles, have different entitlements to

arbitration? The Seventh Circuit does not provide an

answer. See Pet. App. 10a (reserving the question of

whether “supervision of cargo loading alone would

suffice”). Logically, however, its reasoning requires

arbitration for one employee, but exempts the other.

23

As another example, consider a member of the

ground operations crew at ATL, whose job might entail

driving a ground vehicle that ferries bags from one plane

to a passenger’s connecting flight. That worker never

leaves the airport, let alone the state. Under the

Seventh Circuit’s test, would their work be “closely

related” to interstate commerce? How would a member

of the ground operations crew at Burlington

International Airport (BTV)—which is not typically a

connecting airport—fare under the same test? Does it

matter if the cargo is customer baggage, which generally

consists of personal possessions, versus freight, which

generally consists of goods for sale? The day-to-day job

of a ground operations worker or ramp cargo loader at

an airport like BTV, which services mostly passenger

airlines, is very different from the job of a ground

operations worker at either Ted Stevens Anchorage

International Airport, a major freight hub, or an

employee at Memphis International Airport, FedEx’s

main airport. See Greg Wolf, Ted Stevens Anchorage

International Airport Serves the World, Alaska

Business (Feb. 2019), https://bit.ly/3u0TXkv.

The

Seventh Circuit’s test, in reality, requires airlines and

courts to dig deep into the individual facts of each

employee’s workday, rather than conducting a simple

review of their job description.

Further, by asking whether an employee’s work

is “closely related” to interstate transportation, the

Seventh Circuit creates an exception with the potential

to swallow the rule—particularly for companies whose

business is transportation, such as airlines. Aviation

employs hundreds of thousands of workers, most of

24

whom do not themselves cross state lines, but all of

whom are essential to its work. Under the Seventh

Circuit’s test, one of A4A’s member airlines estimated

that as many of 90% of their workers—in essence, all

workers who are based out of airports instead of

corporate facilities—could argue that they are exempt

from the FAA. The Seventh Circuit insists this is not

the case, dismissing fears of “a slippery slope.” Pet. App.

18a. Regardless of whether its prediction is correct, its

malleable standard guarantees repeated rounds of factintensive litigation—burdening airlines, employees, and

courts alike.

B.

This Court Should Adopt Petitioner’s

Interpretation Of § 1’s Residual Clause.

Under the Seventh Circuit’s test, airlines and

employers must inevitably engage in protracted

litigation over whether a dispute is arbitrable before

even reaching the substance of the dispute itself.

Disagreements then flounder in state-by-state inquiries

over arbitrability that introduce variation into identical

employees’ terms of employment and confound lower

courts with murky-line drawing exercises. This is not

the result the FAA intended. Nor is it a result beneficial

to employees, airlines, or the courts.

In contrast to the Seventh Circuit, Petitioner’s

position returns the understanding of the residual

exemption to § 1 to its text and the meaning Congress

intended: § 1’s exemption reaches only classes of

workers that participate directly in the cross-border

transportation of goods or people, which means actually

25

moving goods or people through the channels of foreign

or interstate commerce.

This standard is clear,

objective, narrow, and most importantly, predictable.

Rather than asking philosophically whether a worker’s

job “is transportation,” Pet. App. 19a, prospective

litigants and courts can instead look to “the extent to

which…workers cross state or international lines,” a

standard that “is relatively easy to apply.” Rittmann,

971 F.3d at 928 (Bress, J., dissenting). Moreover, this

standard treats workers with the same job title the

same, regardless of the state or size of the airport in

which they work. Neither a supervisor at Midway nor a

supervisor at a smaller airport crosses state lines. Nor

does an aircraft mechanic at Boston’s Logan airport or

Indiana’s Indianapolis airport, or a ground operations

worker at Atlanta’s major hub or Burlington’s smaller

operation.

And finally, this standard closes the gap in the

arbitration of disputes in the transportation industry

that the Seventh Circuit opened. To arbitrate disputes

of ramp agents under the RLA, but to litigate the

disputes of ramp supervisors because they do the work of

ramp agents, is an absurd result that implicates basic

questions of fairness in employer-employee relations.

The practical result will be an exacerbation, rather than

a resolution, of labor-management issues.

26

CONCLUSION

This Court should adoption Petitioner’s

interpretation of the § 1 exemption and reverse the

judgment of the Seventh Circuit.

Respectfully submitted,

Patricia N. Vercelli

Riva Parker

AIRLINES FOR AMERICA

1275 Pennsylvania Ave. NW

Washington, DC 20004

Ishan K. Bhabha

Counsel of Record

Marc L. Warren

Laurel Raymond

JENNER & BLOCK LLP

1099 New York Ave. NW

Suite 900

Washington, DC 20001

(202) 639-6000

Ibhabha@jenner.com

Counsel for Amici Curiae